In a second appeal regarding tenancy rights and injunction, the High Court held that the appeal is bereft of merit as the appellant failed to prove she was the widow of the deceased tenant or inherited tenancy rights, upholding the dismissal of the lower courts.
The instant regular second appeal stands dismissed with no order as to costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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RSA No. 3000 of 2012 (O&M)
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
RSA No. 3000 of 2012 (O&M) Date of Decision 04.02.2014
Smt. Atmi Devi
....Appellant
Versus
Bhisham Kumar and others
....Respondents
CORAM: HON'BLE MR. JUSTICE RAMESHWAR SINGH MALIK
Present: Mr. Ranjit Saini, Advocate for the appellant.
1. To be referred to the Reporters or not? Whether the judgment should be reported in the Digest?
RAMESHWAR SINGH MALIK J.
C.M. No.8022-C of 2012
Applicant seeks condonation of delay of 176 days in re-filing
the appeal. Application is supported by an affidavit.
Application is allowed for the reasons stated therein and
delay of 176 days in re-filing the appeal stands condoned.
C.M. stands disposed of.
RSA No. 3000 of 2012
Feeling aggrieved, against the impugned judgments and
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RSA No. 3000 of 2012 (O&M)
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decrees passed by both the learned courts below, dismissing her suit for permanent injunction, plaintiff has approached this Court by way of instant regular second appeal.
Briefly put, facts of the case are that plaintiff filed the present suit alleging that her husband late Sh. Antu Ram was in cultivating possession of the suit land as tenant since long. Late Sh. Antu Ram had two brothers namely Tungal Ram and Jyoti Ram. Plaintiff was initially married with Tungal Ram, who expired in the year 1975 and after his death, she performed marriage with Antu Ram, as per prevailing custom. One daughter namely Gulabo was born out of this wedlock. Later, Sh. Antu Ram died in the year 1989. After the death of late Sh. Antu Ram, plaintiff inherited the tenancy rights of her husband and was in cultivating possession over the suit land, as tenant. Although defendants were not having any right or title on the suit land, yet they started threatening the plaintiff to dispossess her, thereby compelling her to file the present suit.
Having been served in the suit, defendants No. 1 and 2 appeared and filed their written statement admitting that late Sh. Antu Ram died in the year 1989, but died unmarried and issueless. Plaintiff was denied to be the widow of late Sh. Antu Ram as she was widow of Tungal Ram. Defendant No.2 claimed himself to be general power of attorney holder of the owners of suit land. It was also stated that mutation of inheritance of late Sh. Antu Ram was never sanctioned in favour of the plaintiff and she was stranger to the suit land. Dismissal of the suit was prayed for.
Defendants No. 3 to 5, who were impleaded later on,
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appeared and filed their written statement taking preliminary objection that plaintiff was having no locus standi to file the present suit. Late Sh. Antu Ram died 15 years back and suit was not maintainable. It was also stated that late Sh. Antu Ram never remained in possession over the suit land as tenant. Khasra Girdawari were recorded in his favour without any basis. After the death of Sh. Antu Ram, there was no male lineal descendent of late Sh. Antu Ram as he was unmarried and issueless. On merits, it was stated that after the death of her husband late Sh. Tungal Ram, plaintiff never entered into any karewa marriage with late Sh. Antu. It was also pleaded that there were many children from the wedlock of late Sh. Tungal and plaintiff. Smt. Gulabo was also daughter of Sh. Tungal. Neither late Sh. Antu Ram remained tenant over the suit land, nor plaintiff was his widow. Since defendants No. 3 to 5 were in the actual physical possession over the suit land, Assistant Collector 2nd Grade, rightly corrected the entries of khasra Girdawari in their favour. Denying rest of the averments of the plaint, dismissal of the suit was prayed for.
On completion of pleadings of the parties, learned trial court framed the following issues:-
“1.Whether plaintiff is entitled for injunction as prayed for? OPP.
2. Whether plaintiff has no locus standi to file the present suit?OPD.
3. Whether plaintiff is not the widow of Antu Ram deceased? OPD.
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RSA No. 3000 of 2012 (O&M)
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4. Whether present suit is not maintainable?OPP
5. Whether the suit is bad for mis-joinder of necessary parties?
6. Whether defendants are entitled for special costs U/Sec 35-A CPC?
7 Relief”
With a view to substantiate their respective stands taken, parties led their documentary as well as oral evidence. After hearing both the parties and going through the evidence brought on record, learned trial court came to the conclusion that plaintiff has failed to prove her case. Accordingly, suit was dismissed vide impugned judgment and decree dated 23.9.2009. Feeling aggrieved, plaintiff filed her first appeal which also came to be dismissed vide impugned judgment and decree dated 25.7.2011. Hence this second appeal.
Learned counsel for the appellant-plaintiff submits that learned courts below have failed to appreciate the true facts of the case and also evidence brought on record, in the correct perspective, because of which the impugned judgments and decrees were liable to be set aside. He further submits that there was ample evidence available on record to decree the suit of the plaintiff, but the learned courts below proceeded on a patently illegal approach, while dismissing the suit of the plaintiff. He prays for setting aside the impugned judgments and decrees by allowing the present appeal.
Having heard the learned counsel for the appellant, after careful perusal of record of the case and giving thoughtful consideration to the arguments advanced, this Court is of the Kumar Amit 2014.04.25 15:13 I attest to the accuracy and integrity of this document
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RSA No. 3000 of 2012 (O&M)
considered opinion that in the given fact situation of the case, no interference is warranted at the hands of this Court, while exercising its appellate jurisdiction under Section 100 of the Code of Civil Procedure ('CPC' for short), for the following more than one reasons.
