Research › Search › Judgment

Punjab High Court · body

2011 DIGILAW 1340 (PNJ)

Puran Singh v. Dhan Kaur

2011-07-04

RAKESH KUMAR JAIN

body2011
JUDGMENT Mr. Rakesh Kumar Jain, J.: - The defendant No.1 is in second appeal against the judgment and decree of the Courts below by which suit filed by the plaintiffs for declaration and permanent injunction has been decreed. 2. In short, the plaintiffs filed suit for declaration with consequential relief of permanent injunction in respect of 03 Kanals 08 Marlas of land comprised in Rect. No.26, Killa No.9/4 and 10/1, situated in village Dehriwala as per jamabandi for the year 1967-68 alleging therein that 04 Kanals 17 Marlas of land bearing old Khasra No.538 was in joint occupancy tenancy of Munshi & Bantu sons of Boota Singh, Waryam Singh son of Khazan and Gurditta, Gurmukh and Ishar sons of Sujana under the proprietors of village Dehriwala. It was alleged to be in exclusive occupancy tenancy of Munshi & Bantu sons of Boota and Waryam son of Khazan who had mortgaged with possession the said 04 Kanals 17 Marlas of land to Pala Singh son of Boota Singh by means of a registered mortgage deed dated 17.07.1911 and had further sold their occupancy rights to Mota Singh son of Boota Singh who is husband of plaintiff No.1 and father of plaintiff Nos.2 to 4, by means of a registered sale deed dated 05.07.1943 and the said vendee Mota Singh got it redeemed from the mortgagee and entered into its exclusive possession. The consolidation of holdings took place in the village and the original Khasra No.538 was converted into new Khasra Nos.9/4 and 10/1, but the possession remained with Mota Singh. However, due to negligence of the revenue staff, the names of Gurditta, Gurmukh and Ishar sons of Sujana continued to appear in the revenue papers though all of them had died long back and could not have been in possession. It was also alleged that the land was mortgaged in 1911 and from that year onwards the exclusive possession of the vendors of the predecessorsin- interest of the plaintiffs started, the predecessor-in-interest of the plaintiffs had purchased the occupancy rights by way of registered sale deed in the year 1943 and since thereafter, they are in possession as owners not only because of the title but also by way of adverse possession. It was also alleged that defendant No.1 claims to have got some sale deed executed in his favour from defendant Nos.2 to 4 which is ineffective on the rights of the plaintiffs. On this premise, declaration was sought about their title and injunction with regard to their possession. In the written statement, the defendants admitted that the land measuring 04 Kanals 17 Marlas comprising in old Khasra No.538 was recorded in joint occupancy tenancy of Munshi & Bantu sons of Boota Singh, Waryam son of Khazan, Gurditta, Gurmukh and Ishar sons of Sujana and they denied that only Munshi, Bantu and Waryam were the actual occupancy tenants. It was also alleged that Munshi, Bantu and Waryam had no right to sell their share as well of occupancy rights, rather it was alleged that 02 Kanals 11 Marlas out of the suit land was sold by defendant Nos.2 to 4 in favour of defendant No.1 on 11.06.1971 by way of registered sale deed. The plaintiffs filed their replication. On the pleadings of the parties, issues were framed on 13.10.1971, 10.10.1972 and ultimately on 21.07.1982, which are reproduced as under: - “1. Whether Munshi, Bantu and Waryam were the exclusive occupancy tenants of the land comprised in Khasra No.538?(OPP). 1.a. Whether the suit of the plaintiffs is not maintainable in the present form?(OPP). 1.b. Whether certain unauthorized amendments have been made in the plaint. If so to what effect?(OPP). 1.c. Whether the plaint does not disclose any cause of action against defendants No.5 to 7. If so, to what effect?(OPP). 2. Whether the plaintiff’s predecessor Mota Singh purchased the suit land (i.e. Khasra Number 538) on 05.07.1943?(OPP). 3. Whether the land in suit has been carved out in lieu of Khasra Number 538 during consolidation?(OPP). 4. Whether the plaintiffs and their predecessor in interest acquired the rights of ownership by adverse possession?(OPP). 5. If issue No.1 and 2 are proved in affirmative, whether the sale in favour of Puran Singh (defendant No.1) from defendants No.2 to 4 is valid?