Sita Ram Thro Lr Dharam Pal & ORS v. Gram Panchayat Anjanthali

-1IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of decision :04.10.2017 Sita Ram (since deceased) through his LRs ...Appellant

Versus

Gram Panchayat

...Respondent

CORAM: HON'BLE MR. JUSTICE ANIL KSHETARPAL

Present:

Mr. R.S. Mamli, Advocate for the appellant.

ANIL KSHETARPAL, J.(Oral) CM No.10028-C of 2016 For the reasons stated in the application, which is duly supported by an affidavit, delay of 4 days in filing the appeal is condoned. Application is allowed.

Main Case Plainitiff (since deceased) through his legal heirs is in Regular Second Appeal against the concurrent findings of fact arrived at by the Courts below.

Plaintiff filed a suit for declaration to the effect that he has become owner as per provisions of The Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act, 1952 as he had acquired occupancy rights under Section 5(2) of the Punjab Tenancy Act, 1887 (' Punjab Tenancy Act, 1887' - for short). Plaintiff also claimed consequential relief of permanent injunction. Defendant-Gram Panchayat did not choose to contest the suit. After appreciating the ex parte evidence produced by the plaintiff, the Court found from examination of revenue record that the

-2plaintiff has taken the land on lease from the Panchayat and is cultivating the same as tenant. Plainitiff had claimed that initially the lease was for a period of 10 years and thereafter, he has been continuing in possession thereof.

With these findings, the learned trial Court dismissed the suit. Appeal filed by the legal heirs of the plaintiff was also dismissed, after reappreciating the evidence available on the file. Learned counsel for the appellant has vehemently argued that the judgments passed by the Courts below are result of misreading of evidence. He has submitted that the plaintiff has been in continuous possession without payment of the rent and, therefore, entitled to be declared as occupancy tenant as per Section 5(2) of the Act. Before a tenant can be declared to be occupancy tenant, there are certain requirements of Section 5, which must be fulfilled. Section 5 of the Punjab Tenancy Act, 1887 is extracted as under: "5.

-3ceased to be landowner continuously occupied the land, or (c) who, in a village or estate in which he settled along with or was settled by, the founder thereof as a cultivator therein, occupied land on the twenty-first day of October, 1868, and has continuously occupied the land since that date, or (d) who being jagirdar of the estate or any part of the estate in which the land occupied by him is situate, has continuosly occupied the land for not less than twenty years, or, having been such jagirdar, occupied the land while he was jagirdar and has continuously occupied it for not less than twenty years, has a right of occupancy in the land so occupied, unless, in the case of a tenant belonging to the class specified in clause (c), the landlord proves that the tenant was settled on land previously cleared and brought under cultivation by, or at the expense of, the founder.

(2) If a tenant proves that he has continuously occupied land for thirty years and paid no rent therefor beyond the amount of the land-revenue thereof and the rates and cesses for the time being chargeable thereon, it may be presumed that he has fulfilled the conditions of clause (a) of sub-section (1).

(3) The words in that clause denoting natural relationship denotes also relationship by adoption,

-4including therein the customary appointment of any heir and relationship, by the usage of a religious community."

From a reading of the aforesaid statutory provision, it is clear that the appellants are claiming right under Section 5(2) of the Act, however, the plaintiff has failed to fulfill the requirements of Section 5(2) of the Act. A tenant before he files a suit for declaring himself to be an occupancy tenant must establish that he has been in continuous possession for 30 years and paid no rent beyond the amount of the Punjab Land Revenue Act, 1887. In this case, both the Courts have concurrently found that the plaintiff has failed to fulfill both the conditions. The concurrent findings of fact arrived at by the Courts is not shown to be erroneous. In these circumstanes, I do not find any good ground to interfere with the concurrent findings of fact arrived at by the Courts below. Hence, this present appeal is dismissed.

04.10.2017 (ANIL KSHETARPAL) sheetal JUDGE Whether Speaking/reasoned :

Yes Whether Reportable :

No