SHIV NATH Vs. MILKHI RAM

JUDGEMENT

(1.) THIS second appeal has been directed against the judgment and decree dated 22-2-1961 of the Additional Senior Sub-Judge. Nangal Camp at Hishiarpur and relates to a suit for possession of 22 kanals 5 marlas of land comprising in Khasra nos. 2348, 6025, 2253, 2301 and 2353 and 2358 situate in mauza Khad of Tehsil una within the District of Kangra. Chhajju was occupancy tenant of the disputed land of which the defendant No. 1, Hans Bal was the landlord. Chhajju has since died and the plaintiffs and the defendants 4 to 15 are the heirs entitled to succeed shrimati Kirpu, mother of Chhajju, who was once considered to be the exclusive heir after the death of Chhaliu. Being occupancy tenant, Chhajju fell in arrears of. rent. A decree was obtained against him by his landlord under Section 43 of the punjab Tenancy Act (hereinafter to be referred as the Act ). Thereafter the landlord applied for ejectment of Chhajju under Section 44 of the Act. The usual notice was served upon Chhajju and as the record reveals, there was ex parte service. The arrears of rent were not paid with the result that on 10-8-1951 Chhajju was dispossessed from the disputed land. After the death of Chhajju, his mother shrimati Kirpu was entitled to succeed him. Sometimes in June, 1952 Hans Raj made a gift of 2/3rd of his share in the disputed land in favour of his sons, defendants 2 and 3, appellants in this Court. The mutation regarding this gift was made in the revenue papers on 13-6-1952. Subsequently the plaintiff-respondents, who claimed to be the heirs of Chhajju appeared before Hans Raj. landlord, and made payment of the entire arrears of rent. It was stated that they paid Rs. 870/ -. Hans Raj gave a statement before the revenue officer that his application calling for the ejectment of the tenant under section 43 of the Act should be dismissed because he had received the entire arrears of rent. The revenue officer accepted the contention of Hans Baj and the case for ejectment of Chhajju was cancelled and was consigned to the record. The plaintiff-respondents asserted that they are heirs of Chhajju because Shrimati kirpu had become full owner of the right, title and interest of the landlord under the provisions of Section 3 of Act VIII of 1953. As such the succession from shrimati Kirpu was not governed by Section 59 of the Act, rather the plaintiffs claimed to_ be the heirs under the ordinary law of Hindu succession. However, after receiving the payment from the plaintiffs. Hans Raj made them the occupancy tenants. The defendant-appellants got the entries made in their favour in the revenue record on the basis of the gift made by Hans Raj and this gave rise to a cause of action to the plaintiffs who filed the suit for possession which they preferred to call as "malkana possession. " the assertion of the plaintiffs _is that they are in possession of the disputed land and now they should be awarded the "malkana possession" which, to mv mind, appears to be only a claim of declaration that they are in possession as owners of the land and not as tenants. The plaintiffs asserted that their predecessor in interest, namely Chhajju, never parted with possession despite the proceedings of ejectment under Sections 43 and 44 of the Act. Subsequently when the decree was satisfied and the application for ejectment was cancelled, the parties were relegated to the position of landlord and tenant and the plaintiffs became occupancy tenants with full rights of ownership under Act VIII of 1953.

(2.) THE defendants contested the suit on the allegations, that the ejectment proceedings were complete under Section 44 of the Act. Chhajju ceased to be the tenant. The relationship of landlord and tenant came to an end. The plaintiffs could not derive any interest in the land from Chhajju or Shrimati Kirpu. The defendants, therefore, contended that the plaintiffs were not entitled to any decree for possession.

(3.) THE learned subordinate Judge held that the ejectment proceedings under section 44 of the Act extinguished the tenancy of Chhajju, However, subsequently hans Rai created occupancy tenancy to the extent of his 1/3rd share in 1953 when he gave that statement before the Revenue Officer and accepted the plaintiffs to be his tenants. The plaintiffs had become full owners because of the application of section 3 of Act VIII of 1953. Hans Raj could not revive the tenancy in respect of the other 2/3rd share. In this manner, the suit was decreed to the extent of l/3rd share in the disputed land in favour of the plaintiffs.