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2005 DIGILAW 30 (PNJ)

Ranjit Singh v. Mangal Singh

2005-01-10

HEMANT GUPTA

body2005
Judgment Hemant Gupta, J. 1. The defendants are in second appeal aggrieved against the judgment and decree passed by the Courts whereby suit for declaration that the plaintiffs are entitled to possession of the suit land from the Receiver appointed in the proceedings under Section 145/146 of the Code of Criminal Procedure (hereinafter referred to as the Code) was decreed. 2. It is the case of the plaintiff that the suit land was attached by the Sub Divisional Magistrate in the proceedings under Section 145 of the Code and the possession was taken from them. Since the Sub Divisional Magistrate has ordered that the matter be decided by a competent Civil Court, therefore, the plaintiff filed the suit for declaration on the ground that they were in possession as tenants on the suit land and possession was taken of the suit land from the plaintiffs and thus they are entitled to the said possession from the Receiver. 3. On the other hand it was the stand of the defendants that the plaintiffs were never in possession of the suit land and in fact defendant No. 1 to 3 purchased the suit land from Gurdev Kaur and Gurbachan Singh vide registered sale deed dated 22.3.1976 and that they have been in possession since the date of purchase and that the Receiver has taken possession from the defendants. 4. The learned Trial Court found that the possession of the plaintiffs of the suit land was that of a tenant, relying upon Jamabandi Ex.P10, orders in proceeding before the Sub Divisional Magistrate Exs.P.1 to P.8 and copy of the order Ex.P.15 of correction of Khasra Girdawari entries in favour of the plaintiff. It was found that the vendors of Gurdev Kaur and Gurbachan Singh themselves were not reflected as the persons in possession in the revenue record, therefore the vendors of the defendant could not transfer the possession to the defendants. Thus, it was found that the plaintiffs are proved to be in possession of the suit land as tenant. 5. Reliance of the defendants was on the order Ex.D.8 whereby entries in Khasra Girdawaris were corrected. The learned Trial Court found that the entries of correction in Khasra Girdawari could not be corrected such entries were incorporated in the Jamabandi Ex.P.9 and therefore, after Khasra Girdawari entries are incorporated in Jamabandi, the same cannot be corrected. 6. 5. Reliance of the defendants was on the order Ex.D.8 whereby entries in Khasra Girdawaris were corrected. The learned Trial Court found that the entries of correction in Khasra Girdawari could not be corrected such entries were incorporated in the Jamabandi Ex.P.9 and therefore, after Khasra Girdawari entries are incorporated in Jamabandi, the same cannot be corrected. 6. The learned First Appellate Court affirmed the findings recorded by the learned Trial Court particularly arguments based on order Ex.D.8. It was found that such order has been passed in favour of the defendants only for the reason that there was dispute regarding possession and a criminal case has been instituted against the plaintiff. It was found by the learned Additional Session Judge in the judgment Ex.P.11 that the plaintiffs were exercising right of private defence and that act of ploughing the land by Jagir and others were acts of trespass and thus acquitted the plaintiffs in the criminal case. Still further, it was also found that Gurdev Kaur admitted the possession of the plaintiff as that of a tenant vide Ex.P.12 and therefore, the entries made in Khasra Girdawari stands rebutted. Still further, it has been found that in an application Ex.P.1 dated 27.4.1988 made by the defendants before the Sub Divisional Magistrate, it is admitted that the plaintiffs have harvested the crop and have kept the same in their Kothas. The Court also found that the SHO of Police Station Bhadaur made a report Ex.P.3 that the land in possession of the plaintiffs. 7. Before this Court the learned counsel for the appellants has sought to dispute the concurrent findings of the Courts that the possession of the plaintiff was that of a tenant prior to appointment of Receiver in the proceedings under the Code. The said findings are sought to be disputed only by way of reappreciation of evidence particularly relying upon the order Ex.D.8 and order Ex.D.6 whereby the revision against the order Ex.D.8 was dismissed for want of prosecution. 8. Both the Courts have discussed the order Ex.D.8 passed by the Assistant Collector First Grade correcting Khasra Girdawari in favour of defendants. It has been found that the said order has been passed after the entries in the Jamabandi on the basis of uncorrected Khasra Girdawari was entered which is not permissible. 8. Both the Courts have discussed the order Ex.D.8 passed by the Assistant Collector First Grade correcting Khasra Girdawari in favour of defendants. It has been found that the said order has been passed after the entries in the Jamabandi on the basis of uncorrected Khasra Girdawari was entered which is not permissible. Still further, order Ex.D.8 has been passed only on the basis of initiation of criminal proceedings which is not sufficient to hold the possession of the defendants. 9. Mere fact that the revision against the said order was dismissed for want of prosecution vide order Ex.D.6 is not- relevant as it will amount to an order of affirmance of the order passed by the Collector. The revenue record, the statements of defendant Gurdev Kaur Ex.P. 12 before the Sub Divisional Magistrate in the proceedings under Section 145 of the Code leave no manner of doubt that the possession of the plaintiffs was that of a tenant since long. It is not the case of the defendants that the tenancy rights were relinquished by the plaintiffs at any time. Neither there is plea nor there is any proof of relinquishment of tenancy rights. Therefore, it is impossible to believe that the defendant-appellants can enter into possession of the land in dispute even though there is no surrender of possession as tenant by the plaintiffs. Therefore, I do not find any merit in the arguments raised by the appellants that it was the defendants from whom the possession was taken by the Receiver. 