Dwarika Nath and another vs Brij Raj Singh and others

Ali, C. J.

(1) This is a defendant's 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 Section 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, hut on appeal to this court the case was remanded to the trial court who dismissed the

suit, holding that the defendantappellant was the collateral of the tenant whose common ancestor, Jagga, was in possession of the land in dispute.

On appeal against this judgment and decree, the District Judge took a different view and held that the defendant did not prove himself to be the

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 defendantappellant 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 presumed 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 recorded 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

possession 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 tenant. PW. Balraj Singh one of

the plaintiffs deposed that the Dy. Commr. 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.

(4) The second circumstances on which the learned Judge had relied was that since Ganga was in possession of the properties to the exclusion of

his brothers, therefore he must be deemed to have an independent right. The mere fact that one brother excludes other bros from possession or

participation in the rents and profits of the land will not make his possession absolute and will not lead to an inference that he has not inherited

property from his father Having regard to the facts and circumstances mentioned above, we are satisfied that the defendant appellant has proved

his case that he was the heir to the tenant and that his common ancestor Jagga was in possession of the land in dispute at some time or the other.

(5) For these reasons the appeal is allowed, the judgment and decree of the District Judge are set aside, the suit of the plaintiff is dismissed and the

decree of the trial court is restored. The appellant will be entitled to costs in this court but not in the courts below.