WASAL Vs. HARNAM SINGH

JUDGEMENT

(1.) The facts of this case have been stated at length in my order of reference dated 16 March 1948 and need not be recapitulated. The dispute in this case relates to a one-half undivided share in 142 kanals and 16 marlas of land situate in the village Jandwala in Muktsar tahsil, Ferozpure district. This land was originally occupied by one Baghela as a tenant under Guru Amar Singh, the father of Guru Harnam Singh plaintiff. In the revenue records he was described as a non- occupancy tenant of the aforesaid land. However, after his death, in a suit brought by him to contest the validity of a notice of ejectment, served at the instance of the aforesaid Guru Amar Singh, on him and his two nephews Fazal Din and Fateh Din, the sons of his deceased brother Allu. Wasal, son of the aforesaid Baghela, succeeded in establishing that the aforesaid Baghela was in fact an occupancy tenant under Section 5(c), Punjab Tenancy Act, of the land mentioned above. On this finding the aforesaid notice of ejectment was cancelled by the Assistant Collector whose decision, though modified by the Collector on appeal, was restored by the learned Commissioner.

(2.) The second appeal giving rise to this reference has arisen out of a suit brought by Guru Harnam Singh, one of the sons of the aforesaid Guru Amar Singh, against Wasal for possession of a half share in the tenancy comprising 142 kanals and 16 marlas of land, on the allegations that the defendant's above mentioned nephews having surrendered their half share in the tenancy in favour of the plaintiff, the latter was entitled to dispossess the defendant from the aforesaid share. The suit was resisted by the defendant, inter alia, on the pleas that there had been no surrender in fact by Fazal Din and Fateh Din of their share of the tenancy that, even if there was such a surrender, it was invalid and did not bind the defendant; and that the plaintiff had no right to eject the defendant, from any portion or share of the tenancy by-means of the present suit.

(3.) The learned Counsel for the appellant before proceeding to deal with the matters noticed in the order of reference, sought to challenge what appears to be the concurrent finding of the two Courts below as regards the factum of the alleged surrender by Fazal Din and Fateh Din of their share in the tenancy in the plaintiff s-favour. He urged that there was no evidence m support of the finding and that the mere circumstance of their not having sued for the cancellation of the notice of ejectment, which had been served, at the instance of the plaintiff's father, on them along with the appellant could not constitute a surrender by them of their rights in the tenancy.