Punjab-Haryana High Court
Karam Singh And Ors vs State Of Punjab And Ors on 22 March, 2024
Author: Rajesh Bhardwaj
Bench: Rajesh Bhardwaj
Neutral Citation No:=2024:PHHC:042214
CWP-6797-2010 -1- 2024:PHHC:042214
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CWP-6797-2010 (O&M)
Reserved on : 01.03.2024
Pronounced : 22.03.2024
Karam Singh and others ..... Petitioners
Versus
State of Punjab and others ......Respondents
CORAM: HON'BLE MR. JUSTICE RAJESH BHARDWAJ
Present: Mr. Som Nath Saini, Advocate, for the petitioners.
Mr. Navneet Singh, Senior Deputy Advocate General, Punjab.
Mr. Vivek Salathia, Advocate, for respondents No.5 to 7.
Mr. Anil Saini, Advocate and
Mr. Munish Gupta, Advocate, for respondents No.8 and 9.
Mr. Akshay Bhan, Sr. Advocate with
Ms. Amarjit Kaur Khurana, Advocate and
Mr. Santosh Sharma, Advocate, for respondent No.14.
Mr. Rajiv Joshi, Advocate, for
respondents No.25 and 26.
Mr. Shailender Kashyap, Advocate
for newly added respondents/subsequent vendees.
Rajesh Bhardwaj, J.
1. Prayer in the present petition is for quashing the impugned
order dated 11.03.2010 (Annexure P-5) passed by respondent No.1 by
entertaining the Review Application filed on behalf of the private
respondents against the order dated 14.06.2005 (Annexure P-3) passed by
the then Financial Commissioner (Appeals-I), Punjab vide which the
Revision Petition of the petitioners was dismissed. Further prayer has been
made to restrain the private respondents from interfering in the possession
of the petitioners under the garb of partition proceedings to get actual
possession instead of symbolic possession to be incorporated in the revenue
record.
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2. This case has a chequered history. The facts as culled out from
the submissions made by counsel for the parties are that Mehma Singh was
the landowner, whose pedigree table submitted before this Court is as
follows:-
MEHMA SINGH
HAZURA ARJUN SURJAN GURCHARAN HARCHARAN
HARCHARAN DHANVIR they sold their share in 1962
to tenant (30 acres)
3. Total land put under partition was 1018 Bighas and 5 Biswas.
Out of this, land measuring 324 Bighas and 15 Biswas was under tenancy,
whereas, remaining land measuring 715 bighas land was with the owner/co-
sharers. An application for partition among the family members was filed
with reference to land measuring 1018 Bighas and 5 Biswas. This
application for partition was filed by Arjun Singh in the year 1964. The
order dated 08.11.2004 and 22.11.2004 were passed by the Assistant
Collector, whereas, order dated 28.02.2005 was passed by the Collector and
thereafter, order dated 02.05.2005 was passed by the Divisional
Commissioner, Patiala. These orders with reference to the partition
proceedings were challenged by way of two RORs before learned Financial
Commissioner, Punjab i.e. ROR No.512 of 2005, which was disposed of on
17.06.2005, whereas, ROR No.461 of 2005, which was disposed of on
14.06.2005. The petitioners who contended themselves to be the tenants
were protected and it was directed that they could be evicted only through
the due process of law. Aggrieved by the same, private respondents filed a
review petition before the Financial Commissioner and the same was
allowed vide impugned order dated 11.03.2010, wherein, learned Financial
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Commissioner modified the order under review by striking down the
direction given for evicting the petitioners through due process of law.
Thus, aggrieved by the same, the petitioners who claimed themselves to be
the tenants have approached this Court by way of filing the present petition
impugning the order dated 11.03.2010 passed by respondent No.1.