(OPP). 5.A. Whether defendant No.1 is a bona fide purchaser without notice and consideration? (OPD). 6. Relief.” 3. Both the parties led their respective evidence inasmuch as the plaintiffs examined Surinder Pal (PW1), Mela Ram (PW2), Bantu (PW3), Gian (PW4), Lekh Raj Patwari (PW5) and Charan Dass Attorney through whom the suit was filed (PW6). 5.A. Whether defendant No.1 is a bona fide purchaser without notice and consideration? (OPD). 6. Relief.” 3. Both the parties led their respective evidence inasmuch as the plaintiffs examined Surinder Pal (PW1), Mela Ram (PW2), Bantu (PW3), Gian (PW4), Lekh Raj Patwari (PW5) and Charan Dass Attorney through whom the suit was filed (PW6). Besides the oral evidence, the following documents were also tendered: - “Ex.P1 : Original Sale deed dated 07.06.1943. Ex.P2 : Copy of Jamabandi for the year 1912-13. Ex.P3 : Copy of Jamabandi for the year 1916-17. Ex.P4 : Copy of Jamabandi for the year 1924-25. Ex.P5 : Copy of Jamabandi for the year 1920-21. Ex.P6 : Copy of Jamabandi for the year 1960-61. Ex.P7 : Copy of Jamabandi for the year 1967-68. Ex.P8 : Copy of Jamabandi for the year 1953-54. Ex.P9 : Copy of Jamabandi for the year 1945-46. Ex.P10 : Khasra Girdawari from 1968-69 to 1970-71 Ex.P11 : Copy of mutation No.2014 Ex.P12 : Original mortgage deed dated 17.7.11. Ex.P13 : Jamabandi for the year 1932-33. Ex.P14 : Jamabandi for the year 1928-29. Ex.P15 : Khatauni paisaish. Ex.P16 : Copy of mutation No.2014. Ex.P17 : Khatauni Ishtemal. Ex.P18 : Khatauni Paisaish. Ex.P19 : Naqsha Haqdarwar. Ex.PX : Death certificate in respect of the death of Gurditta son of Sujana. Ex.PY : Certificate of death in respect of Ishar son of Sujana.” 4. The defendants examined Darshan Singh (DW1), Samund Singh (DW2), Jagat Singh (DW3), Nand Singh (DW4) and Puran Singh (DW5). After the remand of the case, Samund Singh appeared as RD/DW1 and Puran Singh appeared as RD/DW2 and tendered the following documents: - “Ex.D1: Sale deed dated 11.06.1971. Ex.D2: Copy of Jamabandi for the year 1967-68. Ex.D3: Copy of khasra Girdawari from 1969 to 1971. Ex.D4. Copy of khasra Girdawari from 1968-69 to 1970-71. Ex.RD/DW1/A: Receipt-cum-agreement dated 24.4.71.” 5. It would be pertinent to mention here that initially the suit was decreed on 29.09.1973, but in appeal that decree was set aside and the matter was remanded back to decide issue No.5A. The learned Trial Court again decreed the suit on 25.07.1975, but in appeal the said decree was reversed on 17.02.1978 and the matter was remanded back to decide all the issues. The learned Trial Court again decreed the suit on 25.07.1975, but in appeal the said decree was reversed on 17.02.1978 and the matter was remanded back to decide all the issues. On 06.08.1979, the learned Trial Court dismissed the suit on the ground that it has been abated but that order was set aside in appeal on 27.02.1982 and the matter was remanded back. The learned Trial Court has then decreed the suit on 30.11.1982 and the appeal filed by defendant No.1 was dismissed on 27.08.1984 which are now under consideration in the present regular second appeal. 6. The learned Trial Court discussed issue Nos.1, 2 to 5 together and concluded that Munshi & Bantu sons of Boota Singh and Waryam son of Khazan were the actual occupancy tenants over the land in dispute and upheld the sale in favour of predecessors-in-interest of the plaintiffs. Issue No.5A was decided against defendant No.1. Issue Nos.1(a) and 1(b) were decided against the defendants being not pressed. Issue No.1(c) was also decided against the defendants being not pressed and while deciding issue of relief, the decree was granted in favour of the plaintiffs declaring them to be owners in possession of the suit land and the defendants were restrained permanently from interfering in their possession. Aggrieved against the judgment and decree of the learned Trial Court, only defendant No.1 came up in appeal in which it was held that Gurditta died on 19.12.1921 (Ex.PX), Ishar died on 03.07.1943 (Ex.PY) and there is oral evidence about the death of Gurmukh about 20-25 years back. No effort was made by the successors-in-interest of the aforesaid occupancy tenants for incorporating their names in the revenue record and, thus, it was observed that the other occupancy tenants had acquired title by way of adverse possession of the share of those co-tenants who are the predecessors-in-interest of defendant Nos.2 to 4. It was also observed that defendant No.1 cannot seek the protection of a bona fide purchaser because he belongs to the same village and had knowledge that Mota Singh is in exclusive possession of the land in dispute, therefore, it was his duty to make proper inquiries before entering into transaction of purchase of the share of co-occupancy tenants. 