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Regular Second Appeal No. 36 of 1953 decided on 25^th March, 1955.

Adverse possession‑Landlord and tenant‑Mere assertion of title by tenant evidenced by entry in Jamabandi without relinquishing the land comprised in tenancy‑Whether makes tenant's possession adverse to landlord‑Punjab Tenancy Act (XVI of 1887), S. 36.

a mere notice unaccompanied by relinquishment of his posses sion over the land cannot terminate the tenancy.

Therefore, in the absence of all proof of the material fact that the defendants had actually relinquished the land at any time, even for a moment, their mere assertion of title in themselves, howsoever and for how‑long‑so‑ever made, cannot make their possession. adverse to the plain tiffs.

Sohawa Singh v. Kesar Singh and others A I R 1932 Lah. 586 approving view of Currie, rl. and dissenting from that of Bhide, J.

Ch. Fazal Din, for Appellants.

Mohsin Shah, for Respondents.

‑This second appeal arises out of a suit for possession brought by the appellants and res pondents Nos. 2 to 5 against the respondents Nos. 1 and 6 to 14 in respect of land measuring 195 kanals 15 marlas situate in the area of Mauza Khizar, Tahsil Phalia, District Gujrat. The defendants denied plaintiffs' title and pleaded title in themselves by adverse possession for more than twelve years The trial‑ Court found title in the plaintiffs and that finding was not contested before the lower appellate Court ; nor has it been challenged before us. The defendants' plea of adverse possession, however, was rejected by the trial Court but upheld by the lower appellate Court. The sole question, therefore, which falls for decision in this appeal is whether in the circumstances of this case the possession of the defendants can be considered to be adverse.

The relevant facts, accepted by the lower appellate Court and not denied before us by the respondents, are these : The defendants, who are the sons and grandsons of one Dadu, are material relations of the plaintiffs who are the representatives‑in‑interest of one Raju. Raju allowed the defendants to cultivate the land without rent on account of his near relationship with them. The earliest Jamabandi on the record is of 1931‑32. This shows Raju to be the owner and the defendants as tenants. The entry in the column of rent runs : basharah malkana bila malikana bawaja rishtadari. This entry continued up to 1935‑36 when in the Jamabandi of that year the entry in the column of rent was change into basharah malikana batsawwar milkiyat‑e‑khud. This entry remained unalterated throughout the subsequent Jamabandis until the date of the present suit, namely, the 14th of April, 1950. It is on the basis of these entries that the defendants contend that their possession became adverse by the latest on the 15th of June 1936 and remained so until the date of the, suit a continuous period of more than tweleve years. One other relevant fact may also be noted. Some of the defendants have remained in continuous and unbroken possession of certain killas in dispute throughout the period in question; while the possession of the remaining killas in suit was, during this period, some time with same defendants and some time with others. This fact is relied on by the appellants for their contention that the defendants cannot be considered to have acquired title by prescription to at least those killas which have not remained in possession of the same defendant or defendants continuously for twelve years.

The question whether the entry " no rent because of assertion of ownership " was sufficient to make a defendant's possession adverse to his landlord was considered by a Division Bench of this Court, consisting of Bhide and Currie JJ., in Sohawa Singh v. Kesar Singh and others (A I R 1932 Lah. 586). Currie J. unequivocally answered the question, after a full discussion, in the negative ; but added that even if the answer were in the affirmative adverse possession could be considered to commence only from the last date of the agricultural year, namely, the 15th of June, in which the entry appears for the first time. Bhide J. on the other hand, while fully concurring in the alternative answer of Currie J., appears inclined to a contrary view on the main question. According to him, such an entry would " be sufficient to raise a presumption that the landlord had notice of the adverse claim at least from the date of such attestation. And added: "if, for any special reason, the landlord does not come to know of the adverse claim even by that date it would be I think for him to establish the fact. But this point does not raise any difficulty in the present', case : for assuming that the entry in the revenue records establishes notice of the adverse claim to the landlord, the plaintiffs have, as pointed out above, failed to prove that their title had been perfected by adverse possession over 12 years". The appellants, learned counsel had strongly relied upon the judgment of Currie J., while the respondents' learned counsel has equally vehemently relied upon certain remarks, especially those just quoted, of Bhide J.

