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2014 DIGILAW 1130 (PNJ)

Gram Panchayat Teekri Khera v. Shah

2014-08-01

REKHA MITTAL

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Rekha Mittal, J. 1. The present appeal has been directed against the judgment and decree dated 02.04.2010 passed by the Additional District Judge, Faridabad dismissing the appeal preferred by the appellant and confirming the judgment and decree passed by the trial Court in favour of the respondents. The facts relevant for disposal of the present appeal are that Mohd. Shah and others respondents filed the suit for declaration and permanent injunction on the premise that they have acquired occupancy rights and became proprietors by virtue of Occupancy Tenants (Vesting of Proprietary Rights) Act 1952 (in short "Act 1952"). The respondents and their predecessors in interest had been in cultivating possession as tenants of agriculture land comprising khewat No. 263, khatoni No. 308, rect. No. 33, killa No. 3(6-19), 4(6-19), 5(6-19), 6(8-0), 7/1(4-2), 7/2(1-15), 8/1(4-10), 14(7-10), 15(7-3), 16(1-10), 17(1-17) total measuring 57 kanals situated at village Teekri Khera, Tehsil Ballabgarh, District Faridabad, since the inception of village Teekri Khera. Before 1955-56, the land was recorded in the ownership of Shamlat Deh Hasab Rasad Kabja Araji Milkiyat Misal Bandobast 39-40 and predecessors of the respondents namely Munshi @ Mawasi and Darabi sons of Molabux were recorded in possession to the extent of half share, Hasan Khan, Imam Saha, Guljar Saha sons of Rojdar to the extent of remaining half share as Bila Lagan Bawaja Khidmad Chopal, Kabristan, Takiya etc. In the year 1955-56, consolidation was effected in the village and the suit land was recorded to be the ownership of Panchayat Deh in place of Shamlat Deh. However, the aforesaid predecessors in interest of the respondents continued to be recorded in possession of the suit land. Munshi and Darabi have died and succeeded by respondents No. 1 & 2. Hasan Khan, Imam Shah and Guljar Shah have also died and succeeded by respondents No. 3 & 4 and Yameen Khan. The respondents have acquired occupancy rights in the suit land and became its owners under the Punjab Tenancy Act. There was an implied agreement between the parties or their predecessors in interest not to eject them from the suit land. 2. The appellant filed written statement challenging maintainability of the suit and the respondents having not approached the Court with clean hands. There was an implied agreement between the parties or their predecessors in interest not to eject them from the suit land. 2. The appellant filed written statement challenging maintainability of the suit and the respondents having not approached the Court with clean hands. It has controverted the averment set up in the plaint and denied the respondents having become the owners of the land in dispute with the plea that possession of the respondents is unauthorised under Rule 19 of the Punjab Village Common Land Rules, 1964 as the land was never given to them or their forefathers on lease, grant, gift or allotment. The suit land was lying vacant and used as Charagah till recently and the respondents have occupied the suit land illegally. The entries in the revenue record regarding possession of the respondents are incorrect. It has further challenged the jurisdiction of the civil court being barred under Section 13 of the Punjab Village Common Land Act 1961. 3. On the pleadings of the parties, following issues were framed by the trial Court:-- "1. Whether plaintiff Nos. 1 & 2 have acquired occupancy rights under Section 5 & 8 of the Punjab Tenancy Act? OPP 2. Whether plaintiff Nos. 3 to 5 have acquired occupancy rights to the extent of share in suit property under Section 3 of Occupancy Tenants Act, 1952? OPP 3. Whether the suit is not maintainable in present form? OPD 4. Whether plaintiff has no cause of action? OPD 5. Whether there has been concealment of facts by the plaintiffs? OPD 6. Relief." 4. The trial Court permitted the parties to lead evidence in support of their respective claims. After having heard counsel for the parties and appraisal of evidence in light of the pleadings, the learned trial Court decided issues No. 1, 2 & 4 taken up jointly in favour of the respondents whereas issues No. 3 & 5 have been answered against the appellant and as a result, the suit of the respondents was decreed with the observation that they are vested with proprietary rights in the suit property in the shares mentioned in para No. 8 of the plaint with effect from enforcement of the Act 1952. 5. The appellant Gram Panchayat preferred the appeal to challenge the judgment passed by the learned trial Court. 5. The appellant Gram Panchayat preferred the appeal to challenge the judgment passed by the learned trial Court. However, the same was dismissed by the Additional District Judge, Faridabad vide impugned judgment dated 02.04.2010, affirming the findings recorded by the learned trial Court. 