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Faqiria Vs. Kalu Mal - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtPunjab and Haryana High Court
Decided On
Case NumberSecond Appeal No. 91 of 1948
Judge
Reported inAIR1952P& H52
ActsCode of Civil Procedure (CPC) , 1908 - Secitons 100 and 101; Transfer of Property Act, 1882 - Sections 111 and 117; Punjab Laws Act, 1872 - Sections 6
AppellantFaqiria
RespondentKalu Mal
Appellant Advocate D.N. Aggarwal, Adv.
Respondent Advocate Tek Chand, Adv.
DispositionAppeal dismissed
Cases ReferredBrahmayya v. Sundaramma
Excerpt:
.....passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - in the result the suit failed and was dismissed with costs. ' now, section 6, punjab laws act, 1872, enacts that in cases not otherwise specially provided for the judges shall decide according to justice, equity and good conscience. v of the act are applicable to leases for agricultural purposes as rules of justice, equity and good conscience. the act was framed by eminent english lawyers to reproduce the rules of english law in so far as they are of general application and rest on principle as well as authority, and its provisions are in my opinion binding on us as rules of justice, equity and good conscience, when we have to deal with agricultural leases in the absence of..........and om nath applied for the partition of land measuring 194 'kanals' 14 'marlas' including the land in suit. in those proceedings faqiria son of sidhu, brahaman, resisted the partition of the land in suit claiming that he was a proprietor of 'khasra' no. 1936 measuring 4 'kanals' 12 'marlas'. 3 on 5-3-1946, kalu mal instituted civil suit no. 170 of 1946 for possession of the land in suit alleging that he was the proprietor of the land and that faqiria defendant was liable to eviction because he had renounced his character as a tenant under the plaintiff by claiming a title in himself. faqiria defendant resisted the suit and on the pleadings of the parties the following issues were fixed : (1) whether the land in suit does not belong to the plaintiff as owner and the entries in the.....
Judgment:

1. In the settlement of 1852, 'khasra' No. 1471, 'khatauni' No. 19, situate in village Rampur, Tehsil Garshankar, District Hosbiarpur was shown to be part of the Shamilat and Pheru Mal son of Dewan Khatri was shown as 'maurusi'. In the settlement of 1868 Pheru Mal was shown as the proprietor of 'Khasra' No. 1471. 'Khasra' No. 1471 'min' measuring 3 'Kanals'. 16 'marlas' was shown in the cultivating possession of Pheru Mal while 'Khasra' No. 1471 'min' measuring 13 'marlas' was shown in the cultivating possession of Kaka, Sidhu, and Shiv Saran sons of Dunna, as tenants-at-will on account of 'dharamarth'. In the settlement of 1884, Jattu son of Pheru is shown to be a proprietor of 'Khasra' No. 1619, 'Khatauni' No. 98/229, corresponding to'Khasra' No. 1471 of the Settlement of 1868 while Kaka, Sidhu, Shiv Saran sons of Dunna are shown to be holding 'Khasra' No. 1619 measuring 4 'Kanals' 12 'marlas' as tenants-at-will. In the 'Kaiflat' column there is a note that the rent' had been remitted by the proprietors to the tenants-at-will.

2. On 12-9-1939, Kalu Mal, Radha Kishan, and Om Nath applied for the partition of land measuring 194 'Kanals' 14 'marlas' including the land in suit. In those proceedings Faqiria son of Sidhu, Brahaman, resisted the partition of the land in suit claiming that he was a proprietor of 'Khasra' No. 1936 measuring 4 'Kanals' 12 'marlas'.

3 On 5-3-1946, Kalu Mal instituted Civil Suit No. 170 of 1946 for possession of the land in suit alleging that he was the proprietor of the land and that Faqiria defendant was liable to eviction because he had renounced his character as a tenant under the plaintiff by claiming a title in himself. Faqiria defendant resisted the suit and on the pleadings of the parties the following issues were fixed :

(1) Whether the land in suit does not belong to the plaintiff as owner and the entries in the revenue record Ex. P. I. are incorrect

(2) Whether the land originally belonged to Pheru Mal and he made a gift of it to the defendant's ancestors, if so when

(3) Whether the defendant and his predecessors have been in possession ever since the alleged gift in their favour

(4) Whether the suit is within time

(5) Relief.

In deciding Civil Suit No. 170 of 1946 the trial Court found that the land in suit was gifted by Pheru Mal to Kaka, Sidhu and Shiv Saran sons of Dunna. In the result the suit failed and was dismissed with costs. From the decree passed by the trial Court on 21-4-1947, Kalu Mal appealed in the Court of the Senior Subordinate Judge, Hoshiarpur. In the appellate proceedings the Senior Subordinate Judge said :

'The 'entry in the 'Kaifiat' column in the year 1884 sets at rest all doubts on the point, because it is evident from that entry that only the rent was remitted, the ownership of the land was not transferred. In the year 1901 the reason why this rent was remitted has also been given, and therefore the findings of the learned trial Court that the entry of ownership is not conclusive and is merely presumptive and therefore presumption that arises even in the plaintiff's favour stands fully rebutted, are not supportable at all.'