7. It was also observed that defendant No.1 cannot seek the protection of a bona fide purchaser because he belongs to the same village and had knowledge that Mota Singh is in exclusive possession of the land in dispute, therefore, it was his duty to make proper inquiries before entering into transaction of purchase of the share of co-occupancy tenants. 7. Although learned counsel for the appellant/defendant No.1 has framed substantial question of law to the effect that the judgment and decree of the Courts below are perverse due to misreading of the evidence on record and the appellant is a bona fide purchaser, yet during the course of hearing she has argued that substantial question of law involved in this appeal is also as to i) whether the rights of occupancy tenants are inheritable under Section 59 of the Punjab Tenancy Act, 1887 [for short “the Act”]? ii) whether the right of inheritance is by way of survivorship and does not remain in abeyance? and iii) whether the jamabandi for the year 1967-68 (Ex.P7), on the basis of which suit has been filed which has not been challenged in the suit, reflects the right of the successors-in-interest of the co-occupancy tenants? 8. In order to substantiate her case, she has drawn the attention of this Court to the averments made in the plaint in which the plaintiffs have themselves admitted that predecessors-in-interest of defendant Nos.2 to 4, namely, Gurditta, Gurmukh and Ishar sons of Sujana, were co-occupancy tenants with the vendors of the predecessors-in-interest of the plaintiffs. She has also referred to Ex.PX and Ex.PY which are the death certificates of two of the co-occupancy tenants and has also referred to the admitted position that Gurmukh had also died. In this background, reference has been made to Section 59 of the Act to contend that right of occupancy is inheritable and also relied upon a decision of this Court in the case of Shiv Singh Rakha Das v. Jiwan Dass and others, AIR 1958 Punjab 164 and a Division Bench judgment of this Court in the case of Sada Nand Saraswati v. Shiv Nath and others, 1964 P.L.R. 1074. It is also submitted by her that if the document Ex.P7 is the basis of the suit, then the declaration could not have been granted by the learned Courts below because document Ex.P7, which has been translated in English and produced on record, shows that vide various mutations the share of Gurditta, Gurmukh and Ishar has been mutated by way of inheritance in favour of defendant Nos.2 to 4 who are shown owners of the occupancy to the extent of 3/4th share and Mota Singh has been shown owner to the extent of 1/4th share. It is submitted by her that this jamabandi Ex.P7 has rather been relied upon and not challenged by the plaintiffs, meaning thereby, entries made therein have been admitted to be correct otherwise the plaintiffs should have challenged the entries in jamabandi (Ex.P7) in this suit for declaration in terms of Section 45 of the Punjab Land Revenue Act, 1887. It is further submitted that the learned Courts below have committed a patent error of law in granting a decree of ownership of the entire land to Mota Singh on the ground that the successors-in-interest of co-occupancy tenants were out of possession when the land in dispute was mortgaged in 1911 and after sale it was got redeemed by predecessors-in-interest of the plaintiffs. It is submitted that joint tenancy of a holding are to be regarded as a single tenancy which cannot be claimed by way of adverse possession by the co-occupancy tenants in the absence of the others and in case of the extinction of right of succession, the joint tenancy can be partitioned at the instance of the landlord, but it cannot be claimed by other co-tenants. It is also submitted that sale deed was effected in favour of defendant No.1 in the year 1971 because in the document Ex.P7 the successors-in-interest of the co-occupancy tenants have been shown to be the owners to the extent of 3/4th share. 