1. Mst. Nahin filed a suit against Kamla for recovery of possession of her moiety share in 14 bighas & 18 biswas of tenancy at will implead. ing as a pro forma beft, the tenant of the other half in the joint khatauni, Mst. Tonkri. The latter died daring the pendency of the present revisions, but, as she was neither a necessary, nor even a proper, party in the case, her legal representative was not brought on the record.
2. The half share of the khatauni in suit was originally the tenancy at will of Mat. Nahin's husband, Daulatiya. The landlord was the Rana of Koti & the rent payable to him was in the shape of service, called beth. The tenants-at will were, therefore, recorded as bethus. On Daulatiya's death, the tenancy was recorded in the names of his two widows, the present pltf. & Mst. Paplo. The latter died in 1934 & thereafter only the pltf's. name stood recorded as bethu of half the kbatauni in suit. In the same year for the first time was Kamla deft s. name recorded as the person in actual cultivation of the entire khatauni. Ha was shown in the tenant's column along with the pltf. & Mst. Tonkri, the latter who being described as bethus, as before, & the former as ghair-maoroosi, or tenant-at-will.
3. It appears that some time prior to 193S Kamla applied to the revenue authorities for mutation of his name in place of the pltffs on the ground that she had remarried, bat his application was rejected on 22-12-1932. After that, as stated above, his name began to be recorded since 1934 as the person in actual cultivation of the khatauni. On 18-8-1936 he again applied for removal of the pltf's. name & mutation of his own on the ground that she had remarried and had for 10 or 12 years been living at her parental home, & that during this time he (Kamla) had been rendering beth & was the nearest reveraiouer to the estate of Daulatiya. The Revenue Officer of the State passed an order on 6-4-1939 that the tenancy be recorded in the name of Kamla, but that in case Mst. Nahin resumed residence in her late husband's house Kamla will put her in possession of 4 pathas of land for her maintenance. These proceedings were had ex parte without any notice to the pltf. In compliance with the said order dated 6-4-1939 mutation was effected on 7-6-1940. The pltf's. name was removed & that of Kamla mutated instead as bethu of the khatauni along with Mat. Tonkri. Kamla was also shown as the hissedar in actual cultivation of the entire khatauni. At the same time, pltf's. name was mutated on 4 bighas & 6 biswas in accordance with the said order, & it was also recorded that actual possession on this area was given to her on the spot.
4. Thereupon, Mst. Nabin filed the present suit on 27-12-1947 for possession, alleging herself to have been dispossessed on & from 7-6-1940. Kamla deft's. main defence was that only about a fortnight after Daulatiya's death Mst. Nahin had remarried one Nanda & had never come into possession of the land left by her husband, & that he (Kamla) had throughout been in possession of the same.
5. The trial Court held that the remarriage had not been proved, but it dismissed the suit as time barred under Article 142, Limitation Act. On pltf's appeal the Dist. J. concurred with the finding of the trial Court regarding limitation but he granted pltf. decree for possession on 4 bighas & 6 biswas in lieu of her maintenance on foot of the said order dated 6-4-1939. Both the parties have come up in revision, a second appeal not being competent under Para. 32 of the Himachal Pradesh (Courts) Order 1948. Kamla defb. contends that Mt. Nahin was not entitled to a decree for possession of even 4 bighas & 6 biswas, while Mt. Nahin pleads that her suit was not time barred & should have been decreed in toto.
6. It is not necessary to go into the merits of Kamla's revision, for, irrespective of whether the pltf. was, or was not, entitled to possession on a portion of the property in suit in lieu of her maintenance, I am of the opinion that her suit was not time barred & should as such have been decreed in toto.
7. Both the Courts below have held the suit to be time barred because Kamla deft, has been recorded as in cultivatory possession since Kharif 1934, but they have erred flagrantly as to the capacity in which he held the land from Kharif 1934 till 7-6-1940. They have, therefore, acted with material irregularity in the exercise of their jurisdiction, & tha error must be rectified in the revision filed by the pltf.
8. There is no definite evidence when Daulatiya died, but he must have died before the said order dated 22-12-1932. That the pltf. along with his co-widow came into possession of the land in suit on her husband's death admits of no doubt. That in so shown in the earliest record filed in this case, that is, for 1933-34. And the deft, admitted it in his said application dated 18.8.1936, In Kharif 1934 the deft, was for the first time recorded in the same column with the bethus Mts. Nahin & Tonkri as the person in actual cultivation as haqdar ghair-maoroosi. Now, ghairmaoroosi means tenant-at-will, & when a person is so recorded along with the original tenants-at-will the entry in his favour can only be interpreted as a sub tenancy Had deft.'s possession been adverse, it should have been described as qabza-mukhalifana or jabirana, & the pltf. should have been shown as ghair-qabiz. Instead of that, the name of the original tenant-in-chief, the pltf. continued to be so recorded & the detf.'s began to be shown as ghair maoroosi, which description implies the existence of the relationship of landlord & tenant between him and the pltf. This is confirmed by the fact that it was only on 7-6-1940 that, on removal of the pltf.'s name, the deft, was described for the first time as the person in actual cultivation as hissedar instead of merely as ghair-maoroosi. In other words, the nature of his cultivatory possession was thenceforward as a co tenant as distinguished from a sub tenant.
9. The lower appellate Court has not given the entries their above natural meaning on the ground that it was never the pltf.'s case tbat the deft. hold the land as her sub-tenant. That was an entirely incorrect view of the matter to take. The above being the natural interpretation of the jamabandi entries, & the entries being presumed under Section 44, Punjab Land Revenue Act, to be true, it was for the deft, to prove that they were erroneous. Wallan v. Fazla, A. I. R. (96) 1939 P. C. 114. That being so, it was sufficient for the pltf. to allege that she had been in possession of the land in suit until 7-6-1940, when her name was removed, for a tenant may be in possession through a sub tenant Shiam Singh v. Kushia, 22 P. R. 1876 & Joti v. Maya, 44 P.R. 1891. On, the other hand, apart from asserting that the deft has been in possession, there is not as iota of evidence on his behalf suggesting that he came into possession of the land in suit in 1934 & remained in possession of the same until 7-6-1940 in any other capacity than that shown by the jamabandi entries, that is, as a sub-tenant. True, it appears that it was he who bad been rendering beth to the Rana, but he has not shown that it was not because that was the agreement between him & the pltf. Besides, mere non-payment of rent does not of itself determine the tenancy Des Raj v. Jaimal Singh, A. I. R. (7) 1920 Lah. 217.
10. Some reliance was sought to be placed on behalf of the deft on the proceedings instituted by him on 18-8-1936 which resulted in the passing of the Revenue Officer's order dated 6-4-1939 & the consequent removal of the pltf.'s name on 7 6 1940. But, as adverted to above, the proceedings were had ex parte without any notice to the pltf. Those proceedings have, therefore, no effect on the pltf. at least so far as the present suit between her & the deft, is concerned. And, on the maxim Nemo potest sibi mutare cansam possessionis, meaning that no one can change for himself the cause of his possession, in is well-established that it is not open to a tenant byany unilateral act to alter his character of a tenant. Tulsi Ram v. Jhandu, 186 P. R. 1888.
11. In the result, therefore, I hold that the plff. continued to be in possession of the land at suit until, 7-6-1940 when the deft, got her name removed by a unilateral act which had not the effect of disrupting the relationship of tenant & sub-tenant subsisting between them, but which entitled the plff. to obtain a decree against the deft. Kamla for possession on the land in suit.
12. While, therefore, dismissing Kamla deft.'s revision with costs, I allow Mt. (sic) plff.'s revision &, setting aside the judgments & decrees of the Courts below, I decree the plff.'s suit for possession with costs in all the Courts.