4. Learned counsel for the petitioners Shri Som Nath Saini, has
vehemently contended that the impugned order is unsustainable in the eyes
of law as the same has been passed not only without jurisdiction but also in
violation of the settled law. He has submitted that the petitioners challenged
the orders dated 02.05.2005, 28.02.2005, 08.11.2004 and 22.11.2004 passed
by the Commissioner, Patiala Division, Patiala; Collector, Sub Division
Dera Bassi and Assistant Collector Ist Grade, Dera Bassi, respectively. He
submits that the revision petition was dismissed with the observations that
tenants are not to be dispossessed except in due course of law vide order
dated 17.06.2005. It is submitted that another revision petition filed by one
Kiran Dev, challenging the same orders was decided on 14.06.2005. He has
submitted that after passing the order dated 14.06.2005, the petitioners were
being forcibly dispossessed and thus, the counsel met the Financial
Commissioner (Appeals-I), who passed the above-said orders. He has
contended that thereafter, an application under Section 15 of the Punjab
Land Revenue Act, 1887 was filed by the private respondents on
15.07.2005 and the petitioners filed their objections regarding the
maintainability of the review petition. He submits that learned Financial
Commissioner allowed the review application by setting aside the order
dated 14.06.2005 vide his impugned order dated 11.03.2010. It is submitted
that learned Financial Commissioner passed the impugned order without
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applying judicial mind by relying upon the order dated 06.09.1991 passed
by this Court in RSA No.1613 of 1981. It is submitted that after passing the
order, warrants of possession dated 06.04.2010 were issued for delivering
the possession of the land in dispute. It has been submitted that learned
Financial Commissioner has observed that after purchasing the share of
Gurcharan Singh and Harcharan Singh sons of Mehma Singh during the
year 1962-63, the petitioners became the co-owners and had been treating
themselves as such. He submits that learned Financial Commissioner while
dealing with the revision petitions bearing ROR Nos.512 of 2005 and 461
of 2005 filed by the petitioners and Kiran Dev Singh arising out of the
partition proceedings was not competent to decide as to whether after
purchasing the share of Harcharan Singh and Gurcharan Singh sons of
Mehma Singh, they forfeit their tenancy rights and became co-sharers. It is
submitted that these observations are totally without jurisdiction and
contrary to the law settled by Hon'ble Supreme Court in Parmod Kumar
Jaiswal and others vs. Bibi Husn Bano and others, 2005(2) RCR (Civil) 629.
It is submitted that as evident from the facts of the case, the petitioners are
tenants since 1929, as has been admitted by the respondents in the sale deed
Annexure P-10. He has submitted that the predecessor-in-interest of the
petitioners were brought by Mehma Singh to make the land cultivable by
inducting them as tenants. He submits that this is evident from the writing
executed at that time and there was no dispute whatsoever denying their
tenancy over the land measuring 324 Bighas 15 Biswas which was also
included in the partition proceedings keeping in view the order dated
09.03.1968 passed by learned Financial Commissioner. He has submitted
that even now rent recoveries initiated by the co-sharers are pending against
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the petitioners before the Revenue authorities. It is submitted that in the sale
deed dated 04.01.1963, the petitioners were recorded as tenants since the
year 1929 in the land measuring 324 Bighas 15 Biswas as per Jamabandi
for the year 1960-61, but learned Financial Commissioner allowed the
review application ignoring all these factual aspects and thus, illegally set
aside the order dated 14.06.2005. He submits that as per Section 111 of the
Punjab Land Revenue Act, any joint owner of land, or any joint tenant of a
tenancy in which right of occupancy subsists, may apply to a revenue
officer for partition of a share in the land or tenancy as the case may be. He
submits that learned Financial Commissioner has mis-interpreted the
judgment dated 06.09.1991 passed by this Court in RSA No.1613 of 1981
as the claim of the petitioners therein was to the effect that they had got
proprietary rights because of the promulgation of ordinance No.XXIII of
2006 conferring upon occupancy rights under their tenancy qua the land
measuring 324 Bighas 15 Biswas and thus, they had become owners of 3/4th
share of entire land and the share of landlord remain only 1/4th. He submits
that initially application for partition was filed for land measuring 715
Bighas, whereas, land measuring 324 Bighas 15 Biswas under tenancy of
the present petitioners or their predecessor-in-interest was not included in
the partition. However, learned Financial Commissioner remanded the case
to the Revenue authorities vide order dated 09.03.1968 with direction to
include the tenancy land as well in the partition proceedings and hence, the
partition proceedings after remand proceeded qua the land measuring 1071
Bighas 15 Biswas but the present petitioners are claiming rights in the land
measuring 324 Bighas and 15 Bighas, which was admittedly under their
tenancy. He submits that as per scope of Section 111 of the Punjab Land
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Revenue Act, it lays down the methods by which a lease of immovable
property is determined, it is only when a lease is determined by any of
methods that the lessor gets back the right to possession of the property. It is
submitted that it is clear from the scope of this Section that on the
happening of any of the specified events, it does not ipso facto put an end to
the lease but only exposes the lessee to the risk of forfeiting his lease and
