C.B. Capoor, J.C.
1. This second appeal by one set of defendants and Regular Second Appeal No. 16 of 61 by the plaintiffs arise out of the same judgment and decree of the learned District Judge Mahasu and in order to facilitate matters, I propose to dispose of both by this judgment.
2. The facts of the case are that Bihari and Mast Ram were own brothers and each one of them had a moiety share in 38 bighas 11 biswas of land appurtenant to Khewat No. 1, Khatauni No. 27 and in 418 bighas 15 biswas of land appurtenant to Khewat No. 1 Khatauni No. 95 situate in village NaUni Pargana Pargohat Tehsil Arki district Mahasu. They were occupancy tenants and Raja Rajendra Singh, the erstwhile Raja of Arki, who figured as defendant No. 1 to the suit, was the landlord of the aforesaid land. Smt. Ganpatu, the plaintitff to the suit, was the wife of Bihari and Smt. Jamna was the wife of Mast Ram. Bihari died in Baisakh 2.000 B. corresponding to 1944 A.D. and the name of Smt. Ganpatu was brought on record as against the one half-share of Bihari vide extract from mutation Ex. P.3. Tif 2004 B. Mast Ram died and mutation as against bis one-half share was effected in favour of Smt. Jamna. The aforesaid lady remarried after the death of Mast Ram.
On 2-5-1954 the Patwari of the mauza submitted a report that Smt. Jamna had remarriedabout 4 or 5 years ago and her name be expunged from column No. 5. The mutation was attested and sanctioned on 16-5-1955 and the name of Smt. Jamna wa-s expunged and that of Raja Rajendra Singh mutated as against the one-half share of Mast Ram vide Ex. P. 9. The aforesaid Raja Rajendra Singh executed a patta in respect of the disputed land in favour of Smt. Nazku, Mussadi and Dhania in lieu of a sum of Rs. 3,000/- and on the report of the Patwari dated 29-4-1955 mutation was attested and sanctioned on 13-10-1955 vide Ex. P. 8. On 13-5-1955 the Patwari reported that Smt. Ganpatu, the plaintiff of the suit, had remarried and on 16-5-1955 mutation was attested and sanctioned and the name of Smt. Ganpatu was expunged and the name of Raja Rajendra Singh was mutated as against the one-half share of Bihari vide Ex. P.7.
On 20-4-1956 Smt. Ganpatu filed a suit against vShri Raja Rajendra Singh defendant No. 1 and Smt. Nazku, Shri Mussadi and Shri Dhania, defendants Nos. 2 to 4, for a declaration that she was the occupancy tenant of the aforesaid land appurtenant to Khewat No. 1 Khatauni No. 27 and was not bound by the mutation orders by which he,r name and that of Smt. Jamna were expunged and the names of defendants were entered and for a perpetual injunction that the defendants Nos. 2 to 4 be restrained from interfering with her possession over the aforesaid land. The main allegations on which the aforesaid suit was founded were that Smt. Jamna remarried after the death of Mast Ram, that the plaintiff was the occupancy tenant of the land described in the plaint, that her name was expunged from the revenue papers behind her back without issuing a notice to her and that she was in possession of the disputed land. At the instance of the plaintiff a temporary injunction was issued to the defendants restraining them from interfering with the possession of the plaintiff over the disputed property.
3. The suit was resisted on behalf of the defendants. The main pleas urged were that the suit was not cognizable by a civil Court, that no suit could be filed against defendant No. 1 without the sanction of the Central Government, that in accordance with the prevailing custom the plaintiff remarried one Jai Ram after the death of her husband and as such she forfeited the right to inherit her husband's property that defendants Nos. 2 to 4 had been in possession of a one-third share in the lands of Mast Ram for about 14 years when the same was mortgaged with them and that the plaintiff was not entitled to any relief.
