MST. SHUGNI Vs. BALDEV SINGH

JUDGEMENT

(1.) ONE Kheta was holding the land in dispute as an occupancy tenant under Chattar Singh. He died on 2nd of November, 1934, issueless and without leaving a widow. On his death, Sampat and Gulab Singh, who were his collaterals in the third degree, took possession of the land and mutation of occupancy tenancy was effected in their favour. Thereupon Chattar Singh filed a suit for possession of the land on the allegations that the tenancy had come to an end with the death of Kheta and Sampat and Gulab Singh had no right to the said tenancy under Section 59 of the Punjab Tenancy Act, because the land was not occupied by the common ancestor of Kheta and these collaterals. Chattar Singh's suit succeeded in the trial court, but it was dismissed on appeal by the District Judge. Thereafter Chattar Singh went in second appeal to the High Court at Lahore. On 17th of January, 1941, the said Court accepted the appeal and decreed the suit. During the course of this litigation, both Sampat and Gulab Singh died and Shrimati Shugni, widow of Sampat was impleaded as his legal representative, while Gulab Singh was represented by his son Natha. Thus when the landlord's suit was decreed by the High Court, Shrimati Shugni and Natha were in possession of the land in dispute. The landlord neither got the decree of the High Court executed within three years nor did he file any suit for possession of the land by the ejectment of Shrimati Shugni and Natha. Thereafter Chattar Singh died and he was succeeded by his son Baldev Singh. According to Shrimati Shugni, Baldev Singh got into possession of the land as a tenant in Kharif, 1953, i.e., October, 1953. Shrimati Shugni and Natha had been continuously recorded as occupancy tenants in the revenue records. Therefore, under the provisions of Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act. 1952 (Punjab Act No. VIII of 1953), the proprietary rights in this land vested in them and mutation to that effect was attested on 27th of April. 1953 by which they were declared to be the owners of the land. Thereafter Shrimati Shugni filed a suit in the revenue court for ejectment of Baldev Singh on the ground that he had taken possession of the land as a tenant under her in Kharif. 1953. This suit was dismissed by the Assistant Collector on 7th of September. 1955 and he held that Baldev Singh was holding the land as an owner in his own right and was not a tenant of Shrimati Shugni. The appeal against this order was also dismissed by the Collector on 22nd of February, 1956. That led to the filing of the present suit for recovery of possession of the land in dispute on 23rd of August, 1956 by Shrimati Shugni against Baldev Singh. Her allegations were that she had become full owner of the land, because the Defendant did not take execution proceedings for twelve years and she had acquired title in the land by adverse possession. It was also alleged that even if she was an occupancy tenant, she had become owner by operation of the Punjab -Act No. VIII of 1953.

(2.) THE suit was contested by the Defendant who pleaded that his predecessor -in -interest had entered into possession of the land after the decision of the High Court; that he was in possession of the land as an owner; that the Plaintiff had not become owner of the land by adverse possession; that she had admitted the Defendant as her tenant and was thus estopped from bringing the suit in civil court; that she was not an occupancy tenant and therefore did not acquire any proprietary rights in the land under the provisions of the Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act, 1952 (Act No. VIII of 1953); that the revenue court held the Defendant to be the owner of the land and therefore, the Plaintiff's suit was barred by the principles of res judicata and that the suit was filed beyond limitation. On the pleadings of the parties, the following issues were framed:

(3.) THE trial Judge held that the Plaintiff remained in possession of the land since January, 1941 till October, 1953 after the judgment and decree of the High Court, dated 17th January, 1941. The -possession of the Plaintiff was not in accordance with law and was without the consent of the owner and as such she was in possession merely as a trespasser. The Defendant did not execute the decree for twelve years and did not obtain possession of the land within 12' years; his decree, therefore, became in executable and under Section 47 of the Code of Civil Procedure a fresh suit for possession of the land was also barred. As such the title of the Defendant to the land in dispute got extinguished under Section 28 of the Indian Limitation Act. The title of the Plaintiff, who remained in possession for 12 years as a trespasser and dealt with the land as her own by paying the land revenue and the consolidation charges, became complete after the expiry of 12 years. The learned Judge further held that the Plaintiff had not been rightly recorded as an occupancy tenant in the revenue papers, because of the judgment given by the High Court in 1941 and consequently she could not be regarded as an occupancy tenant on the appointed day within the meaning of this word in Punjab Act No. VIII of 1953 and thus she could not acquire proprietary rights in the land by virtue of the provisions of this Act. Issues 4 to 7 were decided in favour of the Plaintiff. As a result of these findings, the suit of the Plaintiff was decreed.