gives a right to the lessor, if he so elects, to determine the lease. He has
submitted that the lessor might elect to determine the lease if the condition
was breached and there was a specific provision in the lease deed itself for
forfeiting the lease on the happening of such breach and he may not avail
any of the conditions and may give a notice under Section 106 of the
Transfer of Property Act and determine the lease in the manner laid down
therein. He has submitted that from the plain and grammatical interpretation
of Section 111(d) of the Transfer of Property Act, it is clear that unless the
interest of the lessee and that of the lessor in the whole of the property
leased, become vested at the same time in one person in the same right,
determination of the lease cannot take place. He submits that as per the law
settled in the catena of judgments, it is settled that where the leasehold
provides the forfeiture and in case of assignment by the lessee, there could
be no forfeiture and automatic resumption by the lessor without notice to
the lessee determining the lease. The breach of condition of the lease only
makes the lease voidable and therefore, forfeiture is not complete unless and
until the lessor gives a notice to the lessee that he wishes to exercise his
opinion to determine the lease. He has further submitted that in the case in
hand, no such procedure was adopted by the respondents and thus, they
have wrongly presumed that forfeiture/determination of lease to be
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automatic which is not the correct legal position. He has submitted that in
M/s Gian Chand-Sham Chand vs. M/s Rattan Lal-Krishan Kumar and
others, 1964 AIR (Punjab and Haryana) 210, it has been held that
provisions of Section 111 of Transfer of Property Act has no application to
the State of Punjab. He has submitted that it has been held that no tenancy
shall be terminated except in accordance with the provisions of this Act or
except on any of the grounds mentioned therein. He has submitted that as
per the law laid down in Parmod Kumar Jaiswal's (supra), doctrine of
merger is applicable and thus, on purchasing the ownership right of some of
co-owners by the tenants, their tenancy does not come to an end and thus,
tenant remains a tenant. It is submitted that as per law settled, tenancy in
terms of Section 111 (d) of Transfer of Property Act would extinguish by
merger, if tenant purchased the entire rights of the landowners in whole
premises. He submits that even if the rights of the petitioners as occupancy
tenants comes to an end, they still remain the tenants in view of the law
settled. He has submitted that thus, learned Financial Commissioner has
miserably failed to appreciate the law settled while accepting the review
application filed by the respondents and thus, the impugned order passed
being unsustainable in the eyes of law, deserves to be set aside. In support
of his contentions, learned counsel for the petitioners has relied upon the
judgments passed in Hans Raj vs. Hardev Singh, 1984 AIR (Punjab and
Haryana) 229; Jai Narain Dass and another vs. Smt. Zubeda Khatoon, 1972
AIR (Allahabad) 494; Meenakshi vs. State of Madhya Pradesh, 1998(1)
RCR (Rent) 475; Niranjan Pal and another vs. Chaitanyalal Ghosh and
another, 1964 AIR (Patna) 401.
5. Mr. Akshay Bhan, Senior Counsel assisted by Ms.Amarjit Kaur
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Khurana, Advocate for respondent No.14, has vehemently opposed the
submissions made by learned counsel for the petitioners. He has submitted
that the petitioners had raised plea of tenancy for the first time before
learned Financial Commissioner without there being any plea raised before
the lower revenue authorities. He has submitted that as evident from the
voluminous record available that in the partition proceedings before the
Assistant Collector Ist Grade, the petitioners admitted their status over the
land in dispute as that of co-sharers. He has submitted that in the civil suits
filed before the Civil Courts, the petitioners have specifically pleaded
themselves to be co-sharers and had setup a plea of adverse possession
claiming title by prescription. He has submitted that the claim of the
petitioners was rejected by the Civil Courts right upto the Hon'ble Supreme
Court. He has submitted that it is evident from the judgment passed by the
Civil Court that their claim regarding occupancy tenant was declined by the
Civil Court and the same had attained finality and thus, they are estopped
from raising that plea at this stage. He submits that the case of the
petitioners falls within the provisions of Section 111 (g) of the Transfer of
Property Act and on bare perusal of the same, it leaves no scope of any
doubt that once the petitioners have claimed ownership, then it does not lie
in their mouth to claim the plea of tenancy in view of the law laid down by
this Court as well as Hon'ble Supreme Court in various judgment. He
submits that the petitioners are sailing in two boats by claiming themselves
to be tenants as well as the co-owners whichever suits to their interest. It is
submitted that learned Financial Commissioner had rightly exercised his
jurisdiction under Section 15 of the Punjab Land Revenue Act to rectify the
error apparent on the face of the record and hence, review application was
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rightly accepted by him, which suffers from no infirmity whatsoever. He
has drawn the attention of this Court to the copy of civil suit filed by some
of the petitioners, wherein the petitioners had specifically pleaded in para
No.9 as follows:-
"9. That plaintiffs or Chittroo defendants never paid any share
of produce or rent to the defendants number 1 to 10 or to their
predecessors after the proclamation of the said ordinance
No.XXIII of 2006 BK. Plaintiffs & Chitroo defendants have
been in possession of the suit land as owners since then.
