' Bahadur, father of respondents Nos. 1 to 3 purchased State land on instalments on the 19th December 1925, in an open auction. The plaintiffs-appellants filed a suit for a declaration that they were the real purchasers of this property and for a consequential relief by way of perpetual injunction restraining Bahadur, from interfering with their possession over it.
2. The learned trial Court and the learned first appellate Court disbelieved the theory of Benami purchase of the land in dispute by Bahadur but held that the plaintiffs were not liable to be dispossessed under section 19 of Act V of 1912. On an appeal by Bahadur, the High Court dismissed the suit of the plaintiffs by its judgment Exh. D. 1 on the ground that such a declaration was barred by the said Act (section 36).
3. The plaintiffs-appellants filed another suit on the 14th February 1963, claiming that Bahadur was a Benamidar while they were the actual owners of the property and alternatively that they had become owners of the rights to which Bahadur was entitled, by adverse possession since they had remained in possession of the property for over 12 years. The suit was contested on merits as well as on the ground that the civil Court had no jurisdiction to try the suit. The learned trial Court found this issue in favour of the defendants-respondents and held that just as the suit based on ground of the transaction being benami was held to be barred by section 36 in the judgment Exh. D. 1, so it would be barred on another similar ground by which the plaintiffs claimed any right to be substituted for Bahadur.
4. The learned Additional District Judge, in appeal agreed with this finding and dismissed the appeal on the 14th March 1956.
5. Hence this appeal.
6. The learned counsel for the appellants contended that though the appellants could not plead adverse possession against the Government but they could raise this plea as against the heirs of Bahadur. He relied upon .Raja v. Karam Ali (1). Elaborating this point he submitted that it is time that the appellants can be ejected by the Government as trespassers under section 32 of the Colonization of Government Lands (Punjab) Act, 1912 but as against the respondents their position is that of occupancy tenants.
7. He also argued that section 19 of above Act would not apply since the appellant's case is not that of a transfer of the property. They in fact rely upon the provisions of Article 144 of the Limitation Act to which section 19 would not apply. The sum and substance of the argument is that legally a person by trespassing over the subsidiary interest of tenancy may not be able to acquire that interest by prescription against the proprietor, but he can acquire that interest as against the tenants.
8. The facts of the authority cited by the learned counsel are that one Bhai Khan was occupancy tenant under Government on a horse-breeding tenure in the Colony District of Sargodha. He sold his tenancy rights (1) PLD 1951 Lah. 177 sometime in 1925, with the sanction of the relevant authorities under the Punjab Colonization of Government Lands Act, 1912, ostensibly in favour of Khuda Bakhsh, father of Nazar Muhammad, defendant. Half of the consideration for the sale was provided by Raja Khan defendant-appellant but his name was not mentioned in the sale-deed since it was apprehended that the Government might not approve of more than one transferee for the reason that the rule of primogeniture governed such tenancies. It was held by the High Court that whether the transaction was regarded as one of transfer by Bhai Khan without consent of the relevant authority in favour of Raja Khan or one by Khuda Bakhsh in appellant's favour, in either case it would be hit by section 19 and could not be upheld as legal.
8-A. The learned counsel, however, relied upon an observation at page 183 of the report. It was contended that if the contract of sale was void the appellant had acquired a perfect title by adverse possession as against Bhai Khan and his successors-in-interest. This plea was repelled on account of this matter being barred by the principle of constructive res judicata, although it was observed that a trespasser can acquire title by adverse possession confined in respect of quantity and quality. The learned counsel, therefore, argued that the question of adverse possession was a question decided in favour of the appellant in that case.
9. The argument of the learned counsel that section 19 of the Colonization of Government Lands (Punjab) Act, 1912 is not in terms applicable to the case has force. But the principle embodied therein that the Government does not recognise any person as its tenant except the one who has been inducted as such under the provisions of the Act, cannot be lost sight of.