The entire case of the plaintiff-appellant revolved around the two facts. Firstly, whether she was widow of late Sh. Antu Ram and secondly whether after the death of Sh. Antu Ram, she inherited the tenancy right qua the suit land. However, plaintiff-appellant failed to prove both these facts. There was voluminous documentary evidence including Ex.D14 to D22, wherein the plaintiff-appellant was shown as widow of late Sh. Tungal Ram, in different voter lists and ration card, over a long period of 30 years.
Besides this, plaintiff failed to take any specific and categorical averments in her plaint, regarding the fact as to when the tenancy was created in favour of late Sh. Antu Ram, who created the tenancy and what was his liability to pay the rent. As per the jamabandi for the year 1976-77 Ex.D2, land was recorded as 'Gair Mumkin Jungal' and it was shown in the possession of the forest department. Similarly, in Ex.D3, no rate of rent was mentioned.
When plaintiff appeared as PW1, she stated that Chhoti was younger to Gulabo and name of younger to her was Sunita Devi whose father was Tungal. Thus, evidence of plaintiff was contrary to her own pleadings. Plaintiff did not produce any contrary evidence to disprove numerous voter lists Ex.D14 to D21, wherein the plaintiff was shown to be widow of Tungal Ram. Having said that, this Court feels no hesitation to conclude that learned courts below committed Kumar Amit 2014.04.25 15:13 I attest to the accuracy and integrity of this document
RSA No. 3000 of 2012 (O&M)
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no error of law, while passing the impugned judgments and the same deserve to be upheld, for this reason as well.
As per her own document Ex.P9, a copy of order passed by the Commissioner, Ambala Cantt on 23.3.2005, plaintiff was mentioned as Smt. Atmi wife of Tungal Ram. Plaintiff was the petitioner in that case which was filed against defendants No. 3 to 5. Thus, plaintiff shown herself to be widow of late Sh. Tungal. In this view of the matter, stand taken by the plaintiff has not only been found to be incorrect, but the same is misleading also.
According to the statement of plaintiff, she was in possession of the suit land on payment of 1/3rd batai. This claim is contrary to the entry recorded in the revenue record, where batai was shown as 1/2. Plaintiff was totally unaware as to who was the owner of the suit land. Interestingly, her another witness PW2-Fakir Chand stated that plaintiff was cultivating the suit land as owner and she was in possession for the last 40 to 50 years, whereas Sh. Antu Ram died in the year 1989. It was not the case of the plaintiff herself that she was in possession of the suit land even during the life time of late Sh. Antu Ram. She also failed to prove that how much rent was being paid by her and to whom.
Regarding her alleged marriage with late Sh. Antu Ram, plaintiff did not bring any documentary evidence on record. On the other hand, she was recorded as wife of Tungal Ram in the voter lists Ex.P14 to Ex. P21 for the years 1975 to 2004. She was also recorded as wife of Tungal Ram in the ration card Ex.D22. In view of
what has been discussed hereinabove, it can be safely concluded Kumar Amit 2014.04.25 15:13 I attest to the accuracy and integrity of this document
RSA No. 3000 of 2012 (O&M)
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that plaintiff failed to prove both the material facts that she was the widow of late Sh. Antu Ram and has inherited the tenancy right. Any contrary revenue entry recorded without any basis, was liable to be ignored in the peculiar facts and circumstances of the case.
It was also a matter of record that entry showing possession of defendants No. 3 to 5 had been ordered to be corrected in the khasra girdawari by the competent authority, i.e. Assistant Collector 2nd Grade. In this view of the matter, once plaintiff was no more in actual physical possession over the suit land, her suit for injunction was not even maintainable. Thus, the impugned judgments deserve to be upheld for this reason also.
During the course of hearing, learned counsel for the appellants failed to point out any jurisdictional error or patent illegality apparent on the record of the case, in either of the impugned judgments and decrees passed by the learned courts below. He also failed to put into service any substantive argument, so as to convince this Court to take a different view than the one taken by the learned courts below. Further, no question of law much less substantial question of law has been found involved in the present case, which is sine qua non for interference at the hands of this Court, while exercising its appellate jurisdiction under Section 100 CPC. Thus, the impugned judgments and decrees passed by the learned courts below deserve to be upheld.
No other argument was raised.
Considering the peculiar facts and circumstances of the
case noted above, coupled with the reasons aforementioned, this Kumar Amit 2014.04.25 15:13 I attest to the accuracy and integrity of this document
RSA No. 3000 of 2012 (O&M)
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Court is of the considered view that the present appeal is bereft of merit and without any substance. Thus, it must fail. No case for interference has been made out.
Resultantly, the instant regular second appeal stands dismissed, however, with no order as to costs.
(RAMESHWAR SINGH MALIK) JUDGE
04.02.2014 AK Sharma
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3 issues framed by the court
Whether the second appeal is maintainable under Section 100 CPC when no jurisdictional error or patent illegality is apparent on the record?
Whether the appellant successfully proved she was the widow of the deceased tenant and inherited tenancy rights over the suit land?
Whether the lower courts erred in dismissing the suit for permanent injunction where the appellant failed to prove material facts of widowhood and tenancy?
1 provisions across 1 enactments
Smt. Atmi Devi
Bhisham Kumar and others
Rameshwar Singh Malik
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
