Pheru alias Tara Singh and Another vs Bua Ditta and Others

D.K. Mahajan, J.—In this second appeal the dispute relates to an area of land measuring 13 Kanals and 17 Marlas. This land was held by Mst. Malan widow of Jowala Singh as occupancy tenant. Jowala Singh''s brother''s son Gurditta had a son Pheru, and one Ram Kishan also claimed to be a son of this Gurditta. On the death of Mst. Malan in 1946 Pheru and Ram Kishan claimed to succeed to her. The revenue Officer sanctioned the mutation in favour of Pheru and Ram Kishan. The landlords of this land were Bua Ditta and Mst. Shakuntala. On the 18th September, 1948 Pheru executed Exhibit P.1, whereby he relinquished his rights in the tenancy in favour of Bua Ditta. It is common ground that there is no relinquishment in favour of Mst. Shakuntala, the other co-landlord. On the 31st July, 1957 Mst. Shakuntala transferred her landlord''s rights to Durga Das son of Bua Ditta, and on the 27th August, 1947 Bua Ditta and Durga Dass filed the present suit for possession of the suit land on the ground that Mst. Malan had died without leaving an heir, and as such they, being the landlords, were entitled to succeed to it. On the pleadings of the parties, the following issues were framed:-

Whether defendants Nos. 1 and 2 are collaterals of Jowala Singh husband of Mst. Malan deceased, and the common ancestor of the defendants and Jowala Singh deceased occupied the land in question?

Whether Mst. Malan and defendants Nos. 1 and 2 were joint occupancy tenants and for that reason the share of Mst. Malan has gone to the defendants by survivorship?

Whether Mst. Shakuntala defendant No. 3 has transferred her rights and interests in the suit land in favour of Durga Dass plaintiff No. 2, if so, what is its effect?

Whether defendant No. 1 has relinquished his rights in the land? If so, to what effect?

The trial court found issues Nos. 1 and 2 in favour of the defendants. Issue No. 3 was found for the plaintiffs and issue No. 4 was again found for the defendants. In this view of the matter the suit was dismissed. On appeal by the plaintiffs, the decision of the lower court on issues Nos. 1, 2 and 3 was upheld but the decision on issue No. 4 was reversed with the result that the plaintiffs'' suit was decreed. It may also be mentioned that the lower appellate court held that Ram Kishan was not the son of Gurditta. The defendants have now come to this Court in second appeal.

So far as the question, whether Ram Kishan is the son of Gurditta, is concerned, the matter stands concluded by reason of section 100 of the Code of Civil Procedure; the finding, being a finding of fact, is binding on me in second appeal and therefore it is upheld.

So far as the question of relinquishment in favour of Pheru is concerned, that matter also cannot be agitated. The appeal was decided in favour of the plaintiffs on the short ground that Pheru had relinquished his rights of occupancy in favour of Bua Ditta. The only question that has been seriously debated before me is that such a relinquishment in favour of one of the landlords is no reliquishment in the eyes of law and as such, there being no relinquishment in favour of both the landlords the suit is liable to be dismissed as was done by the trial Court. In support of his contention Mr. Hoshiarpuri, learned counsel for the appellants, relies on a Full Bench decision of the Lahore High Court in Miran Baksh v. Mian Khan AIR 1945 Lah. 249, wherein it was held that wherever the world "Landlord" occurs in the Tenancy Act, it means all the landlords jointly and not one of them unless it is indicated otherwise in the body of the Act. Section 36 of the Tenancy Act deals with the rights of a tenant to relinquish his tenancy. The relinquishment under this provision must be to the landlord, and, as the relinquishment in the present case is only to one out of the two landlords, there is no relinquishment in the eyes of law u/s 36 of the Tenancy Act. The rule of the Full Bench decision fully applies to the present case, and as there is no valid relinquishment, the question of relinquishment loses all meaning. Therefore, the lower appellate court was in error in reversing, the decision of the trial court even if it is assumed that in fact there was a relinquishment by Phiru to Bua Ditta.

For the reasons given above this appeal is allowed, the decision of the lower appellate Court is set aside and that of the trial court is restored. In the circumstances of the case, there will be no order as to costs.