Possession of the plaintiffs and Chhitroo after that
Ordinance has always been open notorious to the
knowledge of everyone, hostile and as of right as owner.
Plaintiffs and Chittroo have completed more than twelve
years of their possession in this manner. Since then,
plaintiffs and Chitroo have, therefore, become owners of the
suit land by adverse possession also."
6. Learned Senior Counsel has further submitted that respondent
No.14 while filing application for review had specifically pleaded that none
of the petitioners had challenged the earlier orders of the Assistant
Collector, Collector and Commissioner and therefore, revision petition
under Section 16 of the Punjab Land Revenue Act was totally incompetent.
It is further submitted that the petitioners had never claimed themselves to
be the tenants and therefore, the plea regarding protection of their tenancy
as gair marusi for the first time before the Financial Commissioner could
not have been raised. The petitioners claimed themselves to be co-sharers
and owners on account of either pepsu ordinance or adverse possession and
purchases made by them from Gurcharan Singh and Harcharan Singh and
thus, their claim was barred by Section 11 CPC. Learned Senior Counsel
has further submitted that in the Civil Suit No.505 of 19.09.1974, dismissed
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by Sub Judge First Class, Rajpura, vide order dated 15.03.1980, issue
No.2A was framed by the Civil Court was to the effect that:-
"2A. Whether the plaintiffs have become the owners of the suit
land by adverse possession? OPP"
7. Learned Senior Counsel has further submitted that while
dealing with issue No.2A, learned Civil Court gave findings in para No.16
and 17 as follows:-
"16. In order to prove this issue, the Plaintiffs have examined
Mani Singh PW1, Dia Singh PW2, Assa Singh PW3, Chatin
Singh PW4, Arjan Singh PW5, Jagan Singh PW5-A and Ramji
Dass, Plaintiff made his own statement as PW7. All of them
have unanimously deposed that the possession of the Plaintiffs
is very long. They have also deposed that they are in possession
of the Suit land as owners. But the Jamabandis Ex.P53 of the
years 1967-68 and Jamabandi Ex.P54 for the year 1977-78
show that the Plaintiffs have 2/5th share in the Suit land and
they are in possession of the same as co-owners alongwith the
other Defendants No.1 to 10. It is well settled principle of law
that the possession of one co-sharer cannot be adverse to the
claim of the other co-sharers. The Jamabandis of different years
placed on record only shows that the Plaintiffs are having 2/5th
share in the Suit land. This fact is also admitted by the
Defendants that the Plaintiffs are owners of 2/5th share in the
Suit land which they had purchased from GurcharanSingh and
Harcharan Singh sons of Mehma Singh.
17.In this view of the matter, I hold that the Plaintiffs have not
become the owners of the Suit land by adverse possession. This
issue is, therefore, decided against the Plaintiffs and in favour
of the Defendants No.1 to 10."