9. It is also submitted that sale deed was effected in favour of defendant No.1 in the year 1971 because in the document Ex.P7 the successors-in-interest of the co-occupancy tenants have been shown to be the owners to the extent of 3/4th share. 9. On the contrary, it is argued by learned counsel for the plaintiffs that there is no scope for interference in this appeal against the concurrent finding of fact which has been arrived at after due consideration of the oral as well as documentary evidence on record by which both the Courts below have found that the land was mortgaged by the vendors of the predecessors-ininterest of the plaintiffs in 1911 and, thereafter, it was sold in 1943 to their predecessors-in-interest but no objection was ever raised by the successors-ininterest of the co-occupancy tenants. It was also submitted that Mota Singh, predecessors-in-interest of the plaintiffs, had even redeemed the mortgage from Pala Singh. 10. I have heard both the learned counsel for the parties and perused the record with their able assistance. 11. Admittedly, the plaintiffs have filed declaratory suit on the basis of jamabandi for the year 1967-68 (Ex.P7) in order to claim their right over 03 Kanals 08 Marlas of land. Concededly, the pleaded case is that the predecessors-in-interest of defendant Nos.2 to 4 were co-occupancy tenants with the predecessors-in-interest of the plaintiffs. In these circumstances, it is to be seen as to what is the meaning of occupancy tenants. As per Section 2(f) of the Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act, 1952, “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 landlord or through a Court of competent jurisdiction or otherwise, and includes also the predecessors and successors in interest of an occupancy tenant. Thus, from this definition, it is evident that the successors-in-interest of a occupancy tenancy is also called a occupancy tenant. Now the question arises as to whether the occupancy tenancy right can be inherited. In this regard, reference could be made to Section 59 of the Act which is reproduced hereunder: - “59. Succession of right of occupancy. Thus, from this definition, it is evident that the successors-in-interest of a occupancy tenancy is also called a occupancy tenant. Now the question arises as to whether the occupancy tenancy right can be inherited. In this regard, reference could be made to Section 59 of the Act which is reproduced hereunder: - “59. Succession of right of occupancy. -- When a tenant having a right of occupancy in any land dies, the right shall devolve- (a) on his make lineal descendants, if any, in the male line of descent, and (b) failing such descendants, on his widow, if any, until she dies or re-marries or abandons the land or is under the provisions of this Act ejected therefrom, and (c) failing such descendants and widow, on his widowed mother, if any, until she dies or re-marries or abandons the land or is under the provisions of this Act ejected therefrom. (d) failing such descendants and widow, or widowed mother or if the deceased tenant left a widow or widowed mother, then when her interest terminates under clause (b) or (c) of this sub-section, on his male collateral relatives in the male line on descent from the common ancestor of the deceased tenant and those relatives.” 12. According to the aforesaid Section, in case of death of an occupancy tenant, his occupancy right shall devolve upon his male lineal descendants, in his absence to his widow, in her absence upon his widowed mother and in the absence of all the three, upon his male collateral relatives in the male line of descent from the common ancestor. In Shiv Singh Rakha Das’s case (supra), it was held that “the rule of succession to the right of occupancy is prescribed in Section 59 and it is not open to the Courts to have recourse either to the customary rule of succession or to rule of logic. The reference to “male line of descent” has nothing to do with the property being inherited from generation to generation. Regarding the possession of land all that is required