DWARIKA NATH Vs. BRIJ RAJ SINGH

JUDGEMENT

(1.) THIS is a defendants appeal in a suit for possession brought by the plaintiff on the; ground that on the death of the last occupancy tenant; the holding reverted to the landlord under S. 67 of the Tenancy Act since he had left no heir from the common ancestor. The trial Court initially decreed the suit which was dismissed by the appellate Court, but on appeal to this Court the case was remanded to the trial Court who dis ­missed the suit, holding that the defendant -appellant was the collateral of the tenant whose common ancestor, Jagga, was in possession of the land in dispute. On appeal against this judg ­ment and decree, the District Judge took a different view and held that the defendant did not prove himself to be heir of the occupancy tenant and he accordingly decreed the suit. Hence this second appeal before us.

(2.) THE only point that was in controversy between the parties was as to whether or not the defendant -appellant was a collateral of the tenant whose common ancestor Jagga also was in possession of the land. The learned appellate Court of the District Judge has relied on two circumstances in order to come to the finding that the defendant had not proved his case. In the first place the District Judge found that as the entries of the settlement records of 1926 St. showed that Ganga, one of the sons of Jagga, was in cultivating possession since 10 years, therefore the possession of Ganga was in his own right and not one which was inherited from his father. In our opinion the inference drawn by the learned Judge is not borne out by the facts established in the case. In AIR 1939 Lahore 170 it was clearly held that when a land is held by a tenant at the time of the regular settlement, it will be presumed to have been inherited by him from his father and his father would be pre ­sumed to have occupied the same unless the contrary is shown. We fully agree with this view.

(3.) IN the instant case the possession of Ganga has been re ­corded in the settlement of 1926 St. It is not mentioned in the entry that possession was derived by sale, mortgage, gift or any other means. In these circumstances the possession of Ganga must be referable to a lawful title namely inheritance from his father. Thus the only reasonable inference that can be drawn in the circumstances would be that his father Jagga was in posses ­sion and after his death which happened about 10 years ago, Ganga came into possession of the land. The oral evidence adduced by the defendant as also some of the witnesses produced by the plaintiff lend support to the plea of the plaintiff that Ganga had inherited the land from Jagga. P. W. Munshi has clearly stated that he used to realize rent from the defendant and he thus accepted him as a tenant. P. W. Balraj Singh one of the plaintiffs deposed that the Dy. Commissioner Revenue had held the defendants to be heirs of the occupancy tenants and decided the case against the landlords. A revision was taken against his order to the Commissioner which was rejected. No further action was taken by the landlords.