8. Learned Senior Counsel has submitted that it is evident that the
petitioners left no stone unturned in claiming themselves to be the owners of
the land under partition by every means available to them. However, learned
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Civil Court rejected the same. He has submitted that RSA No.1613 of 1981
filed was also dismissed by this Court on 06.09.1991 and thereafter, SLP
No.1238 of 1992 filed against the same was also dismissed in limine by
learned Apex Court vide order dated 06.02.1992. Thus, he has submitted
that the contentions raised by learned counsel for the petitioners regarding
the claim of the petitioners with regard to tenancy has been appreciated upto
the Hon'ble Supreme Court and the same has been rejected. Thus, claim of
the petitioners alleging themselves to be the tenants has no value in the eye
of law. Learned Senior Counsel has summed up by submitting that the
petitioners have maintained and pleaded to be co-sharers and have also
setup plea of adverse possession by claiming title by prescription, however,
their claim has been rejected by the Civil Courts upto the Hon'ble Supreme
Court. He submits that therefore, their claim falls within the provisions of
Section 111(g) of the Transfer of Property Act and once the petitioners
claimed themselves to be the owners, plea of tenancy does not survive. He
submits that even otherwise, proceedings involved in the present case
pertains to the partition proceedings which are always among the owners,
however, learned Financial Commissioner vide order dated 14.06.2005 has
travelled beyond his jurisdiction, which was rightly rectified by learned
Financial Commissioner in accepting the review application filed by the
petitioners by passing the impugned order. He has submitted that there
being no infirmity in the impugned order whatsoever, the present petition
deserves to be dismissed with costs. He has relied upon the judgment of
Hon'ble Supreme Court in Raja Mohammad Amir Ahmad Khan vs.
Municipal Board of Sitapur and another, 1965 AIR (Supreme Court) 1923;
and of this Court in Sada Ram vs. Gajjan son of Shiama, 1970 RCR (Rent)
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127.
9. Learned counsel for respondents No.25 and 26 has supported
the arguments raised by learned Senior Counsel for respondent No.14. He
has added that Arjun Singh and other sons of Mehma Singh filed a suit for
recovery of rent and the said suit was decreed on 29.03.1956 and this order
was challenged in Civil Writ Petition Nos.219 and 220 of 1985, however,
the same were dismissed by this Court vide order dated 03.05.1960. He has
submitted that the petitioners had always denied their status as tenants by
taking the plea that they have become full owners in view of the Pepsu
Abolition of Biswedari Ordinance XXIII, 2006 BK. He submits that this
plea was repelled. He further submits that from the last about 70 years since
1952, the petitioners have never paid any rent to the owners. It is submitted
that the petitioners improved their status to that of co-sharers in the year
1962-63 by purchasing the shares of Gurcharan Singh and Harcharan Singh
sons of Mehma Singh out of 324 Bighas of land. He submits that in the year
1964 an application for partition of agricultural land under Section 111 of
the Punjab Land Revenue Act was filed by Dr. Arjun Singh (father of
Dhanvir Singh respondent No.14). He further submits that in the year 1974,
the petitioners filed a suit for declaration in the Court of Sub-Judge Ist
Class, Rajpura to the effect that the defendants have no right or title or
interest or share in the land measuring 324 Bighas 15 Biswas, however, this
suit was decided against the petitioners vide order dated 15.03.1980. He
submits that appeal against this order dated 15.03.1980 was filed in the
Court of Additional District Judge, Patiala, however, the same was
dismissed on 09.05.1982. He submits that RSA No.1613 of 1981 was filed
against order dated 09.05.1982, which was also dismissed by this Court vide
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order dated 06.09.1991 and thereafter, petitioners filed SLP No.1238 of
1992 before Hon'ble Supreme Court, which was also dismissed vide order
dated 06.02.1992. Thus, it is evident that the plea taken by the petitioners
had been rejected upto the Hon'ble Supreme Court. He submits that Naksha
Urra/mode of partition was prepared vide order dated 27.09.1995 by the
Assistant Collector Ist Grade and the same was upheld by the Collector vide
order 28.08.1996 and Commissioner vide his order dated 23.05.1998 and
thereafter, these orders were further upheld by the learned Financial
Commissioner vide his order dated 23.09.2002. He has submitted that
thereafter, the case was remanded to the Assistant Collector Ist Grade for
preparation of Naksha Arra. The petitioners filed their objections before the
Assistant Collector Ist Grade on 05.11.2004. Naksha Arra was approved on
08.11.2004 and Naksha Irri was approved on 22.11.2004 and thereafter,
Sanad Takseem was issued. It is submitted that there had been five rounds
of litigation upto the Financial Commissioner and multiple rounds before
Civil Courts. He has submitted that it is evident from the record that the
petitioners had never admitted themselves as tenants in any Court of law,
rather they have always claimed themselves to be the owners. Their claim to
be the owners on the plea of adverse possession had also been rejected.