4. The trial Court repelled the plea that the suit was not maintainable without the permission of the Central Government but accepted the plea that the suit was beyond the cognizance of the civil Court and directed the plaint to be returned for presentation to the proper Court. The aforesaid order was, however, set aside by the learned District Judge on appeal and it was held that the forum chosen by the plaintiff was a proper one and the suit was remanded for disposal in accordance with law. After the order of remand an application was put in on behalf of the plaintiff for leave to amend the plaint on the grounds that subsequent to the issue of temporary injunction the defendants dispossessed the plaintiff, that the particulars of mutation orders sought to be cancelled and of the disputed pro-perty had not been correctly described in the plaint and that certain other necessary facts were also not stated therein. This application was a very vague one inasmuch as it was not stated therein as to which essential facts had been omitted from the plaint and as to what was the correct description of the disputed property.
The application was opposed on behalf of the defendants but was allowed by the Court and an amended plaint was filed by the plaintiff wherein the disputed property included one-third share in 458 bighas 15 biswas of land appurtenant to Khewat No. 1 Khatauni No. 95 Khasra Nos. 273-Min, 275, 611, 1146, 1036, 1150, 1147, 1148 and 1053 also and it was alleged that Bihari and Mast Ram had usufructuarily mortgaged the aforesaid one-third share in. favour of defendants Nos. 2 to 4, that the mortgage money was repaid by Mast Ram and possession over the mortgaged land was restored to him i. e. Mast Ram and the plaintiff had been in possession of the said land through the tenants. It was further alleged that in May 1956 after the issue of temporary injunction the defendants dispossessed the plaintiff from the disputed land by force and that possession over the disputed property be granted to her. The relief for permanent injunction was deleted.
5. In response to the amended plaint the defendants further pleaded that the mortgage had not been redeemed, that the suit was beyond thecognizance of the civil Court and that the suit was barred by the principle of estoppel.
6. The learned Senior Subordinate Judge recorded the following findings on the main questions arising in the case :
(a) that the plaintiff had not remarried afterthe death of her husband.
(b) that the mortgage set up in the plaint hadbeen redeemed.
(c) that by the rule of survivorship the plaintiff became entitled to the one-half share of Mast Ram when Smt. Jamna remarried.
(d) that the suit was not barred by the principle of estoppel.
(e) that the suit was cognizable by a civil Court.
(f) that the defendants Nos. 2 to 4 were in possession of the disputed land either as tenants or as mortgagees.
On the aforesaid findings the learned Senior Subordinate Judge decreed the suit for the declaration prayed for and for symbolical possession over the disputed property.
6a. Defendant No. 1 submitted to the aforesaid decree. The plaintiff and defendants Nos. 2 to 4 were, however, dissatisfied and two separate appeals were filed one by plaintiff and the other by defendants Nos. 2 to 4. The plaintiff in the main contended that actual possession over the disputed property should have been awarded to her and defendants Nos. 2 to 4 challenged the findings that were recorded against them. The learned District Judge disposed of both the appeals by a common judgment. He upheld the findings recorded by the trial Court except for two namely that the mortgage had been redeemed and that the plaintiff was not entitled to recover actual possession. He accordingly decreed the suit for recovery of actual possession of the land appurtenant to Khewat No. 1 Khatauni No. 27 and dismissed it as to the rest. This decision again led to the filing of two appeals one i. e., thisappeal by defendants Nos. 2 to 4 and the other by the plaintiff. The contention of defendants Nos. 2 to 4 is that the whole suit should have been dismissed whereas the contention of the plaintiff is.that the whole suit should have been decreed. For the sake of convenience, the appellants of this appeal will hereinafter be referred as 'the defendants-appellants' and the appellant of the other appeal as the 'plaintiff-appellant'.
7. In view of the contentions advanced on behalf of the parties, the following questions arise for determination :
1. Whether the plaintiff-appellant had remarried after the death of her husband and had in consequence lost her rights in the property of Bihari?
2. If the finding on the aforesaid question be in favour of the plaintiff-appellant whether she had any right in the property left behind by Mast Ram?
3. Whether the mortgage in respect of one-third of 418 bighas 15 biswas of land appurtenant to Khewat No. 1 Khatauni No. 95 had been redeemed by Mast Ram?