10. Article 144 of the Limitation Act provides for a period of 12 years for suit for possession of immovable property or any interest therein not hereby otherwise specially provided for, from the date when the possession of the defendants becomes adverse to the plaintiff. Section 28 of that Act provides that at the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished. This section provides for extinction of title in favour of the possessor after the expiry of 12 years period from the date when his possession on any immovable property or interest therein becomes adverse to the plaintiff. The opinion on the question whether right o occupancy tenancy is an interest of immovable property is uniform. Being generally heritable and transferable right, though it may be subject to certain conditions, it is undoubtedly an interest in the immovable property.
11. There is a divergence of view on the question whether right of occupancy can be obtained by prescription. In Radhabai and another v. Anantra Bhagrant Despande (1) it was held that a restricted power of dealing with the property does not involve an incapacity of submitting to adverse possession until limitation has given a title by prescription to the adverse holder. In Ujir All Sirdar v. Shadhai\ Behara and others (2) it was held that a person can by prescription acquire the status of a tenant under the plaintiff on the well-recognised principle that a limited interest in property can be acquired by adverse possession. In Swarnamoyi and another v. Sourindra 1Vath Mitra and others (3) it was held that possession of a limited interest, for instance, the claim to an intermediate tenure, (4) I L R 9 Born. 198 (2) AIR 1922 Cal. 185 (3) A T R 1925 Cal. 1189 may be just as much adverse as is adverse possession of a complete interest in the property; consequently such possession of a limited interest may be just as much adverse for the purpose of barring a suit for the determination of that limited interest as adverse possession of a complete interest in the property operates to bar a suit for the whole property. Such adverse possession of a limited interest, however, though a good plea to a suit for ejectment is good only to the extent of that interest. Same view was taken in Phan Chandra v. Raja Ramranjan Chakarbutty (1), Raktoo Singh and others v. Sudhram Ahir and others (2), Probhabati Dasi v. Taibatunnessa Chowdhuri and others (3), Panchkari Chattapadhya and others v. Maharaj Bahadur Singh (4), Birendra Kisore Manikya Bahadur v. Laksmi (5), Madhava v. Narayana and others (6), Seshamma Shettati and others v.
Chickaya Hegade and others (7), Sontayana Gopala Dasu and others v. Inapatalupula Rami and 4 others (8), Carpenter v. Corporation of Bristol (9), Yamunabi alias Parvatibai v. Dhondi and others
(10) Muthurakkoo Thevanand 9 others v. R. G. Orr and S others (I I), Vishvanath Haibatrao Dephpande v. Ranganath Dhondo Deshpande and others (12), Mt. Ram Piari v. Nawab Singh and others (13 Bhagwan Bux Singh v. Ganesh Bux Singh (14).
13. In Nainapillai Markayar v. Ramanathan Chettiar (15) it was stated that the defendants being tenants could not obtain the right of permanent occupancy by prescription. Reference was made in support of this to Madhavrao Waman v. Raghunath Venkatesh (16). This opinion was explained in Vishvanath Haibatrao Deshpande v. Ranganath Dhondo Deshpande and others. It was observed that the principles laid down in Madhavrao Waman v. Raghunath Venkatesh that 'no tenant of lands in India can obtain any right to a permanent tenancy by prescription in them against his landlord from whom he holds the lands does not mean more than this that a person who enters upon lands as an ordinary tenant cannot by prescription acquire against his landlord the right to a permanent tenancy'. It was further observed that "neither of these Privy Council cases in our opinion has any bearing on a case such as that with which we have to deal, viz., entry upon land under a permanent lease invalid by reason of want of registration, but followed by conduct showing the possession of the lessee as permanent tenant or mirasdar." Reference was also made to Kamakhya Narayan Singh v. Ram Raksha Singh (17) where it was held to be well established that land can be in adverse possession of a limited interest in property and that permanent tenancy could be acquired by prescription.
