VIDYA SAGAR Vs. FINANCIAL COMMISSIONER

JUDGEMENT

(1.) Since common questions of law and fact arise for determination in Civil Writ Petitions No. 3238 and 3239 of 1987 filed under Articles 226/227 of the Constitution of India, the same are being disposed of by this judgment.

(2.) I have referred to the facts from the pleadings of C.W.P. No. 3239 of 1987. The petitioners (hereinafter referred to as the landowners) filed a suit for recovery of arrears of rent for the years 1975-76, 1976-77 and 1977-78 and for ejectment of defendant-respondent No. 3 (hereinafter referred to as the tenant) in the Court of Assistant Collector I Grade, Jullundur. The landowners based their claim on the entries in the record of rights. The tenant was recorded as a tenant-at-will under the landowners on payment of annual rent of Rs. 2400/-. The landowners alleged that the tenant was in arrears of rent for three years. The plea of the landowners prevailed with the Assistant Collector I Grade, Jullundur. The tenant unsuccessfully challenged the order of Assistant Collector I Grade and before the District Collector, Jullundur. He was, however, successful in revision before the Commissioner, Jullundur Division, Jullundur, who recommended to the Financial Commissioner (Revenue) for acceptance of the revision petition and for setting aside the orders of the Assistant Collector I Grade and the District Collector. The Financial Commissioner (Appeals), Punjab, vide order dated February 25, 1987, accepted the recommendations made by the Commissioner, Jullundur Division, Jullundur and set aside the judgment and decree passed by the Assistant Collector I Grade and affirmed on appeal by the District Collector, Jullundur The principal ground which weighed with the Financial Commissioner (Appeals) was that agreement to sell dated February 9, 1958 was executed by the landowners in favour of the tenant and in part performance of the same the latter entered into possession of the disputed land. He opined that relationship of landowner and tenant did not exist between the parties and the Revenue Court had no jurisdiction to entertain the suit. The landowners have challenged the order of the learned Financial Commissioner (Appeals) in this petition under Articles 226/227 of the Constitution of India.

(3.) Respondent No. 1 did not understand the scope and ambit of the dispute before him. The landowners sought recovery of arrears of rent and ejectment of the tenant in the suit. The Assistant Collector 1st Grade found that the relationship of landlord and tenant existed between the parties; that the tenant was in arrears of rent; that the landowners were entitled to ejectment of the tenant and accordingly decreed the suit. The judgment was affirmed in appeal. The only dispute raised in revision before the Commissioner was that in an earlier suit inter-parte, it was held that relationship of landlord and tenant did not exist between the parties. In the present case no evidence was led by the tenant that the relationship of landlord and tenant -did not exist between the parties. The record-of-rights produced by the landlords fully establishes that the tenant was occupying the disputed land as a tenant-at-will. The tenant failed to establish that he was not in arrears of rent. He also failed to establish that the landlords were not entitled to seek his ejectment. An objection was taken that the tenant was in possession of the land in part performance of the agreement to sell dated February 9, 1958 executed by the landlords in his favour. Section 53 of the Transfer of Property Act embodies what is known as doctrine of part performance. In order to avail the benefit of this provision. it is incumbent to establish that the agreement was in writing that the transferee took possession in furtherance of the contract. The equitable relief will be available even after the period of limitation for specific performance has expired. Apart from raising the plea, the essential pre-requisites of Section 53 of the Transfer of Property Act were not established. In the record-of-rights, the tenant continued to be recorded as tenant-at-will on payment of rent. He never asserted that he was in possession of the land in part performance of the agreement to sell. The tenant in a suit for possession by the landowners may defend the action by seeking the aid of Section 53 of the Transfer of Property Act. But the tenant has failed to take up the legal plea permissible to him at law and establish the same by leading positive evidence. In a suit under Section 77 of the Punjab Tenancy Act, the Revenue Court is only to determine whether the relationship of landlord and tenant exists between the parties. If it finds that the relationship so exists and the tenant has not given proof of having paid the rent or the arrears of rent, it has to pass a decree of recovery of rent and to order eviction if the landowners establish any of the grounds for evicting a tenant mentioned in Section 9 of the Punjab Security of Land Tenures Act. The landowners did succeed in establishing the grounds mentioned in Section 9 of the Punjab Security of Land Tenures Act. The Assistant Collector 1st Grade on evidence found that the relationship of landlord and tenant exists between the parties that the tenant was in arrears of rent and that the tenant was liable to be evicted. These findings were affirmed on appeal. There was nothing before the Commissioner to give a different conclusion on facts. The Commissioner was exercising revisional jurisdiction. The revision petition was to establish that the judgment of the Court below was either suffering from illegality or the Court below had exercised jurisdiction not legally vested in it or that it had acted illegally and with material irregularity in the exercise of its jurisdiction. Respondents No. 1 and 2 did not find that any of the grounds of law they could interfere in revision was made out. Respondents No. 1 and 2 wholly travelled beyond their jurisdiction by introducing something to non-suit the landowners which was non-existent Respondents No. 1 and 2 non-suited the landowners only on the ground that in some earlier proceedings it was held that relationship of landlord and tenant did not exist between the parties. The basis on which this finding was arrived at was non-existent. There is no material on record to substantiate that in some earlier proceedings it was held that the relationship of landlord and tenant between the parties did not exist. Even otherwise in these proceedings, it was amply proved that relationship of landlord and tenant existed between the parties and that the tenant was in arrears of rent and that he was liable to be evicted. Respondent No. 1 was obviously in error in reversing the judgment and decree of the Assistant Collector 1st Grade on the recommendations of respondent No. 2.