1. The principal point for decision in the present case is whether the rights enjoyed by a deceased occupancy tenant have devolved on the other occupancy tenants or whether they have lapsed to the landlords. It appears that one Akhe Ram who was an occupancy tenant of a plot of land situate in village Silothi of the Rohtak District died in the year 1941 leaving behind him neither a son nor a widow to succeed him. Some of his collaterals entered into possession of the property and a mutation was sanctioned in their favour on 31st August 1942. Thereupon, the plaintiffs who are the landlords brought the present suit for possession on the ground that the occupancy rights had reverted to them upon the death of Akhe Ram under Section 59, Punjab Tenancy Act. The trial Court granted the decree prayed for holding (a) that the land in suit was never occupied by the common ancestor; (b) that though there was a joint tenancy at one time that tenancy had ceased to exist in the year 1879 and (c) that the defendants had no right to succeed to the occupancy rights belonging to Akhe Ram either on the ground that the common ancestor of the deceased and of the defendants had occupied the land or on the ground that the tenancy was a joint tenancy to which the defendants could succeed by the rule of survivorship. The District Judge upheld this order in appeal. The defendants went up to the High Court at Lahore in second appeal and a learned Single Judge of the said Court disagreed with the view taken by the Courts below and dismissed the suit. The defendants are dissatisfied with the order and have come to this Court under para. 10 of the Letters Patent.
2. Sub-section (1) of Section 59, Punjab Tenancy Act, declares that when a tenant having right of occupancy dies, the right shall in the circumstances set out in the section devolve upon his male collateral relatives in the male line of descent from the common ancestor of the deceased tenant and those relatives provided the common ancestor occupied the land. Sub-section (1) provides that if the deceased tenant has left no such persons as are mentioned in Sub-section (1) the right of occupancy shall terminate and lapse to the landlords. It has been held repeatedly that joint tenants of a holding are to be regarded as a single tenant and that as long as any of them or the descendants of any of them survive the land-lord cannot claim the share of any tenant whose line has become extinct.
3. Two questions at once arise for consideration in the present case, namely, (1) whether the common ancestor of the deceased and of the defendants occupied the land in question, and (2) whether the defendants and the deceased occupied the land as joint tenants and whether the defendants are entitled to succeed to the occupancy rights even though the land was not occupied by a common ancestor.
4. The following pedigree-table shows the relationship between the defendants and the de ceased occupancy tenant:
SEHAJ BAM__________________|_______________________| |Ishar Das Nand Ram| |Askaran Bahadur| |Nahar Zorawar__________|___________ _________|__________| | | |Minhun Chet Ram Kesho Har Gobind| | | |Akhe Ram Chittar Dipohand Han Ramdeceased | (Defdt. 2) |Tek Chand Raj Rup (Defdt. 1)
5. The revenue papers which have been pro. duced in this case show that in the year 1846, Zorawar was the sole occupancy tenant of field Ho. 122 measuring 22bighas 5 biswas. In the year 1872, the name of Zorawar was replaced by the names of his two sons, Kesho and Har Gobind, and his collateral Chet Ram brother of Minhun father of Akhe Earn. In the year 1879, Chet Ram and his brother Minhun are recorded as occupancy tenants in the remaining part of this land. In 1926-27 Akhe Ram alone is shown to be the occupancy tenant in respect of this property and this entry continues to be repeated till he died in the year 1941.
6. These entries make it quite clear that there is no substance whatever in the contention that Sehaj Ram the common ancestor of the deceased and of the defendants occupied the land. The earliest entries date back to the year 1846, when Zorawar was in possession of the holding as an occupancy tenant. 'No presumption can be drawn that this holding had descended to him from his great-grandfather Sehaj Ram. The Courts below decided the question against the defendants and the latter have not contested the correctness of that finding.
7. The crucial point in the present case is whether the defendants held the land jointly with the deceased tenant and, if so, whether they are entitled to succeed to the occupancy rights in preference to the plaintiffs who are owners of the property. The learned Single Judge came to the conclusion that from the year 1879 onwards the tenancy in suit has been enjoyed separately by the line of which Akhe Ram was the last survivor but that there was no indication that such enjoyment was not the result of the division of areas for convenience of cultivation. Ha accordingly held that the only conclusion that could be drawn from the association of Chet Ram with the sons of Zorawar in the year 1672, was that these persons were joint tenants of the property. Relying on the cases of Moti Lal v. Kartar Singh A.I.R. 1930 Lab. 615 F.B. and Haria v. Nathu R.S.A. No. 913 of 1943, the learned Judge held that unless by some transaction the joint tenancy had been surrendered and several tenancies granted the joint tenancy subsisted. Again he held that such a surrender and severance may be assumed it the landlord were a party to the partition proceedings and agreed to the partition as well as to receive rent from the individual ten-ants, but that in the absence of proof of any partition, no such surrender or re-grant could be assumed and the tenancy must, therefore, be assumed to have continued to be qua the landlords, a joint tenancy, to which the rule of sue-cession laid down Moti Lal v. Kartar Singh A.I.R. 1930 Lah. 518 F.B. must apply. In this view of the case, the learned Single Judge held that the defendants were entitled to succeed to the tenancy last held by Akhe Ram.
