Kapur Singh vs Financial Commissioner

J.M. Tandon, J.

Kapur Singh, petitioner, was a tenant of land measuring 41 Kanals 15 Marlas in Sirhind under respondent Nos. 2 to 7. The respondents landowners filed a suit for ejectment of the petitioner on June 19, 1967 under the Pepsu Tenancy and Agricultural Lands Act, 1955 (hereinafter the Act), on the following grounds :

(a) The petitioner has completed three years of tenancy and is, therefore, liable to be ejected under section 8 of the Act.

(b) The petitioner has failed to execute the Kabuliyatnama.

(c) The petitioner is in arrears of rent.

The arrears of rent was paid by the petitioner. The Assistant Collector vide order dated May 13, 1970 (P.1) held that the respondents had failed to make a demand in writing for the execution of the Kabuliyatnama and as such the petitioner is not liable to be ejected his having not executed the same. It was also held that the petitioner was not liable to be ejected under section 8 of the Act till the provisions of Section 7 were satisfied irrespective of the fact that the petitioner had completed three years under the small landowners. The suit of the respondentslandowners was consequently dismissed.

The respondentslandowners filed another ejectment suit against the petitioner on January 22, 1972, which was decreed by the Assistant Collector vide order dated August 23, 1973 (P.2) on the ground that the petitioner had failed to execute the Kabliyatnama and further he was cultivating the land in dispute for more than three years as a tenant under the landowners. The petitioner filed an appeal against the order P.2 which was dismissed by the Collector vide order dated January 28, 1974, (P.3). The petitioner then filed a revision before the Commissioner which was dismissed vide order dated February 6, 1975 (P.4). Another revision filed by the petitioner before the Financial Commissioner was dismissed vide order dated February 19, 1976, (P.6). The petitioner has assailed the orders P.2, P.3, P.4 and P.6 in the present writ petition.

The respondentslandowners have not put in appearance in spite of service.

The learned counsel for the petitioner has argued that irrespective of the fact that the law as settled at present is that a tenant is liable to be ejected under section 8 of the Act, the respondentslandowners could not secure an ejectment order against the petitioner on this ground because a contrary finding had been given by the Assistant Collector in an earlier ejectment suit filed by them against the petitioner which was dismissed by the Assistant Collector on May 13, 1970 (P.1). The contention of the learned counsel for the petitioner appears to be correct. The Assistant Collector who passed the order P.1 was competent to decide whether the petitioner was liable to be ejected under section 8 of the Act or not. The Assistant Collector decided that the petitioner was not liable to be ejected under Section 8 so long as the provisions of Section 7 of the Act are not satisfied. The respondentslandowners did not file an appeal against the order P.1 with the result that it assumed finality. The petitioner, therefore, could not be ejected the subsequent ejectment proceedings initiated by the respondent landowners on the ground that he was cultivating the land for more than three years under them:

Section 7(1)(f) of the Act reads :

"7. (1) No tenancy shall be terminated except in accordance with the provisions of this Act or except on any of the following grounds, namely : (f) that the tenant, on demand in writing by the landowner has refused to execute a Kabuliyat agreeing to pay rent in respect of his tenancy in accordance with the provisions of sections 9 and 10.

It has been found as a fact that a notice was issued by the respondents landowners to the petitioner for execution of the Kabuliyatnama in their favour and the petitioner failed to do that. The petitioner has been ordered to be ejected on this ground.

The learned counsel for the petitioner has argued that there was no evidence to justify an inference raised by the authorities that the petitioner had received a notice or he had refused to execute the Kabuliyatnama. The contention is without merit. A finding on this point is one of the facts and cannot be assailed in writ proceedings.

The learned counsel for the petitioner has further argued that the petitioner could be ejected under section 7(1)(f) of the Act if he had refused to execute the Kabuliyatnama . The petitioner at best failed to execute the Kabuliyatnama in favour of the respondentslandowners. The failure on the part of the petitioner cannot be equated with refusal. The impugned orders are, therefore, liable to be set aside. The contention is without merit. After the petitioner had been served with a notice to execute the Kabuliyatnama in favour of the respondentslandlords and he failed to do so it shall be presumed that he refused the Kabuliyatnama in terms of Section 7(1)(f). The petitioner was, therefore, rightly ordered to be ejected.

In the result, the writ petition fails and is dismissed with no order as to costs.