I N THE HI GH COURT OF PUNJAB AND HARYANA AT v. Nat hi

filed a suit for declarat ionagainstdefendantNol Nat hi son ofBhup SinghSOI l of Rat i Ram and defendantNo Rikkhan son of Bhuleyson of Rat i Ram for declarat iont o t he effect t hat t he plaint iffshad becom e owners 111 t he suit land as t he had lost t heir rightof C45 by afflux of t im e and in alt em at ive t he plaint iffshad becom e 1 owners havingacquiredoccupancy right sbeingt enant s in possessionprlor m m o t o t he dat eofm ort gageThe suit was dism issedby ShRC Gupt at het hen 0 SubJudgeI st Class dat edAugust3003 480 The plaint iffspreferredappealagainstt he said j udgm entwhich was accept edby lower Appellat eCourt and suit oft he plaint iffswas decreed and decreedat edDecem ber 11 1981 The defendan preferredregularsecond appeal againstt hej udgm entand decreepassedbyt he lower Appellat eCourt dat ed Decem ber 11 1981 as RSA No 279 of 1982 The said appealwas allowed by t his Court I t held by High Court lI l j udgm entdat ed . um a 13: 06 Scanned True Copy of Original PHHC,Chandigar h JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document L 1 t 1 r 0 C 0 I Z I 08 7 Z 463 RSA No 889 of2005 l 131 Decem ber11 2001 t hat t he appealOled by t he defendant scould have been allowed on t hatvery groundbut for t he fact t hat t aken a pleat o t he effect t hat t heyare t enant spriort o creat ion of m ort gageand even m ort gagewas t heir t enancycould not be t erm inat edexceptlI l accordancewit h law and t he plaint iffswere t hereforeent it led t o inj unct ion t he defendant sfrom t hem except in accordance wit h law Since t he suit of t he plaint iffwas m erelyfor declarat ion and no prayerfor inj unct ionhad been m ade t he HighCourt had givenlibert yt o t he plaint iffs t o m ake am endm entin t he suit t o est ablish t heir t enancypriort o creat lOrl of m ort gage Aft er set t ingasidet he decree of t he lower Appellat e Court dat ed Decem ber 11 1981 t he rem andedt o t rial Court for r1 freshdecision on m erit sin t he lightof observat ionsoft he HighCourt The part of t he j udgm entof High Court in RSA No 279 of 1982 decidedon Decem ber 11 2001 is as followsl t o suReforpossessionon t he basis of t it le which is governedby Art icle 65 of t he Schedule t o t he Lim it at ion Act 1963 cannot be said t o have com e t o endand t hereforet heplaint i could not be declared t o have becom eowners t he groundt hat t he defendant s had lost lim it at ion I or recovery of possession I 8nd forcein t his subm ission I t hereforehold t hatplaint iffs 1 could not be declared t o have acquiredt it le on expiryof 1 1 30 years from t hedat eofm ort gage . um a 13: 06 Scanned True Copy of Original PHHC,Chandigar h JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 1 1mr 0 C C I Z I c5 m Z 464 ReSeA Noe 889 of2005 V 141 I wouldhave allowed t his appealand dism issed t hesuit oft heplaint iffson t hisgroundalone but counsel for t he plaint if had also t ak1 a pleat hat t heplaint iHswere t enant sprior t o creat ion of m ort gage and even if redem pt ionwas perm it t edt enancy could not be t erm inat edexcept in accordance wit h law and t he plaint iffs wer t herefore ent it led t o lnJunct lon t he t hem except ll7 accordance wit h law Counsel for t he appellant spoint edout t hat t he suit was m erelyfor declarat ionand no prayerforinj unct ion11asbeenm ade Aft erconsideringt he subm issions raised at t he barI am oft heview t hat case oft heplaint i regarding t enancyis requiredt o be consideredand ifnecessaryt he plaint if will be at libert yt o m ake am endm entin t he fram eof t he suit and if t heyare able t o est ablish t heir t enancyprior t o creat ion of m ort gaget heir plea lS requiredt o be decided in accordance wit h law I t hereforeset aside t he decree of t he lower 1 appellat eCourt and rem and t he m at t er t o t he t rial Court 1 for fresh1ecisi0non m erit s in t he lightof observat ions m adehereinabove . um a 13: 06 Scanned True Copy of Original PHHC,Chandigar h JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 465 1 RSeAeNoe889 of2005 L 151 6J C7J 1 1 0 C C5 Cr 5r I 08 4r Z Om 1 The givenby HighCourt t hat t he plaint iffscannotbe declaredt o have t it le on expiry of 30 years from t he dat e of has becom e flnal int erse t he part ieshowever aft er t he rem and t he m oved an applicat ionfor am endm entof plaintwhich was allowed