Tej Kaur vs Dalip Singh and others

J.V. Gupta, J.

This is defendant''s second appeal against whom the suit was dismissed by the trial Court, but decreed in appeal.

The Muslims, in the year 1941, leased out their agricultural lands vide lease deeds, Exhibits P.1 and P.2 to the predecessorsininterest of plaintiff Nos. 1, 2, 3, 4, 6 and 7 and plaintiff No. 5. According to the terms of the lease they were the tenants thereon from generation to generation and they were not to be ejected therefrom except on certain terms. One of the terms was that in case they failed to pay the annual rent for two consecutive years, they were liable to be ejected. At the time of the partition of the country, the Muslim owners left the country and thus, the land leased out by them became the evacuee property. Out of the same, the land measuring 15 Kanals 12 Marlas was allotted to Tej Kaur, defendantappellant by the Rehabilitation authorities on July 13, 1949. Symbolical possession thereof was also given to her on May 10, 1950. Thus, in the revenue entries instead of the Custodian, she was shown to be the owner whereas the plaintiffs were shown to be the tenants under her. It is the common case of the parties that the plaintiffs have been paying the rent to her as per terms of the lease deeds, Exhibits P.1 and P.2, since the year 1966. The plaintiffs filed the present suit on February 18, 1977, for the grant of the declaration that they along with defendant Nos. 5 and 6 were the owners in possession of the suit land including the land allotted to Tej Kaur, defendantappellant. It was alleged that in view of the terms of the lease deeds they were the occupancy tenants thereon and that after the coming into force of the Punjab Occupancy Tenants (Vesting of Proprietary Rights) Amendment Act, 1958 (hereinafter called the Act), the right, title and interest of the evacuee landlords in the land, in question, were extinguished and they being the occupancy tenants thereon became the owners thereof. Since defendants Nos. 1 to 4 wanted to forcibly eject them from the suit land; hence the present suit. The suit was contested by all the defendants including the Union of India and the State of Punjab inter alia on the ground that the Civil Court had no jurisdiction to entertain the suit, the leases effected by Muslims vide Exhibits P.1 and P.2 stood terminated with effect from July 25, 1949 under the East Punjab Displaced Persons (Land Resettlement) Act, 1949. The plaintiffs committed default in making the payment of the lease money and, thus, they had rendered themselves liable to be ejected. It was further pleaded that the plaintiffs were not the occupancy tenants on the disputed land and, therefore, the question of their becoming the owners thereof did not arise, as alleged. The plea of limitation was also raised. The learned trial Court found that the civil Court had the jurisdiction to entertain the suit, the plaintiffs were not the occupancy tenants at the time of the enforcement of the Act and as such there was no question of vesting of the land in them, the possession of the land with them was only on behalf of the Custodian, their possession thereof was only that of the tenantsatwill and that they were in default in making the payment of the lease money. The suit was also held to be barred by time. In view of these findings, the plaintiffs suit was dismissed. In appeal, the learned Additional District Judge reversed the said findings of the trial Court and came to the conclusion that both the leases were from generation to generation and the plaintiffs were not to be ejected in case they went on paying the agreed rent. It was only in the event of their failure to pay the rent for two consecutive years that they rendered themselves liable to be ejected. Thus, the foremost question to be determined before the lower appellate Court was whether the lessees were the occupancy tenants on the suit land and their rights were converted into that of the owners under the Act. Ultimately, it was found by the lower appellate Court,

``Applying the aforementioned principles, I am of the positive opinion that in the context of the terms of lease mentioned in Exhibit P.1 and Exhibit P.2 it must be held that the intention of the parties was to constitute the lessees occupancy tenants since they were not to be ejected in case they went on paying rent.''''

The learned counsel for the appellant contended that from the terms of the lease deeds, it could not be held that the tenants had become the occupancy tenants on the suit land. According to the learned counsel, since they were liable to be ejected under the terms of the lease deeds, they could not be held to be occupancy tenants. It was further contended that since the plaintiffs had been paying rent to the defendant since the year 1966 and accepted her to be their landlady, the suit as such was not maintainable. In any case, argued the learned counsel, the civil Court had no jurisdiction to declare that the plaintiffs were the occupancy tenants on the suit land and had become the owners thereof under the Act. According to the learned counsel, the jurisdiction of the civil Court was barred under section 77 of the Punjab Tenancy Act, 1887.

After hearing the learned counsel for the parties, I do not find any merit in this appeal.

I have gone through the terms of the lease deeds, Exhibits P.1 and P.2. The leases are from generation to generation. The plaintiffs are liable to be rejected from the suit land only if they fail to make the yearly payment of the rent for two consecutive years. Thus, it is evident that it was the conduct of the lessees which could render them liable to be ejected therefrom otherwise the lessors had no right to eject them. It is the common case of the parties that no action was taken either by Tej Kaur, defendantappellant, or by the Custodian against the plaintiffs under the terms of the leases. Moreover, a firm finding has been given by the lower appellate Court that from the terms of the leases, it was evident that the same were from generation to generation and that the plaintiffs were not liable to be ejected unless they default in making the payment of rent for two consecutive years. In Moola''s case (supra), the Supreme Court held that there was no automatic cancellation of a lease under section 9 of the East Punjab Displaced Persons (Land Resettlement) Act, 1949. Thus, in view of the abovesaid authoritative pronouncement of the Supreme Court, there being no automatic cancellation of a lease under section 9 of the aforementioned Act, the plaintiffs continued to be the tenants on the suit land and since they were not liable to be ejected unless they incurred the liability under the terms of the leases, they became the occupancy tenants thereon under section 8 of the Punjab Tenancy Act, 1887.

So far as the plea that the suit was barred by limitation is concerned, the mere fact that the plaintiffs did not accept Tej Kaur, defendant, to be their landlady, did not debar them from filing the present suit. Admittedly, Tej Kaur was allotted 15 kanals 12 marlas of land by the Custodian, whereas the plaintiffs were recorded as the tenants in the revenue records thereon. Since the defendants wanted to dispossess them forcibly, they sought the declaration that they had become the owners of the suit land under the Act. In this situation, since the plaintiffs were in occupation of the suit land, the suit for declaration could not be held to be barred by time.

As regards the contention that the civil Court had no jurisdiction to entertain the suit, the same has been negatived by both the Courts below. Besides, section 100 of the Punjab Tenancy Act, 1887, inter alia provides that if it appears to a civil Court that a Court under its control has determined a suit of a class mentioned in section 77 which under the provisions of that section should have been heard and determined by a revenue Court, or if it appears to a revenue Court that a Court under its control has determined a suit which should have been heard by a civil Court, the civil Court or the revenue Court, as the case may be, shall submit the record of the suit to the High Court and if on perusal of the record it appears to the High Court that the suit was so determined in good faith, and that the parties have not been prejudiced by the mistake as to jurisdiction, the High Court may order that the decree be registered in the Court which has jurisdiction. Admittedly, it is not the case of the appellant that the parties have been prejudiced in any manner because of the trial of the suit by the civil Court. Thus, there is no merit in this contention.

Consequently, this appeal fails and is dismissed with no order as to costs.