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2018 Supreme(P&H) 1434
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
ANIL KSHETARPAL, J.
Dholan Singh - Appellant
Versus
Ilyas and another - Respondents
RSA No. 631 of 2012 (O&M)
Decided On : 10-05-2018
Advocate Appeared:
For the Appellant : Mr. Amit Jain
For the Respondents: Mr. Aashish Gupta, Mr. Arjun Atri
Tenancy--Revenue Entries--Tenancy of immovable property cannot be inferred merely only on the basis of revenue entries without any further evidence of inception regarding tenancy by any written or oral agreement and payment of the rent there under.
Headnote:
(A) Specific Relief Act, 1963, S.37--Injunction--Plaintiff who files a suit for injunction only claiming to be in possession can continue the suit once it is established that he is not in possession. (Para 9)
(B) Punjab Tenancy Act, 1887--Proof of Tenancy--Revenue Entries--Tenancy of immovable property cannot be inferred merely only on the basis of revenue entries without any further evidence of inception regarding tenancy by any written or oral agreement and payment of the rent there under.
In present case it is not established as to who inducted plaintiff as a tenant in land--He has made vague statement that he has been paying rent to some of co-sharers--Neither any receipt produced nor person to whom rent was paid has been named--Previous owners not examined to prove that there was any contract of tenancy between parties--Tenancy is a result of agreement/contract between parties--Contract can be even oral with respect to agricultural land. However, contract of tenancy has to be proved by leading cogent evidence--No doubt, revenue record carries a presumption of truth, however such presumption is rebuttable presumption. But admission made by plaintiff, presumption stood rebutted. (Para 11)
Anil Kshetarpal, J.
Defendant-appellant is in the regular second appeal against the concurrent findings of fact arrived at by the courts below.
2. In the considered opinion of this court, following substantial questions of law arise for determination:-
(i) Whether the plaintiff who files a suit for injunction only claiming to be in possession can continue the suit once it is established that he is not in possession?
(ii) Whether tenancy of immovable property can be inferred only on the basis of revenue entries without any further evidence of inception regarding tenancy by any written or oral agreement and payment of the rent thereunder?
3. The facts of the case are that Dholan Singh, defendant-appellant purchased the property in dispute through two sale deeds dated 31.05.1985, Ex.D1 and D2. Plaintiff filed a suit in the year 2002, pleading that he is in continuous uninterrupted hostile possession of the property. In the alternative, plaintiff also pleaded that he is in possession of the property on payment of ½ batai (crop sharing). Paragraphs 1 and 3 of the plaint are extracted as under:-
“1. That the plaintiff is in possession of the land bearing khewat No.56 Khatauni No.63, Rect. No.3 killa No.17(5-0), situated on payment of ½ batai.
Land bearing khewat No.50 khatauni No.55 rect no.6/3/2(6-0), on chakota Sal temam for Rs.50/-.
Land bearing khewat No.50 khatauni No.56 rect no.6 killa No.4 (8-0), on chakota saal temam for Rs.20/- per kanals, situated within the revenue estate of village Bhogipur, Tehsil Tauru District Gurgaon, for the last so many years i.e. more than 50 years. The plaintiff has been paying the batai as well as chakota to the defendant and other co-sharers of the suit land continuously.
3. That the possession of the plaintiff over the suit land is quite long, continuous, uninterrupted, hostile since the time of the inception of the plaintiff on the suit land under the defendants and other co-sharers.”
4. Defendant contested the suit and pleaded that he is in possession of the property as possession was delivered to him at the time of execution of the sale deeds.
5. Both the courts while relying upon entries in the revenue record and discussing Ex.D3, affidavit of the plaintiff, decreed the suit for injunction.
6. Learned counsel for the appellant has drawn attention of the court to the deposition of the plaintiff while appearing in evidence wherein plaintiff admits that Dholan Singh is in possession of the property in dispute although he had taken possession forcibly. It is further his statement that possession to Dholan Singh was given by Punjabi. He feigned ignorance when Dholan Singh took possession from him. While referring to the aforesaid statement, counsel for the appellant submits that the suit for injunction was not maintainable as the plaintiff was not in possession. He submitted that revenue record only has rebuttable presumption which stands rebutted from the sale deed as well as admission of the plaintiff in evidence. He has further submitted that the courts below have wrongly relied upon Ex.D3, which was the affidavit, submitted by the plaintiff with respect to different land.
7. On the other hand, learned counsel for the respondent plaintiff has contended that the plaintiff is recorded as tenant in possession for 50 years and therefore the judgments passed by the courts below does not require any interference.
8. Now the stage is set for considering the questions of law:-
Question No.(i)
Whether the plaintiff who files a suit for injunction only claiming to be in possession can continue the suit once it is established that he is not in possession?
9. For facility of reference, the statement of the plaintiff is translated in English would read as under:-
“It is correct that Dholan was delivered possession by Punjabi. Volunteered that Dholan Singh had taken possession from me forcibly. I do not know when Dholan Singh took possession from me and I cannot tell what were the khasra numbers of the land in di
