IMPORTANT POINTS
(1) Title declaratory suit – Merely because defendant did not raise counter claim on property it would not ipso facto mean that a decree ought to have been granted in favour of plaintiffs – Plaintiffs have to prove their case on strength of their evidence.
(2) Counter-claim can be set up only against claim of plaintiffs – Counter claim can be made by defendant even on a separate or independent cause of action.

JUDGMENT :

SUDHANSHU DHULIA, J.

1. This appeal is against judgment dated 19.07.2017 of the High Court of Punjab and Haryana given in a Second Appeal (No. 140 of 2009) which was partly allowed by the High Court.

2. The case arises out of the proceedings initiated by the plaintiffs (respondents herein) for declaration and possession on an agricultural land. Suit was filed by the plaintiffs, claiming to be owners of the property, which in total measured 80 Kanals, 19 Marlas. The property is in the revenue village Gagarwas, Tehsil Loharu, District Bhiwani (Haryana). Their case was that defendant No. 2 was their tenant who had sub-let the land to his son (defendant No. 1), without the consent of the plaintiffs/landlords and hence, the two defendants were liable to be evicted and the possession of the land was to be handed over to the plaintiffs. The plaintiffs additionally had built their case on an assertion that the land was earlier in possession of one Ram Kaur on which Ganpat Rai, the father of defendant No. 2 was the tenant. Ganpat Rai surrendered his tenancy of the disputed land to Ram Kaur in the year 1976. Later in the year 1994, the plaintiffs had won a suit against Ms. Ram Kaur and the land which is the subject matter of the present dispute now belongs to them, hence they have stepped into the shoes of Ms. Ram Kaur and are now the owners of the property.

3. Defendant No. 1 (Satyender) is the son of defendant No. 2 (Ishwar Singh). The stand taken by defendant No. 1 was that he had no concern with the land in question. The defence set up by him was that he was born in the year 1966 and hence, he was only twelve years of age in the year 1978 when the sub-tenancy is alleged to have been created in his favour, as per the revenue records. He never cultivated the land and the cultivation was done by his father and his two uncles, and the entries made in the revenue record showing him to be a tenant or a sub-tenant are wrong and have been made by the plaintiffs, in collusion with the revenue officials.

4. Defendant No. 2 filed a separate written statement. According to defendant No. 2, one Indraj was the original owner of the property, who had given this land in tenancy to defendant No. 2’s father Ganpat Rai. Indraj died in the year 1976 and was succeeded by Ms. Ram Kaur. Meanwhile, the father of the defendant No. 2, Ganpat Rai died in the year 1978 and consequently he and his two other brothers namely, Sombit and Om Prakash had jointly inherited the tenancy. Thereafter, all the three brothers became tenants under Ms. Ram Kaur and they continued to be in possession of the suit property. They denied that they were ever tenant of the plaintiffs.

5. In addition to their written statement, a counter claim was also set up by defendant No. 2. The defendant No. 2 claimed in his written statement that in addition to the Khasra and Killa numbers given in the plaint, he was also in possession of two other Killa nos. i.e. 6//18 and 23. In other words, their counter claim on the above two mentioned plot numbers was in addition to the claim on the plots as mentioned by the plaintiffs. The suit was ultimately dismissed by the Trial Court on the findings that the plaintiffs could neither prove their right on the property, nor could they prove the fact that the defendant No. 2 had created a sub-tenancy in favour of his son, i.e. defendant No. 1. The counter claim set up by the defendant No. 2 was decreed.

6. The first appeal filed by the plaintiffs was also dismissed by the Appellate Court. The Appellate Court too held that there was a heavy burden on the appellants to prove that the tenancy of Ganpat Rai had come to an end in the year 1976 by surrendering the possession of the disputed land. This could not be proved by the plaintiffs. It was also the finding by the Lower Appellate Court that after the death of Ganpat Rai, tenancy was inherited by his three sons namely, Sombir, Ishwar and Om Prakash. Therefore, all of them should have been impleaded as