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2019 Supreme(P&H) 1657
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
Hon’ble Mr. Justice Amit Rawal
RSA No.1122 of 1992 (O&M)
Peera (deceased) through LRs & Ors.
v.
Ram Avtar (deceased) through LRs & Ors.
{Decided on 22/04/2019}
Mr. Ajay Jain, Advocate for the respondents.
Security of Land Tenures--A tenant/lessee of agricultural land cannot be ordered to be evicted by way of suit for mandatory injunction
Headnote:
(A) Punjab Security of Land Tenures Act, 1953, S.9--Eviction--Gair Marusi Tenant--Plaintiff claimed to be owners and contended that entry in revenue records depicting defendants as in possession being Gair Marusi Tenants is wrong-Plaintiff sought injunction simpliciter--Trial Court held plaintiff as owners but refused to grant injunction as defendants were in long and settled possession as Gair Masuri tenant though no rent or batai was paid--Defendant to be treated as holding over tenant--Impugned order of Trial Court upheld--Transfer of Property Act, 1881, S.116--Specific Relief Act, 1963, S.38.
(B) Punjab Security of Land Tenures Act, 1953, S.9--Eviction--Gair Marusi Tenant--A tenant/lessee of agricultural land cannot be ordered to be evicted by way of suit for mandatory injunction--The only remedy with the landlord is to seek eviction under the provisions of the Punjab Security of Land Tenures Act, 1953--Specific Relief Act, 1963, S.38. (Para 5)
JUDGMENT
Mr. Amit Rawal, J. (Oral):- The present regular second appeal is directed against the judgment and decree of the Lower Appellate Court whereby suit of the respondent-plaintiffs has been decreed in toto, though the trial Court had decreed the suit in part.
2. The respondent-plaintiffs simpliciter sought the injunction against the appellant-defendants on the ground that they were the owners of 1/3 share in the land measuring 54 kanals 19 marlas as per the jamabandi for the year 1982-83. It was orally partitioned by way of family settlement amongst the co-sharers and the suit property bearing killa numbers measuring 18 kanals had fallen to their share on which defendants had no concern. The possession of the defendants was incorrect and entry in the jamabandi showing them as tenants was also incorrect.
3. The defendants opposed the suit and claimed themselves to be tenant/gair marusi. The entries in the jamabandi and khasra girdawari were as per the factual aspect.
4. Since the parties were at variance, the trial Court framed the following issues:
“1. Whether the plaintiffs are owners in possession of the property in dispute as alleged? OPP
2. Whether the plaintiffs are entitled to the injunction as prayed for? OPP
3. Whether any statement took place in between teh plaintiffs and the defendant no.4, if so it’s effect? OPP
4. Whether the defendants no.1 to 3 are in possession over the property in dispute as tenants as alleged? OPD
5. Whether no cause of action has accrued to the plaintiffs to file the suit? OPD
6. Whether the suit is time barred? OPD
7. Whether the suit properly valued for the purpose of court fee and jurisdiction and the court fee is deficient? OPD
8. Whether the suit is not maintainable in the present form? OPD
9. Whether this Court has no jurisdiction to try this suit? OPD
10. Whether the plaintiffs have not come to the court with the clean hands, if so its effect? OPD
11. Whether the defendants are entitled to the special costs? OPD
12. Relief.”
5. The respondent-plaintiffs in support of the aforementioned pleadings examined four witnesses and placed on record the revenue record. The appellant-defendants examined two witnesses.
6. The trial Court on examination of khasra girdawari and jamabandi decreed the suit holding the plaintiffs to be owners to the extent of their share but denied the injunction on the premise that defendants were in possession of the suit land.
7. In appeal taken by the plaintiffs, the suit has been decreed in toto. The prime reason for decretal of the suit was that it has not been explained under what capacity the status of the appellant-defendants had been shown as tenants in the absence of any lagan, batai or rent.
8. Ms.Nupur Chaudhary, learned counsel appearing on behalf of the appellant-defendants submitted that the documentary evidence placed on record established the long and settled possession as gair marusi. It was simpliciter for injunction rightly so the trial Court refused to grant injunction as the defendants were found in possession, though the plaintiffs moved an application under Order 6 Rule 17 of Code of Civil Procedure for amendment of the plaint for incorporating the relief of possession which was dismissed vide order dated 22.5.1990 by the trial Court and therefore, the judgment and decree of the Lower Appellate Court is not sustainable.
9. Per contra, Mr. Ajay Jain, learned counsel appearing on behalf of the respondent-plaintiffs supported the judgment and decree of the Lower Appellate Court as there is stark difference between a tenant and gair marusi. The tenant is only a tenant. It may be on rent or without rent. The concept of tenancy in a suit claiming declaration under the provisions of Section 5 of Punjab Tenancy Act, 1887 and Sections 9 and 14-A of the Punjab Secruity of Land Tenure Act, 1953 came to be debated by a coordinate Bench of this Court in Mauj Khan and others vs. Deen Mohd. and another, [2016(3) Law Herald (P&H) 2414 : 2016 LawHerald.Org
