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2012 DIGILAW 1618 (PNJ)

Piara Singh v. Baldev Singh

2012-11-15

L.N.MITTAL

body2012
JUDGMENT Mr. L.N. Mittal, J.: (Oral) - This is second appeal by plaintiff-Piara Singh who was successful in the trial court but has been non-suited by the lower appellate Court. 2. Suit land measuring 4 kanals out of 11 kanals comprised of khasra Nos.405/1(3-0) and 406 (8-0) was sold by defendants No.1 and 2 (proforma respondents No.2 and 3) (since given up in the trial Court) to Baldev Singh-defendant No.3/respondent No.1 vide registered sale deed dated 24.05.2002 for consideration of Rs. 1,25,000/-. Plaintiff filed preemption suit to preempt the said sale on the ground that he is in cultivating possession of the entire 11 kanals land including 4 kanals suit land as tenant on 1/3 batai since long. 3. Defendant No.3 vendee contested the suit and denied the tenancy of the plaintiff and claimed to be owner in possession of the suit land. 4. Learned trial Court decreed the plaintiff’s suit for preemption, but in first appeal preferred by defendant No.3 vendee, lower appellate Court has dismissed the suit of the plaintiff who has, therefore, filed this second appeal. 5. I have heard learned counsel for the parties and perused the case file including files of the Courts below. 6. Counsel for the appellant contended that on the basis of documentary evidence including revenue record, order of Assistant Collector Second Grade regarding correction of khasra girdawari as well as judgment in the previous litigation, plaintiff-appellant is proved to be tenant over the suit land. 7. On the other hand, counsel for respondent No.1 vendee contended that there is no lease deed or rent deed or rent receipts regarding payment of rent to prove alleged tenancy of the plaintiff. It was pointed out that the plaintiff has withheld the rent receipts which were allegedly in his possession. It was also submitted that the matter of correction of khasra girdawari is pending before Financial Commissioner and has not attained finality. It was also argued that mere entry of gair morusi tenancy in the revenue record does not establish the tenancy of the plaintiff over the suit land. It was also submitted that the matter of correction of khasra girdawari is pending before Financial Commissioner and has not attained finality. It was also argued that mere entry of gair morusi tenancy in the revenue record does not establish the tenancy of the plaintiff over the suit land. Reliance in support of these Contentions has been placed on various judgment namely Om Parkash versus Chaudhri Ram, 2010(2) LAR 498; Ram Chand Premi versus Nawab Kaur, 2004(2) Civil Court Cases 188; Smt. Saroj and others versus Sardari Lal and others, [2009(4) Law Herald (P&H) 2804] : 2009(4) RCR (Civil), 898 and Gurcharan Singh versus Kehar Singh, 1996 PLJ 327 of this Court and Labh Singh & others versus Bachan Singh, [2008(3) Law Herald (SC) 2102 : 2008(1) Law Herald (P&H) 455 (SC)] : 2008(1) LAR, 599 of Hon’ble Supreme Court. Counsel for vendee also referred to judgment Exhibit P-18 passed by Additional District Judge in an earlier lis. 8. I have carefully considered the aforesaid contentions. 9. Revenue entries in jamabandi for 2001-02 and khasra girdawari since 92-93 till the year 2005-06 i.e. till after the filing of the suit depict the plaintiff to be in possession of the entire 11 kanals land including the suit land as tenant on payment of 1/3rd batai. There is also order of Assistant Collector dated 31.07.1996 Exhibit P-14 thereby ordering correction of khasra girdawari of the aforesaid land measuring 11 kanals including suit land in favour of the plaintiff as tenant on 1/3rd batai since khariff 92 crop onwards. Defendant No.1 and 2 (vendors/predecessors of defendant No.3/vendee) were party to the said order. In addition to it, there is judgment dated 25.03.1994 Exhibit P17 wherein also it was held that defendant No.5-Gainda Singh father of the vendee was not in possession of the suit land. 10. From the documentary evidence on record, it is fully established that plaintiff is in possession of the suit land as tenant on payment of 1/3rd batai. 11. Lower appellate Court observed that in column of rent in jamabandi, it is not mentioned as to what rent was payable by the plaintifftenant. This observation of the lower appellate Court is factually incorrect because it has been specifically mentioned in the column of rent in jamabandi that plaintiff was tenant on 1/3rd batai including fodder. Thus lower appellate Court misread the evidence to non-suit the plaintiff. 12. This observation of the lower appellate Court is factually incorrect because it has been specifically mentioned in the column of rent in jamabandi that plaintiff was tenant on 1/3rd batai including fodder. Thus lower appellate Court misread the evidence to non-suit the plaintiff. 