1. These two appeals relate to the same facts and are against a judgment and decree of the Chief Court, Chamba, dated 26-8-2003, affirming a judgment and decree of the District Court, dated 26th Baisakh 2003, and reversing the decree of the Subordinate Judge dated 4th Poh 2002, resulting in the dismissal of the plaintiff's suit.
2. The only point of law involved in these appeals is, whether a tenant, enjoying cultivable possession for a long period over twelve years but paying half produce or Batai to the land lord, can acquire occupancy rights.
3. The facts in brief are that Moti Singh, the plaintiff, brought the suit for ejectment against one Basu and his brother, Jaimal, sons of Sarda. He brought another suit for ejectment against Mahant. The grounds of both the suits were that Basu, Jaimal and Mahant were tenants-at-will paying half Batai to him as landlord. They were not regularly paying the landlord's share and should, therefore, be ejected.
4. The defence in the first suit was that the defendants, Basu and Jaimal, had been in possession for a long time over thirty years and that they were paying the landlord's share regularly.
5. The same defence was taken by Mahant in the suit against him.
6. In the trial, the learned Subordinate Judge found that the defendants were paying half Batai to the plaintiff-landlord and could not, therefore, acquire occupancy rights. They were only entitled to the price of the house which they had built. This he estimated in the suit against Basu and Jaimal to be Rs. 55-8-0 (Rupees fifty-five and annas eight) and in the case of Mahant Rs. 20 (Rupees twenty) only.
7. On appeal, the District Judge remanded the case for enquiry into the period of their possession.
8. The trial Judge reported that the defendants in both the suits had been in cultivating possession for more than twenty years. Upon this, the learned District Judge held that, by the long cultivating possession, the defendants acquired occupancy rights and could not be ejected. He, therefore, dismissed the suit.
9. The plaintiff, Moti Singh, appealed to the Chief Court. '
10. As the subject-matter of both the suits was the same and the point of law involved, similar, the learned Chief Judge consolidated the two appeals and decided the case in a single judgment.
11. He took very great pains in referring to the earlier decisions which purport to have touched upon this important point of law, namely, whether long cultivating, possession coupled with the payment of half Batai to the landlord could entitle the defendants to acquire occupancy rights.
12. The learned counsel for the plaintiff-appellant, Moti Singh, took me through all the decisions quoted and commented on by the learned Chief Judge.
13. I shall take them in the order they appear in the judgment of the Chief judge.
14. In precedent no. 163 Mugalu v. Laddu, decided on 31st Bhadon 1950, by Lala Gobind Chand. Wazir-e-Alam, the learned Chief Judge understood that the cultivating possession for fifteen or sixteen years together with the houses built on the land gives the tenant the occupancy right. But that is not so. With great respect to the learned Chief Judge, this case does not refer to the ejectment of a tenant having held long cultivating possession for fifteen or sixteen years. It has no bearing on the point.
15. In Precedent No. 308 Debia v. Lal Chand, decided on 1st Sawan 1972, the suit was between a jagirdar and his tenant on the ground that the tenant was asked to pay enhanced rent. The tenant was paying his rent regularly and he was not willing to pay enhanced rent. It has also got no bearing on the point at issue.
16. Precedent no. 309 Chuhru v. Gulaba, decided on 12th Sawan 1972. It was a suit for ejectment but the parties compromised. Therefore, it does not help in deciding the point,
17. Precedent no. 872 Tegu v. Lakha, decided on 27th Sawan 1976, by Subordinate Judge First Class. It was a case which decided that a tenant paying fixed rent cannot be ejected as he acquires occupancy rights. Therefore, this case is distinguishable.
18. Precedent No. 384 Tegu v. Lakha, decided on 19th chet 1976, decided by M. Kesri Singh, Prime Minister, Chamba. This was a case where a tenant was not paying anything. On a suit for ejectment, it was held that he should pay eight annas Malkana. This has also got no bearing on the point. This further proves a long standing tenant, who has not paid anything can acquire occupancy rights, as will be found in later decisions.
