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2005 DIGILAW 1082 (PNJ)

Bachan Singh v. Sudershan Chand

2005-10-10

B.K.SRIVASTAVA

body2005
JUDGMENT B.K. Srivastava, F.C. - Ejectment of the petitioner was ordered by the Assistant Collector, Grade-1, Batala on 9.4.2002 on account of non-payment of rent. The ejectment was upheld by the Collector, Gurdaspur on 5.6.2003 and by the Divisional Commissioner, Jalandhar on 5.8.2003. An earlier ejectment application filed by the landlord against the present petitioner was dismissed by the Assistant Collector vide order dated 22.11.1988 on the ground that the landlord was denying the tenancy of the petitioner and this provided a reasonable ground for non-payment of rent as it showed that the landlord was not accepting the rent. After dismissal of this ejectment application, the landlord tried to make up the deficiency by specifically asking the present petitioner (tenant) to pay rent and thus he recognized him as a tenant and asked for rent before moving the present (fresh) application for ejectment on the ground of non-payment of rent. 2. It is pertinent to mention that to avoid forcible dispossession the petitioners (tenants) filed suit on 15.11.1984 for permanent injunction to restrain the respondent Nos. 1 and 2 (landlords from interfering in their possession which was decreed on 20.9.1986 by the civil Court in their favour. The relation of petitioners and respondents was recognized as that of tenants and landlord in this decree. 3. My study in the case reveals that the landlord has sought ejectment of the tenant by framing a case of non-payment of rent by adopting a deceptive method after his earlier ejectment application was dismissed due to his denial of the tenancy which clearly led to impression of non-acceptance of rent by him. This time, the landlord sent a notice to the petitioner dated 11.12.1988 asking for rent for the period from Rabi 1982 to 1988. The respondent thereafter filed the ejectment application on the ground of non-payment of rent. 4. The case of the tenant is that after the above notice, the landlord came to the village in December, 1988 and a compromise was struck as per which the landlord agreed to accept grain in lieu of the rent for the period from Rabi 1982 to Rabi 1988. This was agreed upon as full and final payment of all the due. Payment of the old dues was not insisted with this deal because the old dues were not legally recoverable. This was agreed upon as full and final payment of all the due. Payment of the old dues was not insisted with this deal because the old dues were not legally recoverable. The landlord denies this compromise and argues that it is very hard to believe that after the background of earlier litigation, the tenant would have paid the grain in lieu of rent without taking a receipt. Witnesses of the village came forward to prove the compromise. There has been no effort on the landlords part to rebut their evidence. The question is whether the argument of the landlord can be accepted by disbelieving the evidence of witnesses who came forward to prove the compromise and the payment. I am of the view that the petitioner after having faced the threat of ejectment at the time of earlier ejectment application, would have certainly liked to compromise and not risk his tenancy due to default of payment. The onus is on the landlord to disprove the said compromise payment. He who seeks ejectment is obliged to prove the non- payment. 5. When Dial Chand, the father of the present respondents was alive, he used to receive wheat etc. as Batai under proper receipt. This is proved and is undisputed fact. After his death, the respondents i.e. his sons got the land mutated in their name as Khud Kasht and disclaimed the tenancy. This entry of Khud Kasht was challenged by the tenants successfully. The Girdawari was restored to them and the trick of the petitioners to remove the tenants from record thus failed. The tenants also moved civil court and got permanent injunction vide decree dated 20.8.1986 as mentioned in para (2) above. 6. The aforesaid compromise for the payment of Batai between the petitioners and the respondents during December, 1988 was proved before Assistant Collector Grade-1, Batala. After this, petitioners even started depositing rent through the Court. They produced challan forms (Ex. R25 to R30) vide which they had deposited the rent for the period from Kharif 1988 onwards in the Treasury with the permission of Assistant Collector Grade-1. They produced Jasdev Singh, Gurmej Singh, Sadha Singh as witnesses of the same village who confirmed the execution of the compromise and payment of rent in the form of produce for the crops from Rabi 1982 to Rabi 1988. They produced Jasdev Singh, Gurmej Singh, Sadha Singh as witnesses of the same village who confirmed the execution of the compromise and payment of rent in the form of produce for the crops from Rabi 1982 to Rabi 1988. In view of these facts the allegation of non-payment of rent warranting ejectment of the petitioners is not sustainable. 7. The Assistant Collector Grade-1, Batala has not given any contrary finding nor rebutted the evidence of the witnesses produced by the petitioners before him regarding compromise in 1988 for payment of rent etc. It is relevant to mention here that the petitioners had sought Assistant Collectors permission to deposit rent even earlier for the period Kharif 1981 to Kharif 1982 vide Ex. R24 - challan form for Rs. 7128) which was deposited with the permission of the Assistant Collector. The respondents challenged this permission and instead of accepting rent, filed ejectment application. Therefore, the Assistant Collectors observation that the rent from Rabi 1982 had not been paid is wrong. He did not appreciate this background which led to non-payment of rent after 1982. The landlords claimed that the petitioners were not their tenants nor they were in possession of the land in question. They opposed the khasra girdawari case upto the court of Commissioner. 8. The Collector falled to consider the grounds taken before him by the petitioners. He observed that single default of payment was sufficient for eviction of tenant. He wrongly relied upon the citation regarding single default without going into the merits of the case and circumstances under which the payment was not made by the petitioner. The Commissioner also failed to adjudicate the grounds taken by the petitioner before him. He dismissed the revision on the ground that the lower Courts had passed concurrent orders. 9. The respondents have not rebutted the evidence regarding the compromise, their earlier non-acceptance of rent and denial of the tenancy as such. Upto the year 1988 the respondents were opposing the tenancy and thereafter they accepted the petitioners as their tenants but claimed rent from Rabi 1982. In fact, after the death of Dial Chand (landlord), the present respondents got sanctioned the mutation of his inheritance in their name on 16.6.1979. The revenue officials changed the column of possession as "Khud Kasht" and omitted the name of tenants from that column. In fact, after the death of Dial Chand (landlord), the present respondents got sanctioned the mutation of his inheritance in their name on 16.6.1979. The revenue officials changed the column of possession as "Khud Kasht" and omitted the name of tenants from that column. The respondents claimed their possession on the basis of the entries in the revenue record and refused to accept the petitioners as their tenants. The case of correction of khasra girdawari was also opposed by them upto the Court of Commissioner. Only after the verdict of civil court of 1986 vide which the petitioners were held in possession of the suit property, the respondents claimed rent with effect from Rabi 1982. These facts were not considered by the lower Courts. Moreover after 1988, the petitioners deposited the rent with the treasury with due permission of Assistant Collector, Grade-I. Thus they cannot be held to be defaulters. As already mentioned, the petitioners had even earlier deposited the rent in 1984 (Ex. R24) with the permission of Assistant Collector Grade-II for the crop 1981 to 1982. 10. In view of the above observations all the three impugned orders are set aside. The petitioners continue as tenants. They must pay the arrears which may have fallen due from the time of last rent deposited by the petitioners through the Court of Assistant Collector Grade-II at the rate of 1/3rd of the produce. In future they should continue to pay a sum equivalent to the price of 1/3rd of standard produce/Naksha Normal at the rate of governments support price. Announced Petition allowed.