Ilias (Major) vs Bashir Ahmed and ors.

Gokal Chand Mital, J (Oral)

The plaintiffs suit has been decreed by both the courts below claiming a decree of declaration that they have become the owners under the Punjab Occupancy Tenants (Vesting of Proprietary Rights), Act, 1952, Punjab Act No. VIII of 1953 (for short the Act) as they had acquired the occupancy rights and claimed consequential relief of possession as they had been unlawfully disposed by the defendants. In this second appeal by the defendant, the jurisdiction of the Civil Court to entertain the suit, the point of limitation and that the plaintiffs have failed to prove that they had acquired the occupancy rights, have been taken up. On the aforesaid three questions of law, the appeal was admitted. However, Shri Sarin wants to add one more ground, namely that the appellant, who is one of the defendant, had purchased the land in dispute from its previous landowners for a consideration of Rs. 7000/ and therefore, the sale should be protected under Section 41 of the Transfer of Property Act (for short the T.P. Act) as a bonafide purchaser for consideration.

The plaintiffs pleaded in the suit that they have been in possession of the land in dispute for three generations under the defendants and their predecessors ininterest as tenants with an understanding that they would not be ejected and they never paid rent but only paid land revenue and Cesses due to the Government and thus acquired occupancy rights under Section 8 of the Punjab Tenancy Act 1887 (for short the 1887 Act) and by virtue of section 3 of 1952 Act acquired the status of owners and since they were dispossessed within 12 years of the suit, hey were entitled to decree for possession.

It is true that the suit for acquisition of occupancy rights, lies before the Revenue Court under section 77(3)(d) of the 1887 Act, but after the coming into force of 1952 Act, if a tenant who want to claim ownership on the basis that he is owner as having acquired occupancy rights, civil suit is competent. This view has been taken by the Division Bench of this Court in Ami Lal v. Financial Commissioner, 1972 P.L.R. 96. In this case also the plaintiffs are seeking declaration that they have become owners under the 1952 Act, as they have acquired occupancy rights and on that basis have claimed possession. A declaration of ownership and decree of possession can only be granted by a Civil Court and not by a Revenue Court. Hence, findings of the two courts below that the civil suit is competent and it has jurisdiction to try the same are upheld.

It was then argued that limitation would be three years under Article 58 of the Limitation Act, 1963 (for short the Act 1963). The said article does not apply and the correct Article is 65 of the Act, whereunder an owner can file a suit within 12 years to regain possession. Hence, the findings of the two courts below on this aspect are also upheld.

It was then urged that the plaintiffs acquired occupancy rights under Section 8 of the 1887 Act. The matter had been threadbare considered by the two Courts below on the appreciation of evidence, which clearly goes to show that the plaintiffs have been in possession for more than two generations, obviously without payment of rent. On these facts, the plaintiffs have been rightly declared to have acquired occupancy rights. It was not shown as to how the findings arrived at on appreciation of evidence were erroneous. The decision of the two Courts below in this behalf is upheld.

The last argument raised was that from the original landowners, the appellant purchased the land and at that time he was minor and is a bonafide purchaser without notice of the title of the plaintiffs, the sale is protected by Section 41 of the Transfer of Property Act. This matter is covered by issue No. 5. The lower appellate court has found this issue against the appellant on the reasoning that it is nowhere proved that the guardian of the appellant made enquiries about the rights of the plaintiffs before making the purchase and if they had made enquiries, they would have come to know that the plaintiffs and their predecessors were in possession. This material was sufficient to disentitle the appellant to the application of Section 41 of the Transfer of Property Act. His remedy would be to sue the vendor for refund of the sale consideration.

For the reasons recorded above, the appeal is dismissed with no order as to costs.