is that the common ancestor should have occupied it. The condition as to the occupation of the land is restricted to common ancestor only and not to his successors. It was also held that “regarding the possession of land all that is required is that the common ancestor should have occupied it. The condition as to the occupation of the land is restricted to common ancestor only and not to his successors. It was also held that “regarding the possession of land all that is required is that the common ancestor should have occupied it. If the intention of the legislature was that every succeeding ancestor should also be shown to have been in occupation of the land, it could have expressly said so. The condition as to the occupation of the land is restricted to common ancestor only and not to his successors.” In the present case, the possession of the predecessors-in-interest of defendant Nos.2 to 4 is not disputed, therefore, even if defendant Nos.2 to 4 have not been shown to be in possession, it would hardly make any difference in view of the aforesaid judgment. Insofar as the succession part is concerned, in this regard it has been held in Sada Nand Saraswati’s case (supra) that “it is a fundamental rule of Hindu Law that inheritance never remains in abeyance. As soon as a person dies his property vests in the next heir whether that heir is at law or is nominated by the last holder. It is immaterial whether the heir actually takes possession of the property or not.” In my opinion, both the Courts below have committed a patent error of law in not appreciating this aspect of the matter that after the death of Gurditta, Gurmukh and Ishar sons of Sujana, their rights of occupancy tenancy would automatically devolve upon defendant Nos.2 to 4 in terms of Section 59 of the Act and their rights would come to an end if there is no successors available as provided under Section 59(a) to 59(d) of the Act. In that circumstance, the survivor of occupancy tenant would have their part of the share and the other share of the occupancy tenants, whose line of descent has come to an end, would go back to the landlord if he chooses to seek partition. Thus, the question raised by learned counsel for the appellant in this regard is answered accordingly. 13. Thus, the question raised by learned counsel for the appellant in this regard is answered accordingly. 13. It is also pertinent to mention here that the plaintiffs are seeking declaration on the basis of jamabandi for the year 1967-68 (Ex.P7) in which they have been recorded to be the owners to the extent of 1/4th share and the predecessors-in-interest of defendant Nos.2 to 4 have been recorded owners to the extent of 3/4th share. If this jamabandi is treated to be correct by the plaintiffs themselves and has not been challenged, then the Courts below have erred in granting declaration in respect of the entire land of 03 Kanals 08 Marlas in favour of the plaintiffs. The learned Courts below have further erred in deciding the issue of bona fide purchaser against the appellant on the ground that he belongs to the same village and Mota Singh was in possession. In this regard, it would be suffice to say that the predecessors-in-interest of defendant Nos.2 to 4 were recorded as co-owners in the jamabandi for the year 1960-61 (Ex.P6) and for the year 1967-68 (Ex.P7) from which defendant No.1 had found their title and had purchased the property in the year 1971, therefore, I do not agree with the finding recorded by the Courts below that defendant No.1 is not a bona fide purchaser of the property in dispute and that the vendors of the predecessors-in-interest of the plaintiffs had become the owner of the suit property by way of adverse possession as the plea of adverse possession is not available to the plaintiffs as it is a plea of defence meant for the defendants and on that account the decree could not have been granted. 14. Keeping in view the totality of the facts and circumstances and the question of law involved in this appeal, which has been answered hereinabove, the present appeal is allowed and the judgment and decree of the learned Courts below are hereby set aside. The parties to the lis, in the facts and circumstances of the case, are directed to bear their own costs. ----------0BSK0----------