14. There are several authorities of the Punjab Chief Court, on this question in relation to the Punjab Tenancy Act, 1887. In Joti and another v. Maya and others (18) it was held that the relation of landlord and tenant is a legal relation between the two persons in respect of land, as defined: {{TABLE}}
(1) 2 C L J 125 (2) 8 C L J 557
(3) 20 I C 664=19 C L J 62 (4) 28 I C 708
(5) 30 1 C 896=22 C L J 129 (6) I L R 9 Mad. 244
(7) I L R 25 Mad. 507 (8) 44 Mad. 946=AIR 1921 Mad. 410
(9) 17 Mad. L J 469 (1C) 5 B L R 186
(11) I L R 35 Mad. 618 (12) AIR 1942 Born. 268
(13) AIR 1950 All 496 (14) 1937 R D 572
(15) AIR 1924 P C 65 (16) AIR 1923 P C 205
(17) AIR 1928 P C 146 (18) 44 F. R H91 {{TABLE}} ' In the Punjab Tenancy Act, and it may, under that Act, have its origin either in contract (including grant) or independently of contract, that is by operation of law, as in the case of some occupancy tenants. It was observed that the Punjab Tenancy Act itself indicates what is necessary to 'he complete establishment of the legal relation in regard to particular land and the event by which the relation is rendered complete. It was further observed that it was clear from section 14 that a person who is in possession of land occupied with the consent of the landlord is not a tenant and does not hold land under him.
15. Section 9 of the Punjab. Tenancy Act provides that no occupancy tenancy can be acquired by efflux of time. It was held in Ganda Singh v. Karim Khan (1) that a person holding under a widow inheriting occupancy tenancy cannot claim in view of section 9 to have obtained occupancy by adverse-possession.
16. Thakur Singh v. Behar' and others (2) recognises the possibility of acquisition of rights of tenancy by prescription. It was held that a gift of occupancy tenancy right by the widow in contravention of section 59(3) of Punjab Act was not void during the lifetime of the widow, but only voidable at the instance of the landlord under section 60 of the Act and consequently the possession of the done would not be adverse to the landlord till after the death of the widow. This authority is simply to the effect that if the landlord fails to avoid within the period of limitation the transfer made by the widow, the transferee would become entitled to the occupancy tenancy right.
17. Again in Jumman and others v. Allah Rakha and others (3) it was held that plaintiff's co- occupancy tenants could not acquire the occupancy tenancy of their co-occupancy tenants by adverse possession. If section 9 is interpreted differently, the landlord may occasionally have an occupancy tenant thrust on him without any laches on his part, and that would be a result entirely foreign to the spirit of the Tenancy Act.
18. In Raja and others v. Karam All and others (4), however, a Division Bench of the Lahore High Court agreed with the contention of the appellant that the right of occupancy held under the Colonization of Government Lands (Punjab) Act, 1912 can also be obtained by adverse possession.
Similarly in Umar Said and others v. Faiz Muhammad Khan and others (5) it was observed that an occupancy tenancy is subject to adverse possession as effectively as a proprietary holding, and an occupancy tenant equally with a proprietor loses his right if adverse possession operates against him for over twelve years.
' From these authorities it is established that generally a permanent tenancy is subject to the right provided by Article 144 read with section 28 of the Limitation Act, but a contrary view may be taken in relation to a particular Statute of which the occupancy right claimed by a party by adverse possession, is a creation. Again all these authorities are about acquisition of permanent tenancy rights against the landlord and not simply against a previous holder of occupancy. The authority relied upon on behalf of the appellants (PLD 1951 Lah. 177) also does not lay down such a wide
(1) 60 PR 1908 (2) 44 P R 1917
(3) PLD 1951 Lah. 85 (4) PLD 1951 Lah. 177
(5) PLD 1961 Pesh. 110 ' proposition that when the period of prescription against an existing occupancy tenant is different from the period of limitation against the landlord, a holder in adverse possession may be a trespasser qua the landlord and may yet claim a right to be substituted for the existing occupancy tenant for the enjoyment of the latter's right.