4. Whether the suit was beyond the cognizance of a civil Court?
8. FINDINGS : Question No. 4: According to Clause (d) of Sub-section (1) of Section 110, Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act 1952 the Revenue Officers have exclu sive jurisdiction to entertain applications under Section 62 for recovery of possession or for compensation or for both and the contention: on behalf of the defendants-appellants has been that the suit after the plaint had been amended was one under Section 62. That section reads as below :
'If a tenant has been dispossessed without his consent from his tenancy or any part thereof otherwise than in execution of a decree or than in pursuance of any order under Section 57 he may, within one year from the date of his dispossession or ejectment, make an application, for recovery of possession or for compensation, or for both.'
9. My attention on behalf of the defendants-appellants has also been invited to Sections 64 and 65 of the aforesaid Abolition Act. The former bars a civil suit by a person whose application has been dismissed under Section 62 and the latter a relief by suit under Section 9 of the Specific Relief Act. It is significant that none of those sections bars a regular civil suit for recovery of possession. Secondly, Section 62 governs a suit by a tenant and a suit under that section cannot lie unless the relationship of landlord and tenant is admitted by the parties to the suit. In Civil Appeal No. 382 of 1960 Raja Durga Singh v. Tholu dated 1-5-1962 : AIR 1963 SC 361) their Lordships of the Supreme Court had before them the question as to whether a suit for recovery of possession and mesne profits by a landlord against a person alleged to be a trespasser was within the jurisdiction of the civil or revenue Court and they held that if the relationship of landlord and tenant was not a matter of admission between the parties the suit would be cognizable by a civil Court. In the course of the judgment of the Hon'ble Court which was pronounced by Mudholkar, J., the following observations were made :
'It would, however, appear that not only items (d) and (e) (referring to items Nos. (d) and (e) ofthe Second Group under the proviso to subsection (3) of Section 77 of the Punjab Tenancy Act) but every other item in the three groups relates to a dispute between tenants on the one hand and the landlord on the other. There is no entry or item relating to a suit by or against a person claiming to be a tenant and whose status as a tenant is not admitted by the landlord. It would, therefore, be reasonable to infer that the legislature barred only those suits from the cognizance of a civil Court where there was no dispute between the parties that a person cultivating land or who was in possession of land was a tenant'.
Further on reference was made to the following observations made in the case of Magiti Sasamal v. Pandab Bissoi, AIR 1962 S. C. 547 in which Section 7 (1) of the Orissa Tenants Projection Act 1948, which substantially corresponded to the proviso to Sub-section (3) of Section 77 of the Punjab Tenancy Act, was the subject-matter of interpretation :
'In other words, Section 7 (1) postulates the relationship of tenants and landlord between the parties and proceeds to provide for the exclusive jurisdiction of the Collector to try the five categories of disputes that may arise between the landlord and the tenant. The disputes which are the subject-matter of Section 7 (1) must be in regard to the five categories. That is the plain and obvious construction of the words 'any dispute as regards'. On this construction it would be unreasonable to hold that a dispute about the status of the tenant also falls within the purview of the said section. The scheme of Section 7 (1) is unambiguous and clear. It refers to the tenant and landlord as such and it contemplates disputes of the specified character arising between them. Therefore, in our opinion, even on a liberal construction of Section 7 (1) it would be difficult to uphold the argument that a dispute as regards the existence of the relationship of landlord and tenant falls to be determined by the Collector under Section 7 (1).'
'The observations of this Court would clearly apply to the present case also inasmuch as the relationship of landlord and tenant as between the parties to the suit is not admitted by the appellant'.
The plea in bar urged on behalf of the defendants appellants must, therefore, fail and the question be answered against them.
10. Question No. 1 : In order to support a finding in their favour reliance on behalf of the defendants-appellants has been placed both on oral and documentary evidence. (After discussing the evidence in the rest of this Para and Paras 11-14, it was held that there was no reason to interfere with the concurrent findings of the two courts below, the judgment then took up question No. 2).
