Present: Mr. Vikas Kumar Advocate Vs. Ram Sarup and Others ...Appellants - Court Judgment

vinod kumar 2014.05.20 10:34 I attest to the accuracy and integrity of this document Chandigarh Rs.No.84 of 2011 (O&M) [1].CR No.1758 of 2011 (O&M) ***** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH (1) Rs.No.84 of 2011 (O&M) Date of decision:07.05.2014 Ram Sarup and others ...Appellants Versus Mahavir and another ...Respondents (2) CR No.1758 of 2011 (O&M) Date of decision:07.05.2014 Nepal Singh and others ...Appellants Versus Mahavir and another ...Respondents CORAM: Hon'ble Mr.Justice Rakesh Kumar Jain Present: Mr.Vikas Kumar, Advocate, for the appellants.

***** RAKESH KUMAR JAIN, J.

This order shall dispose of Rs.No.84 of 2011 and Civil Revision No.1758 of 2011 being inter-connected.

However, the facts are being extracted from Rs.No.84 of 2011.

The plaintiffs-appellants filed the suit for declaration that they are absolute owners in possession of the land falling in KhaSr.No.30, Khatauni No.35, Rect.

No.12, Killa No.12/1(2-6).12/2(5-7).total measuring 7 kanals 13 marlas, situated in the revenue estate of village Badoli, Tehsil and District Faridabad and also prayed for permanent vinod kumar 2014.05.20 10:34 I attest to the accuracy and integrity of this document Chandigarh Rs.No.84 of 2011 (O&M) [2].CR No.1758 of 2011 (O&M) ***** injunction to restrain the defendants from interfering in their peaceful possession.

The plaintiffs claimed themselves to be collaterals of Bhule Ram S/o Ram Lal and in cultivating possession till today.

It is averred that Bhule Ram delivered possession of the suit land to them as he was issueless, bachelor and lateron became Sanyasi and left the home in the year 1995.

It is also averred that Bulhe Ram had never paid any rent in the shape of Mal Sawai to the defendants and being his collaterals, the plaintiffs have also acquired occupancy rights as they have been in cultivating possession over the suit land for the last more than 40 yeaRs.It is further averred that neither the plaintiffs were ever ejected from the suit land nor paid any rent to the defendants.

In reply filed by the defendants, it was denied that the plaintiffs are the collaterals of Bhule Ram and cultivating the suit land.

It was denied that Bhule Ram had become Sanyasi and left the house in the year 1995 and the plaintiffs are cultivating the suit land since 1988 and have become beneficiaries and are entitled to the benefit of presumption for the acquisition of occupancy rights.

It was rather averred that the suit land was owned and possessed by Prithvi and Ramji Lal.

Prithvi died issueless and after the death of Ramji Lal, defendant no.1, being their successORS.inherited the property.

It is also averred that name of defendant no.2 is wrongly appearing in the column of cultivation for which defendant no.1 has filed a suit for correction of the revenue record.

Defendant no.2 did not appear despite service and was proceeded against ex-parte.

On the pleadings of the parties, issues were vinod kumar 2014.05.20 10:34 I attest to the accuracy and integrity of this document Chandigarh Rs.No.84 of 2011 (O&M) [3].CR No.1758 of 2011 (O&M) ***** framed by the Trial Court.

Both the parties led their respective evidence and the Trial Court dismissed the suit on 09.01.2010.

The appeal filed by the plaintiffs before the lower Appellate Court was also dismissed while making the following observations:- “10.

Even if for sake of argument it is presumed that tenancy had existed between parties, the next question will be whether same had matured in occupancy tenancy.

The case of appellants is that they are in possession for more than 40 yeaRs.PW-3 had asserted possession to be 70 years old.

However, from jamabandi 1966-67 only possession of Bhule as per revenue record is made out.