8. This finding has given rise to two questions namely, (1) whether it is within the competence of this Bench to examine the question of joint tenancy when it was not pleaded by the parties, and (2) whether a joint tenancy has in fact been established. The landlords in the pre-sent case alleged that the rights of occupancy enjoyed by Akhe Ram had terminated by reason of the latter's death. The defendants admitted the correctness of this allegation but stated that they were entitled to succeed to the said occupancy rights as the common ancestor of the deceased and of the defendants had occupied the land. They never alleged or pleaded that they 'were entitled to succeed on the ground that they were holding the land jointly with the deceased and were entitled to succeed under the rule of survivorship. The utmost that they said was that they were heirs of the deceased and were entitled to inherit the property of the latter. The trial Court accordingly framed two issues, namely, (1) whether the defendants were heirs of the deceased, and (2) whether the land in suit was occupied by the common ancestor. In the course of arguments, however, the defendants took up the plea that the provisions of Section 59, are not exhaustive and that if a tenancy has been jointly acquired the heirs of all the joint tenants succeed by survivorship. The landlords did not protest that a new case was being set up by the defendants and allowed the plea to be examined by the Courts below and by the learned Single Judge. In the grounds of appeal which were filed under para 10, of the Letters Patent no allegation was made that the defendants had set up a new case. It is not within the competence of this Bench to entertain an objection about a new case having been set up when no such plea was taken before the learned Single Judge.
9. The only other point for decision in the present case is whether the deceased and the defendants were holding the land as joint tenants under the plaintiffs or whether the partition of the year 1879 had altered the nature of the tenancy. There can be little doubt that during the years 1846 and 1879 the descendants of Sehaj Ram were holding the land as occupancy tenants under one lease. It follows as a consequence that, as pointed out in Moti Lal v. Kartar Singh A.I.R. 1980 Lah. 516 F.B., the body of tenants constituted a single tenant qua the landlords and each of them was liable to pay the landlords the entire rent and not only his own share of it. If one of these occupancy tenants had died and his line had become extinct, his share in the holding would have passed to the other occupancy tenants and would not have lapsed to the landlords. The question is whether the partition of the year 1879 has so altered the nature of the tenancy that the share of the deceased tenant must be deemed to have lapsed to the landlords. An endorsement appearing on Ex. D. 3 which was recorded in the year 1879 shows that the several joint tenants had by mutual consent partitioned the occupancy holding. The use of the expression 'mutual consent' leaves no doubt in my mind that the partition was effected with the consent of the tenants and that the landlords were not consulted. The papers of 1879 indicate the partition and the separation of the two branches of the family but the tenancy is shown as a joint tenancy and the rent is shown as it was before the partition.
10. Even after the partition, there was one tenancy qua the landlords and several tenancies qua the tenants. The landlords did not allege in the plaint that they were parties to the partition or that their consent was obtained. The fact that a partition was made would not lead necessarily to the conclusion that it was made with the consent of the landlords. The consent of the landlords was in my opinion an essential pre-requisite to the determination of the joint tenancy and the creation of a number of separate tenancies. In Allah Ditta and Ors. Jalal Khan and Ors. A.I.R. 1945 Lah. 235 a Division Bench of the Lahore' High Court presided over by Harries C.J. observed as follows:
A tenancy is the result of an agreement between two parties the landlord and the tenant. To vary the terms of such agreement the assent of both parties is required. In the present ease, as I have said, the joint tenants agreed amongst themselves to partition the property and did partition it; bat they did so without making the landlords parties and there is no direct evidence that the landlords ever agreed to such a partition. In such a case can it be said that the partition put an end to the joint tenancy and created a number of, several tenancies? Had the landlords been parties to the partition proceedings and had assented to them possibly different considerations might apply; but I cannot understand how the tenants by an agreement amongst themselves could alter their liabilities to the landlords or alter the landlords' rights as against the tenants.
It is clear that a mere division of the tenancy for purposes of convenience or for raising money does not affect the nature of the tenancy. This was held in Amir Khan v. Minh Mal A.I.R. 1924 Lah. 127 in which it was held that the principle to be followed as regards the landlords was that the joint tenants of an occupancy holding, eyen though it was not held by their common ancestor, were to be regarded as a single tenant, and that as long as any of them, or the descendants of any of item, survived, the landlord could not claim the share of any tenant whose line had died out. Where the joint tenants divided the holding for purposes of cultivation or in order to raise money, such would not indicate that the holding had as a matter of fact been finally partitioned.
In Haria v. Nathu R.S.A. No. 913 of 1943 Mahajan, J. held that a partition between tenants to which the landlord was not a party cannot affect the nature of the tenancy.
11. There is not an iota of evidence on the record to justify the conclusion that the landlords in the present case were a party to the partition proceedings or that they agreed to receive rent from individual tenants; or that they manifested their intention by some other means of accepting a surrender of the joint tenancy, or of re-granting separate tenancies to the individual shares.
12. I would accordingly hold that the joint tenancy was not determined and that the defendants in the present case are entitled to succeed to the tenancy last held by Akhe Ram, the deceased tenant. The order of the learned Single Judge must be affirmed and the appeal dismissed. There will be no order as to costs.
Harnam Singh, J.