12. Mere non-production of rent receipts depicting payment of rent would not negative plaintiff’s plea of tenancy because liability of tenant to pay rent is the determining factor and not the actual payment of rent. In the instant case, the plaintiff as tenant is liable to pay 1/3rd batai and, therefore, the plaintiff continues to be tenant, irrespective of whether he actually paid the said rent in kind or not. If the plaintiff has not paid batai, landlord has right to recover it in due course of law, but the tenancy does not come to an end merely due to non-payment of rent or batai. 13. Lower appellate Court also committed another perversity and illegality by observing that plaintiff is cosharer in the entire khewat and the vendee has also become cosharer and therefore, the plaintiff as cosharer could not be tenant over the suit land. Thus approach of the lower appellate Court is completely perverse and illegal because it was neither the case of the plaintiff nor case of the vendee-defendant No.3. Lower appellate Court has made out a new case in this regard to non-suit the plaintiff. On the contrary, in jamabandi for 2001-2002 regarding 11 kanals land including the suit land measuring 4 kanals, the plaintiff is nowhere depicted to be as cosharer therein. On the contrary, defendants No.1 and 2/vendors along other persons were depicted to be cosharers in the 11 kanals land and out of their share in it, the vendors sold 4 kanals land in suit to the vendee. 14. There is specific order of correction of khasra girdawari dated 31.07.1996 Exhibit P-14 passed by the Assistant Collector against the vendors (predecessors of the vendee) there by ordering correction of khasra girdawari of the entire 11 kanals land including the suit land in favour of plaintiff as tenant on 1/3rd batai since khariff 92 crop onwards. Defendant No.3 purchased the suit land almost ten years after the said crop of khariff 92 and almost 6 years after the aforesaid order was passed. The said order has attained finality. Defendant No.3 purchased the suit land almost ten years after the said crop of khariff 92 and almost 6 years after the aforesaid order was passed. The said order has attained finality. However, after purchasing the suit land, defendant No.3 –vendee and others filed another application for correction of khasra girdawari of 11 kanals land in question and the said application has been dismissed by the Assistant Collector vide order dated 09.01.2006 Exhibit P- 15. According to counsel for the vendee, the said order Exhibit P-15 is still pending final adjudication before the Financial Commissioner. However, order Exhibit P-14 has already attained finality. The predecessors of the vendee were party to the said order Exhibit P-14 and therefore, the said order is also binding on the vendee. 15. Judgment Exhibit P-18 passed by Additional District Judge in another lis does not help the vendee in any manner because that first appeal had arisen out of a suit instituted by Piara Singh-plaintiff herein against Gainda Singh father of the vendee. However, that suit related to some other land of khasra Nos.404/1 and 405/2. The said land is not subject matter of the instant preemption suit. Suit land of instant suit was not subject mater of that suit. In that suit, sole defendant Gainda Singh, father of the vendee, claimed to be in possession of the said other land as well as the instant suit land, but the instant suit land was not subject matter of the said lis and, therefore, any observation regarding the instant suit land in that judgment has no bearing regarding possession over the suit land. On the contrary, there is in fact no finding even in that judgment regarding the instant suit land except observation that there is no dispute relating to the same. 16. Judgments cited by counsel for the vendee are completely distinguishable. In the case of Om Parkash (supra), it was held that liability to pay rent is essential ingredient of tenancy. In the instant case, plaintiff’s liability to pay rent in kind by way of 1/3rd batai is duly recorded in revenue record. So the said judgment does not help the vendee in the instant case. On the contrary, in that case, the alleged tenant had fabricated evidence regarding payment of rent which was adversely commented upon. 17. Case of Ram Chand Premi (supra) pertained to tenancy in a building. So the said judgment does not help the vendee in the instant case. On the contrary, in that case, the alleged tenant had fabricated evidence regarding payment of rent which was adversely commented upon. 17. Case of Ram Chand Premi (supra) pertained to tenancy in a building. There was no rent deed, lease deed or rent receipt produced to prove the tenancy. In that case, there was no documentary evidence with reward to the tenancy. But in the instant case, there is documentary evidence like revenue record as well as order of correction of khasra girdawari to prove the tenancy of plaintiff over the suit land on payment of 1/3rd batai. So this judgment is completely distinguishable on facts. 