Judgment:
Rakesh Kumar Garg, J.
1. This is plaintiffs second appeal challenging the judgment and decrees of the Courts below whereby his suit for possession of the land in dispute by way of pre-emption has been dismissed.
2. The present suit for possession by way of pre-emption was filed by the plaintiff (Mukush, predecessor-in-interest of the appellants) against the defendant-respondents alleging that Rikhi Raj (now respondent No. 2) sold the land in dispute to defendant No. 1 (now respondent No. l) in a suit for specific performance of the contract vide registered sale deed dated 22.3.1995 for a sale consideration of Rs. 16,000/-. The aforesaid defendant No. 1 vendee was a stranger whereas the plaintiff-Mukesh was a tenant on the land in dispute prior to the sale in question. The sale was effected secretly without notice and knowledge of the plaintiff. The plaintiff was having a superior right of pre-emption qua the sale in question being tenant of the land in dispute. The defendants refused to admit the superior right of pre-emption of the plaintiff. Hence, the present suit.
3. Upon notice, defendant No. 1 (respondent No. 1), appeared and filed written statement raising various preliminary objections. On merits, it was submitted that Rikhi Raj-defendant No. 2 was owner in possession of the land in dispute. He entered into an agreement to sell in the year 1980 with Sardar Singh-defendant No. 1. When he refused to execute the sale deed in his favour, defendant-respondent No. 1 filed a suit for specific performance against defendant-respondent No. 2 which was decreed and respondent No. 1 got the sale deed executed through Court. It was denied that the plaintiff was a tenant on the land in question. It was further submitted that the plaintiff had got no right, title or interest to file the present suit and got entered his name in the column of cultivation illegally, which is not binding upon the rights of the defendants. A prayer for dismissal of the suit was made.
4. Both the parties led oral as well as documentary evidence in support of their respective case and after hearing learned Counsel for the parties and going through the evidence on record, the trial Court dismissed the suit holding that the plaintiff was son of vendor-defendant No. 2 and could not be a tenant on the property of his father.
5. Feeling aggrieved, the plaintiff filed an appeal before the Lower Appellate Court against the judgment and decree of the trial Court, which was also dismissed vide impugned judgment and decree dated 5.12.2006 passed by the Additional District Judge, Gurgaon. While dismissing the appeal, the Lower Appellate Court observed that the plaintiff has failed to prove his tenancy over the suit land.
6. Still not satisfied, the appellants (successor-in-interest of the plaintiff) have filed the instant appeal challenging the judgment and decrees of the Courts below.
7. It is relevant to mention that at the time of motion hearing, the appellants placed on record a copy of the judgment dated 2.11.1988 passed in Civil Appeal No. 10/4.3.1988 titled as Mukesh Singh v. Sardar Singh and Anr. passed by the Additional District Judge, Gurgaon (which is the subject matter of R.S.A. No. 2915 of 1988 titled as Sardar Singh v. Mukesh Singh,) to contend that a finding has already been recorded in favour of Mukesh Singh (predecessor-in-interest of the appellants), as being tenant of the vendor. Relying upon this contention, notice of motion was issued.
8. I have perused the aforesaid judgment dated 2.11.1988 passed by the Additional District Judge, Gurgaon arising out of a judgment and decree dated 3.2.1988 passed by Sh. Shiva Sharma, Sub Judge, 1st Class, Gurgaon in a suit for permanent injunction filed by Mukesh Singh which was dismissed. A perusal of the aforesaid judgment would show mat no finding was recorded in this case that Mukesh Singh was a tenant under Sardar Singh and in fact suit of the plaintiff for permanent injunction was decreed and defendant-Sardar Singh was restrained from interfering in the possession of the plaintiff except in due course of law. Thus, the aforesaid suit simplicitor for permanent injunction based on possession and not being a tenant was decreed in favour of Mukesh Singh, predecessor-in-interest of the appellants and
9. Faced with this situation, learned Counsel for the appellants has argued that there was documentary evidence on record from which it is proved that the plaintiff was a Gair Marusi tenant under the vendor wherein it is also recorded that the plaintiff was paying 1/3rd Batai as rent and thus, judgment and decrees of the Courts below are liable to be set aside. In support of this argument, learned Counsel for the appellants has refrred to jamabandi for the year 1992-93.
10. On the other hand, learned Counsel for the respondent has vehemently argued that both the Courts below on appreciation of evidence have recorded a finding of fact that the plaintiff has failed to prove that he was a tenant over the suit land. There is no rent deed executed between the plaintiff and defendant No. 2 and stray entry in the revenue record in his favour cannot be relied upon as he has failed to show that how he came into possession over the suit land as tenant and he has also not proved as and when the said tenancy was created and thus, he had no superior right to claim possession of the suit property by way of pre-emption and the appeal is liable to be dismissed.
11. I have heard learned Counsel for the parties.
12. The contention of the learned Counsel for the appellants is misconceived. It is well settled that tenancy is always created. There is no rent deed executed between the parties. Neither the plaintiff has proved how he came into possession over the suit land as a tenant and that too under his father nor it is proved how the said tenancy was created. Entry in the jamabandi for the year 1992-93 showing the plaintiff as a tenant over the suit land is not sufficient to prove the fact that the plaintiff was a tenant over the suit land as he has failed to prove possession. It is also relevant to mention that the plaintiff is the son of vendor. In Dhaioo Ram v. State of Haryam and Anr. 1989 P.L.J. 142, this Court held that the cultivation of a son or a grandson was to be treated as the self cultivation of the land owner. Thus, the Courts below were right in law while observing that the plaintiff cannot be considered as a tenant under this father. Thus, I find no merit in this appeal.
13. No substantial question of law arises. Dismissed.