Punjab-Haryana High Court
Sukhbir Singh vs Hari Singh & Ors on 24 September, 2024
Neutral Citation No:=2024:PHHC:126535
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
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CM-300-C-2013;
CM-301-C-2013 in/and
RSA-119-2013 (O&M)
Sukhbir Singh . . . . Appellant
Vs.
Hari Singh and Others . . . . Respondents
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Reserved on: 10.09.2024
Pronounced on: 24.09.2024
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CORAM: HON'BLE MR JUSTICE DEEPAK GUPTA
Argued by:- Mr. Raj Kumar Gupta, Advocate
for the appellant.
Mr. Sanjeev Kumar Aggarwal, Advocate
for respondent No.2.
Mr. R.K.S. Brar, Addl. AG, Haryana
for respondent Nos.6 to 8.
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DEEPAK GUPTA, J.
CM-300-C-2013 & CM-301-C-2013:
Both the applica*ons are allowed. Delay of 117 days in re-filing the
appeal; and delay of 241 days in filing the appeal are hereby condoned, for the
reasons men*oned in the two applica*ons.
Main case:
Plain*ffs of the case are before this Court in the present Regular
Second Appeal against the concurrent findings of the Courts below, inasmuch
civil suit No.63 of 2002 filed by them seeking decree for possession of the suit
property was dismissed on 29.11.2008 by Ld. Addl. Civil Judge (Sr Divn) Safidon;
and the said judgment of trial Court has been affirmed by the first Appellate
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Court of learned Addi*onal District Judge, Jind on 19.08.2011 in Civil Appeal
No.86 of 2009.
2. Admi=edly, plain*ffs Randhir Singh and Sukhbir Singh sons of Ram
Kishan (appellants herein) are owners of 96 Kanal 1 Marla of land situated at
Village Anta, Tehsil Safidon, District Jind, in which Makkar son of Juga was the
tenant. Said Makkar expired and his tenancy rights were inherited by his two
sons namely Hari Singh and Bhagat Ram @ Bhagtu. Hari Singh is impleaded in
the suit as defendant N: 1; whereas Bhagtu having expired, his sons are
impleaded as defendant Nos.2 to 5.
3.1 The suit was brought by the plain*ffs contending that during his
life*me, Makkar had divided the suit land amongst his two sons i.e. Hari Singh
and Bhagtu. The suit land measuring 48 Kanal detailed in the head-note of the
plaint (subject ma er of the present suit) had come to the share of Hari Singh;
whereas, the remaining land came to the share of Bhagtu. Makkar expired on
06.12.1991 and aCer his death, Hari Singh used to cul*vate the suit property
measuring 48 kanal as a tenant under the plain*ffs up to Rabi 1992 crop and the
remaining land was being cul*vated by legal heirs of Bhagtu on 1/3rd Batai
under the plain*ffs.
3.2 It was further pleaded by the plain*ffs that aCer harves*ng the
Rabi 1992 crop, defendant No.1 Hari Singh relinquished/surrendered his
tenancy rights and handed over the possession of the suit property measuring
48 Kanal in favour of the plain*ffs and regarding that he executed an affidavit as
well as an agreement on 06.05.1992. Ever since then plain*ffs have been in
actual physical possession of the suit property and had even harvested the
paddy crop of Kharif 1992.
3.3 However on geHng knowledge about the possession of the
plain*ffs, Bhagtu ini*ated proceedings under Sec*on 145 & 146 Cr.P.C. and the
suit land was a=ached by defendant No.6 - SDM, Safidon. Defendant No.7-
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Tehsildar Safidon was appointed as receiver, who is now managing the suit
property and leasing out the same in open auc*on and the amount received by
him is being deposited with him. It was further pleaded by the plain*ffs that
Bhagtu had earlier filed a Civil Suit No.500 of 1992 seeking the relief for himself
and defendant No.1 Hari Singh; whereas plain*ffs had filed Civil Suit No.906 of
1992 *tled "Randhir Singh v. Bhagat Ram". The civil suit filed by Bhagtu was
decided in favour of the defendant on 18.11.1996, whereas civil suit No.906 of
1992 was decided on 22.05.2000 against plain*ffs and in favour of defendant
Nos.1 to 5. The appeals did not meet with any success.
3.4 Plain*ffs pleaded further that since the tenancy rights devolved
upon Hari Singh and Bhagtu in equal share and Hari Singh has surrendered his
tenancy rights in favour of the plain*ffs, therefore plain*ffs are en*tled to the
possession of the suit land.