on 28 2002 and t he plaint iffswerellowed t o am endt he clause t o enablet hem t o t he plea inJunct ion t o t he effect t hat even if t heywere not ent it led t o relief for declarat ionqua t heywere st ill ent it led t o ret ain possesslon as t enan The am ended writ t en st at em ent and am ended replicat ionwere perm it t edt o be filed which had result ed in t he fram ingof following addit ionalissue I ssue NoAl I f issue Nol is decided againstt he plaint iffswhet her t hey are ent it ied t o ret ain as t enant 7OPP The issue No 1 and 2 which st ood alreadyfram ed by t he t rial Court however read as follows 1 2 Whet her t he have becom e owners of t he suitland by way OPP issue No l is not provedwhet her t he plaint iffs areent it ledt o rem ain in oft he suit land 1 t enan OPP ln paraNo6 of t he plaint 2 . um a 13: 06 Scanned True Copy of Original PHHC,Chandigar h JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 466 ReSeAeNo 889 of2005 r 161 9 J Since t he High Court had alreadydecided issue No l Decem ber11 2001againstt he plaint iffsholdingt hat t he m ort gagersright t o sue for governedby Art icle on t he basis of t it le had not t Scd com e t o an end as it is 0 t hat t he defendant shad not l 5I A lost lim it at ion for 0 C I C5 Z t r I a5 W Z W1 Qm Aa recovery of plaint iffl it has been 6nal1ydecided int erse t he paniest hat could not be declaredt o have acquiredt it le on expiryof 30 years from t he dat eofm ort gage So far as issue No lA which is sim ilar as issue No2 was det erm ined on t he basis of evidence alreadyproducedby Harlal plaint iff priort o t he rem andand on t he basisoft he addit ional st at em ent s recordedie of Hansa son of Kareas PW1 Mohan Lal Kanungoas PW2 and Ashok Kum ar Pat wari as PW3 The t rial Court arrived at a findingof fact on of evidence t hat it was nowhere recorded t hat Badleyand plaint iffsNo2 t o 4 were in oft he land as t enant s The t rial Court had t aken int o considerat ion t hat even is adm it t ed t hat Badleyand plaint iffsNo t o 4 were t enant sin t he land at t he t im e of creat ion of m ort gage t heir lr right sof t enancy m ergedin great er ownershipright swit h t he execut ion of sale deed dat ed July 4 1957 ExDWlI A9 The said sale deed was execut ed by Sukhan in favour of plaint iffsNo t o 4 defendant sNat han and BhupSinghand Badleyfat herof No l and 5 Vide t he said sale deed Sukhan sold t he ent iFd 4 4 70 kanals 18 m arlas for Rs60001 A sum of Rs16001ewas . um a 13: 06 Scanned True Copy of Original PHHC,Chandigar h JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 467 RSAe No 889 of2005 1 171 t owards m ort gagem oney Rs17001 was paidas advance while am ount ofRs27001 was paidbeforet he Regist rar A Mut at ion No782 6ExDB9was sanct ionedon t he basis oft he sale deed dat ed July4 1957 and t he fact um of t ransfer of t erm sofsale deed was reflect ed in t he order recit ed on t he back ofm ut at ion At t he t im e ofsanct ioningofm ut at ion plaint iffKawawas presentbeforet he concem edaut horit y He adm it t edt he changeof possessionin accordance wit h cont ent s of sale deed dat edJuly 4 1957 The findingof fact arrived at by t he t rial Court Oll of evidence holdingt hat t he plaint iff appellant sare t enant s ln possession in suit land under t he previous owners nam elyKat t i and Bahoru was affirm ed by t he lower Appellat e Court The findingoft he lower Appellat eCourt on issue NoA and issue 1 0 C X 0 I Z 2 C45 No2 which was originallyfram edin t heyear 1978are as follows 7 Z 1 m V 7 The above t wo lSsues pert ainingt o t he quest ionas r t o whet her or t he plaint iffsare ent it led t o ret ain t he possessionof t he suit land ln vlew of t heir beingt enancyon t he suit land is t he only lSSUe which was requiredt o be decided alesh by t he t rial Court and has beenso done Bot h t hese issues in fact com m on and as observedby t he1 t rial Court t he necessit yof fram lng 1 i issue NoA because t he issue No2 as earlier fram ed on 9 1978 was . um a 13: 06 Scanned True Copy of Original PHHC,Chandigar h JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 1 4 Q 0 C I C5 Z I 08 e Z 468 RSAe Noo 889 of2005 427 181 in t he earlier j udgm entof t he t rial 1 Courtdat ed 30980 Quat his aspect it m ay be not icedt hat as per para No2 oft heplaintBadley fat herofplaint iljNo Har Lal and Sm t Tara and plaint iffNos2 t o 4 who are sons ofoneKare