Thus, in view of Section 111(g) of the Transfer of Property Act, the
petitioners are restrained from taking any plea regarding tenancy. He has
submitted that almost 46 out of the 51 petitioners have relinquished their
position after compromising the issue. He has further submitted that from
perusal of the impugned order, it is evident that learned Financial
Commissioner had given directions telephonically to the lower authorities
not to dispossess the tenants which was beyond his jurisdiction and hence,
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the impugned order has been passed totally in accordance with the law
which suffers from no illegality whatsoever. Thus, he submits that the
present petition being devoid of any merit, deserves to be dismissed.
10. Learned counsel for the newly added respondents/subsequent
vendees has opposed the contentions raised by learned counsel for the
petitioners and has argued on the same line as has been argued by Mr. Rajiv
Joshi, Advocate for respondents No.25 and 26. He has prayed for dismissal
of the present petition.
11. Learned State counsel has opposed the submissions made by
learned counsel for the petitioners. He has submitted that learned Financial
Commissioner vide order dated 11.03.2010 has rectified the mistake crept in
the order dated 14.06.2005 passed by the Financial Commissioner
(Appeals-I) and has rightly strike down the directions given earlier
regarding the eviction of the petitioners through due process of law. He has
further submitted that the petitioners have lost upto the Hon'ble Supreme
Court and as such the present petition is liable to dismissed.
12. Learned counsel for respondents No.5 to 7 and 8 & 9, have also
submitted that the petitioners and their predecessor were claiming
themselves to be in adverse possession of the said land, which plea was
dismissed by the Sub Judge First Class vide judgment dated 15.03.1980.
They have submitted that another Civil Suit i.e. CS No.279-T/95/
10.06.1992 filed by the predecessors of the petitioners, was also dismissed
on 26.03.1996 and suit filed for declaration was also dismissed on
05.10.2005. They submit that the petitioners were taking consistent stand
that they are owners and claiming ownership by way of adverse possession
which plea has already been negated by the Civil Courts and now the
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petitioners cannot take the plea of tenancy. They have further submitted that
the objections of the petitioners were dismissed by the Assistant Collector
and the appeal filed before the Collector was also dismissed. They have
submitted that the petitioners never claimed themselves to be the tenants
rather they were claiming themselves to be the owners by way of adverse
possession and they cannot be permitted to change their plea as per their
suitability. They further submit that the impugned order does not suffers
from any infirmity and as such the same is liable to the upheld and the
petition filed by the petitioners is liable to be dismissed with exemplary
costs.
13. Heard learned counsel for the parties, and I have perused the
record with their able assistance.
14. After hearing learned counsel for the parties, it is apparent that
partition proceedings in the present case were initiated by Dr. Arjun Singh
i.e. father of respondent No.14 in the year 1964. Total land sought to be
partitioned was 1018 Bighas and 5 Biswas, out of which land measuring
324 Bighas and 15 Biswas was under tenancy, whereas, remaining land
measuring 715 Bighas was with the owners. Though initially partition
proceedings were initiated qua land measuring 715 Bighas, however, on
direction of learned Financial Commissioner, the case was remanded in the
year 1968 to include the remaining land measuring 324 bighas and 15
biswas under tenancy as well in partition. Thus, total land was put under
partition.
15. As is clear from the record that the petitioners and their
predecessor-in-interest were the tenants but subsequently the petitioners
improved their status as co-sharers in the year 1962-63 by purchasing the
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share of Gurcharan Singh and Harcharan Singh sons of Mehma Singh.
Section 111 of the Punjab Land Revenue Act (unamended Act) are as
under:-
"111. Application for partition: -Any joint owner of land, or
any joint tenant of a tenancy in which a right of occupancy
subsists, may apply to a Revenue-officer for partition of his
share in the land or tenancy, as the case may be with the
proposed plan of partition indicating the quality and location of
the land in question alongwith the reasons for partition and
copy of the latest jamabandi, if--
(a) on the date of the application the share is
recorded under Chapter IV as belonging to him; or
(b) his right to the share has been established by a
decree which is still subsisting at the date; or
(c) a written acknowledgement of that right has
been executed by all persons interested in the
admission or denial thereof.
