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Shiv Nath and ors. Vs. Milkhi Ram and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtHimachal Pradesh High Court
Decided On
Case NumberSecond Appeal No. 37 of 1970
Judge
Reported inAIR1971HP14
ActsTenancy Law; ;Punjab Tenancy Act, 1887 - Sections 44 and 50
AppellantShiv Nath and ors.
RespondentMilkhi Ram and ors.
Appellant Advocate S. Malhotra, Adv.
Respondent Advocate Chhabil Dass, Adv.
DispositionAppeal allowed
Excerpt:
- .....who was once considered to be the exclusive heir after the death of chhaliu. being occupancy tenant, chhajju fell in arrears of. rent. a decree was obtained against him by his landlord under section 43 of the punjab tenancy act (hereinafter to be referred as the act). thereafter the landlord applied for ejectment of chhajju under section 44 of the act. the usual notice was served upon chhajju and as the record reveals, there was ex parte service. the arrears of rent were not paid with the result that on 10-8-1951 chhajju was dispossessed from the disputed land. after the death of chhajju, his mother shrimati kirpu was entitled to succeed him. sometimes in june, 1952 hans raj made a gift of 2/3rd of his share in the disputed land in favour of his sons, defendants 2 and 3, appellants.....
Judgment:

D.B. Lal, J.

1. This second appeal has been directed against the judgment and decree dated 22-2-1961 of the Additional Senior Sub-Judge. Nangal Camp at Hishiarpur and relates to a suit for possession of 22 kanals 5 marlas of land comprising in Khasra Nos. 2348, 6025, 2253, 2301 and 2353 and 2358 situate in mauza Khad of Tehsil Una within the District of Kangra. Chhajju was occupancy tenant of the disputed land of which the defendant No. 1, Hans Bal was the landlord. Chhajju has since died and the plaintiffs and the defendants 4 to 15 are the heirs entitled to succeed Shrimati Kirpu, mother of Chhajju, who was once considered to be the exclusive heir after the death of Chhaliu. Being occupancy tenant, Chhajju fell in arrears of. rent. A decree was obtained against him by his landlord under Section 43 of the Punjab Tenancy Act (hereinafter to be referred as the Act). Thereafter the landlord applied for ejectment of Chhajju under Section 44 of the Act. The usual notice was served upon Chhajju and as the record reveals, there was ex parte service. The arrears of rent were not paid with the result that on 10-8-1951 Chhajju was dispossessed from the disputed land. After the death of Chhajju, his mother Shrimati Kirpu was entitled to succeed him. Sometimes in June, 1952 Hans Raj made a gift of 2/3rd of his share in the disputed land in favour of his sons, defendants 2 and 3, appellants in this Court. The mutation regarding this gift was made in the revenue papers on 13-6-1952.

Subsequently the plaintiff-respondents, who claimed to be the heirs of Chhajju appeared before Hans Raj. landlord, and made payment of the entire arrears of rent. It was stated that they paid Rs. 870/-. Hans Raj gave a statement before the revenue officer that hisapplication calling for the ejectment of the tenant under Section 43 of the Act should be dismissed because he had received the entire arrears of rent. The revenue officer accepted the contention of Hans Baj and the case for ejectment of Chhajju was cancelled and was consigned to the record. The plaintiff-respondents asserted that they are heirs of Chhajju because Shrimati Kirpu had become full owner of the right, title and interest of the landlord under the provisions of Section 3 of Act VIII of 1953. As such the succession from Shrimati Kirpu was not governed by Section 59 of the Act, rather the plaintiffs claimed to_ be the heirs under the ordinary law of Hindu succession. However, after receiving the payment from the plaintiffs. Hans Raj made them the occupancy tenants. The defendant-appellants got the entries made in their favour in the revenue record on the basis of the gift made by Hans Raj and this gave rise to a cause of action to the plaintiffs who filed the suit for possession which they preferred to call as 'Malkana possession.'

The assertion of the plaintiffs _is that they are in possession of the disputed land and now they should be awarded the 'Malkana possession' which, to mv mind, appears to be only a claim of declaration that they are in possession as owners of the land and not as tenants. The plaintiffs asserted that their predecessor in interest, namely Chhajju, never parted with possession despite the proceedings of ejectment under Sections 43 and 44 of the Act. Subsequently when the decree was satisfied and the application for ejectment was cancelled, the parties were relegated to the position of landlord and tenant and the plaintiffs became occupancy tenants with full rights of ownership under Act VIII of 1953.

2. The defendants contested the suit on the allegations, that the ejectment proceedings were complete under Section 44 of the Act. Chhajju ceased to be the tenant. The relationship of landlord and tenant came to an end. The plaintiffs could not derive any interest in the land from Chhajju or Shrimati Kirpu. The defendants, therefore, contended that the plaintiffs were not entitled to any decree for possession.

3. The learned subordinate Judge held that the ejectment proceedings under Section 44 of the Act extinguished the tenancy of Chhajju, However, subsequently Hans Rai created occupancy tenancy to the extent of his 1/3rd share in 1953 when he gave that statement before the Revenue Officer and accepted the plaintiffs to be his tenants. The plaintiffs had become full owners because ofthe application of Section 3 of Act VIII of 1953. Hans Raj could not revive the tenancy in respect of the other 2/3rd share. In this manner, the suit was decreed to the extent of l/3rd share in the disputed land in favour of the plaintiffs.