10. Faced with the said situation, the learned counsel for the appellant relies upon the order dated 13.1.1994 passed in L.P.A. No. 100 of 1983 - Ranjit Singh and Ors. V/s. Kaka Singh and Ors. The said judgment has arisen out of a suit for specific performance filed against Gurcharan Singh with whom the plaintiffs in the said suit entered into an agreement for purchase of land measuring 66 kanals 5 marlas on 30.4.1968. On account of failure of Gurcharan Singh to execute the sale deed on or before 15.6.1969, the plaintiffs in the said suit filed a suit for specific performance. However, Gurcharan Singh executed two gift deeds dated 20.7.1970 and 26.8.170 in favour of Gurdev Kaur wife of his brother. On account of failure of Gurcharan Singh to execute the sale deed on or before 15.6.1969, the plaintiffs in the said suit filed a suit for specific performance. However, Gurcharan Singh executed two gift deeds dated 20.7.1970 and 26.8.170 in favour of Gurdev Kaur wife of his brother. The suit for specific performance was filed on 27.8.1970 which was dismissed by the learned trial Court but the first appeal was allowed by the learned Single Judge of this Court. In L.P.A. against the said judgment and decree, the respondents No. 1 to 3 in the said appeal entered into settlement in respect of one fourth of the property in dispute in favour of the appellants in the said suit who are appellants in the present appeal as well. By said compromise, the suit to the extent of one fourth share of Kaka Singh, Piara Singh and Nachhatar Singh was dismissed, whereas the decree in respect of remaining three fourth share of the land was maintained. It may be mentioned that the present appellants are purchasers of the land in dispute from Gurdev Kaur. 11. It is argued on the basis of the said judgment that the plaintiff- respondents in the present appeal are owners of three fourth share of the land measuring 66 kanals 5 marlas and thus they cannot claim tenancy rights in respect of suit land. However, I am unable to accept such argument raised by the learned counsel for the appellants. Even if the said judgment being subsequent event is admitted in evidence, a perusal thereof does not show that the plaintiffs in the said suit are also the plaintiffs in the present suit as well. Sons of Ajaib Singh are the respondents No. 2 and 3 in the said appeal, whereas respondents No.8 and 9 have been impleaded as minor sons of Kahan Singh, through their father Kahan Singh. Kaha Singh and Ajaib Singh are plaintiff No. 2 and 3, respectively in the present proceedings. Mangal Singh plaintiff No. 1 is not party in the said proceedings. The agreement dated 30.4.1968 is not on record to show that who were the purchasers of the land measuring 66 kanals 5 marlas. Thus in the absence of complete facts, it is not possible to hold that the rights of the plaintiffs as tenants have merged in the ownership rights by virtue of said judgment and decree. 12. The agreement dated 30.4.1968 is not on record to show that who were the purchasers of the land measuring 66 kanals 5 marlas. Thus in the absence of complete facts, it is not possible to hold that the rights of the plaintiffs as tenants have merged in the ownership rights by virtue of said judgment and decree. 12. Even if the plaintiffs are owners of three fourth share of land measuring 66 kanals 5 marlas that will not affect the tenancy rights of the plaintiffs in respect of the remaining land. Whether the tenancy rights stood merged with the ownership rights, when ownership rights on the part of the tenanted premises have been acquired by transferee came up for consideration before the Hon ble Supreme Court in Nalakath Sainuddin V/s. Koorikadan Sulaiman, (2002)6 S.C.C. 1. The Hon ble Supreme Court considered the provisions of Sections 109 and 111 Clause (d) of the transfer of Property Act. The Court approved the view of the Division Bench of Madhya Pradesh High Court in B.P. Pathak V/s. Dr. Riyazuddin, A.I.R. 1976 M.P. 55 and of Full Bench judgment Sardarilal V/s. Narayanlal, A.I.R. 1980 M.P. 8 (F.B.). The Court held to the following effect: 22. The common law rule that a landlord cannot split the unity and integrity of the tenancy so as to result in possession over a part of the demised premises being recovered from the tenant, does not have applicability in India because of Section 109 of the TP Act which provides a statutory exception to the rule and enables as assignee of a part of the reversion to exercise all the rights of the landlord in respect of the portion respecting which the reversion is so assigned subject, of course, to the other covenant running with the land. xx xx 23. xx xx Therefore, by virtue of Section 109 of the T.P. Act, such transferee is entitled to evict the tenant from the part transferred to him not only when the lease had been determined before the transfer but also if it is determined before the transfer but also if it is determined after the transfer in any of the circumstances mentioned in the Section 111. Thus he can terminate by a quit notice the lease in respect of the property transferred to him." 13. Thus he can terminate by a quit notice the lease in respect of the property transferred to him." 13. The Supreme Court was considering a case where sub-tenant inducted by a tenant in part of the premises had acquired ownership rights in respect of the entire property. In the present case, even if the plaintiffs have become owners of the three fourth of the share of the land measuring 66 kanals 5 marlas and the appellants herein are owners to the extent of one fourth share, the plaintiffs shall be deemed to be statutory attorned to the appellants as tenant in respect of 1/4 share in view Section 109 of the Transfer of Property Act. A transferor i.e. the defendants are to possess all the liabilities and the lessee i.e. the plaintiffs are subject to all the rights in respect of the part of the property transferred. 14. Thus, I am of the opinion that the judgment of Letters Patent Bench relied upon by the appellants provides no assistance to the appellants. Even if the plaintiffs have become owners of three fourth share of the land on account of purchase by virtue of a decree in the suit for specific performance, they shall continue to be tenant in respect of remaining one fourth share under the appellants. 15. Thus, I do not find any illegality or irregularity in the judgment and decree passed by the first Appellate Court warranting interference by this Court in second appeal. Consequently, the appeal is dismissed with no order as to costs.