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2017 Supreme(P&H) 1544
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
ANIL KSHETARPAL, J.
Tara Chand - Appellant
Versus
Bihari Lal and others - Respondents
RSA No. 5685 of 2014 (O&M)
Decided On : 26-10-2017
For the Appellant : Mr. Sudhanshu Makkar
For the Respondents: Mr. Akshay Kumar Goel
IMPORTANT POINT
.
Headnote:(A) Punjab Security of Land Tenures Act, 1953, S.18 – Petition against declaration that tenants became owner being occupancy tenants – Tenant of agricultural land can only be objected as per provisions of 1887 Act and 1953 Act – Suit for possession not maintainable – Landowner to seek eviction in accordance with 1887 & 1953 Act – Punjab Tenancy Act, 1887, S.9(2)(3).
(B) Punjab Tenancy Act, 1887, S.5(2) – Gair Marusi Tenant – Held; Tenant required to prove that he had continuously occupied land for 30 years and paid no rent beyond the amount of Land Revenue thereof and rates and cesses for the time being changeable thereon – Petitioner failed to prove it – Revenue records depict as Gair Marusi tenants means non-occupancy tenants – A non-occupancy tenant cannot claim to be declared as occupancy tenant – Appeal allowed. (Para 14)
ANIL KSHETARPAL, J.
1. This judgement shall dispose of RSA Nos. 5685 and 5696 of 2014 as the parties as well as the property in dispute are common.
2. Tara Chand-plaintiff in Civil Suit No. 243/06 filed a suit for possession with respect to the land measuring 24 Kanals against Bihari Lal and other sons of Nonand. Whereas Bihari Lal and other sons of Nonand filed Civil Suit No. 375 of 2005 claiming declaration that they have become owner of the suit land being occupancy tenants.
3. Jeewan was original owner of the land. Nonand was the tenant. Nonand filed an application under Section 18 of the Punjab Security of Land Tenure Act, 1953 (for short, the 1953 Act), claiming that he had right to purchase the land being the sitting tenant. The aforesaid application was allowed with respect to the land measuring 32 Bigha as Nonand was found to be old sitting tenant with respect to 32 Bighas of land only. The application qua 15 Bighas of land comprised in Khasra No.18 was dismissed as Nonand came into possession of the aforesaid land in 1956.
4. Nonand thereafter filed an application for declaring himself to be occupancy tenant under the Punjab Tenancy Act, 1887 (for short, the 1887 Act) before the Assistant Collector, First Grade. On the other hand, Jeewan, the owner filed an application in form K-1 under Section 9(1)(i) of the 1953 Act, seeking ejectment of Nonand from 15 Bighas of land. The application filed by Nonand was accepted declaring him to be an occupancy tenant, whereas the ejectment petition filed by Jeewan was dismissed. Jeewan filed an appeal and revision, which were dismissed.
5. Jeewan thereafter filed a Civil Suit challenging the orders passed by the revenue official declaring Nonand as the occupancy tenant. Initially the suit was dismissed. However, the second appeal filed by Jeewan was allowed and it was held that the revenue authorities have no right to declare a tenant to be an occupancy tenant. Nonand could only file suit in the civil Court claiming the relief of declaration that he is an occupancy tenant. That is how the parties are in the civil Court.
6. Learned trial Court after appreciating the evidence decreed the suit filed by Tara Chand, adopted son of Jeewan and dismissed the suit filed by Bihari Lal and other legal heirs of Nonand refusing to grant declaration to the tenant that he has become an occupancy tenant.
7. Whereas the first Appellate Court has reversed the judgement of the trial Court while accepting the appeal filed by the legal heirs of Nonand. Resultantly, the suit for possession filed by Tara Chand son of Jeewan has been dismissed, whereas the legal heirs of Nonand have been declared to be an occupancy tenant and, therefore, owners as per the provisions of the Punjab Tenants (Vesting of Proprietary Rights) Act, 1953.
8. The following substantial questions of law arise in the present case: –
1. Whether a suit for possession is maintainable against a tenant in the civil Court or not?
2. Whether the judgement of the first Appellate Court declaring the tenant to be an occupancy tenant and, therefore, the owner, is a result of misreading of evidence or not ?
3. Whether a Gair Marusi tenant (non-occupancy tenant) can be declared as an occupancy tenant or not?
1. Whether a suit for possession is maintainable against a tenant in the civil Court or not?
It is not in dispute that Nonand, predecessor-in-interest of Bihari Lal and others was a tenant under the original owner i.e. Jeewan and thereafter, under Tara Chand. Jeewan filed an eviction petition against Nonand. Of course, that eviction petition was dismissed as Nonand was declared as an occupancy tenant. The aforesaid order of declaring Nonand as an occupancy tenant has been set aside. Therefore, the possession of Nonand/his successors continues to be of a tenant. A tenant of agricultural land can only be ejected as per the provisions of the 18
