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2018 DIGILAW 4548 (PNJ)

Mohd. Farukh v. Mohammad Haroon

2018-11-27

AMIT RAWAL

body2018
JUDGMENT Mr. Amit Rawal, J. The present Regular Second Appeal is directed at the instance of the appellant-plaintiffs against the concurrent findings of fact and law, whereby their suit for declaration claiming ownership being occupancy tenants, has been dismissed. 2. Appellant-plaintiffs instituted the suit on the premise that one Chandra son of Gora was in cultivation possession of the suit land described in Para 1 of the plaint prior to 1938-39. After his death, he was succeeded by Smt.Suhagi and Illiyas in equal shares. Suhagi died issueless and she was succeeded by father of the plaintiffs Illiyas and mutation No.3418 in this regard was sanctioned. Father of the plaintiffs Illiyas also expired and succeeded by the plaintiffs and mutation No.3716 was also sanctioned. Since then, they are in long and continuous possession. 3. Revenue record placed on record, i.e., Ex.P1 to Ex.P26, Ex.PX and Ex.PJ commencing from 1938-39 till 2001-02, proved the long and settled possession of the plaintiffs. Over and above the documentary evidence, plaintiffs examined four witnesses, namely, PW-1 Mohd.Farukh, PW-2 Gariba, PW-3 Mohammad Deen and PW-4 Yusuf Lambardar. 4. Mr. Mukul Aggarwal, learned counsel representing the appellant-plaintiffs submitted that both the courts below have abdicated in dismissing the suit by holding that Gair Marusi tenants cannot acquire the right of ownership as per the Punjab Tenancy Act, 1887 (for short “1887 Act”). In this regard, he had drawn the attention of this court to the provisions of Sections 5 and 8 of 1887 Act to contend that a person, who had been in long and settled possession and occupied the land continuously for more than thirty years is entitled to claim the ownership. Attention of this Court has also been drawn to the definition of “occupancy tenant” , i.e., Section 2(f) of the Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act, 1953 (for short, “1953 Act”). Sections 5 and 8 of 1887 Act and Section 2(f) of 1953 Act read thus:- “5. Attention of this Court has also been drawn to the definition of “occupancy tenant” , i.e., Section 2(f) of the Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act, 1953 (for short, “1953 Act”). Sections 5 and 8 of 1887 Act and Section 2(f) of 1953 Act read thus:- “5. Tenants having right of occupancy - (1) A tenant- (a) who at the commencement of this Act has for more than two generations in the male line of descent through a grandfather or grand-uncle and for a period of not less than twenty years, been occupying land paying no rent therefore beyond the amount of the land-revenue thereof and the rates and cesses for the time being chargeable thereon; or (b) who having owned land, and having ceased to be landowner thereof otherwise than by forfeiture to the Government or than by any voluntary act, has since ceased to be landowner continuously occupied the land; or (c) who in a village or estate in which he settled along with or was settled by the founder thereof as a cultivator therein, occupied land on the twenty-first day of October, 1868, and has continuously occupied the land since that date; or (d) who being jagirdar of the estate or any part of the estate in which the land occupied by him is situate, has continuously occupied the land for not less than twenty years, or, having been such jagirdar, occupied the land while he was jagirdar and has continuously occupied it for not less than twenty years, has a right of occupancy in the land so occupied unless, in the case of a tenant belonging to the class specified in the clause (c), the landlord proves that the tenant was settled on land previously cleared and brought under cultivation by, or at the expense of, the founder. (2) If a tenant proves that he has continuously occupied land for thirty years and paid no rent therefore beyond the amount of the land-revenue thereof and the rates and cesses for the time being chargeable thereon, it may be presumed that he had fulfilled the conditions of clause (a) of sub-section (1). (3) The words in that clause denoting natural relationship denote also relationship by adoption, including therein the customary appointment of an heir and relationship, by the usage of a religious community. (3) The words in that clause denoting natural relationship denote also relationship by adoption, including therein the customary appointment of an heir and relationship, by the usage of a religious community. Section 8 Establishment of right of occupancy on grounds other than those expressly stated in Act.- Nothing in the foregoing sections of this Chapter shall preclude any person from establishing a right of occupancy on any ground other than the grounds specified in those sections.” Section 2(f) “occupancy tenant” means a tenant who, immediately before the commencement of this Act, is recorded as an occupancy tenant in the revenue records and includes a tenant who, after such commencement, obtains a right of occupancy in respect of the land held by him whether by agreement with the landlord of through a court of competent jurisdiction or otherwise, and includes also the predecessors and successors in interest of an occupancy tenant.” 