- (1.) The respondents filed a suit against the appellants for possession of .12 kanals 1 marla of agricultural land described in the plaint and situated in village Chakwal, district Hoshiarpur, on the averment that they were displaced persons from West Pakistan and had been allotted this land in lieu of the land left in Pakistan and of which proprietary rights were conferred on them, and that the appellants had encroached upon it and taken possession thereof. The appellants pleaded in defence that they were occupancy tenants on the land under Muslim landlords who migrated to Pakistan and they became proprietors of the land under the provisions of the Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act, 1952 (hereinafter referred to as the Act). On the pleadings of the parties, the following issues were framed by the learned trial Court :- 1. Whether the land has been allotted to the plaintiffs ? 2. Whether the suit is not within limitation ? 3. Whether the defendants have ceased to be occupancy tenants and the plaintiffs became full owners 7 4. Relief. This suit was consolidated with another suit filed by Parma Nand and Dwarka Nath against the appellants and issue No. 2 framed in the consolidated suit related to that suit, which is not material. The suit of Parma Nand and Dwarka Nath was dismissed by the trial Court and no appeal was filed by them against that decree. The learned trial Court held under issue No. 1 that the plaintiffs were allottees of the land in suit. On issue No. 3 it was held that the suit had been filed beyond the period of limitation and on issue No. 4 it was held that the appellants had become owners by virtue of the provisions contained in the Punjab Occupancy Tenants (Vesting of Proprietary Rights) (Amendment) Act, 1958. The suit was accordingly dismissed on December 7, 1959, Agrieved from that decree, the respondents filed an appeal which was accepted by the learned Senior Subordinate Judge, Hoshiarpur, on December 9, 1960, and the suit of the plaintiff-respondents was decreed with costs. Against that decree, the present appeal has been filed.
(2.) The land in suit was in possession of one Nathu as an occupancy tenant under Muslim landlords. On October 15, 1937, Nathu gifted his occupancy rights in favour of the appellants. On August 25, 1942, the Muslim landlords filed a suit under Section 60 of the Punjab Tenancy Act for the ejectment of the appellants on the ground that Nathu had transferred his occupancy rights in favour of the donees and, therefore, they were liable to ejectment. That suit was dismissed by the Assistant Collector, Hoshiarpur, on July 31, 1944. A copy of that order is Exhibit P. 5. An appeal was preferred to the Collector, Hoshiarpur, who rejected the same. A revision was filed before the Commissioner, Jullundur Division, who forwarded the case to the Financial Commissioner for orders. The learned Financial Commissioner accepted the revision and passed a decree in favour of the landlords cancelling the gift of occupancy rights and ordered dispossession of the appellants. It was, however, held by the learned Financial Commissioner that "the rights will revert to the successors-in-interest of occupancy rights of Nathu". This order was passed on June 22, 1949. Nathu died and the appellants succeeded to him as heirs in whom the occupancy rights vested. Due to the partition of the country, the Muslim landlords migrated to Pakistan and thus became evacuees. Their properties left in India became evacuee properties and vested in the Custodian of Evacuee Property. "Evacuee property" is defined in Section (2)(f) of the Administration of Evacuee Property Act, 1950, as under :- "2(f). 'Evacuee property' means any property of any evacuee (whether held by him as owner or as trustee or as a beneficiary or as a tenant or in any other capacity, and includes any property which has been obtained by any person from an evacuee after the 14th day of August, 1947, by any mode of transfer which is not effective by reason of the provision contained in Section 40), but does not include - (i) x x x x (ii) x x x x." This definition was interpreted by a Division Bench of the Allahabad High Court in Aziz-un-Nisa and others v. Asstt. Custodian and others, 1957 AIR(All) 561and it was held that what vested as evacuee property in the Custodian was the right, title and interest of the evacuee in any property left by him. This interpretation is in accord with the provisions of Section 12(2) of the Displaced Persons (Compensation and Rehabilitation) Act, 1954, which reads as under :- "12(2). On the publication of a notification under sub-section (1), the, right, title and interest of any evacuee in the evacuee property specified in the notification shall, on and from the beginning of the date on which the notification is so published, be extinguished and the evacuee property shall vest absolutely in the Central Government free from all encumbrances." I, therefore, hold that after the migration of the Muslim landlords to Pakistan in the wake of partition of the country, their rights as landlords in the land in suit became evacuee property and vested in the Custodian and these rights were acquired by the Central Government under Section 12 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954. It follows, therefore, that what was allotted to the respondents were the rights, title and interest of the Muslim landlords, that is, rights as landlord qua the land on which the appellants were occupancy tenants. In pursuance of the provisions of the Act as amended in 1958, the appellants became the owners of the said land and the landlords' rights in the land were extinguished.
(3.) Originally, when the Act was enacted, Section 9 provided - "Nothing in this Act shall apply to evacuee property as defined in the Administration of Evacuee Property Act, 1950 (XXXI of 1950)." This section was substituted by Punjab Act 31 of 1958 and after amendment Section reads as under :- "9(1) Nothing in this Act shall apply to evacuee property as defined in the Administration of Evacuee Property Act, 1950 (XXXI of 1950). (2) Notwithstanding anything contained in sub-section (1), the provisions of this Act shall, subject to the provisions of sub-section (3), apply to - (a) a person who, after the commencement of this Act, obtains a right of occupancy, from the Central Government under the Displaced Persons (Compensation and Rehabilitation) Act, 1954 (44 of 1954); and (b) an occupancy tenant of a landlord who is an evacuee as defined in clause (d) of Section 2 of the Administration of Evacuee Property Act, 1950 (XXXI of 1950). (3) For the purposes of Section 3 and sub-section (1) of Section 4, the appointed date, in relation to a person referred to in sub-section (2), shall, notwithstanding anything to the contrary contained in, this Act or in any judgment, decree, or order of any Court, be, (i) in the case of a person who obtains a right of occupancy from the Central Government after the commencement of the Punjab Occupancy Tenants (Vesting of Proprietary Rights) (Amendment) Ordinance, 1958, the date on which such right is obtained; and (ii) in any other case, the date of commencement of the Punjab Occupancy Tenants (Vesting of Proprietary Rights) (Amendment) Ordinance, 1958". It is evident from Section 9 as amended, that the provisions of the Act were made applicable to the occupancy tenants of landlords who had become evacuee and in their case the date of commencement of the Act was July 10, 1958, the date on which the Punjab Occupancy Tenants (Vesting of Proprietary Rights) (Amendment) Ordinance IV of 1958 came into force. Since the appellants were regarded as occupancy tenants of the land in suit immediately before the commencement of the Act, the appointed day in their case became July 10, 1958, and from that date, the rights of the landlords in the said land were extinguished. In view of these facts, the respondents had no right to file a suit for possession of the land on April 8, 1959, when the suit out of which the present appeal has arisen, was filed. Their suit had been, therefore, rightly dismissed by the learned trial Court and the learned Senior Subordinate Judge erred in law in accepting the appeal.;