LACHHMAN SINGH Vs. BASANTA

JUDGEMENT

(1.) This second appeal is concluded by findings of fact. The plaintiffs claiming themselves to be the heirs of the last occupancy tenants, have brought the present suit for a declaration that they are the owners of the land in dispute because of the Punjab Occupancy Tenants Proprietary Act 8 of 1953. The defendants, in their written statement, denied that the plaintiffs were the owners of the land in dispute. It was pleaded that they were tenants at will, and as there existed relationship of landlord and the tenants between them, the suit was not triable by the Civil Court. On the pleadings of the parties, the following issues were framed -

(2.) The trial Court held that the plaintiffs had not become owners of the suit land by virtue of Act 8 of 1953, because the plaintiffs were not occupancy tenants of the land in dispute. On issue No. 2, it was held that the suit was triable by the Civil Court. Against this decision, the plaintiffs preferred an appeal to the Senior Subordinate Judge, Hoshiarpur, and the learned Senior Subordinate Judge, Hoshiarpur affirmed the decision of the trial Court. The only question that was agitated before the learned Senior Subordinate Judge was that the plaintiffs were the occupancy tenants of the land. This status was claimed on two grounds : firstly that they were the heirs of the last occupancy tenants, namely, Devia and Mst. Nikko, being related to them, and the second ground was that the plaintiffs were the joint occupancy tenants with Devia and Mst. Nikko, and, therefore, were entitled to the share of Devia and Mst. Nikko by rule of survivorship. The lower appellate Court found as a fact that the plaintiffs was not at all related to Devia and Mst. Nikko. They were of a different Gote. Therefore, the claim on the basis of relationship was negatived. On the question of survivorship, it was held that the plaintiffs were never entered as having any share in the land in occupancy tenancy along with other occupancy tenants i.e. Devia and Mst. Nikko. As a matter of fact, Devia and Mst. Nikko were the sole occupancy tenants of the land in dispute. It was, therefore, held that the rule of survivorship did not apply. The result was that the decision of the trial Court was affirmed. Against this decision, the present second appeal has been preferred by the plaintiffs.

(3.) Mr. D.N. Aggarwal, learned counsel for the plaintiffs contends that his clients are entitled to succeed by reason of the rule of survivorship. The argument is that sometime in the year 1859, the ancestors of the plaintiffs are shown as occupancy tenants along with the ancestors of Devia and Mst. Nikko, and, therefore, in the present settlement also they are recorded as tenants along with Devia and Mst. Nikko. Therefore, they are entitled to succeed by rule of survivorship. This argument has no force, because sometime afterwards, the ancestors of the plaintiffs ceased to be regarded as occupancy tenants of any part of the land in dispute, and before the rule of survivorship can apply, the first requisite is that the parties must be holding a joint tenancy. It is only in the case of a joint tenancy that the rule of survivorship applies. Mr. Aggarwal contends that the rule of survivorship also applies when there is partition among the joint tenants. In support of this contention he referred to Allah Ditta and others v. Jalal Khan and others,1945 PunLR 220 and Proprietors of Mauza Silouthi v. Raj Rup and another,1949 PunLR 100 Both of these decisions have no application to the facts of the present case. They are totally distinguishable and have not the remotest bearing on the contention advanced. I am, therefore, of the view that the Courts below are right in dismissing the plaintiffs' suit.