RAM KARAN Vs. FINANCIAL COMMISSIONER

JUDGEMENT

(1.) Kachuru, Gangoli and Khiali, respondent Nos. 2 to 4, claiming to be the landlords of the petitioner, filed an ejectment application under Section 77(3)(e) of the Punjab Tenancy Act (hereinafter to be called the Act) before the Assistant Collector, First Grade, Ballabgarh, seeking ejectment of the petitioner on the ground that the latter had not paid the rent regularly for a number of years without sufficient cause. This application was contested by the petitioner. It was urged that there was no relationship of landlord and tenant and that he had never paid any rent to the respondents. After framing the issues, evidence was led on both sides and the Assistant Collector, First Grade, held that the petitioner was proved to be the tenant of respondent Nos. 2 to 4. As he had not paid the rent, order of eviction was passed on December 12, 1966. Aggrieved against the same, the petitioner filed appeal before the Collector who reversed the order of the Assistant Collector on coming to the conclusion that there was no relationship of landlord and tenant and as such, non-payment of rent had no effect. This order (Annexure C), was passed on March 28, 1967. The respondents, however, went in appeal before the Commissioner who accepting the appeal, reversed the order of the Collector and upheld the order of ejectment by the Assistant Collector, by his order dated November 29, 1967 (Annexure B). Revision petition by the petitioner was dismissed by the Financial Commissioner vide his order dated June 25, 1968 (Annexure A). The orders of the Assistant Collector, Commissioner and the Financial Commissioner, referred to above, have been challenged and sought to be quashed in the present writ petition under Articles 226 and 227 of the Constitution, which has been contested by respondent Nos. 2 to 4. No reply has been filed by the Financial Commissioner, respondent No. 1.

(2.) I have carefully perused the orders of the Assistant Collector and the Commissioner in which documentary evidence relevant to the controversy has been discussed in detail. It is clear from these orders that according to the jamabandis, respondent Nos. 2 to 4 were entered as ghair maurusi awal, that is, tenant No. 1, as basharah malkan bawaja dereena kasht (owners on account of their longstanding cultivation). On the other hand, the petitioner is entered as ghair maurusi duwam basharah malkan bawaja rahin zabani (tenant No. 2) in the capacity as owner on account of oral mortgage. According to the order of the Collector, there was no entry showing that any rent was payable by the petitioner to the said respondents, as tenant. In the written statement, filed by the petitioner, it was denied by him that he was a mortgagee. On the other hand, he claimed himself to be the landowner and it was pleaded inter alia that he never paid any rent to the respondents. In spite of the above-mentioned entries in the jamabandi the Commissioner, in his order dated November 29, 1967 (Annexure B), somehow observed that in the rent column the petitioner was shown as paying rent at the owners rate on accounts of being mortgagee. I asked the learned counsel for the respondents to show if there was any entry in the jamabandi record disclosing that the petitioner was liable to pay any rent to the respondents as a tenant. Copies of the jamabandis, brought to my notice, did not corroborate this fact. It appears that the learned Commissioner somehow fell in error in interpreting the words : "zimgi ghair maurusi doim bashare malkan bawaja rahen", reproduced in the earlier part of his order, as if it read that the petitioner was paying rent at owner's rate as mortgagee. In any case, payment at owner's rate cannot in any manner be interpreted that any rent was to be paid by the petitioner. It is settled law that generally in the revenue record, the persons even in unauthorised possession are described as ghair maurusi (tenants) in the column of cultivation, but from this entry alone, it cannot be held that the status of such persons is that of tenants unless in the rent column it is disclosed that such persons were liable to pay rent. Reference may be made to Rulhu Ram v. Than Singh and others, 1966 68 PunLR 866.

(3.) It was categorically held by all the revenue authorities that the petitioner had denied that he was a mortgagee but from this denial, no further inference was justified as has been done by the learned Commissioner, in his order that in such a situation, the petitioner was proved to be a tenant. Tenancy, it cannot be disputed, comes into existence as a result of bilateral agreement which may be oral or documentary. One of the material circumstances to prove that tenancy is whether the alleged tenant was liable to pay rent. It is only when the conclusion is reached that he was such a tenant liable to pay rent, he can be ejected on the ground of non-payment of rent. The first essential condition to be satisfied is that the alleged tenant must be proved to be a tenant by satisfactory evidence in the revenue record or otherwise. In the present case, the Collector came to the correct conclusion on perusal of the revenue record, that the petitioner was not shown to be liable to pay rent and, in fact, his emphatic case was that he had never paid rent, and claimed to be the owner. There is also another significant fact that both the petitioner and the respondent Nos. 2 to 4, are also entered as co-sharers in the column of ownership in the jamabandi.