19. Precedent No. 411 Jalpu v. Prabhia, decided on 23rd Chet 1979. It was decided that tenants of long-standing cultivating possession cannot be ejected. Though they cannot acquire occupany rights yet they, on payment of rent, will continue to remain in cultivating possession. This was a case decided by Subordinate Judge First Class.
20. Precedent No. 64.8 Chuhru v. Rijhu decided on 8th Kartik 1988 by C. J. O. This is a case to the point. The C. J. O. decided that by long-standing cultivating possession the tenant acquires occupancy rights. This is the only case in favour of the defendant.
21. Precedent No. 444 Mt. Dropadi v. Sehnu, decided on and poh 1981 by late Raja Ram Singh. In this case the Ruler quoted the State Rule that if there is a tenancy of twelve or more years without paying any rent with the consent of the landlord, then a permanent right of tenancy or occupancy right accrues. The learned counsel says that this means only those long-standing tenants, who are paying either a fixed rent or no rent, are considered to have acquired occupancy rights. But the tenant, however long his possession may be, but is giving half produce to the landlord-cannot acquire occupancy rights and therefore, this case is distinguishable.
22. Precedent No. 460 Mt. Matti v. Dass, decided on 20th Kartik 1982 by C. J. O. It was a case where the long-standing tenant was paying a fixed rent and was, therefore, entitled to acquire occupancy rights.
23. Precedent No. 552 Gulaba v. Lehnu, decided on 9th Teth 1986, by C. J. O. This is a case in which the long-standing tenant never paid any rent and it was decided that he acquired occupancy rights.
24. Precedent No. 583 Basalu v. Chuhru, decided on 24th Asoj 1987, by late Raja Ram Singh. This is the continuation of the previous case no. 309 Chuhru v. Gulaba, where the Ruler declares Chuhru as occupancy tenant on a compromise petition.
25. Precedent No. 590 Karam Singh v. Nanku, decided on 16th Magh 1987. This I have not yet been able to trace but it was a case of a new agreement and has got no bearing on the point.
26. Precedent No. 781 Shankar v. Matalbi, (actually Sultan v. Shankar), decided on 4th Kartik 1991, by the late Raja Ram Singh. This is a case also of a long-standing tenant paying a fixed rent and service (two days in a month). He was declared an occupancy tenant.
27. Precedent No. 899 Bhagu v. Khirya, decided on 8th Chet 1992, by C. J. O. This precedent has no bearing on the point.
28. The learned counsel has cited two cases, Tani v. Dangela, decided on 29th Sawan 1995 and Moti v. Chetu, decided on 12th Asoj 1995. In Tani v. Dangela, which has been noticed by the Chief Judge and which has laid down the law that, however long standing the possession may be, if the tenant is paying Batai, he cannot acquire occupancy rights. But the learned Chief Judge distinguishes this case on the ground that it was based on the principles of decisions under the Punjab Tenancy Act. But this was a case decided by the State Council on 29th Sawan 1995.
29. The next case is Moti v. Chetu. There too, the State Council, presided over by the President, Colonel Strong and Dewan Bahadur Lala Madho Ram held that, however long the possession might be, if the tenant, pays half Batai, he cannot acquire occupancy rights, These are the two latest decisions on this complicated question of law.
30. I have gone through the record of the cases as well as the two decisions in favour of the plaintiff. I rely upon the last two decisions of the State Council which, acting as the highest Court of Chamba, has declared that long standing tenant paying half Batai cannot acquire occupancy rights.
31. I agree with the reasonings of the trial Judge. In my opinion, the contentions of the defendants have no substance. But as the defendants have raised structures on the land, they are entitled to compensation on ejectment. I do not wish to interfere with the estimated cost arrived at by the Chief Court.
32. I appreciate much labour and industry which the learned counsel has bestowed on obtaining copies of the precedents referred in the judgment of the Chief Judge. They have been filed with this record.
33. In the circumstances, I should advise the Chief Commissioner to allow these appeals, reverse the decision of the Chief Court and the District Court and restore the decision of the Subordinate Judge decreeing the plaintiff's suit, with this modification that the defendants will be entitled to compensation, the amount of which has been fixed by the Chief Judge. In the special circumstances of the case, there shall be no order as to costs of this appeal.