19. In order to determine whether adverse possession can be claimed against an occupancy tenant only, leaving the right of the landlord intact to eject the holder of actual possession it is necessary to make a brief survey of the provisions of the Act of 1912.
20. Section 10 of the Act provides the exclusive manner in which such a tenancy can be granted or acquired. It provides for grant of land in a colony on a statement or statements of conditions issued by the Provincial Government. Subsection (4) of section 10 provides that no person shall be deemed to be a tenant or to have any right, or title in the land allotted to him until such a written order has been passed and he has taken possession of the land with the permission of the Collector.
21. This subsection establishes that a person can be deemed to be a tenant or to have tenancy rights only if a written order of allotment is passed in his favour and possession is given to him in pursuance of such a written order.
22. The effect of statements of conditions is described in section 11 which points out that the grant of tenancy will be deemed to be a transfer of land within the meaning of Crown Grants Acts 1895.
Section 14 clarifies the position of a tenant further by stating that such a tenant shall be deemed to have accepted and to hold the land in which he is a tenant in accordance with such terms and conditions. The next section which is important in this context is section 15 which provides that "purchaser from Government of land who has been placed in possession of the land by order of Collector shall be deemed to be a tenant of such land until the full amount of the purchase money with any interest due thereon has been paid and the other conditions set forth in the statement of the conditions of sale issued by the Collector have been fulfil led."
23. It will be appreciated that the law does not recognize any person as a tenant who has not obtained the property as such under the above Act. When a person claims that he is a tenant or an occupancy tenant of State land, what he really claims is that he is a grantee by the Government. It will not, therefore, be correct to say that a claim of tenancy can be made without bringing into light his relationship with the Government. The terms `tenant' and `landlord' are complementary and denote the dual interest in land. The law does not contemplate a tenancy sans landlord. The claim of occupancy of State land must, therefore, be a claim of holding the property under the Government.
24. Unless there be a possibility of creation of relationship of landlord and tenant between the Government and the persons said to be holding adversely to the tenant, it is difficult to see how adverse possession can create occupancy tenancy. This view is confirmed by the legal provision that transfer of possession in contravention of provisions of section 19 is void and a person in unauthorised possession can be evicted by use of force under section 32.
25. The provisions of section 10 which deal with the right of entry before a person becomes a tenant also point out in the same direction.
' This view is further re-enforced by the fact that only a person who is an occupancy tenant can obtain the benefit of sections 14 and 15 and can claim right of ownership in what started as his tenancy, and not as a trespasser. There appears to be no reason to parcel out the occupancy tenancy vis-a-vis the actual occupancy tenant and vis-a-vis the landlord, since the benefits of the Act can be conferred only on a person who is an occupancy tenant under the Act and holds that tenancy under the Government.
26. It is clear from Article 149 of the Limitation Act that limitation for claim to adverse possession against the Government is sixty years from the time when limitation began to run under the Act in a like suit by a private person. In view of the fact that the plea of adverse possession cannot be parcelled in a manner so as to claim it against a tenant of the Government and disclaim it against the Government itself, the Article of the Limitation Act which deals with such suits against the Government only will apply. The reference to Article 144 is, therefore, entirely misconceived. The suit does not appear to be maintainable.
27. The reference to section 19 in this case is not in these circumstances, at all relevant. Section 36 is the material section which ousts the jurisdiction of the Court. In view of what has been stated above the Court cannot confer any grant or any right on the plaintiffs-appellants which is conferred D either by this Act or can be conferred by the functionaries under this Act This provision is, therefore, clearly applicable to the facts of the case and ousts the jurisdiction of the civil Court.
28. This finds further support from the fact that the High Court in a case where the interest of occupancy tenancy or of purchase was claimed on a different ground, bad held the suit to be barred by section 36. For the imposition of this bar it will not make any difference whether a particular suit is based on one ground or on a different ground.
29. I therefore, agree with the findings of the leaned Courts below and dismiss this appeal with costs.