The case of appellants is that Bhule had handed over the possession of land in the year 1988 and had became Sanyasi in 1995.

therefore, even as per case of appellants, Bhule had lost possession in favour of plaintiffs/appellants in the year 1988, thereafter he had renounced the world by becoming Sanyasi in 1995.

So, it is clear that succession had not opened in year 1988.

the handing of possession in 1988 is not by inheritance but at the most can be stated to be voluntary surrender of possession in favour of appellants by Bhule.

Since Bhule had voluntary surrendered his possession of suit land in favour of some one, he lost his right to claim occupancy tenancy.

In year 1988 no right of occupancy tenancy had accrued in favour of Bhule as his possession was just 22 years old.

Once he has surrendered the possession in favour of appellants, he had terminated the relationship of tenant (if any for sake of argument) with defendant No.1 and therefore no tenancy existed between defendant No.1 and Bhule or defendant no.1 and appellants after 1988.

In 1988, present appellants had no vinod kumar 2014.05.20 10:34 I attest to the accuracy and integrity of this document Chandigarh Rs.No.84 of 2011 (O&M) [4].CR No.1758 of 2011 (O&M) ***** right to take possession and transfer of possession would not transfer tenancy automatically.

If Bhule himself was not entitled to rights of occupancy tenancy the same cannot be sought by appellants.

Judgments referred by ld.

Counsel for appellants are not applicable to the facts and circumstances of present case.

Appellants have failed to establish tenancy and right to occupancy tenancy.

The presumption available to tenant who claims occupancy tenancy under section 5(1)(a) of Punjab Tenancy Act, 1887 is not available in present case as appellants have failed to establish that Bhule was tenant under defendant No.1 and also because right to claim occupancy tenancy had never accrued in favour of Bhule.

If Bhule had no right then appellants cannot claim any such right as appellants are claiming only through Bhule.

11.

It is, therefore, held that appellants have failed to establish tenancy in favour of Bhule and right to claim occupancy tenancy over suit land.

Moreover except for oral assertions that Bhule had handed over possession of suit land, no documentary evidence as regards to possession of appellants over suit land has been placed on record.

All the revenue entries even after 1988 continues to be in the name of Bhule as Gair Maurusi on account of exchange.

Admittedly Bhule is still alive.

Again appellants have failed to establish that Bhule had become Sanyasi in the year 1995.

Failure to prove these facts by appellants is fatal to their case as they are claiming only as collaterals of Bhule and unless succession opens they have no right over suit property.

Moreover succession of tenancy by collaterals is again a moot point.

In view of above discussion, no fault with finding of ld.

Trial Court can be found.

Finding of vinod kumar 2014.05.20 10:34 I attest to the accuracy and integrity of this document Chandigarh Rs.No.84 of 2011 (O&M) [5].CR No.1758 of 2011 (O&M) ***** learned trial court on issues no.1 to 3 against plaintiffs/appellants is therefore, upheld.

Onus of issues no.4 to 8 was upon the defendants/respondents.

These issues were rightly decided against the defendants as not pressed.

These issues were not pressed before this court also, therefore, has to be decided against the defendants.”

.

Although counsel for the appellants has vehemently argued that the findings recorded by the Courts below are perveRs.as they are not based upon the evidence, but he could not point out any error in the judgment and decree of the Courts below who had recorded a firm finding of fact that the plaintiffs were never in possession because except oral statement that Bhule Ram had handed over possession to them, no document has been brought on record as all the entries continues to be in the name of Bhule Ram as Gair Marausi on account of exchange.

Moreover, Bhule Ram has not been examined though still alive and no evidence has been brought on record to establish that he had become Sanyasi in the year 1995.

Thus, the collaterals, in the presence of Bhule Ram who is still alive, cannot claim succession to his property.

In view thereof, I do not find any merit in both the appeal as well as the revision and hence, both are hereby dismissed.

May 07, 2014 (RAKESH KUMAR JAIN) vinod* JUDGE