- (1.) These appeals have been preferred against the judgments and orders dated 18.9.2002, passed by the High Court of Punjab and Haryana at Chandigarh in Civil Writ Petition Nos.13985 to 13990 of 2001, by way of which, the High Court has dismissed the said writ petitions, concurring with the judgment and order of the Financial Commissioner dated 29.11.2000, by which while allowing the Revision Petition filed by the respondent-Gram Panchayat, claims of the appellants for occupancy rights in the land in dispute were rejected.
(2.) The facts and circumstances giving rise to these appeals are as follows: A. The appellants/their predecessors-in-interest had been in cultivatory possession of the land in dispute, measuring 78 kanal 5 marlas situated in the village of Jhupa Khurd, Tehsil Loharu Distt. Bhiwani, prior to 1935-36. Until the year 1954, the said land was recorded as Shamilat deh in the revenue records. In the cultivation column, the appellants/their predecessors-in-interest were shown as co- sharers. The appellants/their predecessors-in-interest, filed a suit on 4.7.1989 in the Court of the Assistant Collector, First Grade Loharu, District Bhiwani, Haryana for declaration of their occupancy rights, under Sections 5 and 8 of the Punjab Tenancy Act, 1887 (hereinafter referred to as, 'the Tenancy Act') in relation to the land in dispute. The suit was contested by the State, as well as by the Gram Panchayat and after the conclusion of the trial, the same stood as dismissed, vide judgment and order dated 28.8.1992. B. Aggrieved, the appellants/their predecessors-in-interest preferred an appeal before the District Collector, which was allowed vide order dated 28.6.1993, by way of which the appellate authority set aside the judgment and order of the Assistant Collector, and remanded back the case so that the same could be decided afresh. C. The Court of First Instance, i.e. the Assistant Collector, after remand, allowed the case vide judgment and order dated 18.11.1993, observing : "Plaintiff has paid the rent to the Gram Panchayat from time to time and when the Panchayat refused to take the rent the same was deposited in the court, on courts' order. Receipts of which are on the file. The plaintiff has been paying the nominal rent since before 12 years before the commencement of Punjab village common lands Act,1961and therefore there is relationship between the parties as land lord and tenant." It was further held that, as the appellants/plaintiffs fulfilled all the conditions of Sections 5 and 8 of the Tenancy Act, owing to the fact that they had been in uninterrupted possession of the land for a very long time and had also been cultivating the said land continuously, paying nominal rent to the Gram Panchayat, much before the commencement of the Punjab Village Common Lands (Regulation) Act, 1961, (hereinafter referred to as Act 1961), and hence, the provisions of Section 7 of the Act 1961 were not attracted and that they were, therefore, in fact entitled to the declaration as sought by them. D. Aggrieved, the Gram Panchayat-defendant, filed an appeal before the District Collector, Bhiwani, which was allowed vide judgment and order dated 26.2.1996, taking into consideration the fact that the Predecessors-in-interest of the appellants, were in possession of the land for a period of more than 60 years upon the payment of nominal rent of 34 paise, however, the disputed land was always shown as 'shamilat deh', and all revenue records showed the status of the appellants/their predecessors-in-interest as co-sharers, owing to which, they could not be termed as tenants. To create a relationship of tenancy, there must be an agreement between the parties, which was not in existence in the instant case. The possession of the appellants as regards the land in dispute, remained unauthorised and illegal and thus, they could not claim occupancy rights. In the event that the land was in illegal possession of any person, prior to the commencement of the Act, 1961, the same would be deemed to be illegal, and no occupancy rights over it would be allowed. E. The appellants/their predecessors-in-interest filed an appeal against the said order, before the Divisional Commissioner, Hisar. The Divisional Commissioner, while deciding further appeals vide judgment and order dated 22.8.1996, held that the predecessors-in- interest of the appellants, had been in cultivatory possession of the land before 1935-1936 as share holders/joint owners, upon the payment of nominal rent. As the appellants had been in cultivatory possession for more than 12 years, from the date of commencement of the Act 1961, without the payment of rent, or by payment of charges not exceeding the land revenue and cesses payable thereon, thus in view of the provisions of Section 4(3)(ii) of the Act, 1961, it cannot now, make any distinction between a tenant or co-owner of the 'shamilat deh' and therefore, the right of occupancy would be available to the tenants, as well as to the co-sharers for the reason that co-sharers must have a superior claim as compared to that of a tenant. F. The said judgment dated 22.8.1996 was challenged by the respondent-Gram Panchayat by filing a revision application before the Financial Commissioner of the State of Haryana. The Financial Commissioner vide its judgment and order dated 29.11.2000, held that the provisions of 4(3)(ii) of the Act, l961 which provide that the rights of persons who have been in continuous cultivatory possession of 'shamilat deh', for a period of more than 12 years from the date of commencement of the said Act, without payment of rent, or upon payment of nominal rent, were not applicable as the appellants were recorded in the revenue record, as joint owners, to whom the land was never leased out by the Gram Panchayat, and thus, the provisions of the Act 1961 were not attracted, and as it is a settled legal proposition that occupancy rights cannot be acquired in shamilat deh by a joint-owner, the revision was accepted. G. Aggrieved, the appellants challenged the said judgment and order dated 29.11.2000, by filing writ petitions which have been dismissed by the impugned judgments and orders. The High Court held that the expression, 'any person' contained in Section 8 of the Tenancy Act, referred only to the person mentioned in Section 5, which was a tenant. This section only provides that any person can establish a right of occupancy on any ground other than the one's specified in Section 5, and that as the appellants had never been tenants, the question of granting them occupancy rights could, therefore, not arise. The relationship of a landlord and tenant could not exist between the parties. The appellants had been joint-owners prior to the year 1953. Till date, the revenue record depicts them as joint- owners. Section 10 of the Tenancy Act puts an embargo on joint-owners to claim occupancy rights. Hence, these present appeals.
(3.) Shri Amrendra Sharan, learned Senior counsel appearing for the appellants, has submitted that the suit was filed under Sections 5 and 8 of the Tenancy Act and that, as the appellants were tenants, they were entitled to declaration of their occupancy rights as regards the land in dispute. Even otherwise, Section 8 of the Tenancy Act enables the appellants to attain the said declaration. The statutory authorities committed a grave error in holding that the appellants were joint-owners in the shamilat deh, and not tenants. Therefore, the present appeals deserve to be allowed.;