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Shiv Singh Rakha Das Vs. Jiwan Dass and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Tenancy
CourtPunjab and Haryana High Court
Decided On
Case NumberSecond Appeal No. 628 of 1956
Judge
Reported inAIR1958P& H164
ActsEvidence Act, 1872 - Sections 5 and 134; Tenancy Law; Punjab Tenancy Act, 1887 - Sections 50(1)
AppellantShiv Singh Rakha Das
RespondentJiwan Dass and ors.
Appellant Advocate P.C. Pandit, Adv.
Respondent Advocate D.N. Aggarwal, Adv.
DispositionAppeal dismissed
Cases ReferredMt. Bar Kaur v. Kharga
Excerpt:
.....under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - the evidence of the defendants' witness who had stated that they had seen moti das two or three years ago going about in the adjoining villages was considered to be interested, unsatisfactory and unconvincing. prem chand pandit, learned counsel for the appellant, has assailed this finding on the ground that the solitary testimony of an interested witness like the plaintiff himself ought not to have been accepted in the absence of any independent' correbora-tion...........that moti das was alive and he had teen seen recently. they also pleaded that neither lal das, common ancestor of the plaintiffs, nor moti das, occupied the land in suit. the occupancy tenancy was joint with the defendants. they also pleaded that they were the sons of rakha das who was chela of govind das, the father of moti das, and, therefore, they were entitled to succeed collaterally. there were other pleas also but they are of no concern at this stage. the following issues were framed:1. whether moti das has not been heard of for seven years, and therefore he can be presumed to be dead? 2. whether the common ancestor of the plaintiffs and moti das occupied the land, is suit? 3. whether defendants 1 and 2 are pre-ferenial heirs of moti das as compared to plaintiffs and defendant.....
Judgment:

Tek Chand, J.

1. This is a regular second appeal instituted by Shiv Singh defendant from the judgment and decree of the Senior Subordinate Judge, Hoshiarpur, dismissing his appeal and concurring with the decision of the trial Court granting the plaintiffs a decree for joint possession of the land in suit as occupancy tenants to the extent of one-half share held by Moti Das deceased.

2. The following pedigree-table will be helpful in understanding the nature of the dispute :

(See the pedigree table on next page.)

3. The plaintiffs instituted a suit for possession of the land detailed in the plaint alleging that Moti Das was recorded as occupancy tenant of the land and the plaintiffs had become owners by virtue of Act No. 8 of 1953 (The Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act, 1953). Moti Das had not been heard of for more than seven years by those who would naturally have heard of him if he had been alive and, therefore, in view of the provisions of Section 108 of the Indian Evidence Act he should be deemed to have died. It was contended that the plaintiffs and defendant No. 9 were his collaterals and they were entitled to succeed to him.

4. The suit was contested by defendants 1 and 2 who pleaded that Moti Das was alive and he had teen seen recently. They also pleaded that neither Lal Das, common ancestor of the plaintiffs, nor Moti Das, occupied the land in suit. The occupancy tenancy was joint with the defendants. They also pleaded that they were the sons of Rakha Das who was chela of Govind Das, the father of Moti Das, and, therefore, they were entitled to succeed collaterally. There were other pleas also but they are of no concern at this stage. The following issues were framed:

1. Whether Moti Das has not been heard of for seven years, and therefore he can be presumed to be dead?

2. Whether the common ancestor of the plaintiffs and Moti Das occupied the land, is suit?

3. Whether defendants 1 and 2 are pre-ferenial heirs of Moti Das as compared to plaintiffs and defendant No. 9?

TAHL DAS_____________________________________|_____________________________________| | | |Prem Das (D.S.P.) Lal Ddas Ram Das (D.S.P.) Narain Das (D.S.P.)________|________________________________________| | |Ram Sahari Lachhman Das Gobind Das| | |Nanak Singh deft. No. 9 | |___________________________| _____________________|________________________|_____________ | | || | Moti Das Mangal Das Ishar DasJaimal Das Plff. Jiwan Das plff. d.s.p. d.s.p 3-A. Whether defendants 1 and 2 are entitled to the rights in suit in the land in dispute an the basis of survivorship?

4. Whether defendant No. 2 is the Chela of Moti Das and what is its effect?

5. Whether the suit property vests in the Udasi institution and what is its effect?

6. Is the suit barred by time?

7. Relief?

5. The trial Court decided all the issues in favour of the plaintiffs and decreed their suit for Joint possession to the extent of one-half share of Moti Das. The other half belonged to defendant No. 9 and the plaintiffs' claim as to this half was dismissed. Shiv Singh defendant then instituted an appeal in the Court of the Senior Subordinate Judge who agreed with the findings of the trial Court and dismissed the appeal. On the first issue the lower appellate Court held that although a number of plaintiffs' witnesses, who were independent and credible, had stated that they had not heard of Moti Das for over seven years, that was not enough as it had been shown that they were the persons who would have naturally heard of him had he been alive.

The evidence of the defendants' witness who had stated that they had seen Moti Das two or three years ago going about in the adjoining villages was considered to be interested, unsatisfactory and unconvincing. The lower appellate Court relied upon the statement of Jiwan Das plaintiff who had also produced letter, Exhibit D-l, from Moti Das sent from Sind, now in Pakistan, in the year 1945. Jiwan Das plaintiff had stated that he used to get letters from Moti Das but he did not receive any letter from him after the receipt of Exhibit D-L.

The lower appellate Court came to the conclusion that Jiwan Das was the only person who could have heard of Moti Das and as he had not been heard of for more than seven years by him he was deemed to have died and the burden of proving that he was alive, which had shifted to the defendants, had not been discharged. Mr. Prem Chand Pandit, learned counsel for the appellant, has assailed this finding on the ground that the solitary testimony of an interested witness like the plaintiff himself ought not to have been accepted in the absence of any independent' correbora-tion.

I do not agree with his contention, and am of the view that it was open to the learned Senior Subordinate Judge to rest his finding on the solitary testimony of a single witness whom he found to be credible even if he had a personal interest in the litigation. The fact that Jiwan Das used to receive letters from Moti Das is supported by the testimony of D. W. 2 besides the production of Exhibit D. 1, letter from Moti Das. The finding of the lower Courts on the first issue was correct and in any case being a finding of fact I cannot reverse it even if I were to disagree with it.

6. On the second issue, Mr. Pandit has argmed that the requirements of Section 59, Punjab Tenancy Act, have not been satisfied in this case. Section 59 (1) of the Punjab Tenancy Act runs as under :

'When a tenant having a right of occupancy in any land dies, the right shall devolve

(a) 011 his male 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 anv, 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 of descent from the common ancestor of the deceased tenant and those relatives : Provided, with respect to Clause (d) of this sub-section, that the common ancestor occupied the land.'

7. Sub-section 1 (a), (b) and (c) admittedly do not apply. Under Sub-section (1) (d) of Section 59, on the death of a tenant having a right of occupancy the right to the land devolves failing lineal descendants in the male line of descent and widow or widowed mother, on his male collateral relatives in the male line of descent from the common ancestor of the deceased tenant and those relatives. There is a proviso with respect, to Clause (d) which requires that the common ancestor must be shown to have occupied the land.

The rule of succession to the right of occupancy is prescribed in Section 59 of the Punjab Tenancy Act and it is not open to the Courts to have recourse either to the customary ruleof succession or to rule of logic. The argument of the learned counsel for the appellant is that it is not sufficient that the common ancestor occupied the land but it has further to be shown that on the death of every ancestor succeeding the common ancestor the property devolved by the rule of inheritance.

Mr. Prem Chand Pandit wants to apply the rule of custom regarding ancestral land which is that the land ceases to be ancestral if it comes into the hands of an owner otherwise than by descent or by reason merely ot his connection with the common ancestor, vide Saif-ul-Rahman v. Mohammad Ali Khan, ILR 9 Lab 95: (AIR 1928 Lah 285) (A); Jagtar Singh v. Baghbir Singh, ILR 10 Lah 165: (AIR 193? Lah 85) (B); Indar Singh v. Gulzara Singh,AIR 1951 Pun 345 (C) and the rulings mentioned at page 676 of the Thirteenth Edition of the Digest of Customary Law by Rattigari. It is true that a property is deemed to 'descend' when the estate vests by operation of law in the heirs immediately upon the death of the ancestor. When property devolves by rule of hereditary succession on the death of an ancestor it is said to 'descend'. By the word 'descend' is understood the passing of property to the heir or heirs without disposition y will or by alienation in the form of gift, sale, etc. It is a transmission by inheritance from an ancestor to the next heir.

8. In Sub-section 1 (d) of Section 59 of the Punjab Tenancy Act an answer is found to the question as to who is to succeed in the absence of descendant's widow and widowed mother, and the answer is that the male collateral relatives in the male line of descent are the successors. 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. 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.

Mr. Pandit drew my attention to a judgment of Addison J. in Mula Singh v. Muhammad Sher, reported in AIR 1931 Lah 507(1)(D). The question in that case was that one Mitha Singh, the common ancestor, had been shown to have held the land for one harvest as tenant of the' then occupancy tenant Ganga Singh. The occupation for one havcst by Mitha Singh was considered to be not sufficient for making the plaintiff's heirs under Section 59 of the Punjab Tenancy Act, to be occupancy holders. It was observed:

'What is meant there (S. 59 (1)) is that it is not necessary to decide in what capacity the common ancestor held the land provided he did hold it and the land descended from him to his heirs. It is impossible to construe the proviso to Section 59 (1) as meaning that a tenant holding an occupancy tenancy for a brief periodunder the existing occupancy tenant or a trespasser holding the land, say for two days, is a person who occupied the land.'

The occurrence of the words 'and the land descended from him to his heirs' does not suggest to me that the learned Judge who decided the case was reading in Section 59 (1) (d) what was not really there. The stray observation does not to my mind support the contention of the learned counsel for the appellant that something over and above what was contained in Section 59 (1) (d) was also required to be proved before plaintiff could succeed. I do not think that Addison J. in that ruling was laying the proposition that besides proving that the land in suit was occupied by the common ancestor, it had further to be proved that every successive heir was also in occupation of the land.

9. The other authority reported in Mt. Bar Kaur v. Kharga, AIR 1927 Lah 534 (1) (E), does not lay down any proposition from which support can be found for the appellant's contention.

10. After giving my careful considerationto the arguments of the learned counsel I findno force in the contention of the appellant. Iagree with the conclusion arrived at by thelower Courts. 1, therefore, dismiss the appeal. In the circumstances of the case theparties are left to bear their own costs throughout.


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