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REPORTABLE

           IN THE SUPREME COURT OF INDIA

            CIVIL APPELLATE JURISDICTION

            CIVIL APPEAL NO. 6590 OF 2005

Tikka Ram & Anr.                             .... Appellant (s)

         Versus

Kartara (Deceased) through LRs & Ors.              .... Respondent(s)

                              WITH

            CIVIL APPEAL NO. 6591 OF 2005

Shivla (Deceased) through LRs & Anr.         .... Appellant (s)

         Versus

Phool Singh & Ors.                           .... Respondent(s)

                          JUDGMENT P. Sathasivam, J.

I. C.A. No. 6590 of 2005

1)   This appeal is directed against the judgment and order

dated 23.4.2004 of the High Court of Punjab & Haryana at

Chandigarh in R.S.A. No. 2709 of 1984 whereby the High Court

allowed the appeal filed by respondent Nos. 1 & 2 herein.

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Brief facts:

2)   Smt. Kishni - Defendant No.1/vendor (Respondent No.3

herein) sold the land measuring 40 Kanals situated in village

Gudha, Tehsil and Dist. Karnal by executing registered sale

deed in favour of Kartara - vendee/defendant No.2 (respondent

No.1 herein) and Surta - defendant No.3 (respondent No.2

herein), for a sale consideration of Rs.67,000/-. Tikka Ram and

Sewa Ram, appellants herein, claimed themselves to be tenants

under the vendor for the last about 12-13 years over the suit

land and challenged the sale thereof in favour of defendant Nos.

2 & 3 by filing suit for pre-emption claiming their superior right

to purchase the suit property.        In the suit, Smt. Kishni,

Kartara and Surta were arrayed as defendants.        Kartara and

Surta, respondents 1 & 2 herein, contested the suit on the

ground that the sale has been effected by a female and,

therefore, is not pre-emptible under Section 15(2) of the Punjab

Pre-emption Act.     On 22.1.1983, the sub-Judge Ist Class,

Karnal   dismissed    the   suit.     Aggrieved    thereby,       the

plaintiffs/pre-emptors filed Civil Appeal No. 33/13 of 1983 in

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the Court of Additional District Judge, Karnal. By order dated

22.9.1984, the first appellate Court allowed the appeal and

reversed the judgment and decree dated 22.1.1983 of the sub-

Judge, First Class, Karnal.        Against the said order, the

Vendees/respondent Nos. 1 & 2 herein filed R.S.A. No. 2709 of

1984 in the High Court.        The High Court, by order dated

23.4.2004, allowed the appeal and set aside the order dated

22.9.1984 passed by the Additional District Judge, Karnal.

Questioning the said order, the plaintiffs/pre-emptors have

filed this appeal by way of special leave.

II. C.A. 6591 of 2005

3)   This appeal is directed against the judgment and order

dated 23.4.2004 of the High Court of Punjab and Haryana at

Chandigarh in R.S.A. No. 2710 of 1984 whereby the High Court

allowed the appeal filed by the vendees/respondents herein.

Brief facts:

4)   Smt. Krishni sold 45 Kanals 2 Marlas of suit land situated

in village Gudha, Tehsil & Dist. Karnal to Phool Singh for a sale

consideration of Rs.67,000/-. Out of 45 Kanals 2 Marlas, Tikka

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Ram and Sewa Ram are the tenants of 2 Kanals 1 Marla and of

the remaining 43 Kanals 1 Marla, the appellants herein are

tenants. The tenants filed suit for possession by way of pre-

emption against the vendor and the vendees.         On 22.1.1983,

the trial Court dismissed the suit.       Aggrieved by the said

judgment, the appellants herein filed C.A. No. 39/13 of 1983 in

the Court of Additional District Judge, Karnal and the same

was partially allowed in favour of appellants 1 & 2 (Pre-

emptors) and against respondents 2-5 (vendees) on 22.9.1984.

Questioning the said order, the vendees/defendants filed R.S.A.

No. 2710 of 1984 in the High Court. The High Court allowed

the appeal on 23.4.2004. Against the said order, the appellants

have filed this appeal by way of special leave.

5)   Since common questions of law and facts arose in both

the appeals, they were heard together and are being disposed of

by this common judgment.

6)   Heard   Mr. Vijay Hansaria, learned          senior counsel

appearing for the appellants and Mr. Manoj Swarup, learned

counsel appearing for the respondents.

