Chuhar Singh (deceased) vs Jagat Singh .

J.V. Gupta, J.

This judgment will also dispose of RSA Nos. 782/77 and 783 /1977 as the question involved is common in both the cases.

The facts, however, may be stated from RSA No. 783/1977. This is defendant''s Second Appeal against whom writ for possession of agricultural land has been decreed by both the Courts below.

The plaintiffrespondents filed the suit on the averments that they were owners of the suit land as entered in the Jamabandi for the year 196869; that Labhu, son of Narain, was cultivating the suit land as a tenantatwill, on batai, under the plaintiffs; that he paid rent to the plaintiffs upto Kharif 1962, and not thereafter; that the plaintiffs filed proceedings under section 14A(ii) of the Punjab Security of Land Tenures Act No. X of 1953 for recovery of rent for subsequent harvests up to Kharif 1965 against said Labhu who died in September, 1966, and his son Rakha was impleaded as legal representative in both the proceedings but he failed to pay the rent due. Consequently, an order of ejectment dated 11th December, 1967, was passed, on which basis delivery of possession was given to the plaintiffs on 24h October, 1968; that Chuhar Singh, defendant was illegally inducted as subtenant by Labhu during Kharif 1963; that the relationship of landlord and tenant between the plaintiffs and Labhu, or his legal representative, was automatically terminated as a result of the ejectment order dated 11th December, 1967, and that the defendant Chuhar Singh was a trespasser and he had no right to get back possession of the suit property. Hence, the present suit was filed for possession as meanwhile the defendant had illegally dispossessed the plaintiffs.

In the Written Statement filed on behalf of Chuhar Singh, defendant, it was pleaded that Narain, son of Gohar Singh, was an occupancy tenant under Kharku, predecessorininterest of the plaintiffs; that Narain aforesaid enjoyed attributes, privileges and advantages of a fullfledged occupancy tenant; that there was both an express and implied promise on the part of plaintiff''s predecessorsininterest not to eject Narain and Narain''s liability for payment of rent was similar to that payable by other tenants in the village or in the neighbourhood; that the said occupation has been uninterrupted for generations; that the rights of permanent occupancy have generally and customarily and by act of proprietors been conceded to Narain Singh along with other tenants similarly circumstanced in the village and neighbourhood; the Narain being a permanent occupancy tenant, his successor Labhu became full owner by coming into force of the Punjab Occupancy Tenants (Vesting of Propriety Rights) Act, 1952 (Punjab Act No. VII of 1953) in respect of the suit land. It was further pleaded that Labhu aforesaid died in September, 1966; that his son Rakha was not heard of for a period of over seven years and he was wrongly impleaded in the proceedings for ejectment and recovery of arrears of rent; that said Labhu had executed a valid Will on 29th May, 1963, in favour of defendant Chuhar Singh and, therefore, after Labhu''s death, Chuhar Singh continued to be in possession of the suit land as an owner and that the order of ejectment passed by the Assistant Collector Ist Grade, dated 17th December, 1967, was illegal and was vacated later by the Financial Commissioner vide judgment Ex. P.7. In the replication filed on behalf of the plaintiffs, the averments made in the Written Statement were denied.

The trial Court found that the plaintiffs were the owners of the suit land; that the defendant had failed to prove that deceased Labhu was the occupancy tenant on the suit land and had acquired the right of ownership by virtue of Punjab Act No. VIII of 1953 and that from the revenue record on the file and from the evidence of the plaintiffs, it had been proved that he was only a tenantatwill and did not pay the rent, and therefore, was ejected by the Assistant Collector vide his order Ex.P.6.

As regards the Will Ex.D.1 set up by the defendant, executed in his favour by Labhu, tenant, it was found that Labhu Ram had given his right of cultivation on the suit land to the defendant. Moreover, even the learned Financial Commissioner, vide his order Ex.P.7, found that Chuhar Singh, defendant, was a trespasser and was never held to be a tenant on the suit land. In view of these findings, the suit was decreed. In appeal, the learned District Judge affirmed the said findings of the trial Court and, thus, maintained the decree passed in favour of the plaintiffs. After discussing the entire evidence it was observed by the learned lower appellate Court:

"The appellant has claimed right of occupancy on the basis of long and uninterrupted possession over a period of 50 years. Excerpt Ex. D. 5 does prove long and uninterrupted possession of Labhu, predecessorininterest of the appellant, or Narain, predecessorininterest of Labhu. In all these entries, Labhu or Narain are entered as tenantsatwill and not as occupancy tenants. In the rent column, rent at the rate of half share in the produce is mentioned. Rent payable was not similar to one paid by occupancy tenants in the same village or in the neighbourhood. Thus, long and uninterrupted possession would not confer status of occupancy tenant on Narain or Labhu aforesaid. An isolated entry in the `Muntkhib Khewat Moza Meghpur'' for Samat 1926, in my opinion, does not help the defendantappellant much. It has been specifically mentioned therein that the tenant would be considered or entered as tenantatwill. "

During the pendency of this appeal, the defendant also moved an application under O.41, R.27, for additional evidence. By virtue of that application, he wanted to produce a certified copy of File No. 41, referred to in the entry Ex D.2, and formed basis thereof. According to the allegations made in the said miscellaneous application, the said certified copy was found a day before yesterday from an old and unused wooden box containing old books, papers and clothes.