6. Counsel for the appellant would contend that the learned trial Court as well as the Court in appeal committed a serious error in accepting the claim of the respondents that they have acquired the rights of ownership in the suit land under the Act 1952. It is argued with vehemence that the suit land was never given to the respondents by the Gram Panchayat and it stood vested in the Gram Panchayat under the Punjab Village Common Lands (Regulation) Act 1961. 7. Counsel for the respondents has vehemently refuted the contentions of counsel for the appellant with the submission that no substantial questions of law arises in the present proceedings, to be adjudicated by this Court while hearing the regular second appeal. It is further argued that the Courts below have recorded concurrent findings of fact in favour of the respondents based upon revenue record and correct view of the provisions of Act 1952, therefore, no fault can be found in the well merited judgments passed by the courts below. 8. I have heard counsel for the parties and perused the records. 9. The learned trial Court answered the material issues namely No. 1, 2 & 4 in favour of the respondents. A relevant extract from the judgment passed by the learned trial Court in paras 10, 12, 13 & 14 reads as follows:-- "10. A perusal of Ex. P10 to Ex. P13 jamabandis shows that land has been shown to be possessed by predecessors of plaintiffs as Bila Lagan Bawaja Khidmad Chopal. Now the controversy shrinks to the legal question whether this amounts to giving status of occupancy tenant to plaintiffs for the purpose of the Punjab Occupancy Tenant (vesting of proprietary Rights Act of 1952) (herein after referred as to Act of 1952). Now the controversy shrinks to the legal question whether this amounts to giving status of occupancy tenant to plaintiffs for the purpose of the Punjab Occupancy Tenant (vesting of proprietary Rights Act of 1952) (herein after referred as to Act of 1952). Considering the provision of Act of 1952 read with Punjab Tenancy Act 1887, I am of the considered view that the claim of plaintiffs acquiring rights of occupancy under Section 5 is devoid of any merit, since there is no revenue record in support of their claim of possession as tenant on the date of coming into force of Act of 1887. 11. XXXX 12. In the case in hand, defendant admitted that plaintiffs and their forefathers are serving the villagers for long period by serving and maintaining the graveyard and chopal, thus, as customarily right plaintiffs can claim benefit of Section 8 to claim right of occupancy on the ground of custom. 13. Furthermore, this Court can also presume that there has been a promise on the part of the proprietors of village never to eject the plaintiff or their forefathers. This fact can be presumed on the basis of intention of the proprietors of village to never exercise their right for the period of over 80 years. Thus, I am of the considered view that plaintiffs and their predecessor-in-interest had acquired rights of occupancy tenant at the inception of the Act of 1952 and thus by virtue to Section 3 of the Act 1952 they were vested proprietary rights extinguishing the corresponding right of the then land lord admittedly it was Gram Sabha or the proprietors of village. 14. There is no force in the contention of learned counsel for the defendants that in the light of provision of Section 4plaintiffs right are only protected under Section 4(3)(i) of the Act of 1961. Reliance in this regard placed by him on the judgment of Hon'ble Punjab and Haryana High Court in case title Dev Dutt v. Gram Panchayat Ramila 1993(3) Recent Revenue Reports 54 and the judgment in case Gram Sabha Chachowal v. Karam Singh 1993(2) Recent Revenue Report Page 3 is not applicable to the present facts and circumstances. Although, plaintiff had taken a contrary pleading on application of this provision of the Act of 1961. Although, plaintiff had taken a contrary pleading on application of this provision of the Act of 1961. The provisions of Section 4(3)(i) of the Act of 1961 are in regard to occupation of Shamlat Deh land at the inception of the Act of 1961. In the case in hand, as discussed above, by virtue of Section 8 of the Punjab Tenancy Act plaintiff and their predecessors-in-interest had acquired occupancy tenancy rights and by subsequent ejectment of the Act of 1952 were vested with proprietary rights. Thus, the provision of Act of 1961 are not applicable." 10. The appellate Court dismissed the plea of the appellant that the suit land stood vested in the Gram Panchayat on commencement the Punjab Village Common Lands (Regulation) Act 1961. Counsel for the appellant has failed to convince this Court that the findings recorded by the Courts below in regard to possession of suit land by the respondents since the times of their predecessors in interest in lieu of services rendered to Chopal etc. are either contrary to documents on record or oral evidence adduced by the parties. There is no such contention raised by him that the trial Court has interpreted the provisions of 1952 Act erroneously or the findings are contrary to what has been envisaged in Act 1952. There is no substantial question of law emerges in the present appeal for adjudication by this Court. In view of what has been discussed hereinabove, finding no merit, the appeal is dismissed leaving the parties to bear their own costs.