AMAR SINGH Vs. ANOKH SINGH

JUDGEMENT

(1.) In this case, the Courts below have not really appreciated the legal position, and have proceeded to decide the matter on a provision of law which has no applicability to the facts of the present case.

(2.) Bagga Singh and Rur Singh are real brothers. Rur Singh's son is Naudh Singh, the present plaintiff's father, the plaintiff being Amar Singh. Bagga Singh died leaving a widow and three daughters, Harnam Kaur, Sham Kaur and Ram Kaur. Both Bagga Singh and Rur Singh were occupancy tenants of the suit land. Rur Singh had 2/3rd share and Bagga Singh had 1/3rd share in the tenancy. On Bagga Singh's death, his widow Smt. Har Kaur, succeeded to the occupancy tenancy. On Smt. Har Kaur's death the tenancy rights were mutated in favour of her three daughters till marriage. The last daughter was married in the year 1934 and it may be mentioned that Smt. Har Kaur died in the year 1925. Succession to occupancy tenancy is governed by Section 59 of the Punjab Tenancy Act, 1887 , and it is significant that a daughter of an occupancy tenant is not an heir to such a tenancy and if there is no heir of an occupancy tenant, under Section 59 of the Tenancy Act the land reverts to the landlord. Curiously enough the landlord did not come into the picture at all and the land continued to be held by one of the three daughters of Smt. Har Kaur and she has been in possession of the same from the year 1925, first of one-third, then of two-third on the marriage of one sister and lastly of the entire land on the marriage of the second sister. Naudh Singh, on the marriage of Smt. Harnam Kaur, tried to get her name removed from the revenue records, but he failed. The possession of the land has remained all through with Smt. Harnam Kaur. The present suit has been filed by Amar Singh son of Naudh Singh for possession of one-third of the occupancy tenancy held by his father's uncle Bagga Singh. This suit was decreed by the trial Court but on appeal the decision was reversed by the lower appellate Court. The lower appellate Court thought that the daughters could succeed under the Hindu Law because the parties were governed by Hindu Law and not by the Customary Law, but he failed to notice the provisions of Section 59 of the Punjab Tenancy Act, which really governed the matter. As I have already said, under Section 59 of the Punjab Tenancy Act, daughter was not an heir and having obtained the property without any right to succeed to it, her possession must be deemed to be adverse from the date she took possession of the same against the rightful heirs, and the rightful heir at that time would be the landlord. So far as the plaintiff is concerned he cannot succeed as the land was not held by the common ancestor. The Additional District Judge has found, as a fact, that Smt. Harnam Kaur has been in possession of the land in dispute, that is, one-third of the occupancy tenancy held by Bagga Singh and Rur Singh all through and her title to the land has matured by adverse possession. So far as Me remaining two-third of the occupancy tenancy is concerned, the plaintiff Amar Singh is certainly its owner, it having descended to him through his grandfather Rur Singh and the decree for declaration to the extent of two-third must stand.

(3.) That being so, there is no force in this appeal. The same fails and is dismissed with no order as to costs.