JAGDEV SINGH AND ANOTHER Vs. SUKHWINDER SINGH

JUDGEMENT

(1.) The defendants-appellants are in present appeal, aggrieved against the judgment and decree of the Courts below whereby suit for recovery of Rs. 44,450/- being the theka (lease amount) regarding the land measuring 23 kanals 3 marlas situated in village Kishanpura Kalan, along with pendentelite and future interest @ 6% per annum on the suit amount till realisation, was decreed.

(2.) The brief facts of the case are as under:- The defendants-appellants who were co-sharers along with the plaintiff -respondent had sold their share of 24 kanals 4 marlas of land vide two registered sale deeds on 25.9.2000, however, they took the land in question bearing 23 kanals and 3 marlas from the plaintiff on lease for one year from 30.4.2001 to 30.4.2002 for valuable consideration of Rs.28,750/- and possession was delivered to them on 30.4.2001. In the said agreement the defendants also agreed to pay lease amount by 15.8.2001, and also the balance amount of Rs.15,700/- for the last year which was also due. On nonpayment of the same the suit has been filed for recovery. The defendants-appellants took up various pleas that they were cosharers in the land under the Punjab Land Revenue Act, 1887, and that the Civil Court had no jurisdiction. It is also pleaded that the mother of the parties had transferred entire share of the land to the defendants vide Court decree and the plaintiff had challenged the said decree and had filed the suit against the defendants in the Court of Sub Judge Zira, regarding the transfer of land by her in favour of the defendants. During the pendency of that suit parties had compromised and in lieu of the land got by the defendants from their mother they executed sale deeds regarding the land measuring 27 kanals 4 marla in favour of plaintiff. It is further stated that Jagdev Singh has his residential house in Khasra No. 136//12 out of the suit land and the defendants never agreed to pay any lease amount to the plaintiff. The trial Court after considering the pleadings on record rejected the bar of jurisdiction under Section 77 of the Punjab Tenancy Act, 1887, after placing reliance upon the Division Bench Judgment of this Court in Khazan Singh and another Vs.. Dalip Singh and another, 1969 PunLJ 459since the relationship of landlord and tenant was denied by the defendants. It was further held that the Exhibit P-3 agreement dated 30.4.2001, was proved as the attesting witness PW-2 Balwinder Singh had been examined and accordingly it was held that plaintiff was entitiled to recover the said amount from the defendants, accordingly the decree of recovery of the said amount along with interest @ 6% on the suit amount was passed. The defendants-appellants filed appeal before the District Judge, and the lower Appellate Court came to the conclusion that the agreement dated 30 April, 2001 was executed wherein the amount of lease money was agreed between the parties and also it was mentioned in the aggrement that the balance amount of Rs.15,700/- for the last year was also due. The sale deeds in favour of the plaintiff executed by the defendants were also taken into consideration and accordingly the appeal was dismissed.

(3.) Dissatisfied with the above orders, the present Regular Second Appeal has been filed by placing reliance upon the fact that the Civil Court had no jurisdiction and it was only the Revenue Court which has to decide the said issue regarding the recovery of the rent due from aggricultural land. It is also argued that since the agreement in question was not registered and it was for more than one year, therefore, it cannot be taken into consideration by the Courts below. Learned counsel for the respondents has supported the reasoning given by the Courts below and placed reliance upon the Division Bench judgment of this Court in Khajan Singh and also the judgment passed in case titled as Anguri Devi Vs.. Jasmer Singh, 2006 4 RCR(Civ) 707. Both the Courts below concurrently have found that there was agreement between the parties whereby the defendants-appellants had agreed to pay the lease amount to the plaintiff-respondent, merely because the agreement has not been registered it cannot be contended that it cannot be taken into account because this specifc objection had admittedly not been pleaded by the defendants-appellants in their written statement and neither any issue had been framed on this point and that in Regular Second Appeal question of law which has not been specifically pleaded and raised cannot be allowed to be raised for the first time as has been held by the Hon'ble Supreme Court in case of Bachhaaj Nahar Vs.. Nilima Mandal & another, 2009 AIR(SC) 1103. In the said judgment it has been held that the High Court cannot take into consideration and decide an issue which was never pleaded and proved by the parties and in Regular second appeal specially the parties cannot be permitted to plead a new case altogether which it had never pleaded before the Courts below. The relevant observations are reproduced below:-