Mr. L.N. Mittal, J.: (Oral) - CM No.4461-C of 2012

For reasons mentioned in the application, which is accompanied by affidavit, delay of 4 days in filing the appeal is condoned.

CM No.4462-C of 2012

1. This is application by appellants under Section 151 of the Code of Civil Procedure (in short, CPC) for placing on record jamabandis Annexures P-1 and P-2. It is not mentioned in the application that these documents are part of the evidence of the lower Court. However, counsel for applicantappellants states that these documents are part of the evidence in courts below. If it is so, then these documents are taken on record, subject to all just exceptions.

2. The application stands disposed of accordingly.

CM No.4463-C of 2012

3. Allowed as prayed for.

RSA No.1644 of 2012

4. Plaintiffs Mam Chand etc. having been non-suited by both the courts below have come up by way of instant second appeal.

5. Plaintiffs/appellants filed suit against defendant/respondent Mandir Radha Krishan alleging that plaintiffs and their ancestors are in possession of the suit land as gair morusi tenants and, therefore, they have acquired occupancy rights in the suit land and have, therefore, become owners thereof in view of the Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act, 1952 (in short, Proprietary Rights Act) because the plaintiffs are cultivating the suit land for the past three generations without payment of any rent/batai (crop share). Defendant has no right, title or interest in the suit land. Defendant is neither owner nor in possession thereof, but the defendant has been wrongly recorded in the revenue record. Accordingly the plaintiff sought declaration that plaintiffs have become owners of the suit land in view of the Proprietary Rights Act, having acquired occupancy rights and accordingly plaintiffs are entitled to get it recorded as such in the revenue record in place of defendant. Permanent injunction restraining the defendant from interfering in plaintiffs’ possession over the suit land was also claimed.

6. Defendant resisted the suit and broadly controverted the plaint averments. It was pleaded that the suit land was given to plaintiffs for cultivation on 1/3rd batai. Defendant had also filed eviction suit against the plaintiffs in revenue Court. It was pleaded that plaintiffs are still tenants over the suit land and they have not acquired occupancy rights therein nor they have become owners of the suit land because plaintiffs are gair morusi tenants. It was denied that plaintiffs are in possession of the suit land for the last three generations. Plaintiffs have been paying 1/3rd batai to the defendants. Various other pleas were also raised.

7. Learned Civil Judge (Senior Division), Rewari vide judgment and decree dated 01.09.2009 dismissed the plaintiffs’ suit. First appeal preferred by plaintiffs has been dismissed by learned Additional District Judge, Rewari vide judgment and decree dated 25.11.2011. Feeling aggrieved, plaintiffs have filed this second appeal.

8. I have heard learned counsel for the appellants and perused the case file.

9. In the revenue record, the defendant was recorded to be occupancy tenant over the suit land and consequently the defendant became owner of the suit land on coming into force of the Proprietary Rights Act and accordingly mutation was also sanctioned in favour of the defendant depicting it as owner of the suit land. Plaintiffs’ uncle Kanhiya was recorded to be gair morusi doyam (sub-tenant) over the suit land under the defendant on payment of 1/3rd Batai. Consequently it cannot be said that plaintiffs became occupancy tenants over the suit land or that they have become owners thereof in view of Proprietary Rights Act. There is no evidence to depict that there was any agreement between the plaintiffs and the landlord that the plaintiffs would never be ejected from the suit land or that the rent would not be increased. There is also no cogent evidence to depict that the plaintiffs h