5. In order to lend support to the aforementioned submission, reliance has been led to the judgment rendered by this court in Mauj Khan and others Versus Deen Mohd. And another, [2016(3) Law Herald (P&H) 2414 : 2016 LawHerald.Org 1521] : 2017(1) R.C.R. (Civil) 700 (Paras 18 and 24). 6. I am of the view that the judgment mentioned above is not applicable to the facts and circumstances of the present case as in Mauj Khan’s case (supra), this Court was not apprised of the ratio decidendi culled out by the Coordinate bench in Jaleb Khan and others Versus Commissioner, Gurgaon Division, Gurgaon and others, 2010(1) PLR 111 . 7. No doubt, the provisions of Section 5(2) of 1887 Act, deal with the expression “tenant” and 2(f) of 1953 Act “occupancy tenant”, i.e., “Marusi” and “Gair Marusi” as per the literal meaning in the revenue dictionary are not appreciated in correct perspective. 8. “Marusi” would be an authorised occupant and “Gair Marusi” unauthorised. The Legislation in its wisdom has framed the Act for conferring the title of an occupant tenant and not unauthorised. It is also matter of law of common knowledge and equity. While differentiating between “Marusi” and “Gair Marusi” in Jaleb Khan’s case (supra), this Court held as under:- “4. After giving my thoughtful consideration to the contentions of the learned counsel for the petitioners and perusing the record, I find no merit in the same. It is also matter of law of common knowledge and equity. While differentiating between “Marusi” and “Gair Marusi” in Jaleb Khan’s case (supra), this Court held as under:- “4. After giving my thoughtful consideration to the contentions of the learned counsel for the petitioners and perusing the record, I find no merit in the same. The Gram Panchayat, Agon (respondent No.3) filed a petition under Section 7of the Act seeking eviction of the petitioners. As per Jamabandis for the years 1962-63, 1967-68 and 1997-98 (Annexures- P.7, P.8 and P.9) respectively the ownership of the land in question is recorded in the name of Gram Panchayat. In the column of cultivation Kallu son of Kale Khan son of Chhota Khan is recorded as `Gain Marusi’ in the three aforereferred Jamabandis. Therefore, the predecessor-in-interest of the petitioners having been recorded as `Gair Marusi’ he cannot possibly acquire the status and rights of `Marusi’ (occupancy tenant) as contended by the learned counsel for the petitioners. The fact that the petitioners acquired rights of ownership being an occupancy tenant is clearly misconceived. 5. The contention that in view of the order dated 25.1.1996 (Annexure-P.6) whereby the earlier application under Section 7 of the Act has been dismissed and the said order operates as res judicata is also devoid of merit. A perusal of the order dated 25.1.1996 shows that the petition filed by the Gram Panchayat, Agon under Section 7 of the Act was dismissed in default. The order records, the case called. The applicant, respondent and their counsel were not present. It appears that applicant, respondent and their counsel did not want to pursue with the case. Therefore, the file was ordered to be consigned to record room for non prosecution. There is no specific order dismissing the petition but the file was ordered to be consigned to the record room for non-prosecution but the intent is that it was dismissed for non-prosecution. Therefore, nothing was decided in the previous litigation which would operate as res judicata between the parties. It is not shown by the learned counsel for the petitioners that the filing of subsequent petition is, in any manner, barred. 6. The contention that the land is in two portions; one measuring 48 Kanals 5 Marlas which is on ‘Chakota’ and the other measuring 8 Kanals which is in possession of their ancestors since 1962 is also devoid of merit. 6. The contention that the land is in two portions; one measuring 48 Kanals 5 Marlas which is on ‘Chakota’ and the other measuring 8 Kanals which is in possession of their ancestors since 1962 is also devoid of merit. In all the Jamabandis as referred to above , as already noticed, Kallu the predecessor-in-interest was recorded as ‘Gair Marusi’ and, therefore, the petitioners can not deny the right of ownership of the Gram Panchayat. Nothing has been shown that the petitioners had acquired ownership rights by way of adverse possession or that their possession over the land is since the time of consolidation which is duly reflected in the revenue records. The petitioner and their predecessor-in-interest came in possession of the land as lessees. Therefore, being lessees they are estopped from denying the title and claim of the lessor in view of the principle of estoppel as provided under Section 116 of the Evidence Act, 1872. In the circumstances, there is no merit in this petition and the same is accordingly dismissed.” 9. I am afraid that the aforementioned ratio decidendi culled out in Mauj Khan’s case (supra), cannot be said to be judgment in rem but would be in personam. 10. In view of what has been noticed above, the judgments and decrees rendered by both the courts below declining the status of ownership cannot be cannot be said to be suffering from illegality or perversity. No ground for interference is made out, much less involvement of any substantial question of law. Resultantly, the appeal is dismissed.