16. From perusal of above-said provisions, it is clear that any joint
owner of the land or any joint tenant of tenancy in which a right of
occupancy subsists can apply for the partition, thus, the petitioners were
entitled under Section 111 of the Punjab Land Revenue Act to be part of the
partition proceedings. At the time when the partition proceedings were
initiated, there was no dispute regarding the tenancy of the petitioners.
Section 117 of the Punjab Land Revenue Act (unamended Act), reads as
follows:-
"117. Disposal of questions as to title in property to be
divided:-
(1) When there is a question as to title in any of the property of
which partition is sought, the Revenue-officer may decline to
grant the application of partition until the question has been
determined by a competent Court, or he may himself proceed to
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determine the question as through he were such a Court.
(2) When the Revenue-officer himself proceeds to determine
the question, the following rules shall apply, namely;--
(a) If the question is one over which a Revenue Court has
jurisdiction, the Revenue-officer shall proceed as a Revenue
Court under the provisions of the Punjab Tenancy Act, 1887.
(b) If the question is one over which a Civil Court has
jurisdiction, the procedure of the Revenue-officer shall be that
applicable to the trial of an original suit by a Civil Court and he
shall record a judgment and decree containing the particulars
required by the Code of Civil Procedure to be specified therein.
(c) An appeal shall lie from the decree of the Revenue-officer
under clause (b) as though that decree were a decree of a
[Subordinate Judge] in an original suit.
(d) Upon such an appeal being made, the [District Court], or
[High Court], as the case may be, may issue an injunction to the
Revenue-officer requiring him to stay proceeding pending the
disposal of the appeal.
(e) From the appellate decree of a [District Court] upon such an
appeal, a further appeal shall lie to the [High Court] if such a
further appeal is allowed by the law for the time being in
force."
17. There is no force in the contentions raised by learned counsel
for the petitioners that in view of the provisions of Section 117 of the
Punjab Land Revenue Act there is no dispute regarding tenancy of the
petitioners at the time of filing the partition proceedings and their status as
tenants has not been extinguished, in view of the fact that they themselves
were claiming ownership of the land by way of adverse possession.
18. However, it is evident from the record that out of total land,
land measuring 324 Bighas and 15 Biswas is under tenancy and the
petitioners have claimed themselves to be the tenants on this property. The
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petitioners filed a suit for declaration to the effect that the defendants i.e. the
respondents in the present petition had no right or title or interest or share in
this land. In para No.9 of the plaint as already reproduced, the petitioners
have claimed their possession after ordinance as notorious to the knowledge
of everyone and hostile to the owners and thus, they themselves claimed to
be the owners by way of adverse possession. Learned trial Court framed
issue No.2-A as already reproduced above that whether the petitioners
become the owners of the property by way of adverse possession. This issue
was dealt with by the Civil Court and their claim of being owners by way of
adverse possession was rejected and the suit filed by the petitioners was
dismissed. Thereafter, an appeal filed before learned Additional District
Judge, Patiala was also dismissed vide order dated 09.05.1982, which was
further assailed before this Court by way of filing RSA-1613-1981, which
was also dismissed vide order dated 06.09.1991. Finally SLP-1238-1982
was filed and the same was also dismissed. Thus, it is evident that the claim
of the petitioners regarding their plea of tenancy has already been rejected
upto Hon'ble Supreme Court. Further in the suit for settlement of accounts
filed by respondent No.14 and others titled as Dhanvir Singh and others vs.
Lachhman and others, the petitioners filed their written statement, wherein
para Nos.1 and 2 on merits, they stated as under:-
"1. Para No.1 of the plaint is wrong and denied. The suit on
behalf of plaintiff No.2 has already got dismissed. The
defendants are owners in possession of the suit land.
2. Reply to para No.2 of the plaint is that the defendants have
cultivated and are cultivating the suit land as owners and as
such the plaintiffs have no right to ask for share of produce or
theka in respect of the same."