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7)   The only point for consideration in both the appeals is

whether the appellants/plaintiffs could be held to be the

tenants based on the evidence and materials on record?

8)   Tikka Ram and Sewa Ram sons of Matu are appellants in

Civil Appeal No. 6590/2005 and the legal representatives of

Shivla s/o Shiva and the legal representatives of Devita s/o

Nanha are the appellants in C.A. No. 6591 of 2005.       When

Smt. Kishni - Vendor, sold the land measuring 40 kanals

situated in village Gudha, Tehsil and District Karnal by

executing a registered sale deed in favour of Kartara -

vendee/defendant No.2 and Surta - defendant No.3 for a

consideration of Rs.67,000/-,    Tikka Ram and Sewa Ram,

appellants in Civil Appeal No. 6590 of 2005 claiming as

tenants under the vendor/defendant No.1 for the last about

12 or 13 years over the suit land challenged the sale in favour

of defendant Nos. 2 and 3 by filing a suit for pre-emption

claiming their superior right to purchase the suit property.

The very same vendor, namely, Kishni sold 45 kanals and 2

marlas situated in village Gudha, tehsil and District Karnal to

one Phool Singh (respondent No.1 in C.A.No.6591/2005). Out

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of 45 kanals and 2 marlas, the said Tikka Ram and Sewa Ram

claimed, as tenants, of two kanals and one marla and the

other two appellants, namely, Shivla and Devtia claimed in

respect of remaining 43 kanals and one marla as tenants. In

the same way, all the four filed a suit claiming superior right

of pre-emption being tenant. Though both the suits, appeals

and second appeals were disposed of separately and without

reference to each other, it is not in dispute that the issues are

common and identical.

9)   Learned     senior         counsel    appearing      for     the

appellants/plaintiffs   after    taking   us   through   the    entire

materials mainly contended that the Khasra Girdhawaris were

changed in the revenue records by the patwari. According to

him, since the revenue records contain the name of the

appellants in respect of the suit lands, the first Appellate

Court rightly accepted their case and the High Court

committed an error in setting aside the same. The appellants

also heavily relied on the oral evidence of P.W.9 Lumberdar,

P.W. 10 and P.W. 11 - neighbours, in their evidence they

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asserted that the appellants are in possession of the suit land

as tenants. In addition to the same, the appellants also relied

on the specific statement made by the vendor in the complaint

(FIR) to the police to the effect that the plaintiffs are in

possession of the suit lands as tenants. The appellants finally

relied on the statement of counsel for the vendors, namely,

Mr. Malhotra to show that the appellants were in possession

and are continuing the suit lands as tenants. On the other

hand,   learned   counsel   appearing   for   the   respondents

submitted that first of all the entry in the revenue records

which was made behind the vendor in the year 1978 was

cancelled by the Collector. He further submitted that in the

absence of any documentary evidence with regard to payment

of rent, receipt etc. the appellants claim that they are tenants

of the suit land cannot be accepted. He also submitted that a

mere reference in the FIR to the police and the statement of a

counsel are not relevant material to prove their case that they

were in possession of the land and are continuing as tenants.

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10)   Since all the above contentions are interconnected, they

are being considered in the following paras. First, we have to

see whether correction of Khasra Girdhawaris was made by

adopting the correct procedure in accordance with the

standing instruction of the Financial Commissioner. Though

the plaintiffs have claimed their possession as tenants for the

last 12-15 years admittedly no pattanama (lease deed) has

been produced. There is no explanation at all as to why no

pattanama has been ever got executed. No receipt of payment

batai for any of the year though the claim that they were in

possession of the land for more than 12-15 years. Further,

the records show that the change of Khasra Girdhawaris was

made only in the year 1978 showing their possession as

tenants from Kharif 1976 to Rabi 1978 and the said order was

passed by the Assistant Collector IInd Grade on 11.07.1979.

Since the said order came to be passed without notice to

anyone including the vendor admittedly the order of the

Assistant Collector effecting changes in Khasra Girdhawaris

was set aside by the Collector and the case has been

remanded for taking fresh decision. It is brought to our notice

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that no further change has been effected in the revenue

records by the authority concerned.     It is clear that though

Khasra Girdhawaris were corrected for the first time in the

year 1978 in view of the fact that the same was set aside by

the higher authority and in the absence of any subsequent

order no importance need be given for the same.

