GHAFOOR MASIH Vs. SHAM SINGH AND OTHERS

JUDGEMENT

(1.) Sham Singh and Banta Singh were owners of Khasra No. 249 in lieu of which, during consolidation, Khasra No. 65 was allotted. By means of sale deed dated 20.11.1936 was owners sold Khasra No. 249 to Danial for Rs. 440/-. However, the sale-deed could not be registered in view of the provisions of the Punjab Alienation of Lands Act, (No.13) of 1900, without permission of the Deputy Commissioner, which was not obtained. Ghafoor Masih pleaded that in the year 1947, Danial migrated to Pakistan along with his family members and handed over the possession of the land purchased by him to his grand-father who constructed a house thereon and planted mango trees and sunk a well there and Ghafoor Masih claims possession since the times of his grand-father. Apprehending danger of forcible dispossession from the residential house, which was constructed in Khasra No. 65 at the hands of the original owners, the present suit for permanent injunction was filed.

(2.) The execution of the sale-deed with regard to Khasra No. 249 was denied and in the alternative, it was claimed that for want of registration, it conveyed no title to Danial and the defendants continued to be the owners. It was admitted that in lieu of Khasra No. 249, Khasra No. 65 was allotted in consolidation and that some construction was raised in Kasra No.65. If was pleaded that the plaintiff was in occupation thereof as a tenant under the defendant for the past about 2-1/2 years. The suit had been filed on 5.4.1971. Both the Courts below found the plaintiff to be in possession. As regard the sale in favour of Danial, it was held that since no permission of the Deputy Commissioner was obtained, it had to be converted into usufructuary mortgage for a period of 20 years and, therefore, the possession of Danial has to be treated as usufructuary mortgage which came to an end in 1956. The plea of the plaintiff that Danial left for Pakistan in 1947 was not accepted because in the revenue records, the occupation of Danial was being shown even beyond 1947. The plea set up by the defendants that the plaintiff was a tenant, was not accepted to be true. Since the possession of the plaintiff was not found to be over 12 years before the filing of suit, it was held that he had not acquired title by prescription. Consequently, the suit was dismissed. This is plaintiff's second appeal.

(3.) Sh. H.L. Sarin has invited my attention to a Full Bench judgement of this Court in Risaldar Major Singh Uttam Singh v. R.L. Aggarwal and others, 1960 AIR(P&H) 312, for the proposition that for sales made before 1947 without permission of the Deputy Commissioner, the original owner ceased to have any interest after the Punjab Alienation of Lands Act (No.13) of 1900 was repealed by Adaption of Laws (Third Amendment) Order, 1951. Specific reliance has been placed on the following observations :-