were alreadyin possessionof t he suit land as t enant s t he previousowners nam elyKat t i and Bahoru sons of Shiv Karan when t he suit cam e t o be m ort gagedin t he yeav 1944 in t heir favourfor an am ount of R1600 and in which cont ext m ut at ion NoA05 sanct ioned on 18950 To prove t he said plea t he plaint iff No Har Lal exam ined him selfas PW1 on 241978 besides t enderingt he Jam abandi ExP4for t heyear 193940 and ExP2for t heyear 194546 Aft errem and t he plaint i No 4 Hansa S1 was also exam ined on 5A0022 as PWwho lS herebyrem unbered as PW2 in order t o avoid confusionand at which t im e t hej am abandiExPF t he year 1931 was also t endered in evidence 1 First com ingt o t he evidence led byt he plaint iHsit m ay be recalled here t hat . um a 13: 06 Scanned True Copy of Original PHHC,Chandigar h JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 469 RSA No 889 of2005 191 5 D C t he suit land was com prisedin Khasra N0362B 3B 763 6B9 762 lB4Bout t he ExPF fov t he year 1931 nowheredesribes t he possessionof t heplaint iHs r 0 C I C5 I Z r I 08 Wa 20 t heir int erestor any part of t he suit land what soeverand t hesaid docum entwhich 1 t he counselfor t he cont ends t o havebeen over looked byt he t rial Court is t hus of no help t o t he plaint iffs Even t hej am abandi ExP4 6Hindit ranslat ion whereofisEx41H9for t he year 193940 describes one Ram Dayaland Surj an t o have been ln possessionas earlier ofKhasraN0362 The nam e ofeit her of t he plaint iBsnowhere finds m ent ionedin t he said j am abandiregardingt heir havingbeen in t l V of said khasra No762 in any capacit y e what soever The rem ainingkhasra num bers nam ely763 and 764 are described in t he said j am abandiExP4 t o be in possessionof Bhika son ofGangaSahai as Gair Marusi The nam es of eit her oft heflveplaint iHsdoes not flndm ent ion I n t he t o be in possessionwhat soever capacllYover any part of Khasra No63 and 764 . um a 13: 06 Scanned True Copy of Original PHHC,Chandigar h JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document V l 4 C 0 0 I C5 I Z t r I 08 Z 470 RSANoe8890f2005 1101 also nor is t heir t hat t hey were cult ivat ingpossessionof t he sam e t hroughBhika son ofGangaSahai who him seUl his own part is not shown t o have beenpayingany rent I Bat aiqua t he said khasra num bers 763 and 764 t o t he plaint iffsKat t i and Bahoru 8 I n t he j am abandiExP2 for t he year 194546 t ranslat ion whereofis ExP21H9 khasra No762 is shown t o be under cult ivat ing possessionofKat t i a coarer t hroughKova son ofKareand t he nam es ofeit heroft heplaint ifJsdo not f7ndm ent ionedt o be associat ed wit h t he suit in any capacit ywhat soever in t he said year Khasra Nol63 is again described in t he said j am abandi t o be underpossessionofoneBhika son of GangaSahai wit h t he nam es of eit her of t he 1 plaint iHsnot findiI gany m ent ion t herein t hrough Badley t n znt erest of plaint ifJNos 1 t o 59t o t he ext ent oflz share and Rum al Kova and Hansa sons of Kare ln m t erest of plaint iffNos t o 49are described t o have been ln of Khasra No64 account m ort gageI t m ay be specificallyhighlight edat . um a 13: 06 Scanned True Copy of Original PHHC,Chandigar h JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 0 C I 9 I Z 0 I 5 Z I l 471 ReSeAeNo 889 of2005 1 I lll 4 t his st aget hat m ut at ion NoA05 copy whereas ZS ExP5 and Hindi t ranslat ion whereofisExPW51H was ent eredon 161948 and sanct ioned by C I I nd Grade on 181950 and t husit is evidentt hat t he possessionof t he of t he present plaint iffson Khasra NO764 t he j am abandi EP2f0rt heyear194546WaS onlyas m ort gages ln pursuance oforal m ort gagewhich was ent ered t he revenue record as ExP5 and in no ot her capacit ysuch as t enant s et c The cont ent ion of t he learned counselfor t heplaint if t hat Bhika above nam ed died wit hout issue whereas his brot hers Badleyand Kareyare t hepredecessorin lnt erest oft hepresentplaint i and t hus t en t enancyoft he plaint is on t he suit land I S t o be deem edt o have vV com m encedprior t o t he year 1931 cannot be e because it is nowhere t he case of t heplaint iHsin ze plaintt hat t he lnt erest of t he plaint if alongwit hBhika above nam ed were j oint lyin possessionof t he suit land and secondlybecause ExPFfor t he year 193132 does not pert aint o any part of t he land what soeverand t hereforet enancyof t he . um