Learned counsel for the appellant contended that in view of the entry Ex. D 2, and now considering the certified copy of the Misal sought to be produced by way of additional evidence, it is quite evident that Narain was the occupancy tenant on the suit land, as there ws a promise not to eject him. Thus, argued the learned counsel, he being the occupancy tenant, and after his death, his son Labhu, became the owner of the suit land, after coming into force of Act No. VIII of 1953. Thus, Labhu being the owner of the suit land was competent to make a Will in favour of the defendant. Thus, the possession of the defendant was that of an owner, and not that of a trespasser, as held by the Courts below. According to the learned counsel, the order of ejectment dated 11th December, 1967 (Ex. P.6) was set aside subsequently by the Financial Commissioner vide order dated 31st July, 1972 (Ex.P 7).

After hearing the learned counsel for the parties I am of the considered view that there is no merit in this appeal. Admittedly, in the revenue record, Labhu or his father Narain were never entered as occupancy tenants. It is also the common case of the parties that Labhu never took any proceedings for getting himself declared as an occupancy tenant on the basis of the alleged entry referred to in Ex.D.2, the certified copy of which is now being sought to be produced by way of additional evidence. It is wrong to say that after the coming into force of the said Act, viz, Act No. VIII/1953, Labhu became the owner of the suit land as he was the occupancy tenant as alleged by the defendant Chuhar Singh. There is no warrant for such a proposition in view of the definition of an `occupancy tenant'' in section 2(f) which reads as under :

"2. In this Act, unless the context otherwise requires ... ... (f) " occupancy tenant" means a tenant who, immediately before the commencement of this Act, is recorded as an occupancy tenant in the revenue records and includes a tenant who, after such commencement, obtains a right of occupancy in respect of the land held by him whether by agreement with the landlor or through a Court of competent jurisdiction or otherwise, and includes also the predecessors and successorsininterest of an occupancy tenant".

As observed earlier, Labhu or his father Narain, were never recorded as occupancy tenants in the revenue record, and Labhu never obtained any right of occupancy in respect of the land held by him through any Court of competent jurisdiction or otherwise. Section 77, SECOND GROUP (d) of the Punjab Tenancy Act provides " suits by a tenant to establish a claim to a right of occupancy or by a landlord to prove that a tenant has not such a right". Having failed to file any such suit or obtain any declaration it could not be successfully argued that Labhu became the occupancy tenant and, thus, became the owner under the said Act. Section 3 of the said Act provides that after the coming into force of the said Act the landlord shall cease to have any right to collect or receive any rent or any share of the land revenue in respect of such land and his liability to pay revenue in respect of the land shall also cease. It further provides that the occupancy tenants shall pay direct revenue to the Government accruing due in respect of the land and he shall be able to pay and the landlord concerned shall be entitled to receive and be paid such compensation as may be determined under this Act. There is nothing to show that any such thing happened in the present case. Not only that, on the contrary, Labhu has been paying rent to the landlordplaintiffs up to Kharif 1962. After that, when he failed to pay the rent, ejectment application u/s 14A(ii) of the Punjab Security of Land Tenures Act was filed against him. From these facts it is quite evident that Labhu never claimed or considered himself to be the occupancy tenant as such. Section 4 of the said Act further provides for determination of compensation payable to the landlord by the occupancy tenants. Since the tenant never claimed himself to be the occupancy tenant or obtained any such declaration, the question of filing any application by the landlord to the Collector for the determination of the amount of compensation payable to him by the occupancy tenant did not arise. That being so, Labhu continued to be tenantatwill on the suit land, and was, thus, not competent to make any Will of his tenancy rights in favour of the defendant Chuhar Singh. Even in the Will Ex. D.1 Labhu never claimed himself to be the owner or the occupancy tenant in respect of the suit land. He only stated that he was in cultivating possession thereof, and after his death it would go the Chuhar Singh, defendant. Labhu being a tenant on the suit land was not competent to make any Will, as held by this Court in Karam Chand v. Kewal Krishan, 1985 PLJ 581 : 1985 R.R.R. 17. Though after Act VIII of 1953, the occupancy tenants are clothed with the rights of the landlords, but in the present case since Labhu cannot be held to be an occupancy tenant, he is not entitled to make any Will. Thus, the possession of the defendant on the suit land is that of a trespasser. The findings of the Courts below in this behalf are unimpeachable. No other point arises nor has been argued.

Consequently, the appeals fail and are dismissed with costs. As a necessary corollary, both the civil miscellaneous applications filed by the appellants are also dismissed.