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2010 DIGILAW 1292 (PNJ)

Mulk Raj v. Sant Ram (dead) through LRs.

2010-03-25

VINOD K.SHARMA

body2010
JUDGMENT Mr. Vinod K. Sharma, J.: - This regular second appeal, by the defendant/appellant, is directed against the judgment and decree dated 27.02.1984, passed by the learned owner appellate Court, vide which the suit filed by the plaintiff/respondent, for permanent injunction, restraining the defendant/appellant from dispossessing the plaintiff/respondent from property in dispute, except in due process of law, stands decreed. 2. The plaintiff/respondent filed a suit on the pleadings, that the land in dispute was under his cultivating possession as tenant for a number of years. The tenancy of the plaintiff/respondent was duly incorporated in the jamabandi for the year 1976-77 and also in khasra girdawris from kharif 1977 onwards. The plaintiff claimed, that he had sown rabi crop at the time of the institution of the suit, after harvesting previous crop. In the year 1971, the defendant/appellant threatened, him and one Ghasita Singh and Buta Singh, who were in possession of some other land in the village as tenants. This led the plaintiff, Ghasita Sirigh and Buta Singh to file-suit for permanent injunction, restraining the defendant from interfering in their possession on the land, including the land in dispute. The suit was instituted in the Court of Sh.G.L.Chopra, Sub Judge, 1st Class, Gurdaspur, on 07.08.1971 and the counsel for the defendant, namely, Sh.Behari Lal Nanda, Advocate, made a statement in the Court on 09.10.1973 stating that the plaintiff, besides Ghasita Singh and Buta Singh, were in possession of the land as tenant, and further that their possession will be disturbed only in accordance with law, and not otherwise. That he will not use any force. On the undertaking given, the suit was dismissed as withdrawn on 09.10.1973. 3. In the year 1974, the defendant/appellant filed a suit for possession of the land measuring 22 kanals 10 marlas against Mohinder Singh and 19 others. The land, including half share of killa Nos.6/2, 7/1, 6/1, 8/2, 9/1, 7/2 and 18/1 of rectangle No.16 and half share of killa No.1 of rectangle No.70, 1/4th share of kill a No.3/2 of rectangle No.16 and killa No.6/1 of rectangle No.17 besides 1/24th share out of the land comprised in killa Nos.3/1, 2/4 and 2/2 of rectangle No.16 at village Rasulpur Gagrotian. The killa numbers, referred to above, were said to be in possession of the plaintiff/respondent as tenant. The killa numbers, referred to above, were said to be in possession of the plaintiff/respondent as tenant. In the suit some other persons, who were cultivating the land, other than the land which was subject matter of this suit, were also joined as defendants and a decree of possession­ against all of them, including the plaintiff, was passed in favour of the defendant/appellant Mulk Raj. 4. The Judgment and decree passed by the learned trial Court was challenged on the plea, that the plaintiff/respondent and other tenants, could only be dispossessed under the Punjab Security of Land Tenures Act (hereinafter referred to as ‘the act’) and the jurisdiction of the civil Court to pass decree was challenged. Rajinder Singh, Mohinder Singh, Parkash Kaur and Manjit Kasur, sons and daughters of Harnam Singh, claimed to be mortgagees of the land in dispute, the part of which is again in dispute in the present suit. The suit was decided by Sh. Balwant Singh, Sub Judge, Gurdaspur on 31.08.1978. 5. Keeping in view that the suit was partly allowed, the mortgagees and the defendant/appellant filed cross-appeals against the judgment and decree passed by the learned trial Court. 6. The appeal was heard by Smt. Bimla Gautam, the then learned Additional District Judge, Gurdaspur, wherein compromise was effected between Mulk Raj, defendant/ appellant, on one side and mortgagees on the other side. The terms of the compromise were, that the defendant/appellant would pay a sum of Rs.17,000/- (Rupees seventeen thousand only) to Rajinder Singh, Mohinder Singh, Parkash Kaur, Rajinder Kaur and Manjit Kaur as mortgage money by 20.12.1980 and in that event, his suit would stand decreed, but the decree would have no effect on the rights of the tenants, including the plaintiff/respondent, who would continue to be the tenant over the suit land. 7. The plaintiff, therefore pleaded, that in spite of compromise decree of the Court of the learned Additional District Judge, Gurdaspur, the defendant/appellant insisted that the. plaintiff/respondent, should vacate his possession from the suit land or be would use force