3.5 With these averments, plain*ffs prayed for decree of possession of
the suit land measuring 48 Kanal 0 Marla and for mandatory injunc*on to direct
defendant Nos.6 & 7 not to release the lease money and possession of the said
suit land to defendant Nos.1 to 5 and rather, pay the lease money to the
plain*ffs.
4.1 Defendant No.1 Hari Singh in his wri=en statement supported the
claim of the plain*ffs.
4.2 However suit was contested by defendant Nos.2 to 5 i.e. legal heirs
of Bhagtu, who claimed that Hari Singh has never been in actual physical
possession of the suit land and that it is only Bhagtu, who has been in actual
physical possession of the suit land ever since the death of Makkar and it is
Bhagtu, who has been paying the Batai to the plain*ffs. They denied any
par**on by Makkar in favour of his two sons as is alleged by the plain*ffs. They
further pleaded that proceedings under Sec*on 145/146 Cr.P.C. have already
been decided in their favour by holding them to be en*tled to the possession of
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the suit land and to receive the amount deposited by receiver. They prayed for
dismissal of the suit.
5. Necessary issues were framed. Evidence produced by the par*es
was taken on record. Trial Court came to the conclusion that though earlier
Makkar was in possession of en*re land measuring 96 Kanal 1 Marla but there
was no evidence that he had ever divided the said property amongst his two
sons. It was further found that Hari Singh never came in physical possession of
the suit land and that ever since the death of Makkar, it is only Bhagtu who has
been in actual physical possession of suit land and as such, Hari Singh could not
have executed the affidavit or agreement in favour of the plain*ffs regarding
surrendering of the tenancy rights. With these findings, trial Court dismissed the
suit. The findings of the trial Court have been affirmed by the first Appellate
Court.
6.1 Assailing the aforesaid concurrent findings, it is contended by
learned counsel for the appellants- plain*ffs that once it has been found that
aCer the death of Makkar, his tenancy rights had devolved upon his sons Hari
Singh and Bhagtu, therefore, there was no legal bar in surrendering of the
tenancy rights by Hari Singh in favour of the plain*ffs.
6.2 Learned counsel referred to "Harnam Singh v. Dalip Singh" 1963
PLR 1133, wherein a Division Bench of Punjab High Court has held that a tenant
is not debarred from making a voluntary surrender of his tenancy rights and
that Sec*on 7 of the PEPSU Tenancy and Agricultural Lands Act, 1955 cannot
and does not cons*tute a bar to tenancy rights being given up by the tenant
himself, when he no longer wishes to remain in possession as a tenant. Learned
counsel also refers to "Ramla Baldev v. Kiran Singh Mangat" 1959 PLJ 128,
wherein it has been held by Punjab High Court that in case of joint occupancy
tenancy, one of the joint occupancy tenant can sell, mortgage, or otherwise
transfer his share of occupancy tenancy without the consent or concurrence of
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his joint tenant and that unless the occupancy rights are ancestral, those
transac*ons cannot be challenged by the joint tenant.
6.3 With these submissions, prayer is made by learned counsel for
seHng aside the impugned judgments passed by the Courts below and to
decree the suit of the plain*ffs- appellants by accep*ng this appeal.
7. Refu*ng the aforesaid conten*ons, it is argued by learned counsel
for the respondents that finding of both the Courts below is concurrent to the
effect that Hari Singh never came in possession of the suit land and that it is
only Bhagtu, who has been in actual physical possession of suit land aCer the
death of this father Makkar. It is further pointed out that in all the earlier
li*ga*ons, civil as well as before the execu*ve authori*es, possession of Bhagat
Singh has been found on the suit property. Learned counsel contends that since
Hari Singh was never in possession of the suit land, so it is immaterial in case he
has executed any affidavit or agreement in favour of the plain*ffs regarding
surrendering of the tenancy rights and there being no evidence that Hari Singh
ever came in possession of suit land measuring 48 Kanal, plain*ffs cannot be
held en*tled to the possession thereof and therefore, the appeal deserves to be
dismissed.
8. I have considered submissions of both the sides and have perused
the record carefully.
