1. This is a second appeal by two plaintiffs who have failed in both the Courts below in a suit instituted by them to challenge the sale by a widow Mst. Attri of occupancy rights in certain land and a house in favour of the contesting defendant Jagdip Singh who is the owner of the land. The plaintiffs claimed as reversioners of Mst. Attri under Section 59 of the Punjab Tenancy Act regarding the land, and as heirs of Wazira, the deceased husband of Mst. Attri, regarding the house, and they claimed possession of the property in suit or in the alternative a declaration that the alienation would not affect their reversionary rights after the death or re-marriage of Mst. Attri. The common ancestor in this case was Hoshnaki who was the great grandfather of the plaintiffs and the grandfather of Wazira.
On the pleadings of the parties, the following issues were framed by the trial Court:
1. Whether the plaintiffs are reversioners of defendant No. 2 under Section 59 of the Punjab Tenancy Act?
2. Whether the alienation in favour of defendant No. 1 is void and binding on the plaintiffs?
3. Whether the plaintiffs are heirs of the de-ceased husband of defendant No. 2 with respect to the house in dispute?
4. Is the suit speculative? The last of these issues was not pressed by the defendant, as it seems to have been agreed that the presence of daughters and daughters' sons did not affect either the succession to the occupancy rights or to the house. Issue No. 2 was decided in the plaintiffs' favour on the strength of the decision of the Full Bench reported in 'Labh Singh v. Hassu,' AIR 1940 Lah. 364 (F. B.) but it was found against the plaintiffs that they were not the reversioners under Section 59 of the Tenancy Act since it was not proved that the common ancestor had held occupancy rights in the land in suit, and that they were not entitled to succeed to the house. Their suit was thus dismissed, as also was their appeal in the court of the District Judge.
2. Whether the finding that the common ancestor had not been proved to have held occupancy rights in the land in suit is a finding of fact which cannot now be challenged or not, it is quite clear that the finding was in fact justified. The copies of the revenue records which have been produced in the case show that at the time of the first settlement in 1852 there were three sons of Hoshnaki, Kharak Singh the ancestor of the plaintiffs, Dalelu, the father of Wazira, and one Biru, who were shown in a number of entries to be in possession of separate lands as tenants-at-will. Later, in the settlement proceedings, it seems that Dalelu and Kharak Singh were successful in getting themselves entered as occupancy tenants but the entries relating to occupancy tenancy do not mention Biru at all.
It is no doubt well established that where at the time of the first settlement the sons of the common ancestor are shown as owners or occupancy tenants of land in ancestral shares, there is a presumption that the common ancestor was also the owner or occupancy tenant, but this presumption is rebutted in the present case by the two circumstances that there was in existence a third son who was not entered with his two brothers as enjoying occupancy rights, and that in the first entries which were made at the time of the first settlement the three brothers were shown as tenants-at-will. It seems quite possible in the circumstances, and it has been shown in evidence that it might have been the case regarding one of the brothers, Dalelu, that he had occupied the land sufficiently long to be recognised in his own right as having acquired occupancy rights during the settlement proceedings. I, therefore, consider that it was rightly held not to have been proved that occupancy rights were acquired by the common ancestor.
3. The position regarding the house is somewhat different. The family of the plaintiffs are admittedly non-proprietors in the village, being barbers by caste, and the general custom regarding succession by non-proprietors to houses is contained in paragraph 238-A of Rattigan's Digest which reads:
'The direct male descendants and ordinarily the widow and mother of a deceased non-proprietor will succeed to his rights in the house occupied by him at the time of his death, but not remote collaterals.'
The Courts below have relied on a decision by a learned Single Judge Sir William Chevis reported as 'Sher Dil v. Gulab,' 68 lad. Cas. 767 (Lah) in which it was held that as a general rule, a grandson of a first cousin has no right to succeed to the rights of a non-proprietor in a village. The suit related to a house and a number of decisions were reviewed, the effect of which was summed up as being that no collateral in the second degree had ever been barred, and no collateral beyond the third degree had ever succeeded. That being a case of a collateral in the third degree the learned Judge decided against him.
A different view, however, was taken in the case of 'Harjas v. Harke', a decision of a Division Bench of the Lahore High Court consisting of Sir Shadi Lal and Campbell JJ. reported in the same volume, 68 Ind Cas 885 (Lah). These learned Judges expressed the view that a collateral in the third degree is a near collateral as regards succession to a house occupied by a non-proprietor and that where the custom of a particular village is uncertain, the rule of general custom should be applied. This decision does not appear to have been brought to the notice of the Courts below, though the learned trial Judge has referred to a cases without giving particulars in which third degree collaterals were allowed to succeed, but he has observed that in that case it was found that the land and the houses were occupied by the common ancestor which was not the case in the present suit. I do not, however, find that in 68 Ind Cas 885 (Lah) there is any finding that the house was occupied by the common ancestor of the plaintiffs and the last occupier, and the decision is thus not distinguishable on this ground.
The learned counsel for the respondent, however, has sought to distinguish it as being a dispute about succession whereas the present case relates to challenging an alienation. I cannot see, however, that this makes any difference to the principle involved. I would accordingly follow this decision and accept the appeal as regards the house in suit. I would accordingly grant a declaration to the plaintiffs to the effect that the sale of the house by Mst. Attri will not affect their reversionary rights regarding the house in suit. As the plaintiffs have only partly succeeded I would order the parties to bear their own costs throughout.
4. I agree.