Dial Singh and Others vs Chanan Singh and Others

Shamsher Bahadur, J.—This is defendants'' appeal from the appellate decree of the Senior Subordinate Judge Amritsar, who reversed the judgment of the trial Judge dismissing the suit of the plaintiffs.

One Smt. Man Kaur widow of Jowala Singh was an occupancy tenant of the suit land and she mortgaged her rights with possession in favour of Lachhman Singh for a sum of Rs. 99/15/- on 23th December, 1912. Lachhman Singh further assigned the mortgagee rights for Rs. 100/- to the defendant-landlords Dayal Singh and others on 12th November, 1921. Smt. Man Kaur was succeeded by Doswandha Singh who is stated to have been adopted by her husband Jawala Singh. After the death of Doswandha Singh the present suit was brought on 24th November, 1954, by the plaintiff-respondents Chanan Singh and others for redemption of the suit land on payment of Rs. 99/15/- to the defendant-landlords who have been in possession of the land. The suit was resisted by the landlords on a variety of pleas which gave rise to the following issues :

Whether Mst. Man Kaur mortgaged the occupancy rights in the suit land in favour of Lachhman Singh, when and on what terms ?

Whether Lachhman Singh transferred the mortgagee rights in favour of Sham Singh, Dayal Singh and Sant Singh ?

Whether the suit is within time ?

Whether the plaintiffs are heirs to Mst. Man Kaur in respect of the occupancy rights mortgaged by her ?

Relief.

The trial Judge decided all the issues except that of limitation in favour of plaintiffs. On the question of limitation it was found that the suit was barred by time. The suit was accordingly dismissed. In appeal before the learned Senior Sub Judge the point of limitation has also been decided in favour of the plaintiffs and the suit has thus been decreed.

In this appeal by the defendants Mr. K.C. Nayar has challenged all the four questions which have been decided in favour of the plaintiffs. It is contended that the alienation made by Mst. Man Kaur was void and that the suit is barred by time. It is further urged that the plaintiffs are not entitled to bring this suit under the provisions of section 59 of the Punjab Tenancy Act. Lastly it has been urged that the plaintiffs have not been proved to be the collaterals of the deceased Doswandha Singh. The last point, however, has not been seriously canvassed by the learned counsel for the appellants.

So far as the question of limitation is concerned it has been urged that the suit is covered by Article 134 of the Limitation Act and not by Article 148. Article 134 relates to suits for recovery of possession of "immoveable property conveyed or bequeathed in trust or mortgaged and afterwards transferred by the trustee or mortgagee for a valuable consideration." Such suits have to be brought within twelve years from the time when the transfer becomes known to the plaintiff. It is not disputed that if the suit is covered by Article 148 the suit would be within time. A suit under Article 148 is against a mortgagee to redeem or recover possession of immoveable property mortgaged and the period of limitation is sixty years from the time when the lights to redeem or recover possession accrues.

The mutation Exhibit P. 3 clearly shows that the transfer made by Lachhman Singh related only to his rights as a mortgagee. As held by Malayalam Plantations Ltd. Vs. Nagasuri Veeraraghaviah, , where a mortgagee transfers the property as an owner the provision of Article 134 would be applicable but where there is transfer of mere mortgagee rights the suit would be governed by Article 148. In the latter case the assignment relates only to the interest of the mortgagee. In my opinion therefore the conclusion of the lower appellate Court is correct that the suit being one under Article 148 of the Limitation Act is well within time. The redemption is sought in respect of the mortgage made in 1912 and the assignment of the mortgagee rights in 1921. In either event the suit would be within time.

The second point which has been urged by Mr. Nayar is that the plaintiffs have not established their title as collaterals of the common ancestor. It is common ground that the plaintiffs are descendants of one Lakha Singh, a brother of Chet Singh. The possession of the land as an occupancy tenant has been traced back to Chet Singh in the year 1852. Lakha Singh from whom the plaintiffs claim their title was not shown as a holder of occupancy rights in respect of the land. It is true that the presumption of one degree above Chet Singh can be raised and it can be assumed that Desa Singh father of Chet Singh and Lakha Singh held the land as an occupancy tenant. It was ruled by Abdul Rashid J. in Gandha Singh v. Jawand Singh AIR 1938 Lah 171 : (1939) P.L.R. 329, that in the case of occupancy rights "there is a strong presumption that the land held by a tenant at the time of regular settlement and of which he is recorded a maurusi is inherited by him from his father who must be presumed to have occupied the land for the purposes of section 59. Such presumption however, is rebutted when it is found that one of the sons of the common ancestor was not entered as an occupancy tenant. In a Bench decision of this Court in Khushi Ram v. Jagdip Singh AIR 1952 P.B 307 : (1932)54 P.L.R. 163, it was held that "where at the time of the first settlement the sons of the common ancestor are shown as owners or occupancy tenants of land in ancestral shares, there is a presumption that the common ancestor was also the owner or occupancy tenant but this presumption is rebutted where there was in existence a third son who was not entered with his two brothers as enjoying occupancy rights, and where in the first entries which were made at the time of the first settlement the three brothers were shown as tenants at will." While there is a presumption that Desa Singh the common ancestor of the parties held land as an occupancy tenant it is rebutted on the ground that one of his two sons was not shown in the enjoyment of such rights. Lakha Singh common ancestor of the plaintiffs though a brother of Chet Singh who was shown as an occupancy tenant in the first settlement of 1852 cannot therefore be said to have occupied the land to which the plaintiffs have laid claim under the provision of section 59 of the Punjab Tenancy Act.

It has been contended by Mr. Mahajan for the respondents that the concurrent findings of the Courts below that Lachhman Singh held the land as an occupancy tenant is one of fact and cannot be disturbed in second appeal. It will be observed that the learned counsel for the appellants has based his contentions on the findings which have been reached by the two Courts below; it is only the legal inference which is to be drawn from these admitted facts which is questioned in the appeal. The facts on which there is no dispute are that Desa Singh was the common ancestor and that Lakha Singh and Chet Singh were his sons and further that while Chet Singh was shown an occupancy tenant his brother Lakha Singh was not so entered. What is the legal inference to be drawn from these facts? In my opinion the conclusion which has to be drawn from these facts is purely one of law and both the Courts below have misdirected themselves on this crucial question. The lower Appellate Court as also the trial Judge have taken the law to be that once a presumption of one degree is raised the common ancestor must be deemed to have been an occupancy tenant and have ignored the other proposition that in such an event the son of the common ancestor who is not shown as an occupancy tenant cannot be given the benefit of the presumption. The plaintiffs cannot therefore derive their title of the occupancy tenancy on the ground that their common ancestor Lakha Singh was the brother of Chet Singh.

It is not necessary to discuss the remaining contention of Mr. Nayar regarding the void nature of the transfer made by Suit. Man Kaur. I would accordingly allow this appeal, set aside the judgment and decree of the lower appellate Court and affirm that of the trial Court. The suit of the plaintiffs would thus be dismissed. There will be no order as to costs.