18. In the case of Saroj (supra), son claimed to be tenant under the father and there was solitary entry in jamabandi regarding his alleged tenancy. It was held that cultivation by son or grand son was to be treated as self-cultivation of the landowner. In the instant case, there are consistent revenue entries regarding tenancy of the plaintiff for almost ten years before the impugned sale and the vendors/landlords were not related to the plaintiff. Consequently this judgment has no applicability to the facts of the instant case. 19. In the case of Gurcharan Singh (supra) also, there was solitary entry regarding one crop in khasra girdawari regarding payment of chakota amount whereas other revenue entries depicted possession as cosharers. In the instant case, however, there is no entry depicting possession of plaintiff as cosharer and there are consistent revenue entries for almost ten years before the impugned sale regarding tenancy of the plaintiff on payment of batai. So the facts in the instant case are completely different from the facts of the reported case. 20. Judgment in the case of Labh Singh & others (supra) related to preemption of sale made by sister. It was held that vendee improved his status as cosharer and therefore, the other cosharer has no superior right of preemption. In that case, superior right of preemption was claimed on the basis of cosharership and relationship. 20. Judgment in the case of Labh Singh & others (supra) related to preemption of sale made by sister. It was held that vendee improved his status as cosharer and therefore, the other cosharer has no superior right of preemption. In that case, superior right of preemption was claimed on the basis of cosharership and relationship. In the instant case, however, right of preemption has been claimed on the ground of tenancy and therefore, the question of improving the status by vendee as cosharer does not come into picture nor there is any plea even by the vendee that he is cosharer in the land in question. On the other hand, the vendee himself pleaded that he is absolute owner in possession of the suit land because the sale is of specific suit land and not share in the suit land and the plaintiff is also not cosharer in the suit land. 21. For the reasons aforesaid, I find that plaintiff has duly proved his tenancy over the suit land and, therefore, the plaintiff has superior right of preemption. Substantial question of law arises for determination in this second appeal as to whether finding of the lower appellate Court negativing the tenancy of the plaintiff over the suit land is perverse and illegal and is based on misreading and misappreciation of the evidence. For the reasons recorded hereinbefore, the said substantial question of law is answered in affirmative i.e. in favour of the plaintiff-appellant. Consequently plaintiff’s suit for preemption has to be decreed. 22. However, before parting with the judgment, it has to be noticed that the trial Court has not awarded expenses of the sale deed to the vendee to which he is entitled, in addition to the sale consideration of Rs.1,25,000/-. The trial Court has also directed the vendee to execute sale deed of the suit land in favour of the plaintiff. However, no such direction is required to be passed. Accordingly the total preemption money shall be Rs.1,25,000/- as sale consideration, Rs.15,625/- as amount of stamp papers of the sale deed and Rs.503/- as registration fee of the sale deed and I also award Rs.872/- as expenses of scribe and witnesses and miscellaneous expenses. The total preemption amount thus comes out to Rs.1,42,000/-. 23. The instant second appeal is accordingly allowed. Judgment and decree of the lower appellate Court are set aside. The total preemption amount thus comes out to Rs.1,42,000/-. 23. The instant second appeal is accordingly allowed. Judgment and decree of the lower appellate Court are set aside. Judgment and decree of the trial Court are modified. Suit filed by the plaintiff for preemption of the suit land is decreed on payment of total preemption money of Rs.1,42,000/- less the amount already deposited as 1/5th preemption money and as remaining preemption money if any pursuant to judgment and decree of the trial Court. The balance preemption amount shall be deposited by the plaintiff in the trial Court within two months from today. The parties shall suffer their respective costs throughout.