KHUSHI RAM Vs. JASWANT RAJ AND ORS.

JUDGEMENT

(1.) THE facts giving rise to this appeal are stated in my order of reference of 2nd of February, 1966, in pursuance of which this case has come before us, for disposal, These may briefly be recapitulated. A parcel of land measuring 3 kanals and 19 marlas was alienated by Shama in favour of Tulsi Ram on 28th of May, 1927. This alienation had the result of creating an occupancy tenancy in favour of Tulsi Ram in consideration of a sum of Rs. 400. The whole transaction was reduced in writing, - -vide Exhibit D. 1. It may be mentioned that Shama had three brothers, Ajudhia Das, Hamiru and Mohan. Mohan and Ajudhia Dass have died issueless. Shama had also three sons, Neem Chand, Karam Chand and Jaswant Rai besides three daughters with whom we are not concerned in this litigation. Soon after the alienation in favour of Tulsi Ram which is evidenced by Exhibit D. 1, Ajudhia Dass instituted a suit for a declaration that creation of the occupancy tenancy in favour of Tulsi Ram would not be binding on his reversionary rights. This suit which was filed on 12th of June, 1927, was decreed by the Subordinate Judge on 28th of November, 1927. The decree of the Court is Exhibit P. 4 and it is stated therein that the suit had been instituted for a declaration that the alienation was not binding on him on the ground that it was without consideration and necessity and was made with a view to destroy the reversionary rights. Tulsi Ram in his appeal before the District Judge met with partial success, it having been found that the consideration for Rs. 250 had been proved. In the operative portion of the decree of the lower appellate Court, it was mentioned that the creation of occupancy rights by Shama will not affect the reversionary rights on the death of Shama "in so far as to declare the alienation to be of no effect as against the reversionary rights of the Plaintiff except to the extent of Rs. 250". The decree in effect stated this that the Plaintiffs' reversionary rights will come into operation after the death of Shama "except to the extent of Rs. 250". Shama was alive when the Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act, 1952, Punjab Act No. 8 of 1953 (hereinafter also called the Act) was enforced with effect from 15th of June, 1952 and died more than 10 years later on 2nd December, 1962. On the death of Shama, his three sons Neem Chand, Karam Chand and Jaswant Rai along with Hamiru brought a suit which has given rise to this appeal against Tulsi Ram for possession of land including the land in respect of which occupancy tenancy was created in his favour. This suit instituted on 15th January, 1963, was dismissed by the Subordinate Judge on 5th of February, 1964. Although a number of issues had been raised on the pleas of the parties, the trial Judge dismissed the suit on the ground, which was treated as a preliminary issue, that the rights of Shama and his successors -in -interest had been extinguished by Section 3 of the Act which provides that with effect from 15th of June, 1952," all rights title and interest (including the contingent interest, if any recognised by any law, custom or usage for the time being in force) of the landlord in the land held under him by an occupancy tenant, shall be extinguished" The landlord, under Clause (e) of Section 2 means "a person under whom an occupancy tenant holds land...and includes the predecessors and successors in interest of a landlord and shall for the purposes of Section 4 include the mortgagee". In the view of the trial Court, the landlord on 15th of June, 1952, was Shama and he being alive at that time his rights were extinguished in favour of the occupancy tenant. No doubt, a decree was obtained by Ajudhia which enured for the benefit of the reversioners but nothing could have been done to enforce these rights granted by that decree before the death of Shama. These inchoate rights could not be enforced on 15th of June, 1952, when, according to Section 3, the occupancy tenant came to acquire the proprietary rights as against the landlord.

(2.) THE appellate Court, however, took the view that the decree granted by the District Judge, Hoshiarpur, on 30th of March, 1928 (Exhibit P. 3) permitted Shama to continue to hold the land under the occupancy tenant till his death after which the reversioners were declared to be proprietors "except to the extent of Rs. 250". This decree is still of operative force, according to the lower appellate Court which has accordingly allowed the appeal and remanded the case to the trial Judge for disposal on merits. From this decision of the lower appellate Court of 24th of October, 1964. Tulsi Ram has filed an appeal. It may be mentioned in passing that Tulsi Ram having died during the pendency of the appeal, it is now being continued on behalf of his son who has been impleaded as an Appellant.

(3.) THE fate of the legal battle between the parties confined to the preliminary issue turns on the true construction of the provisions of the Act and also of the decree under which the reversioners claim to succeed to the suit property as the successors of Shama. Mr. Mittal, who has argued the case for the Appellant, has contended that Exhibit P. 3 which is the foundation of the Defendant's title is at best a declaration of an inchoate right and something more had to be done by the reversioners collectively or individually to enforce their claim after the death of Shama. They were incapacitated from taking any action till Shama's death. What intervened between the passing of the decree Exhibit P. 3 on 30th March, 1928 and the death of Shama on 2nd December, 1962, has to be taken into account and the most important circumstances which supervened was the passage of the Act which extinguished proprietary rights of a landlord in favour of an occupancy tenant. This statutory expropriation being a measure of agrarian reform made an end of whatever rights Shama had in the land. After 15th June, 1952, Tulsi Ram had become a proprietor in pursuance of the law embodied in the Act and the reversioners cannot be heard to say that the rights to enforce their claim on the land covered by the occupancy tenancy on payment of Rs. 250 was still preserved after 15th June, 1952. It is argued that when Shama himself had ceased to have any proprietary title, it was hardly possible to spell out any greater right for persons who at best had a derivative title from Shama himself. The statement of law regarding the nature of a declaratory decree of this kind is best summarised by Achhru Ram, J., a great master of the law of custom, in Gokal v. Harts. A.I.R. 1949 E.P. 414. In the words of the learned Judge: