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Jami and ors. Vs. Nathu and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Tenancy
CourtPunjab and Haryana
Decided On
Reported inAIR1949P& H48
AppellantJami and ors.
RespondentNathu and ors.
Cases ReferredCourt of Wards Gtiru Amarjit Singh Sahib v. Devi Dawala A.I.R.
Excerpt:
.....case is that pola gifted his rights to nura and if the landlords wished to avoid it by a suit, they could only do so within six years, but they failed in this. the landlords failed to challenge the mortgage within the time allowed by law with the result that the mortgagee remained in possession. the occupancy tenant also failed to redeem the mortgage or to get back the land within the time allowed by article 148. 5. after that the occupancy tenant died and the landlords brought a suit for possession. it was held that there was no force in the contention and as the occupancy tenant bad died without any heirs and the mortgagee rights had extinguished, the mortgage of the occupancy rights came to an end ipso facto. it is true that the failure of the landlords to bring a suit for the..........years and that no such suit was brought by the plaintiffs' ancestors who were the landlords at the time pola made the gift of the occupancy rights to nura. it was, however, urged on behalf of the plaintiffs that since pola's widows were alive at the time of the gift and the last of them died within twelve years of the date of the suit, no question of limitation arose. counsel further argued that time for bringing the action started to run not from the date of gift but from the date on which the last of pola's widows died.4. now, had there been no gift made by pola during his life-time and had the landlords sued for possession on the allegation that pola had died without leaving surviving him any heirs and consequently the occupancy rights had extinguished, they could certainly urge that.....
Judgment:

Teja Singh, J.

1. The question involved in this appeal is purely one of law but in order to appreciate it it is necessary to record briefly the facts. Pola, who was the occupancy tenant of the suit land, gifted his rights in favour of Nura, who was the son of his wife by her first husband, on 9th March 1897. The gift was followed by possession and after Nura's death, the land passed on to his sons, defendants 1 to 3. In or about 1904, Imam Din and Khairu who were the landlords of the land brought a suit for possession of the occupancy holding in a civil Court. Pola had died by that time. The trial Court held that it had no jurisdiction to entertain the suit.

2. On appeal it was held that the plaintiffs could not maintain a suit for possession because Pola's widows were still alive. It appears that the plaintiffs made a prayer for amendment of the plaint and submitted that they be allowed to convert the suit for possession into one for declaration that the gift having been made without the landlords' consent was not binding upon them. The appellate Court refused to accept the prayer because it was of the view that limitation period for a suit for declaration had already expired. The Chief Court, to which the plaintiffs preferred a further appeal, maintained the decision of the lower appellate Court. On 26th March 1931 the landlords brought another suit for possession. That also met the same fate as that of the previous suit, the reason being that Mt. Makbir, one of Pola's widows, was still alive and it was held that the landlords were not entitled to possession of the occupancy holding during her lifetime. The present suit was instituted on 20th June 1941 by Haji and others, who are the sons of Imam Din and Khairu, the original landlords. They urged that both the widows of Pola had died, that the gift in favour of Nura was contrary to the provisions of the Tenancy Law, that it did not affect their rights and that the defendants, who were Nura's sons, were liable to be evicted. The defence was that as a result of the failure of the landlords to bring a suit to set aside gift made in Nura's favour, the latter's right to retain possession of the land as an occupancy tenant became indefeasible and on his death the rights devolved upon the defendants by virtue of Section 59, Punjab Tenancy Act. The Courts below accepted the defendant's plea and dismissed the suit. The plaintiffs are the appellants before us.

3. It is not denied before us that limitation period available to a landlord to have an alienation made by his occupancy tenant without his consent set aside is six years and that no such suit was brought by the plaintiffs' ancestors who were the landlords at the time Pola made the gift of the occupancy rights to Nura. It was, however, urged on behalf of the plaintiffs that since Pola's widows were alive at the time of the gift and the last of them died within twelve years of the date of the suit, no question of limitation arose. Counsel further argued that time for bringing the action started to run not from the date of gift but from the date on which the last of Pola's widows died.

4. Now, had there been no gift made by Pola during his life-time and had the landlords sued for possession on the allegation that Pola had died without leaving surviving him any heirs and consequently the occupancy rights had extinguished, they could certainly urge that limitation period for the suit started from the death of Pola's last widow. The trouble in the present case is that Pola gifted his rights to Nura and if the landlords wished to avoid it by a suit, they could only do so within six years, but they failed in this. No doubt they brought suits for possession during the life time of Pola's widows, but it was held that they had no locus standi to do so and when they made up their mind to claim the relief of declaration by' making a suitable amendment of the plaint in the first suit, their right to challenge the same had already become barred by time and, as I have already observed, their prayer for amendment of the plaint was disallowed. The result was that Nura became the occupancy tenant in place of Pola and on bis death his sons succeeded to him in accordance with the law of succession as laid down in Clause (a) of Sub-section (1) of Section 59, Punjab Tenancy Act. The words are.

when a tenant having a right of occupancy in any land dies, the right shall devolve (a) on his male lineal descendants, if any, in the male line of descent.

The appellants' counsel argued that because Pola had not obtained the landlords' consent before making the gift of his rights to Nura, the transaction was altogether void and the landlords could simply ignore it. In support of his contention he relied upon Labh Singh v. Hassu and Ors. A.I.R. 1940 Lah. 364 a decision of a Full Bench of the Lahore High Court. But that was a case relating to an alienation by a widow which stands on entirely a different footing from an alienation by a male occupancy tenant. The learned Counsel also relied upon Court of Wards Gtiru Amarjit Singh Sahib v. Devi Dawala A.I.R. 1938 Lah. 675. In that case, an occupancy tenant had mortgaged his rights with a third person. The landlords failed to challenge the mortgage within the time allowed by law with the result that the mortgagee remained in possession. The occupancy tenant also failed to redeem the mortgage or to get back the land within the time allowed by Article 148.

5. After that the occupancy tenant died and the landlords brought a suit for possession. The mortgagee contended that since no action had been taken by the landlords to have the mortgage cancelled within the time allowed by law he could not be dispossessed. It was held that there was no force in the contention and as the occupancy tenant bad died without any heirs and the mortgagee rights had extinguished, the mortgage of the occupancy rights came to an end ipso facto. I do not understand how the landlords in the present case can derive any help from the above case. It is true that the failure of the landlords to bring a suit for the cancellation of the mortgage deprived them of the right of denying the rights of the mortgagee later on but the only effect of this was that the mortgagee could remain in possession as such. The fact that his possession continued for many years could not confer upon him the status of an occupancy tenant, as it is definitely laid down in Section 9, Punjab Tenancy Act, that no tenant shall acquire a right of occupancy by mere lapse of time. Nor could the fact that the mortgagor, i.e., the original occupancy tenant, did not redeem the mortgage within the prescribed limitation period could affect the position or could take away the right of the landlord, who continued to be the landlord in spite of what the tenant did or omitted to do. The right to redeem the mortgage could only be exercised by the tenant and if he failed to exercise it within proper time, the penalty must be borne by him and not by the landlord. This meant that so long as the tenant lived, the mortgagee's possession could not be disturbed by him, but so far as the landlord was concerned, the mortgagee continued to be only the mortgagee and when the tenant died without leaving any heirs, and the occupancy rights, which qua the landlord still belonged to the tenant, got extinguished, with them came to an end the rights of the mortgagee. These principles cannot apply to a gift, because what is gifted is the entire bundle of rights presented (possessed?) by the tenant. If the gift is made without the landlord's consent as in the present case, the landlord can avoid it, but if no suit is brought within time and the donee remains in possession, he steps into the shoes of the occupancy tenant for all intents and purposes and the landlord cannot eject him even though the original tenant dies later on without leaving any heirs.

6. For all these reasons the appeal fails and is dismissed. Since the respondent did not appear to contest the appeal there will be no order as to costs.

Khosla, J.

I agree.


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