Partap Ram vs Jawahar Singh

R.N. Mittal, J.(Oral)

This is a second appeal by the plaintiffs against the judgment and decree of the Additional District Judge, Ferozepore dated 28th December, 1973.

Briefly, the case of the plaintiffs is that they were the owners of 28 Kanals 13 Marlas of land situated in village Chuhriwal Chisti and the defendant was a tenant under them. They filed an application for ejectment against him in the Court of the Assistant Collector IInd Grade, Fazilka, which was accepted by him exparte on 6th November, 1970 (Copy Exhibit P. 4). Subsequently, they executed that order and according to the report roznamacha dated 21st December, 1970 (Copy Ex P. 1/A). They were delivered actual possession of 8 Kanals and symbolical possession of 12 Kanals 3 Marlas out of the aforesaid land. There is no mention about 8 Kanals 10 Marlas the remaining land in the report roznamacha.

The defendant filed an application for setting aside the order of ejectment before the Assistant Collector which was accepted on 28th October, 1971 and the exparte proceedings were set aside. The plaintiffs went up in appeal against the order of the Assistant Collector to the Collector. They also moved an application for staying their dispossession till decision of the appeal. The Collector granted them ad interim stay vide order dated 21st December, 1971 (copy Ex. P. 6). While the appeal was pending before the Collector, there was conflict between Pakistan and India and the land was occupied by the Pakistan forces. The Government agreed to pay compensation to the persons in possession of the property at the time of conflict for the crops relating to Kharif 1971 and other subsequent crops. The plaintiffs filed a suit for injunction that the defendant be restrained from taking compensation of the land from the State Government and for correction of Khasra Girdawaris.

The suit was contested by the defendant who admitted the passing of the exparte order of ejectment against him and the conflict between India and Pakistan. He also admitted that the Government agreed to pay the compensation. He however, pleaded that he was entitled to compensation as he remained in actual possession of the property. He also stated that the plaintiffs were not entitled to a decree for amendment of the Khasra Girdawaris as it was within the competence of the Revenue Officers to do so.

The learned trial Court held that the plaintiffs came into possession of whole of the land. Consequently, it passed a decree in their favour for injunction as prayed for. Regarding the prayer for correction of the Khasra Girdawaris, it held that the relief could be granted by a Revenue Officer and not by the Civil Court. Therefore it dismissed the suit in that regard.

The defendant went up in appeal before the Additional District Judge, Ferozepore, who held that the plaintiffs were delivered actual possession of the land regarding 8 Kanals and, therefore, they were entitled to the compensation for that land. Regarding 20 Kanals 13 Marlas he held that the same remained in possession of the defendant and, therefore, he was entitled to its compensation. In view of the aforesaid findings, he modified the decree of the trial Court and decreed the suit of the plaintiffs regarding 8 Kanals of land. They came up in second appeal to this Court.

With the appeal, they also filed an application under Order 41, Rule 27, Code of Civil Procedure for taking on record the order of the Assistant Collector dated 31st December, 1973, by which the Khasra Girdawaris were ordered to be corrected, and the corrected Khasra Girdawaris from Rabi 1971 to Kharif 1973. However, the learned counsel for the plaintiffappellants does not press this application and prays that he may be permitted to withdraw the same. I order accordingly.

It is contended by the learned counsel for the appellants that while delivering the possession, the appellants were given actual possession of 8 Kanals and symbolical possession of 12 Kanals 3 Marlas. He submits that after the crops were harvested, the appellants took possession of the remaining land. He further submits that the crops for which compensation was being paid were sown by them and, therefore, they were entitled to the compensation regarding whole of the land.

I have given due consideration to the argument of the learned counsel but regret my inability to accept the same. It is not disputed that according to the report Roznamacha, the appellants were given actual possession of 8 Kanals and symbolical possession of 12 Kanals 3 Marlas. There is no mention in the report that actual or symbolical possession of the remaining land was delivered to them. There is no documentary proof on the record to show that the appellants later took actual possession of the land measuring 20 Kanals 13 Marlas. The oral statements of the appellants'' witnesses regarding delivery of possession by the respondent cannot be accepted. If the respondent had delivered the possession by consent, the appellants would have produced a writing obtained from him. However, no such writing has been produced. Therefore, it cannot be accepted that actual possession of the land was delivered by the respondent to the appellants after harvesting the crops.

Faced with that situation, the learned counsel for the appellants submits that the symbolical possession is as good as actual possession and the appellants would be deemed to have been put into actual possession after the crop had been harvested by the respondent. I am not inclined to accept this submission as well. No provision of law has been referred to by the learned counsel for the appellants to support his submission. He places reliance on Balwant Narayan Bhagde v. M.D. Bhagwat and others, 1976 Revenue Law Reporter 1. The facts of that case are distinguishable and consequently he cannot derive any benefit from the case.

Again, the question arises as to whether the appellants came into possession of the land the symbolical possession of which is alleged to have been delivered to them. As already observed above, they have failed to prove that they were given the actual possession of the land after harvesting the crop. In case the appellants were interested in taking the actual possession of the land on which the crops were standing, they could do so by following the procedure laid down in section 49 of the Punjab Tenancy Act. It is inter alia provided therein that the Revenue Officer ordering the ejectment of the tenant may, on the application of the landlord, determine the value of the tenant''s uncut and ungathered crops, and, on payment thereof by the landlord to the Revenue Officer, forthwith eject the tenant. No application was filed by the appellants to determine the value of the uncut and ungathered crops, much less depositing the same. Therefore, I reject the contention of the learned counsel.

After taking into consideration the facts and circumstances of the case, I am of the view that the appellants are entitled to the entire compensation regarding 8 Kanals of the land only, as held by the Additional District Judge. However, it is not disputed by Mr. Dhingra, learned Counsel for the respondent, that the appellants are entitled to the landlord''s share, that is, onethird share, in the compensation regarding the remaining land and they can get the same.

For the aforesaid reasons, I do not find any merit in the appeal and dismiss the same with no order as to costs.