In allowing the appeal the Senior Subordinate Judge found that Kalu Mal was the owner of the land in suit and that the defendant was liable to ejectment because the defendant had renounced his character as tenant by claiming that he was the proprietor of the land in suit. In the result the Senior Subordinate Judge set aside the order of dismissal of the plaintiff's suit and granted the plaintiff a decree for the possession of the land in suit with costs. From the decree passed by the Senior Subordinate Judge on 9-10-1947, Faqiria defendant has come up in further appeal to this Court under Section 100, Civil P. C.

4. Now, it is not open to Faqiria defendant to urge that the presumption arising from the entries in the latest 'Jamabandi'. Showing theplaintiff to be the owner of the land has been rebutted for the question whether the presumption arising from the 'jamabandi' has been rebutted is a question of fact. For an authority on this point 'Wali Mohammad v. Mohammad Bakhsh', 11 Lah 199 (P C), may be seen.

5. Mr. Dwarha Nath Aggarwal urges on behalf of the appellant that the Senior Subordinate Judge was in error in finding that Faqiria defendant has forfeited the tenancy by renouncing his character as a tenant by setting title in himself. The law on the point is contained in Section 111(g), T. P. Act, 1882, hereinafter referred to as the Act. Section 111(g) provides : 'A lease of immovable property............

(a) by forfeiture; that is to say, (1) in case the lessee breaks an express condition which provides that on breach thereof the lessor may re-enter............or (2) in case the lessee.renounces his character as such by setting up a title in a third person or by claiming title in himself.'

As stated above, Faqiria defendant renounced his character as a tenant by claiming title in himself in the written statement filed by him in revenue case No. 52 of 1939.

6. Basing himself on the provisions ofSection 117 of the Act, Mr. D. N. Aggarwal urgesthat the provisions of Section 111(g) of the Act, donot apply to leases for agricultural purposes.Section 117 of the Act reads:

'None of the provisions of this Chapter applyto leases for agricultural purposes, exceptin so far as the State Government,......may,by notification published in the official Gazette, declare all or any of such provisions to be so applicable (in the case of all or any of such leases), together with, or subject to, those of the local law, if any, for the time being in force.

Such notification shall not take effect until the expiry of six months from the dale of itspublication.'

Now, Section 6, Punjab Laws Act, 1872, enacts that in cases not otherwise specially provided for the Judges shall decide according to justice, equity and good conscience. Prior to the Act, principles of English law relating to leases were applied to agricultural and non-agricultural leases. Indeed, there is ample authority under the Act that in the absence of any law, usage or custom to the contrary, the principles of Chap. V of the Act are applicable to leases for agricultural purposes as rules of justice, equity and good conscience. In 'Krishna Shetti v. Gilbert Pinto', AIR (6) 1919 Mad 12, Wallis, C. J., (Napier and Kumara Swami Sastri JJ. concurring) said :

'The fact that agricultural leases such as this one are excepted from the operation of Sections 105 to 116, T. P. Act, does not, in my opinion affect the present question. The Act was framed by eminent English lawyers to reproduce the rules of English law in so far as they are of general application and rest on principle as well as authority, and its provisions are in my opinion binding on us as rules of justice, equity and good conscience, when we have to deal with agricultural leases in the absence of any special reason for not applying them. The legislature wisely in my opinion if I may say so, has refrained from making these sections applicable 'pro-prio vigore' to agricultural leases for fear of unnecessarily interfering with settledusages which it is undesirable to disturb. But in the absence of special reasons, there is no ground for applying a different rule in the cases of agricultural leases and there are many decisions to that effect'.

In 'Brahmayya v. Sundaramma', AIR (35) 1948 Mad 275 Gentle C. J., (Patanjali Sastri and Bell JJ., concurring) said : 'Now returning to the present case when the property in suit is agricultural land and was let for that purpose, Section 106, T. P. Act, provides that in the absence of a contract or local law or usage to the contrary, a lease of immovable property for agricultural purposes shall be deemed to be a lease from year to year terminable by six months' notice expiring at the end of the year of the tenancy. Whilst that section does not apply to leases for agricultural purpose, by virtue of Section 117 of the Act, nevertheless, it has been observed and laid down in a series of decisions of this Court that the rules in Section 106 and in the other sections (Sections 105 to 116) in Chapter V of the Act are founded upon reason and equity; they are the principles of English law and should be adopted as statement of the law in India applicable to agricultural leases.' In para. 281 of volume XX, Halsbury's 'Laws of England', 2nd Edn., the law on the point is stated as follows:

'Thus, it is a cause of forfeiture if the lessee denies the title of the lessor by alleging in 'writing' or, in case of a tenancy from year to year, either in writing or 'verbally' -- that the title to the land is in himself or another.'

7. That being the position of law I have no doubt that the Senior Subordinate Judge was right in thinking that the tenancy in favour of Faqiria was forfeited by repudiation on his part in the revenue Court of that tenancy by claiming in himself the title to the land in suit. No other point arises in this appeal. For the foregoing reasons this appeal fails and is dismissed with costs.


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