a 13: 06 Scanned True Copy of Original PHHC,Chandigar h JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 472 t 7 RSeAe Noe889 of2005 olJ1 r 1121 1 0 C3 0 I Z C I 08 7 2 1 Qm plaint iHsover t he suit land cannot be considered t o have com m encedprior t o t he year 193132 as so claim ed 9 The result of t heforegoingdiscussion is t hat t he plaint iffshave m iserablyfailedt o prove t heir plea of havingbeen in possessionof t he suit land as t enant sprior t o t he creat ion of t he oral m ort gage which cam e t o be ent ered vide m ut at ion No405 copy whereofis ExpP51H9on 161948 form allysanct ioned on 18350 by C I lnd Grade and rat her t he said m ut at ion it selfproves t hat possessionof t hepredecessorof t heplaint iHs t he suit land had com m encedonly upon oral wit h possessionof t he suit land in t heir favour As t he relevantperiodfor lookingint o t he ofst agedt enancyoft heplaint is over t he 1 suit land is prior t o creat ion of t he oral m ort gage t hroughm ut at ion No405 as ent ered in t he year 1944 and sanct ioned in t he year 1950 it ls not considered necessary t o advert t o t he sale deed ExDWI I A dat ed 43 957 and m ut at ion No82 ExDB which was sanct ioned on t he basis of t he sam e because t hefact umof st at ed t enancy of t he . um a 13: 06 Scanned True Copy of Original PHHC,Chandigar h JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 473 RSAe No 889 of2005 1131 m r 0 C C5 I Z e I 08 7 Z I l r 4 rJ plain4ffson t he suit land can be evident lydecided wit hout referringt o t he said sale deeds wit h ret rospect ivepresum pt ionI l Learned counsel for t heplaint iffa Mrankaj Jain has relied upon j am abandiof t he year 193940 ExP4 for t he year 195455 ExP3 j am abandifor t he year 194546 Ex2 t he year 19332 ExPF t o cont endt hat aft er M Harlal plaint if appellant No2 t o 4 were t enant s over t he suit lancl He cont endedt hat Bheekha had died issueless and his right swere inherit ed by Badleyand Kar6fat hersof He argued t hat ExP4 has been m isread as predecessorsof were recorded as owners He claim ed t hatExP4 shows com m on t enancy I have gone t hugh t he docum ent sreferred t o by counsel for t he So far as Khasra No62 is concem ed as per t he Jam abandi ExP4 6Hindit ranslat ion ExP41H9 for t he year 193940 indicat e t hat one Ram Dayal and Surj anwere in as earlier m ort gageeof said khasra num ber The plaint iffsdo not seem t o haVe any concern wit h t he said khasraNo62 The ot her khasranum bersie 763 and 764 are shown t o be in possessionof Bheekha son of GangaSahai as gair m arusi The nam es of all t he flve plaint iffsare m ent ionedin t he said t o be in possessionin what soevercapacit yin KhasraNos 763 and 764 A perusalof t he plaintindicat es t hat t he plaint iffshad not claim ed t hat t heywere in cult ivat ing oft he said khasranum bers . um a 13: 06 Scanned True Copy of Original PHHC,Chandigar h JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 474 ReSeAeNoe889 of2005 e1 r 1141 21 Bheeka son of GangaSahai who him self of his own part 1Snot shown t o have beenpayingany rent regardingkhasranum bers763 and 764 t o t he plaint iffsKat t i and Bahoru I have t raced t he pedigreeof sons of GangaSahai GangaSahai had t hree sons Bheeka Badleyand Kara Plaint iffsNol 4 and 5 are decedent sofBadleywhereasplaint iffsNo2 3 and 11S are t he successors in int erestofKara A flndingoffact ahs been anived at by bot h t he Court s below by t horoughlyscrut inizingt he evidence t o t he effect t hat are not t enant s in t he suit land under owners nam elyKat t i and Bhoru sons of Shiv Karanl The said findingcannot be said t o be perverseas t he oral and docum ent aryevidence in cont ext t o t he pleadingshas been Counselfor t he has m ade an at t em ptt o persuadet his Court t o fonn an opiniont hat t here has been m isreadingand m is of evidencebut on goingt hrought he record and t he passedby t he Court s below I am of t he opiniont hat t here is no scope for int erferencein t he concurrent flndingof fact anived at by t he Couns below regardingt he beingnot t enant sin of suit land under 1 0 C I C5 I Z r I a5 7 Z 1 Crl oJ previousowners Kat t i and Bahoru The appealis t hus dism issed 1 1 January25 2010 f7r1 1 sanlay OI VLMSBEDO JUDGE 4 Q02 foAo O1 OO V lfJ . um a 13: 06 Scanned True Copy of Original PHHC,Chandigar h I Yl JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document