ALI BAKHSH Vs. BARKAT-ULLAH

JUDGEMENT

(1.) One Chhidda, a Muhammadan, was an occupancy tenant of a holding. He died, leaving four sons and three grandsons, the sons of a deceased son. The latter brought the suit out of which this appeal has risen, claiming possession of a 3/7th share of the occupancy holding. The court of first instance gave the plaintiffs a decree for a 1/6th share in the holding, i.e., the extent of the share which their father would have been entitled to, if he had been alive on the death of Chhidda. Both parties appealed to the lower appellate court. The plaintiffs appeal was dismissed. The defendants appeal was successful so far that the decree of the first court was modified and in lieu of a decree for possession a decree was given declaring the plaintiffs to be joint sharers in the holding to the extent of 1/6th. The defendant s appeal against the decree of the lower appellate court and the plaintiffs have filed cross-objections. We are asked in this appeal to read the personal law of the parties into Section 22 of the Tenancy Act. In our opinion the personal law of the parties has nothing to do with the rule of succession which is laid down by Section 22 of the Tenancy Act. It was so held by this Court in Bhura v. Shahab-ud-din (1907) I.L.R. 30 All. 128. In that case the son of a Muhammadan occupancy tenant tried to oust the grandson of the last holder of the tenancy, and he was unsuccessful. Under Section 22, the tenancy devolved on the male lineal descendants of the last holder of the tenancy. The plaintiffs are male lineal descendants of Chhidda and therefore entitled to share in the tenancy.

(2.) The court of first instance held that the plaintiffs were entitled to a 4th share only. The plaintiffs appeal to the lower appellate court was dismissed. They have not appealed to this Court. Therefore the decision that they were entitled to a one- fifth share only has become final.

(3.) The cross-objection of the plaintiffs that they were entitled to possession must be sustained. There is nothing to prohibit the granting of a decree for joint possession. We dismiss the appeal with costs. We allow the objection so far that we restore the decree of the court of first instance. The plaintiffs will obtain their costs of the objection.