Back
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice Amol Rattan Singh
RSA No.480 of 2013 (O&M)
Mauj Khan & Ors.
v.
Deen Mohd. & Anr.
{Decided on 05/07/2016}
(A) Punjab Land Revenue Act, 1887, S.44--Revenue Records--Presumption of truth--If the later entries in the revenue record had come into existent without following the due procedure for change in the entries, as per the instructions, then the presumption in favour of those entries stands rebutted. (Para 8)
(B) Punjab Land Revenue Act, 1887, S.44--Revenue Records--Presumption of truth--Entries in revenue record charged/altered/modified without following the due prescribed procedures, are to be ignored. (Para 23)
(C) Punjab Land Revenue Act, 1887, S.44--Restrictions on variations of entries in records--Variations in entries being permissible only upon agreement to such variations by all parties interested, obviously, the first requirement of such an entry having been made by such agreement, would have been in the form of a notice issued to the affected party, i.e. the plaintiffs, and even presuming that such notice was issued, thereafter their consent was recorded, to such change in entry, was necessary. (Para 23)
(D) Punjab Tenancy Act, 1887, S.5 & S.9--Occupancy Tenants--A tenant who has shown himself to be in continuous occupation of land for 30 years, paying no rent beyond amount of land revenue and the cesses chargeable thereupon, would be deemed to have fulfilled the conditions of Section 5(1) (a) of Act and would have acquired rights of occupancy under the Act--By section 9 thereof, no tenant would be deemed to have acquired a right of occupancy, only by lapse of time. (Para 16)
(E) Punjab Tenancy Act, 1887, S.5 & S.9--Occupancy Tenants--Rebuttable of presumption of truth of revenue entry--Plaintiffs having been shown to have been in continuous cultivating possession of the suit land since 1938, with revenue entries duly recording that they were paying nothing beyond land revenue and the rates and cesses thereupon, the entries from 1996-97 onwards, showing that they were paying “Aadhi Batai”, were entries which are to be ignored, there being no basis to those entries and therefore, the plaintiffs have established their right to occupancy in the suit land, by virtue of having been in cultivating possession as aforesaid, in terms of Section 5 of the Act of 1887.
Paragraph 7.5 of Chapter 7 in the Manual, lays down that entries in Column No.9 to 12 in the Register of Mutations (with column no. 12 thereof dealing with the revenue/rent), should correspond in every case, to the order passed upon the mutation in question.
Paragraph 7.28 further lays down cases where no mutations are necessary.
Specifically, it is stated therein that the “jamabandies entries concerning holdings in which mutations have occurred, on which no orders have been passed will remain unaltered.”
It further lays down that the only entry in the jamabandies for the variation of which, in subsequent records, no mutation need be entered in the registers, in relation to column No.9, is where there are undisputed entries relating to rents of tenants at will and entries made in pursuance of an order passed under Section 27 of the Tenancy Act.
(Section 27 of the Tenancy Act (Act of 1887) refers to adjustment of rents expressed in terms of land revenue).
Thus, the aforesaid procedure of making a mutation entry, upon an order sanctioned, not having been shown in the present case, and the entries in any case being under dispute and as such there obviously being no consent to a variation in the entry in column No.9, there was a violation of not only the procedure laid down to make such variation, but also of Section 37 of the Act itself. Hence, I see no error in the learned lower appellate Court having come to the conclusion that the presumption of correctness in favour of the subsequent revenue entries, has been successfully rebutted by the plaintiffs. That Court referred to a judgment of the Supreme Court in Durgas’ case (supra) and thereafter, specifically relied upon a judgment of this Court in Parkashos’ case (supra).
In Durgas’ case, their Lordships agreed with the judgment of a coordinate Bench of this Court, holding therein that when there is no order of the revenue authorities, showing how the change in the revenue entry was made, the presumption in favour of the later entry would stand rebutted and it would be the earlier entry which would be required to be relied upon.
Consequently, the earlier entries showing payment of land revenue by the tenants would be deemed to have continued, with the plaintiffs in possession of the suit land since 1938-39, i.e. for a period of more than 30 years, in terms of Section 52 of the Act of 1887.