9. Ownership of the plain*ffs over 96 Kanal 1 Marla of land, which
includes the suit land measuring 48 Kanal, is not in dispute. It is also undisputed
that Makkar was the Gair Maurusi tenant on this en*re land and aCer his death,
his tenancy rights devolved upon his two sons Hari Singh and Bhagtu. Plain*ffs
are seeking the decree of possession of specific Khasra numbers to the extent of
48 Kanal of land on the ground that Hari Singh had surrendered his tenancy
rights in their favour and had handed over the possession to them. However,
there is categoric finding of the Courts below that Hari Singh never came in
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possession of the suit property and so, the documents as relied by plain*ffs i.e.
agreement and affidavit are of no effect.
10. The evidence available on file supports this finding of the Courts
below. It is revealed that the par*es li*gated earlier before Civil as well as the
execu*ve Courts. The earliest civil li*ga*on is civil suit No.500 of 1992, which
was filed by Bhagat Ram along with his sisters against the plain*ffs of the
present case i.e. Randhir Singh and Sukhbir Singh. Hari Singh was impleaded
therein as the proforma defendant. In the abovesaid suit, though it was claimed
by the plain*ff Bhagat Ram that aCer death of the father of the plain*ffs and
proforma defendant Hari Singh i.e. Makkar, they (plain*ffs) have been
cul*va*ng the possession of suit land but decree was sought to restrain the
defendant Nos.1 & 2 i.e. plain*ffs herein from interfering in the cul*va*ng
possession of the plain*ffs and proforma defendant over the suit land. Said suit
was decreed by learned Addi*onal Civil Judge (Senior Division), Safidon on
18.11.1996, whereby the defendant Nos.1 & 2 of that case i.e. plain ff Nos.1 &
2 of this case were restrained from interfering in the possession of plain*ffs and
proforma defendant of the suit land vide judgment Ex.P8. However, in civil
appeal No.115 of 1996, which was filed by Randhir Singh & Sukhbir Singh, it was
categorically held by the Appellate Court of learned Addi*onal Sessions Judge,
Jind that there was overwhelming evidence on record to prove that Bhagat
Singh was in exclusive cul*va*ng possession of suit land, with which defendants
had no concern qua possession and that proforma defendant No.3 i.e. Hari
Singh had never come in possession of the suit land as tenant and as such,
possession of Bhagat cannot be disturbed except in due course of law. There is
nothing on record to suggest that any further appeal was filed against this
judgment of learned District Judge, which was announced on 02.08.2001.
11. Just a few days aCer the decision of the aforesaid appeal on
02.08.2001, it is Hari Singh, who now brought civil suit No.33 of 2001 seeking
decree of declara*on to the effect that he was en*tled to the lease money of
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the agricultural land measuring 48 Kanal (which is also the subject ma er of the
present suit) which has been a=ached by the SDM Safidon under Sec*on 145
Cr.P.C. His stand was the same i.e. aCer the death of his father Makkar, the
tenancy rights had devolved upon him and Bhagat. Said suit was dismissed by
learned Addi*onal Civil Judge (Senior Division), Safidon on 13.01.2005 vide
Ex.P8. Against this judgment dated 13.01.2005, Hari Singh filed Civil Appeal No.
71 of 2005 but the same was dismissed by the then District Judge, Jind vide
judgment dated 04.01.2008, copy of which is available on record as Mark D1.
12. On the other hand, proceedings before the Execu*ve Magistrate,
Safidon were ini*ated in 2001 and the suit land was a=ached under Sec*on
145/146 of the Code of Criminal Procedure. In those proceedings bearing No.
194/2001, possession of Bhagat Singh was found on the suit property. It was
further found that Hari Singh was colluding with the owners i.e. Randhir Singh
etc. and as such, the possession of suit land was directed to be handed over to
Bhagat Singh. Against this order of SDM, Safidon, the owners i.e. Randhir Singh
and Sukhbir Singh filed Criminal Revision No. 58 of 2001 but the same was
dismissed by the then learned Addi*onal Sessions Judge, Jind vide his order
dated 25.02.2004. S*ll not sa*sfied, the owners Randhir etc. filed CRM-M-
18147-M-2005 before this High Court, which was also dismissed by this Court
on 25.10.2005 by passing the following order:
"Heard.
The par*es are brothers. Their predecessor, Makkar was in possession as Gair
Maurusi tenant. The par*es jointly inherited the tenancy rights but respondent Nos. 1
to 4 claimed exclusive possession, while the pe**oner claimed his share and claimed
to be in possession to that extent.
There was a civil li*ga*on, wherein vide decree dated 18.11.1995, injunc*on
suit of respondent Nos. 1 to 4 was decreed. The pe**oner also filed a suit
subsequently, which was dismissed on 13.1.2005 against which an appeal is said to be
pending.