15. Question No. 2 : It has been contended on behalf of the defendants-appellants that succession to a right of tenancy has been provided for in Section 67 of the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act 1953, hereinafter to be referred as 'the Abolition Act., and in accordance with that Section the plaintiff-appellant was not an heir to the share of Mast Ram in the tenancy land in dispute and as such she had no right to inherit that share. On behalf of the plaintiff-appellant it has not been disputed that in accordance with that section she is not an heir to the share of Mast Ram. The contention advanced on herbehalf is that her husband and Mast Ram and she and Smt. Jamna were co-tenante and as according to that section there was no heir to the share of Mast Ram she became entitled to that share by the rule of survivorship when Smt. Jamna remarried and in support of that contention reliance has been placed upon the majoirity decision in the Full Bench case reported in AIR 1930 Lah 515, Moti Lal v. Kartar Singh. The aforesaid case was under the provisions of the Punjab Tenancy Act 1887. Section 59 (1) of that Act substantially corresponded to Section 67 of the Abolition Act. One material difference between that section and Section 59 of the Punjab Act supra, is that Sub-section (4) of Section 59 which reads as below :
'If the deceased tenant has left no such persons as are mentioned in Sub-section (1) on whom his right of occupancy may devolve under that subsection, the right shall be extinguished'.
does not find place in Section 67 or for the matter of that in any other section of the Abolition Act.
The following question was referred to the Full Bench in the aforesaid Lahore Case :--A is the landlord of the holding of which B, C and D are the occupancy tenants. The shares of B, C and D are specified and it is admitted that they are not members of a joint Hindu family, nor are they 'joint-tenants' in the sense in which that expression is used in English law. On the line of D becoming extinct (that is, there being no person in existence who is entitled to succeed to D under Sub-section (1) of Section 59 Punjab Tenancy Act) does his share in the holding pass by survivorship to the other occupancy tenants B, C or does it lapse to the land lord. Of the learned Judges who composed the Full Bench, Broadway, Addison, Tek Chand and Dalip Singh JJ. held that in the contingency envisaged in the question the share in the holding would pass by survivorship to the other occupancy tenants. Agha Haidar, J., however, dissented from that view.
16. The main line of reasoning which commended to the majority was that the Punjab Tenancy Act was not a codified law and as such was not exhaustive and the application of the rale that qua the landlord there is only one tenement even when land is held by tenants-in-common in defined shares was not ruled out. Tek Chand J. who gave expression to the majority view referred to the cases of White v. Tyndall, (1888) 13 A. C. 263, the United Dairies Ltd. v. Public Trustee, (1923) 1 K. B. 469 and Holloway v. Berkeley, (1826) 6 B and C 2 and in particular to the following observations made in the last mentioned case :
'Where there are tenants-in-common with undivided moieties, there is only one tenement, in the whole of which each tenant shares. Though there may in a sense be two estates, it is obvious that each tenant-in-common has an estate In the whole of the single tenement, and that as regards this estate, there is privity between him and the landlord'.
and to the case of Kailash Chandra v. Brojendra Kumar AIR 1925 Cal 1056 (FB) and remarked that the law in India was the same as enunciated in English cases supra. He also noticed 20 cases decided by his own Court or by the Chief Court or the Financial Commissioner Punjab and pointed out that in all those case except three the view taken lent support to his view. It was also observed by him that if theland is allowed to escheat to the landlord in preference to the surviving co-tenant the risk of the introduction of some undesirable tenant would be there.
17. The reasoning which appealed to Agha Haidar, J., may be summarized as below:
The Punjab Tenancy Act 1887 was an amending Act and according to the ordinary rules of interpretation if a particular matter is covered by the specific provisions of the Act, it must be taken that so far as that matter is concerned the Act is exhaustive. Section 59 of that Act should .be construed as laying down the whole law on the subject of succession to tenancies and the general principles of the common law of England should not be invoked in aid. The English cases and the Calcutta High Court case supra were either for the recovery of rent or of damages arising out of the contract of a tenancy and were, therefore, governed by a completely different set of principles and had no application to a case of succession to tenancy land under the Punjab Tenancy Act 1887. Sub-section (4) of Section 59 clearly indicated that if an occupancy tenant died without leaving any heir entitled to succeed under the foregoing provisions of the section his interest in the tenancy is extinguished. There is no guarantee that each co-sharer in an occupancy tenancy shall for all time to come behave peacefully and accommodate in every way his co-tenants and if an undesirable tenant is introduced by the landlord a partition of the occupancy holding may be sought.