11)   As rightly pointed out by learned counsel for the

respondents though the appellants claimed that they were in

possession of the suit lands nearly for a period of 12-15 years

prior to the filing of the suit as tenants admittedly there is no

evidence of execution of lease deed or payment of rent at any

point of time.     In the absence of execution of a proper

pattanama (lease deed) and payment of rent their claim that

they are the tenants of the suit land cannot be accepted. It is

useful to refer to the recent decision of this Court reported in

Jagadeesh & Anr. vs. State of Karnataka & Ors., JT 2008

(2) SC 308 while considering similar claim as to the tenancy,

this Court held:

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     "11. We have already noted the findings made by the High       Court in the impugned judgment on the question whether       the appellants could be held to be the tenants on the       evidence and materials on record. While doing so, in our       view, the High Court was justified in coming to the       conclusion that the evidence and material on record would       clearly establish that the appellants were not able to prove       that they were the tenants in respect of the scheduled land       under the respondents. One of the main criteria for deciding       whether a particular person is a tenant or not is to see       whether there was payment of rent, either in cash or in kind.       In this case, while rejecting the claim of the appellants, the       High Court had considered that the appellants had failed to       satisfy the court that any payment of rent was made either       by the father of the appellants or by the appellants       themselves."

While agreeing with the said view, we reiterate that payment

of rent or lease amount either in cash or in kind is one of

the relevant criteria for deciding whether a person is a

tenant or not. (Emphasis supplied)            Neither lease deed nor

payment of rent was substantiated in these cases.                 In the

absence of any such material and really if they were tenants

for 12-15 years prior to filing of suit they would have taken

steps much earlier and got Khasra Girdhawaris changed.

12)   Coming to the claim based on the statement made in the

FIR, first of all as rightly observed by the High Court a bald

statement in a complaint to the police in respect of certain

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incident is not a relevant factor for deciding the issue of

tenancy in a civil proceeding. At the most it can only be used

for corroborating or contradicting its maker when he appears

in court as a witness. The FIR marked as Exh. P.W.9/A was

given by one Premsingh son of Kartar Singh aged about 20/22

years. It further shows that at that time he was studying in

B.A. Ist year S.D. College, Panipat.      In the whole of the

complaint, he made only one solitary statement stating that

"this land was under the tenancy of Tikka son of Matu...."

Except the above reference, there are no other details such as

when the said Tikka was inducted as tenant, extent of land

etc.   In such circumstances, in the absence of any other

corroborative evidence, reference in the FIR can never be

treated as a substantive piece of evidence in a civil proceeding.

13)    Learned senior counsel for the appellants strongly relied

on the statement of Shri S.K. Malhotra counsel for the

vendees in support of their claim.        It is seen that Shri

Malhotra had made a statement on 13.06.1979 to the effect

that the vendees would not dispossess the plaintiffs from the

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suit land except in due course of law.          From the said

statement, it was argued that it amounts to his admission that

the plaintiffs were in possession of the suit land on the date of

sale of the land to the vendees.    As rightly observed by the

High Court, from the statement of the counsel, it cannot be

construed that the parties have admitted the status of the

plaintiffs as tenants under the vendor.       Consequently, we

reject the said contention and accept the conclusion arrived at

by the High Court.

14)   Though the appellants heavily relied on the evidence of

P.W. 9 Lumberdar and P.W. 10 and P.W. 11 - neighbours, as

observed earlier, in the absence of any documentary evidence,

such as entries in the revenue records, lease deed, rent receipt

etc. no credence would be given to their oral evidence. In fact,

the statement of P.W.9 who claims to be a Lumberdar runs

counter to the revenue records.     As observed earlier, in the

absence of acceptable documentary evidence, the case of the

plaintiffs cannot be accepted on the basis of oral evidence of

neighbours.

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15)   In the light of the above discussion, we are satisfied that

the High Court has considered all the relevant aspects and

rightly set aside the judgment and decree of the first Appellate

Court and restored that of the trial Court. Consequently, both

the appeals fail and are accordingly dismissed. No costs.

                                     ........................................J.                                      (Dr. Arijit Pasayat)

                                .........................................J.                       (P. Sathasivam) New Delhi; May 14, 2008.

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