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Meanwhile, proceedings under Sec*on 145 of the Code of Criminal Procedure
(for short, the Code) were taken and order, Annexure P.5 has been passed by the Sub
Divisional Magistrate, restoring possession to respondent Nos. 1 to 4, which order has
been affirmed by the Court of Session vide Annexure P.6. Hence this pe**on.
Learned counsel for the pe**oner submi=ed that since the pe**oner was heir
of Makkar, he inherited tenancy rights and was in joint possession and, therefore,
exclusive possession could not be given to respondent Nos.1 to 4.
Learned counsel for respondent Nos. 1 to 4 opposed the pe**on on the ground
that findings recorded by the two courts below under sec*on 145 of the Code could
not be disturbed in proceedings under Sec*on 482 of the Code, par*cularly, when the
same issue was pending considera*on before the civil court in appeal filed by the
pe**oner.
I have considered the rival submissions and perused the record of the case.
It is well-se=led that findings recorded under Sec*on 145 of the Code are
tenta*ve and do not stand in the way of adjudica*on by the civil court. Thus, any
findings recorded in the impugned orders will stand superseded if any contrary order
is passed in the appeal filed by the pe**oner or any, their proceedings.
In view of the above, except as aforesaid, no further order is called for.
The pe**on is disposed of."
13. ACer the aforesaid decision of this High Court, the legal heirs of
Bhagtu moved an applica*on before SDM, Safidon to hand over the possession
of suit property to them, as *ll now, it was in possession of the receiver
appointed by the SDM. That applica*on was opposed by Hari Singh as well as
the owners Ram Kishan etc. who claimed possession. However, vide an order
dated 29.05.2006 of SDM, Safidon, the possession was directed to be handed
over to the legal heirs of the Bhagtu, in view of the decision passed by the Civil
Court as well as the SDM.
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14. It will not be out of place to men*on that owners had also filed a
Civil Writ Pe**on No.3302 of 1983 before this High Court challenging the orders
of the revenue authori*es passed up to Financial Commissioner while dealing
with an evic*on pe**on filed under Sec*on 8 of the PEPSU Tenancy and Land
Agricultural Land Act, 1955. That writ pe**on was dismissed on 31.10.2011 by
holding that a tenant cannot be evicted otherwise on the ground men*oned
under Sec*on 7 of the Act for any tenancy that had commenced before the Act
and therefore, the orders of the Collector and orders passed subsequently,
rejec*ng the ejectment pe**on were held to be as per the law, not requiring
any interference and as such, the writ pe**on was dismissed.
15. Thus, from the overwhelming evidence on record as has been
referred above, it is clear that it has been consistently held by the Civil Courts
that it is Bhagat Singh (now through his LRs), who has been in possession of the
suit land ever since the death of Makkar, although upon the death of Makkar,
the tenancy rights had devolved upon his two sons Hari Singh and Bhagtu. Hari
Singh never came in actual physical possession of the suit land and as such, he
could not have surrendered the actual physical possession of the suit land
measuring 48 kanals to the owners.
16. Although by way of agreement Ex.P5 and affidavit, Hari Singh has
surrendered his tenancy rights in favour of the owners but actual physical
possession could not have been delivered by him. In these circumstances, both
the Courts below have rightly come to the conclusion that suit for possession of
the suit property in favour of plain*ffs could not have been granted nor the
direc*on could have been issued to the execu*ve authori*es to hand over the
possession of the suit property to the plain*ffs.
17. At the same *me, it is made clear that since a tenant is not
debarred from making a voluntary surrender of his tenancy rights, as has been
held by a Division Bench of this Court in "Harnam Vs. Dalip" cited supra,
therefore Hari Singh and/or the plain*ffs will be well within their rights to
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approach the competent authority for geHng the suit land par**oned in order
to get actual physical possession of ½ share in the total land bearing 96 kanals 1
marla, which aCer the death of Makkar had devolved upon his two sons Hari
Singh and Bhagtu.
18. Except for the aforesaid modifica*on/clarifica*on, this Court does
not find any merit in the present appeal so as to warrant any interference in the
concurrent findings of facts as recorded by the Courts below.
19. Consequently, the present appeal is hereby dismissed except to
the extent of modifica*on/clarifica*on as above.
24.09.2024 (DEEPAK GUPTA)
Nee ka Tuteja JUDGE
Whether speaking/reasoned? Yes/No
Whether reportable? Yes/No
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