Bhagiratha vs Janak and ors.

Ujagar Singh, J.

This appeal is against the judgments and decrees of both the Courts below for possession of the site in dispute. Counsel for the appellant has challenged the decrees only on the ground that the site in dispute was `land'' within the meaning of Section 4(1) of the Punjab Tenancy Act and the case of the plaintiffrespondents is that the land in dispute was given on rent to the father of the appellant who died without delivering its possession to the plaintiffs and, therefore, the possession of the defendant appellant was unauthorised inasmuch as he did not pay any rent on account of use and occupation thereof. The plaintiffs claimed possession of the bara in dispute as well as Rs. 54/ on account of mesne profits for use and occupation of the same at the rate of Rs. 18/ per annum. The defendant denied the tenancy of his father and claimed that the bara has been in possession since the times of their ancestors and therefore the suit by the plaintiffs was not maintainable. The plaintiffs valued their suit for the purpose of courtfee at Rs. 18/, i.e., the rent per annum; and Rs. 54/ as amount for use and occupation for three years. Thus the courtfee amounting to Rs. 7.50 was fixed on the total valuation of Rs. 72/. The defendant in reply to para 10 contested the valuation on the ground that the market value of the bara in dispute was not less than Rs. 1000/. The trial Court framed the following issues:

(1) Whether the plaint is properly valued for purpose of courtfee and jurisdiction ?

(2) Whether the plaintiff are the owners of the property in dispute ?

(3) Whether the property in dispute was let out by the plaintiff to the father of the defendant as alleged; if so, on what terms and conditions and to what effect ?

(4) Whether the defendant has become owner of the suit property by adverse possession ?

(5) Whether the suit is not maintainable in the present form ?

(6) What amount, if any, at what rate and for what period the plaintiffs are entitled to recover on account of mense profits form the defendant ?

The suit was decreed after trial by the trial Court and on appeal, findings on issue were confirmed by the lower appellate Court.

The only point urged by Mr. D.N. Tanwar, learned counsel for the appellant is that the bara in dispute was land within the meaning of Section 4(1) of the Punjab Tenancy Act, and, therefore, the civil Courts had no jurisdiction to try this case, as Section 77 of the Punjab Tenancy Act bars the trial of the suit by the Courts other than the Revenue Courts. To stress his point, he refers to last lines in Para 7 of the trial Court''s judgment which are reproduced hereunder:

"............... The site in dispute is in fact site on which according to Bhagiratha defendant D.W. 3 there is one chhan which is being used for tethering goats, sheep etc. No residential room etc. is situated on the site in dispute. In these circumstances the testimony of P.W.3 Nand Kishore does not relate to the property in dispute but it rather relate to the residential house of the defendant adjoining to the suit property."

To bring this bara in dispute within the meaning of land as defined in Section 4(1) of the Punjab Tenancy Act it is essential to aver and prove that the bara in dispute was not occupied as the site of any building in a town or village and also that it is occupied or has been let for agricultural purpose or for purposes subservient to agriculture or for pasture and includes the sites of buildings and other structures on such land. To meet the above requirement, the learned counsel failed to show any pleadings or any evidence to get benefit of the provisions of Section 77 of the Punjab Tenancy Act. He cites Chhaju v. Nath and others, 1974 P.L.J. 43, but in that case the dispute was with regard to land which was occupied by nonoccupancy tenants. In the present case, there is nothing on the file to show that the parties are agriculturists or the bara in dispute has anything to do with purpose subservant to agriculture. In this view of the matter, this appeal fails and is hereby dismissed with costs. The judgments and decrees of the lower Courts are affirmed.