to achieve that object. It was, thus, claimed by the plaintiff/respondent, that he was entitled to remain in possession of the suit land as tenant till’ he was evicted in accordance with the Act. 8. plaintiff/respondent, should vacate his possession from the suit land or be would use force to achieve that object. It was, thus, claimed by the plaintiff/respondent, that he was entitled to remain in possession of the suit land as tenant till’ he was evicted in accordance with the Act. 8. The suit was contested by the defendant/appellant, by pleading therein that the plaintiff/respondent, was not in possession of the suit land, and that it was the defendant/appellant, who was in possession of the disputed property. He claimed to have sown rabi crop when the suit was filed. The case set up by the defendant/appellant was, that Surat Singh was the owner of the suit hind, who mortgaged it in favour of Mohinder Singh, Rajinder Singh and others. Plaintiff/respondent was inducted as tenant by the said mortgagees. The defendant/appellant purchased this land along with some other land from Surat Singh, and got it redeemed from the mortgagees by the order of the learned Additional District Judge, Gurdaspur. The plaintiff/respondent and other tenants inducted by the mortgagees were parties in the said suit, and they were aware of their legal rights. The defendant/appellant, thus, pleaded that the plaintiff as well as other tenants surrendered possession of entire land on redemption of the mortgage. This was said to have been done by virtue of intervention of the respectable. It was also the case set up by the defendant/appellant that plaintiff/respondent was an old man and the land was cultivated by his sons, who had prepared the land for sowing wheat crop. The written compromise dated 14.12.1980, surrendering the actual possession, in favour of the defendant/appellant was said to have been signed by Charan Dass. It was also the case of the defendant/appellant that the plaintiff, being a party in the suit failed to redeem the mortgage, was precluded from coming to Court for relief of injunction. It was admitted that the plaintiff/respondent had filed a suit in 1971, but at that time, the defendant/appellant had no right in the suit land, either as owner or as a mortgagor, his rights were recognized only in the year 1980 by decree of redemption, in which the plaintiff along with Buta Singh and Ghasita Singh were also parties along with the mortgagees. The other tenants i.e. Buta Singh and Ghasita Singh had surrendered possession in his favour. The other tenants i.e. Buta Singh and Ghasita Singh had surrendered possession in his favour. It was denied, that the rights of the plaintiff/respondent were protected by the Act. On the pleadings of the parties, the learned trial Court framed the following lssues:- “1. Whether the plaintiff himself surrendered the possession of the suit land to the defendant in or about December, 1980, after the compromise decree mentioned in para No.3 of the plaint ? OPD 2. Whether the plaintiff is entitled to the injunction prayed for? OPP 3. Relief” 9. On appreciation of evidence, the learned trial Court on issue No.1 held, that the plaintiff had not surrendered the possession of the suit land to the defendant in or about December, 1980, after the compromise decree, as mentioned in para No.3 of the plaint. Issue No.1, therefore, was decided against the defendant/appellant. 10. In view of the finding on issue No.1 as the plaintiff/respondent was held to be in possession of the property in dispute, he was held entitled to injunction to protect his possession against dispossession except with due process of law. 11. Consequently, the suit filed by the plaintiff/respondent was partly decreed by the learned trial Court holding, that as the plaintiff/respondent was inducted by the mortgagee, he was not entitled to protection under the Act, but his claim to protect his possession except in due process of law was accepted. 12. Plaintiff/respondent preferred an appeal against the finding of the learned trial Court holding, that the plaintiff was not entitled to benefit of the act. The defendant/ appellant also filed an appeal against the grant-of decree in favour of the plaintiff/ respondent. The appeal filed by the defendant/appellant was dismissed, whereas the appeal filed by the plaintiff/respondent was accepted. 13. The learned lower appellate Court accepted the appeal filed by the plaintiff/respondent by recording a finding, that mortgagee, besides being mortgagee was also co-sharer with Surat Singh predecessor-in-interest of the defendant/appellant. The learned lower appellate Court interpreted the compromise decree to hold, that the tenancy rights of the plaintiff/respondent were duly protected by passing the compromise decree, in the earlier suit between the parties. 