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2017 Supreme(P&H) 1816
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
Hon’ble Mr. Justice Rajbir Sehrawat
RSA No. 140 of 2009 (O&M)
Saroj & Ors. v. Satyender & Anr.
{Decided on 19/07/2017}
For the Appellant:Mr. N.S.Shekhawat, Advocate.
For the Respondents:Mr. S.D.Sharma, Sr. Advocate with Mr. Ved Priya Malik, Advocate.
Counter Claim—A counter claim by defendant with respect to an independent property with which the plaintiff has no concern is not maintainable.
Written Statement—Admission—It cannot be presumed that the content of the written statement to be a deemed admission.
Headnote:(A) Civil Procedure Code, 1908, O.8 R.6-A--Counter Claim--A counter claim by defendant with respect to an independent property with which the plaintiff has no concern is not maintainable--Held; Defendant can set up by way of counter claim any right or claim in respect of ‘cause of action’ against the plaintiff and “against the claim of the plaintiff”--Therefore, under this provision a counter claim by the defendant has to be restricted to the subject matter of the suit property or any right title or interest relating or in relation thereto and this counter claim can be raised only qua the cause of action against the plaintiff. (Para 25)
(B) Evidence Act, 1872, S.58--Admission--The admission contemplated by the Section 58 are only through admissions (i) to which parties to the proceeding have agreed to admit at the hearing or before hearing;
(ii) the parties agreed to admit by writing under their hand; and
(iii) whereby any rule of pleading in force at the time the pleading is deemed to be admission by some deeming fiction created by some statutory law. (Para 21)
(C) Civil Procedure Code, 1908, O.8 R.1--Written Statement--Admission--The written statement is just a pleading by the parties and no provision of law attaches a deeming fiction of admission regarding a fact mentioned in the written statement--This is particularly so when the same has been disowned by the party on behalf of which the written statement is stated to have been filed--Therefore, it cannot be presumed that the content of the written statement to be a deemed admission--Evidence Act, 1872, S.58. (Para 21)
Mr. Rajbir Sehrawat, J.:- Present appeal has been filed by the plaintiffs whose suit for declaration and possession was dismissed by the trial court and also the appeal was dismissed by the learned lower appellate court. The appellant had filed a suit claiming that they are the owners of suit property comprising khasra and killa numbers 6//24(8-0), 25(8-0), and 7//11(4-11), 12(15-16), 13 (6-11), 20/2(4-8), 21/1(4-12), and 20//1/1(4-12) and 21//4/1(6-0), 5(8-0), 3/2 min north (2-4) and 6//16(8-16), 17(9-9), kitas 13, total measuring 80 kanals 19 marlas situated within the revenue estate of village Gagarwas. It was claimed that respondent No. 2 was the tenant on the land in question and he sub-let the land to his son without the consent of the plaintiffs/landlords, therefore, they are liable to be ejected and the possession deserves to the handed over to the plaintiffs. It was further prayed that the entry of mortgage in favour of the respondents entered into the revenue record is without any basis and therefore the same may be set aside.
2. The facts as pleaded in the plaint and as contended during the arguments are that originally one Indraj was the owner of the suit land. Ganpat Rai was the tenant over the suit land. After the death of Indraj his wife Ramkaur inherited the suit property. After Ramkaur inherited the property Ganpat had surrendered possession of the suit land to Ramkaur in the year 1976. Thereafter, Ramkaur self cultivated the land in question upto the year 1978. After the death of Ganpat in the year 1978 Ramkaur inducted Ishwar, i.e. respondent No.2, who was one of the sons of Ganpat Rai as tenant on the land in question. Thereafter, Ramkaur suffered a decree dated 23.03.1994 in favour of Satpal, Joginder and Saroj resulting into the transfer of land in favour of these persons vide mutation dated 18.05.994, Ex:P-12. Therefore, they became the owner and Ishwar became tenant under them. Since, as per the plaintiffs Ishwar had sub-letted the land in question in favour of his son, therefore, the tenancy stood terminated and they claimed the possession of the suit land.
3. The defendants filed written statements. Respondent No. 1 Satyender has taken a stand that he has no concern with the land in question. Defendeant No.1 Satyender pleaded that his date of birth was 22.07.1976 and therefore, he was just 12 year old in the year 1978 when the sub tenancy is alleged to have been created in his favour. He took a stand that he never cultivated this land nor he is a sub tenant over this land. He further stated that it is only his father Ishwar along with his other brothers is cultivating the suit land and any entry made in the revenue record showing him to be a tenant or sub tenant is got wrongly entered by the plaintiffs in collusion with the revenue officials.
4. Respondent No. 2, statedly, filed separate written statement, signatures on which he later on denied. However, in this retracted written statement respondent No. 2 had taken a stand that Indraj was the original owner and his father Ganpat was tenant over the land. Indraj died in the year 1976 and he was succeeded by Ram Kaur. He alongwith his two other brothers namely Sombir and Om parkash inherited the tenancy after death of their father in 1978. Therefore, all the three brothers became tenants under Ramkaur and they continue to be in possession of the suit land. He pleaded that before consolidation their father was the tenant over the land and this land was comprised for Khasra no. 33 min measuring 40 bighas. During the consolidation new numbers have come into existence in lieu of the above said khasra no. 33 and the new numbers which have been carved out in consolidation and over which they are tenant are as under:-
“6//14(3-6), 15(3-7), 16(8-16), 17(9-9), 18(9-11), 23
(8-0), 24(8-0), 25(8-0);
7//11(4-11), 12(5-16),20/2(4-8),21/1(4-12),
20//1/1(4-12);
21//3/1(2-4),4/1(6-0),5(8-0)
total measuring 98 kanals 12 marlas as is reflected in the Jamabandi for the
