LAL CHAND Vs. SHIV RAM AND ORS.

JUDGEMENT

(1.) THIS is a revenue first appeal and arises out of an order of the Settlement Officer Poonch Rajauri dated 29th August 1961 whereby the said Settlement Officer dismissed the suit of Lal Chand Appellant against Shiv Ram and others. The suit was lodged by Lal Chand Appellant against Shiv Ram and others with the allegation that Lal Chand and Amin Chand are brothers who hold land jointly in village Remana Tehsil Rajauri. Out of their joint land which the two brothers held a considerable portion of it was in the possession of occupancy tenants, Fahmi, Mohd. Shafi and Mohd. Alam sons of Rahim Baksh were also occupancy tenants along with others of Khewat No. 8 which comprised of 57 Kanals and 2 marlas of land in the said village. Out of these 57 Kanals and 2 marlas which these three occupancy tenants, along with others, held under Lal Chand and Amin Chand, these three persons sold the rights of occupancy in 19 kanals and 6 Sirsais of the land in survey Nos. 159 and 432/169 with 1/3 of the building standing thereon for a consideration of Rs. 1,000 in favour of Shiv Ram by means of a sale -deed dated 23rd April 1958. Shiv Ram it may be mentioned is the son of Amin Chand, one of the co -sharers in this land. Mutation was effected in favour of Shiv Ram of the occupancy rights purchased by him. Lal Chand brought a suit under Section 66 of the Tenancy Act for cancellation of the mutation and for ejectment of Shiv Ram transferee. His case was that the sale -deed being in contravention of the provisions of Section 60 of the Tenancy Act was voidable and therefore he was entitled to a decree for ejectment and declaration as prayed for.

(2.) IN the written statement the defence taken was that the tenants, vendors namely, Fahmi, Mohd. Shafi and Mohd. Alam had sold their occupancy rights in the land to the son of Amin Chand co -sharer in the land. The Plaintiff, the other co -sharer of the land did not like to purchase their rights of occupancy. Moreover it was slated that after the sale Amin Chand had gifted away his rights in the land to his son. Shiv Ram the transferee in the present case. This transfer made Shiv Rain a co -sharer in the land. The suit could be defeated on that ground also, namely, the accretion of title of Shiv Ram vendee in the land on account of the gift -deed made fry his father in his favour.

(3.) I have heard the learned Counsel for the parties and considered their arguments. Before embarking on the various propositions of law that emanate in this case, I would like to lay down what the principle behind sales by occupancy tenants is as has been enacted from lime to time. Before the latest amendments in the Tenancy Act, occupancy tenants formed a class apart and they enjoyed so many amenities. Their right were protected as compared with the other tenants who were usually called tenants -at -will. These occupancy tenants enjoyed a number of privileges in the matter of ejectment and allied matters but to keep the scales even the legislature placed certain restrictions on the right of succession to occupancy tenancy as well as the transfer of rights of occupancy. What is germane in the present inquiry is that once an occupancy tenant desired to transfer his occupancy rights, a certain elaborate procedure was to be followed. The principle underlying that procedure was to give the first choice of purchase of occupancy rights to the landlords of the land. It is for the enunciation and implementation of this very principle that Section 60 of the Tenancy Act has been enacted. Section 60 runs as under: