HARIKISHAN SINGH Vs. DOGAR RAM

JUDGEMENT

(1.) The present appellant, Ch. Harikishan Singh, is the owner and landlord of the land, in dispute. Sawan Ram was the original occupancy tenant of this land. After his death, the occupancy rights devolved on his three sons namely Lalji Ram, Ram Chand and Surjan Ram. After the death of Ram Chand, one of his sons Labha Ram became the occupancy tenant to the extent of one-third share and he sold the same in favour of his uncle Surjan Ram and his cousin Dogar Ram son of Lalji Ram. The mutation of the said sale was, however, sanctioned in the presence of his widow Ved Kaur on June 14, 1936. After the death of Labha Ram, the present appellant filed a suit to set aside the said sale which was set aside by the Assistant Collector, First Grade, and it was ordered that Shrimati Ved Kaur was entitled to take back possession of the land, in dispute, and that otherwise, the landlord may take possession of the occupancy holding. The appeal filed against the said order was dismissed by the Collector. Shrimati Ved Kaur filed a suit for possession of her one-third share against the above mentioned vendees and got an ex parte decree passed in her favour on November 27, 1951, but took no steps execute the same.

(2.) The present appellant purchased one-third share of the occupancy holding from Shrimati Ved Kaur by means of a sale deed dated October 15, 1951 and took possession of the same. However, Shrimati Ved Kaur sold the same holding by means of another sale deed dated September 15, 1952, in favour of Dogar Ram, plaintiff-respondent (hereinafter to be called the second vendee). The second vendee filed a suit on October 11, 1962, for possession of the land purchased by him with the allegation that the present appellant took forcible possession of the said land. Shrimati Prito, daughter of the vendor Shrimati Ved Kaur, who is one of the respondents, did not contest the said suit. That suit was contested by the present appellant as defendant No. 2. Shri Harikishan Singh, the present appellant, contended in his written statement that the suit was not maintainable as compensation had not been paid to him and thus he was the full owner and further that Shrimati Ved Kaur had no right to sell the land, in question, which had already been alienated in his favour. Shri Bishan Dass, one of the defendants, contested the suit on the ground that he was a tenant under Shrimati Ved Kaur and that irrespective of the decision of the suit on merits his possession was not liable to be disturbed. On the pleadings of the parties, the following issues were framed :-

(3.) The learned counsel for the appellant has contended that the sale of occupancy rights by Shrimati Ved Kaur in favour of the appellant was made on October 15, 1951, whereas sale of the same rights by her in favour of the plaintiff-respondent, Dogar Ram is dated September 15, 1952 (Exhibit P1) and, therefore, the prior sale in favour of the appellant will have priority and that at the time of the second sale in favour of the plaintiff-respondent, Shrimati Ved Kaur had been left with no rights in the land, in dispute. It was also contended that the sale in favour of the appellant was challenged by Dogar Ram, plaintiff-respondent along with others and the same was ultimately dismissed by Mahajan, J. (as he then was) in Regular Second Appeal No. 565 of 1955 on December 10, 1959, a certified copy of which is Exhibit P.10, and, therefore, the said sale cannot be challenged now. According to a Full Bench decision of the Lahore High Court in Labh Singh V. Hassu and others, 1940 AIR(Lah) 364alienation by sale or mortgage of an occupancy tenancy by a widow is absolutely forbidden and hence such an alienation is void whether it is made in favour of the landlord or his tenant. The sale of the land, in dispute, in favour of the appellant was also held to be void by Mahajan, J., (as he then was) and a copy of that judgment is Exhibit P10. It was inter alia held as under :-