- (1.) Having failed in two rounds of litigation, the plaintiff has approached this Court by instituting the present regular second appeal. The plaintiff had preferred a suit for obtaining declaration that he is owner in possession of agricultural land measuring 3 kanals 2 marlas situated within the revenue estate of village Faridabad, Tehsil and District Faridabad, detail and description whereof has been given in the plaint. It was pleaded that the plaintiff was in possession of the property for a period of more than 50 years as gair marusi under the defendants. It is stated that possession of the plaintiff continued on the suit land as a tenant at will. There has been no attempt on the part of the defendants to evict the plaintiff. Even at the time when the plaintiff was inducted as a tenant, there was implied promise not to evict him. It was further averred that when the appellant/plaintiff was inducted as a tenant, the land was barren and uncultivable and it was due to hard work and labour deployed by the plaintiff that the nature of land had changed. A definite stand was taken by the appellant/plaintiff that by lapse of time, he had acquired occupancy rights over the suit land after the commencement of the Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act, 1953 (hereinafter referred to as "the Act"). Therefore, a declaration was sought that the plaintiff had become owner in possession over the suit property. Earlier, in the revenue record, name of Sohan Lal was written in the column of cultivator. The plaintiff had filed a suit to prove that he was in entire possession of the suit land. The said suit was decreed on 6.9.1988. The plaintiff had served a legal notice on 29.1.2004 calling upon the defendants to admit his claim qua the suit land as owner in possession thereof. Since the defendants denied title of the plaintiff, the present suit was filed.
(2.) Upon notice, the defendants had caused appearance, filed written statement and raised various preliminary objections especially the maintainability of suit, locus standi of the plaintiff to file the suit and cause of action. It was further averred that the suit was barred by limitation. On merits, it was specifically pleaded that the plaintiff was in an unauthorized possession over the suit property. Therefore, acquiring of occupancy rights by the plaintiff was denied. It was further stated that the plaintiff/appellant had never obtained any permission from Custodian Department to remain in possession over the suit property. Therefore, he cannot be treated as a tenant over the property in question. After the completion of pleadings, the trial Court had drawn the following issues:- 1. Whether the plaintiff is entitled for a decree of declaration in his favour and against the defendant? OPP 2. Whether Civil Court has no jurisdiction to try and entertain the present suit? OPD 3. Whether present suit is bad for want of notice U/s 80 CPC? OPD 4. Whether present suit is barred on ground of limitation? OPD 5. Relief.
(3.) The plaintiff himself appeared as PW. 1, whereas the defendants examined Charanjit Kumar, Naib Tehsildar (Sales), Faridabad, as DW. 1. The plaintiff had also tendered into evidence various documents for consideration of the Court. The trial Court, after noticing contentions of the parties, held that the question for adjudication of the Court is "whether the plaintiff, as per the provisions of the Act, had acquired occupancy rights over the land in question? The trial Court had further noticed that under Clause 2 of Section 5 of the Act, a tenant, who proves that he is continuously in possession over the land for more than 30 years and has paid no rent beyond the amount of the land revenue thereof can be presumed that he has fulfilled the condition of Clause (a) to Sub Section (1) of Section 5 of the Act. The trial Court has further held that under the provisions of the Act, a tenant, for acquiring occupancy rights, has to prove not only as a tenant but also that he is liable to pay the rent for the said land. The Court has further held that the legal requirement that the possession of tenant should be under the rights to possess it. A person, who fails to come within the definition of tenant, as prescribed under Section 4(5) of the Act, is not entitled to the relief. Therefore, the trial Court has held as under:- 17. The condition of clause (a) of Section 5 can be taken as satisfied if the tenant is occupying land continuously for thirty years and paid no rent thereof. Now question arises whether plaintiff has acquired occupancy rights in the light of Section 5 of Punjab Tenancy Act. Admittedly, neither the plaintiff nor his grand father or grand uncle has been in possession over the land in question on the date when Punjab Tenancy Act came into force nor such pleading has ever been mentioned by plaintiff in his plaint. Resultantly, acquiring occupancy rights qua the land in question in the light of Section 5 of Punjab Tenancy Act do not arise at all in favour of the plaintiff. As far as the question of acquiring occupancy rights otherwise as discussed in Section 8 of Punjab Tenancy Act is concerned, plaintiff do not seem to me as having acquired occupancy rights at ever either at the time of coming into force the Punjab Tenancy Act or lateron including the day when present suit was filed...;