4. The plaintiffs filed an appeal and as a result thereof, the suit was decreed for the entire parcel of disputed land. The learned Senior Sub-Judge Save the finding, that the ejectment proceedings never became final and the subsequent cancellation of the said proceedings at the instance of Hans Rai, landlord, revived the tenancy between him and the heirs of Chhajju. In this manner, the plaintiffs having succeeded from Shrimati Kirpu became full owners of the entire parcel of land under Act VIII of 1953. In this manner the first appellate court decreed the suit in toto as claimed by the plaintiffs.

5. The defendants have felt aggrieved of the decision and have preferred this second appeal and their main contention is, that the ejectment proceedings having been completed under Section 44 of the Act, extinguished the rela-tionship of landlord and tenant. As such Hans Raj could only confer tenancy right in respect of the remaining l/3rd share which was with him and so the decree of the trial court should be restored and the decision of the first appellate court should be set aside.

6. As I have stated before, the primary case of the parties shall relate to the existence or otherwise of the tenancy between the landlord, Hans Raj and Chhajju, as a result of the ejectment proceedings which became final under Section 44 of the Act. The learned counsel for the appellant had taken me through the definition of tenant as provided in the Act and he referred to its Section. 4 (5) which runs as below:--

'(5). 'Tenant' means a person who holds land under another person and is, or but for a special contract would be, liable to pay rent for that land to that other person; but it does not include......'

The learned counsel urged that the words 'who holds land' signify that the person claiming to be the tenant should be in actual or constructive possession of the land. According to him Chhajju was physically ejected from the land on 10-8-1951 as a result of the proceedings under Section 44 of the Act. As such he was not holding the land in 1953 when the payment was made in respect of the ' arrears of rent. This being the position, the tenancy could not be revived and the 2/3rd share which was transferred by way of gift to the defendants 2 and 3.remained totally unaffected by any tenancy.

There was some contention at the Bar that the words 'who holds land' may signify to include a person not actually holding the land but having a right to hold the same. The argument was founded on the analogy of Section 50 of the Act wherein a tenant who is dispossessed without his consent, may. within one year from the date of his dispossession or ejectment, institute a suit for recovery of possession or occupancy. Such a suit was cognizable by a revenue Court under Section 77 of the Act because the tenant although physically dispossessed from the land could be stated to possess a right to hold the land for the period of one year from the date of dispossession and on that basis he could be treated to be a tenant for the application of Section 77 of the Act and the revenue Court has the jurisdiction to entertain the suit for granting him back the possession.

The analogy of Section 50 of the Act and the entire case law pertaining thereto, to my mind, is not applicable to the present situation that has arisen in the case. For the purpose of Section 50 of the Act and in view of the provisions made in Section 77 of the Act, the person who has been ejected without his consent may be treated as a person having a right to hold the land and as such a tenant for conferring jurisdiction upon revenue Court, In a case of ejectment under Section 44 of the Act, the proceedings are complete no sooner the ejectment is effected and no right to regain possession is conferred under any provision of the Act. Therefore, the crux of the matter lies in ascertaining, as to whether, the ejectment proceedings were complete on 10-8-1951 so that the relationship of landlord and tenant came to an end. If that has happened, nothing has survived in favour of the tenant. Under no provision of the Act he could claim back the possession as he could, had he been ejected without his consent and had his case been covered under Section 50 of the Act.

Exhibits D-4, D-5 and D-6 are very material in this context. The order was made on 2-7-1951, that despite service Chhajju-tenant was not forthcoming and that proceedings of ejectment should be taken against him (Ex. D-5). On 10-8-11951 the proceedings of ejectment were undertaken on the spot in accordance with law and physical possession over the land was delivered to Hans Raj (Ex. D-6). Subsequently, the order dated 21-9-1951 was made to the effect that physical pos-session over the land was already given to the landlord and so the proceedings were over and the file was to be consign-ed (Ex. D-4). This being the position, the learned trial Judge was absolutely correct when he held that Chhaiju was physically dispossessed on 10-8-1951 and the relationship of landlord and tenant came to an end on that date. The tenancy having been extinguished could not be revived as such. It is a different matter that Hans Raj subsequently made plaintiffs tenants in respect of 1/3rd share and his admission to that regard may give the benefit to the plaintiffs so that they were given the decree of 1/3rd share in the disputed land.

7. In this view of the matter. I have no hesitation in holding that Chha-jju lost his tenancy on 10-8-51 and any subsequent proceedings regarding payment of decretal amount and revival of tenancy by him had no relation to Section 43 or 44 of the Act. The proceedings of ejectment remained totally unaffected by these subsequent actions on the part of Hans Raj. Chhajju could not be stated to have possessed any right to hold the land after he was physically dispossessed and therefore he had no locus standi to ask for revival of tenancy on the old terms and conditions.

8. It follows, therefore, that the declaration of Hans Raj in favour of plaintiffs could utmost be considered an admission on his part leading to creation of fresh tenancy in favour of plaintiffs. but this he could only do, to the extent of 1/3rd share, because the remaining 2/3rd share he had already gifted in favour of his sons, defendants 2 and 3. Therefore, as contended by the learned counsel for the appellants, the benefit Which the plaintiffs can get shall only extend to 1/3rd share in the disputed land. They could be considered proprietors of only that much share which belonged to Hans Raj and of which they were made the tenants with subsequent right of proprietorship under Act VIII of 1953. The plaintiff-respondents shall then get a decree for a declaration that they are the proprietors of 1/3rd share in the disputed land. This share belonged to Hans Raj and as it is obvious, the 2/3rd share belongs to defendants 2 and 3.

9. The appeal is, therefore, allowed. In view of special circumstances of the case, the parties shall bear their own costs.


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