Dholan Singh vs Ilyas and another

Defendant-appellant is in the regular second appeal against the concurrent findings of fact arrived at by the courts below.

In the considered opinion of this court, following substantial questions of law arise for determination:-

(i) Whether the plaintiff who files a suit for injunction only claiming to be in possession can continue the suit once it is established that he is not in

possession?

(ii) Whether tenancy of immovable property can be inferred only on the basis of revenue entries without any further evidence of inception regarding

tenancy by any written or oral agreement and payment of the rent thereunder?

The facts of the case are that Dholan Singh, defendant- appellant purchased the property in dispute through two sale deeds dated 31.05.1985, Ex.D1

and D2. Plaintiff filed a suit in the year 2002, pleading that he is in continuous uninterrupted hostile possession of the property. In the alternative,

plaintiff also pleaded that he is in possession of the property on payment of ½ batai (crop sharing). Paragraphs 1 and 3 of the plaint are extracted as

under:-

“1. That the plaintiff is in possession of the land bearing khewat No.56 Khatauni No.63, Rect. No.3 killa No.17(5-0), situated on payment of ½

batai. Land bearing khewat No.50 khatauni No.55 rect no.6/3/2(6-0), on chakota Sal temam for Rs.50/-. Land bearing khewat No.50 khatauni No.56

rect no.6 killa No.4 (8-0), on chakota saal temam for Rs.20/-per kanals, situated within the revenue estate of village Bhogipur, Tehsil Tauru District

Gurgaon, for the last so many years i.e. more than 50 years. The plaintiff has been paying the batai as well as chakota to the defendant and other co-

sharers of the suit land continuously.

That the possession of the plaintiff over the suit land is quite long, continuous, uninterrupted, hostile since the time of the inception of the plaintiff on

the suit land under the defendants and other co-sharers.â€​

Defendant contested the suit and pleaded that he is in possession of the property as possession was delivered to him at the time of execution of the

sale deeds.

Both the courts while relying upon entries in the revenue record and discussing Ex.D3, affidavit of the plaintiff, decreed the suit for injunction.

Learned counsel for the appellant has drawn attention of the court to the deposition of the plaintiff while appearing in evidence wherein plaintiff admits

that Dholan Singh is in possession of the property in dispute although he had taken possession forcibly. It is further his statement that possession to

Dholan Singh was given by Punjabi. He feigned ignorance when Dholan Singh took possession from him. While referring to the aforesaid statement,

counsel for the appellant submits that the suit for injunction was not maintainable as the plaintiff was not in possession. He submitted that revenue

record only has rebuttable presumption which stands rebutted from the sale deed as well as admission of the plaintiff in evidence. He has further

submitted that the courts below have wrongly relied upon Ex.D3, which was the affidavit, submitted by the plaintiff with respect to different land.

On the other hand, learned counsel for the respondent plaintiff has contended that the plaintiff is recorded as tenant in possession for 50 years and

therefore the judgments passed by the courts below does not require any interference.

Now the stage is set for considering the questions of law:-Question No.(i) Whether the plaintiff who files a suit for injunction only claiming to be in

possession can continue the suit once it is established that he is not in possession? For facility of reference, the statement of the plaintiff is translated in

English would read as under:-

“It is correct that Dholan was delivered possession by Punjabi. Volunteered that Dholan Singh had taken possession from me forcibly. I do not

know when Dholan Singh took possession from me and I cannot tell what were the khasra numbers of the land in disputeâ€​

In view of this categoric admission of the plaintiff, in the considered opinion of this court, suit for injunction was not maintainable. The courts should

have dismissed the suit there and then.

Hence, question no.1 is answered in favour of the appellant. Question No.(ii) Whether tenancy of immovable property can be inferred only on the

basis of revenue entries without any further evidence of inception regarding tenancy by any written or oral agreement and payment of the rent

thereunder? From the reading of the pleadings and evidence available on the record, it is not established as to who inducted the plaintiff as a tenant in

the land. He has made vague statement that he has been paying rent to some of the co-sharers. Neither any receipt has been produced nor the person

to whom the rent was paid has been named. Previous owners have not been examined to prove that there was any contract of tenancy between the

parties. Tenancy is a result of agreement/contract between the parties. The contract can be even oral with respect to agricultural land. However, the

contract of tenancy has to be proved by leading cogent evidence. No doubt, revenue record carries a presumption of truth, however such presumption

is rebuttable presumption. In the present case, in view of the admission made by the plaintiff, the presumption stood rebutted.

In view of the aforesaid question no.2 is also answered in favour of the appellant.

The regular second appeal is allowed. Judgments and decrees passed by the courts below are set aside.