18. The aforesaid reasoning is not without force and there is much to commend in that part which is based on Sub-section (4) of Section 59. There is, however, no provision in the Abolition Act corresponding to Sub-section (4) of Section 59 and the omission appears to be deliberate and may have been made with a view to make it clear that on the death of one of the co-tenants without leaving such person as is mentioned in Sub-section (1) of Section 59 his right shall not be extinguished. The aforesaid omission reinforces the majority viewin AIR 1930 Lah 515 supra. II, therefore, in agreement with the finding recorded by theCourts below hold that on the remarriage of Smt.Jamna the plaintiff-appellant became entitled to the one-half share of Mast Ram in the disputedland by the rule of survivorship. The question is answered as above.
19. Question No. 3 : As has already been noticed divergent findings have been recorded on this question by the Courts below. The learned District Judge was of the opinion that it was not proved that the mortgage had been redeemed. In arriving at the aforesaid conclusion the learned 'District Judge laid particular stress on the circumstances that the plaintiff-appellant did not produce any documentary evidence in proof of the repayment of mortgage money and that the entry regarding mortgage continued in the revenue papers. On behalf of the plaintiff-appellant it has been urged that the learned District Judge did not approach the case from the correct perspective and that in view of the admission made by appellant Mussadi in a criminal case under Section 447, I. P. C., that the earlier mortgage had been redeemed the burden was on the defendant-appellants to prove that the property was mortgaged again after having been redeemed and as no such evidence was led on their behalf the finding recorded by the learned District Judge deserves to be set aside. The copy of the statement made by Mussadi appellant in the criminal case referred to above is Ex. P. 1 on the record and it appearstherefrom that Mussadi had made the following statement :-- The land which was in the possession of Bihari was subsequently mortgaged by Mast Ram in favour of Narottam in lieu of a sum of Rs. 900/-. The mortgage came to an end after one year on the repayment of the mortgage money but even thereafter he continued to be in possession of the said land as a tenant.
20. The aforesaid statement was put to Mussadi when he appeared as a witness on behalf ot the defendants-appellants and he admitted having stated that the land was mortgaged to Narottam and that Mast Ram had repaid the mortgage, money. The rider added by him was that Mast Ram had again mortgaged the said land in favour of Narottam and the witness. In the written-statement filed on behalf of the defendant-appellants it was not stated that Mast Ram had re-mortgaged one-third share in land measuring 418 bighas 15 biswas after the earlier mortgage had been redeemed. It is again significant that in the criminal case the theory of remortgage was not put forward. What was then stated was that after repayment of mortgage money the defendants-appellants continued to remain in possession as tenants.
The plaintiff-appellant had by a notice under Order 12, Rule 8, Civil P. C., required Shri Tek Chand Chitkara the learned counsel for the defendants-appellants to produce the original Bahi containing the entry about the mortgage for Rs. 900/- made by Mast Ram and its cancellation. The Bahikhata was not produced on the ground that it was with appellant Dhania. The aforesaid was not a sufficient ground for its non-production as Dhania was also one of the defendants and Shri Tek Chand Chitkara was representing him also. During the course of the hearing of the present appeals, I told the learned counsel for the defendants-appellants that he could produce the Bahikhata even now. Mussadi appellant expressed his willingness to produce it and one day's time was afforded to him to produce it, On the next date Dhania appellant stated that his son who had gone to fetch the Bahi had not returned. The case was adjourned for the following day and on that day the learned counsel for the appellants stated that the Bahikhata cannot be produced as it could not be found. I was not stated either in the trial Court or in this Court on 5-7-1962 that the Bahikhata was not traceable and I have no doubt that it is being deliberately withheld from the Court and it may well be presumed that the reason for the non-production is that the entries contained therein are against the defendants-appellants,
(After discussing the evidence in Paras 21 and 22, the judgment proceeded:) Differing from the finding recorded by the learned District Judge, the question is answered in favour of the plaintiff-appellant.
23. In conclusion, this appeal is dismissed with costs and Regular Second Appeal No. 16 of 1961 is allowed with costs and the suit of the plaintiff-appellant is decreed for recovery of possession over the plaint property. The plaintiff-appellant shall get from the defendants-appellants costs incurred by her in the Courts below,
24. Let a copy of this judgment be placed on the record of Regular Second Appeal No. 16 of 1961.