19. Thus, it is evident from the above-said written statement that
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the petitioners admittedly maintained their status as owners of the property
under partition and not as tenants. As submitted by learned Senior Counsel
for respondents No.14, provisions of Section 111 (g) of the Transfer of
Property Act, 1882 are attracted in the facts and circumstances of the case,
which is as follows:-
"111. Determination of lease.- A lease of immovable
property determines-
(a) to (f) x x x x x x
(g) by forfeiture; that is to say,
(1) in case the lessee breaks an express condition which
provides that, on breach thereof, the lessor may re-enter;
or
(2) in case the lessee renounces his character as such by
setting up a title in a third person or by claiming title in
himself; or
(3) the lessee is adjudicated an insolvent and the lease
provides that the lessor may re-enter on the happening of
such event; and (in any of these cases) the lessor or his
transferee (gives notice in writing to the lessee of) his
intention to determine the lease;"
20. A perusal of these statutory provisions would show that lease is
forfeited in case lessee renounces his character as such by setting up a title
in a third person or by claiming title in himself. From the record available,
there is not an iota of doubt left that the petitioners have maintained their
status as co-sharers and not as tenants. Thus, in view of the provisions of
Section 111 (g) of the Transfer of Property Act, once the petitioners claimed
themselves to be the owner, the lease came to an end. Even otherwise as
already noted, dispute regarding tenancy has already been settled upto
Hon'ble Supreme Court. From the record of the partition proceedings, it is
further evident that the petitioners did not take any plea claiming
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themselves to be tenants before the Revenue authorities. However, for the
first time the plea regarding tenancy had been taken before the Financial
Commissioner that too at the back of the respondents. Learned Financial
Commissioner passed the order dated 14.06.2005 without serving notice to
the respondents.
21. There is no gainsaying that the case in hand pertains to the
partition proceedings of the land measuring 1018 Bighas and 15 Biswas.
The partition proceedings are always among the co-sharers. Revenue
authorities have to decide the case as per entitlement of all the co-sharers in
accordance with law. If the petitioners have purchased the share of some of
the co-owners, then they definitely stepped into the shoes of that co-sharers
from whom they had purchased the land. Thus, by becoming co-sharers the
petitioners would join the partition proceedings as the co-sharers. The rights
of any of the co-sharers under any different law, are to be decided under the
proceedings invoked under those respective laws. However, the same
cannot be adjudicated upon in the partition proceedings. As is evident from
perusal of the order dated 14.05.2005, the observation made by learned
Financial Commissioner by providing protection to the petitioners for their
dispossession, was totally beyond his jurisdiction. Thus, the respondents
had rightly invoked their remedy for the review of this order by way of
filing an application under Section 15 of the Punjab Land Revenue Act, as
there was an error apparent on the face of it.
22. Needless to say that the petitioners had taken this plea of
tenancy at the first time before learned Financial Commissioner and the
respondents were never given any opportunity to respond to the stand taken
by the petitioners, which was never before the Revenue authorities at the
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time of the initiation of the partition proceedings. It is also evident from the
perusal of the impugned order that learned Financial Commissioner after
having passed order dated 14.06.2005, had given telephonic massage to the
Revenue authorities not to take possession from the petitioners when he
himself had become functus officio and travelled beyond his jurisdiction.
23. As has been discussed above the petitioners claimed
themselves to be the owners of the suit land by way of adverse possession
which plea of them was negated upto the Hon'ble Supreme Court and as
such the petitioners cannot be permitted to come out with a new plea of
tenancy when they themselves were claiming ownership on the basis of
adverse possession. The arguments raised by learned counsel for the
petitioners is misconceived. As evident from the record, the petitioners are
changing their status to their convenience at every stage. Once the issue
regarding the tenancy is settled upto Hon'ble Supreme Court, the Revenue
authorities could not have decided the partition proceedings in
contravention to the same. However, the petitioners have made a futile
attempt to wriggle out of the same on the basis of the untenable contentions.
24. There is no dispute regarding the judgments relied upon by
learned counsel for the petitioners, however, in all its humility, in the facts
and circumstances of the present case, the same are distinguishable, rather
the judgments relied upon by learned Senior Counsel for respondent No.14
are applicable to the facts of the present case.
25. Thus, in the considered opinion of this Court, the order dated
11.03.2010 passed by respondent No.1 in the review application vide which
order dated 14.06.2005 passed by the then Financial Commissioner was
reviewed and the protection earlier granted to the petitioners regarding their
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eviction through due process of law was strike down, suffers from no
illegality or perversity and as such the same is upheld. Resultantly, the
present petition which is devoid of any merit is dismissed.
(RAJESH BHARDWAJ)
22.03.2024 JUDGE
sharmila Whether Speaking/Reasoned : Yes/No
Whether Reportable : Yes/No
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