14. The learned lower appellate Court interpreted the compromise decree to hold, that the tenancy rights of the plaintiff/respondent were duly protected by passing the compromise decree, in the earlier suit between the parties. 14. Appeal filed by the plaintiff/respondent was accepted and decree for permanent injunction, against the defendant/appellant, was passed, restraining him from dispossessing the defendant/appellant, was passed, restraining him from dispossessing the plaintiff/respondent or interfering with the possession of the plaintiff/respondent over the land measuring 28 kanals 9 marlas, as detailed in the headnote of the plaint, which was in possession of the plaintiff/respondent as tenant, except in due course of law namely, by means of ejectment proceedings under the Act. 15. Mr. D.S. Bali, learned senior counsel appearing on behalf of the appellant, contended, that this appeal raises the following substantial question of law:- “Whether a tenant of the mortgagee could claim protection under the Punjab Security of Land Tenures Act after the redemption of the land by the mortgagor?” 16. In support of the substantial question of law, the learned senior counsel for the appellant contended that a finding was recorded by the learned trial Court, that the plaintiff/respondent was inducted as a tenant by the mortgagees, and once this fact was proved by way of cogent evidence, then as per the settled law, the plaintiff/respondent was liable to be evicted along with the mortgagees, when the redemption order was passed in favour of the plaintiff/respondent. If by way of compromise the plaintiff was allowed to retain the possession, still his possession could be that of an unauthorized occupant, and not of a duly inducted tenant to claim protection of the Act. 17. The contention of the learned senior counsel for the appellant, therefore, was that learned trial Court was right in holding that the plaintiff/respondent was only entitled to injunction against his dispossession, except with due course of law, meaning thereby that he could be dispossessed, as unauthorized occupant of the land and not as statutory tenant, as held by the learned lower appellate Court. 18. On the basis of contentions referred to above, it was contended that the substantial question of law framed by answered in his favour and against the plaintiff/ respondent, and the decree passed by the learned lower appellate Court be set aside, and that of learned trial Court restored. 19. 18. On the basis of contentions referred to above, it was contended that the substantial question of law framed by answered in his favour and against the plaintiff/ respondent, and the decree passed by the learned lower appellate Court be set aside, and that of learned trial Court restored. 19. On merit, there is no force in the contentions raised by the learned senior counsel for the appellant. The contentions of the learned senior counsel could have been accepted only, in case, the plaintiff/respondent would have been inducted as tenant, by the mortgagee having no other interest in the property. In that eventuality, the plaintiff/respondent could be evicted, along with the mortgagees on redemption of the mortgage. But the situation in this case is totally different. The landlords of the plaintiff/ respondent, besides being mortgagees, were also co-sharers of the land. Therefore, induction of the plaintiff/respondent as tenant could not be merely by mortgagee, but also by co-sharer in possession and it was for this reason, that while ordering the redemption, in favour of the defendant/appellant, rights of the tenants were protected. 20. The defendant/appellant being party to the suit accepted the said arrangement and accepted the tenancy of the plaintiff/respondent. Once, it was proved, that the mortgagees were also co-sharers of the land along with mortgagor, then the induction of tenant could not be said to be by the mortgagee as contended. The decree passed earlier between the parties, therefore, cannot be said to be void or not enforceable in law, to contend that the status of the plaintiff/respondent would be that of trespasser only. The substantial question of law raised, therefore, in answered against the defendant/appellant by upholding the judgment and decree passed by the learned lower appellate Court. For the reasons stated, finding no merit in this appeal, it is ordered to be dismissed, but with no order as to costs.