(F) Punjab Tenancy Act, 1887, S.5 & S.9--Occupancy Tenants--A person shown to be in cultivating possession of land, as a “Gair Marusi”, is entitled to be declared to be an occupancy tenant in terms of Section 5 (2) of the Punjab Tenancy Act, 1887--Held; whether such tenancy was inherited by conferment of such right by the landlords, or simply continued to be passed on from the previous generation to the next, by default, would not affect the application of Section 5(2) of the Act of 1887, once it is shown that the plaintiffs continued in such possession, without payment of any rent to the landlords, beyond the land revenue and cesses, etc., for a period of 30 years. (Para 18)
(G) Words & Phrases--”Gair Marusi”--A right that is not inherited--”Marusi” means inherited and ‘Gair’ negating ‘inherited’. (Para 18)
Mr. Amol Rattan Singh, J.:- This appeal has been filed by the defendants in a suit filed by the respondents-plaintiffs (hereinafter to be referred as the plaintiffs), on 15.04.2006, seeking a decree of declaration with a consequential relief of permanent injunction against the present appellants (hereinafter to be referred to as the defendants), that the plaintiffs be declared to have become owners of the suit property, by virtue of the provisions of the Punjab Tenancy Act, 1887 and the Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act, 1952, as the plaintiffs were in cultivating possession of the suit land for more than 60 years, on payment of land revenue and cesses.
It was also contended that the defendants, wrongly and illegally, without notice to the plaintiffs, got an entry of “half batai” entered in the jamabandi for the year 1996-97, allegedly in collusion with the Halqa Patwari.
2. Upon notice issued to them, the defendants (present appellants) appeared and filed their written statement, taking a preliminary objection on maintainability of the suit and further stating that since the plaintiffs are tenants on a half “batai” and the defendants are the landlords on the suit property, the plaintiffs have neither become occupancy tenants, nor owners of the land and in fact, having failed to pay the “batai”, are liable to be ejected from the suit land.
The revenue entry of ‘half batai’ having been wrongly made in the jamabandi for the year 1996-97, was also denied by the defendants.
3. From the pleadings of the parties, the learned Civil Judge (Senior Division), Nuh, framed the following issues:-
“1. Whether the plaintiffs have acquired the ownership rights in respect of the suit property and have become occupancy tenants under the Punjab Occupancy Tenants Act as alleged? OPP
2. Whether the plaintiffs are entitled to the relief of injunction as prayed for? OPP
3. Whether the suit of the plaintiff is not maintainable in the present form? OPD
4. Whether the plaintiff has no locus standi to file the present suit? OPD
5. Whether the plaintiff has concealed the true and material facts from the court? OPD
6. Whether the civil court has no jurisdiction to try and entertain the present suit? OPD
7. Whether the suit is bad for non-joinder of necessary parties? OPD
8. Whether the plaintiffs are estopped from filing the present suit by their own act and conduct? OPD
9. Relief.”
4. By way of evidence, the plaintiffs examined plaintiff No.1 Deen Mohd., and tendered jamabandies for the years 1938-39 to 2001-02 (with some omissions in between), as Exs.P1 to P4, P8 to P19 and P25 to P29. They also produced Urdu documents as Exs.P3 and P5, P6 and P7. Further, copies of two khasra girdawaries were produced as Exs.P2 and P31. Copies of various mutations were produced as Ex.P20 to P24 and P30.
The defendants examined defendant No.1 as DW1 and one Chao Khan as DW2 and tendered the jamabandi for the year 2001-02, by way of documentary evidence, as Ex.D1.
5. On appraising the aforesaid evidence, the learned Civil Judge found that though the plaintiffs had shown that they and their predecessorsin- interest were in possession of the suit land for about 60 years, however, according to that Court, the conditions specified in Section 5 of the Act of 1887 were not fulfilled, to the extent that no documentary evidence had been led to prove that rent or cess (even upto the extent of land revenue), had been paid by the plaintiffs, so as to entitle them to be declared as owners under the aforesaid provision of the Act.
Further, it cited a judgment of the hon’ble Supreme Court in Puran Singh and others Vs. Gram Panchayat and others, (2003) (1) RCR (Civil) 92, wherein it was observed that Section 3 of the Act of 1952 relates to vesting of proprietary rights in occupancy tenants and extinguishment of corresponding rights of landlords, further referring to the definition of occupancy tenants, as defined in Section 2(f) of the said Act.
Hence
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