Currie, J., held that, mere assertion to ownership as embodied in the revenue record was not of itself sufficient to afford a starting point for adverse possession. The main reason which he gave was that the assertion was, not accompanied by any change in the money payment by the tenant. He referred to the provisions of sections 36 and 42 (it should be 43) of the Punjab Tenancy Act, and pointed out that a tenancy can be terminated by a tenant only by giving notice to his landlord ; but it does not appear from his judgment that he considered these provisions to have any bearing on the determination of the main question before him, namely whether a tenant's assertion of ownership as recorded in the revenue papers would make his possession

adverse to the landlord. Bhide J. on the other hand, con sidered that such an assertion would amountto a notice to the landlord under section 36 of the Tenency Act. With respect, we are unable to concur in the conclusion of the learned Judge. Section 36 required that a notice verbal or written must be given "to his landlord or to his landlord's agent " We cannot agree that the revenue official responsible for preparing or attesting a Jamabandi, or khasra Girdawri; can be treated either as the landlord This agent. The learned Judge observed :

" The Record of Rights is publicly attested in the presence of the people of the village and this fact should, I think be sufficient to raise a presumption that the landlord had notice of the adverse claim at least from the date of such attestation ".

Learned counsel for the respondents was unable to point out to us any law, which requires that a Khasra Girdawri should be attested in the presence of public, or provides that an entry therein amounts to a notice to the landlord. Section 36 does not permit a presumption of notice in favour of a tenant. Actual notice, be it written or oral, is necessary.

The principle is firmly established, and statutorily recog nised in section 116 of the Evidence Act which is applicable to agricultural tenancies as well, that during the continuance of his tenancy a tenant cannot be permitted to deny his landlord's title, Bhide J. was not oblivious of this. He says : --

"There is . . . . . ample authority for the proposition, that so long as a tenancy subsists, the tenant's assertion of an adverse title cannot make the statute of limitation run against the landlord ."

In this view of the matter the defendant's denial of tenancy, contained in the Jamabandi of 1935‑36, or in those of the subsequent years, cannot avail them unless they can show that they assumed adverse possession of the tenancy lands after the termination of the relation of landlord and tenant between themselves and the plaintiffs. " But ", said Bhide J. " the assertion of an adverse title would, in my opinion, terminate the tenancy at the end of the agricultural year during which it was made for it must at any rata be looked upon as a notice to the landlord that the tenant no longer intends to hold the land under him ". These observations, we note with due respect, are based upon a misreading of the provisions contained in section 36 of the Punjab Tenancy Act. According to our reading of that section, mere notice by the tenant of his intention to terminate the tenancy is not sufficient ; he must also give up physical possession of the tenancy land.

Section 36 of the Tenancy Act lays down :

" (1) Any other tenant may relinquish his tenancy by giving verbally or in writing to his landlord, or to his landlord's agent, on or before the fifteenth day of January, in any year, notice of his intention to relinquish the tenancy at, the end, of the agricultural year then current.

(3) If the tenant does not give notice in the mariner prescribed in this section, he shall be liable to pay the rent of his tenancy for any part of the ensuing agricul tural year during which the tenancy is not let by the landlord to some other person or is not cultivated by the landlord himself."

The words " may relinquish his tenancy by giving notice of his intention to relinquish the tenancy at the end of the agricultural year " mean that he can terminate the tenancy by relinquishing the land at the end of the year provided he has previously given the landlord notice of his intention to do so. Mere notice unaccompanied by relinquishment of his possession over the land cannot termi nate the tenancy. According to clause (8) of section 4 of the Tenancy Act, " tenancy " means a parcel of land held by a tenant of a landlord under one lease or one set of conditions. It is thus clear that the expression "relinquish his tenancy " in subsection (1) of section 36 means re linquishment of the land which is the subject of the tenancy in his favour. The provisions of subsection (3) of‑ that section also make it abundantly clear that at the end of the year the tenant has actually parted with his posses sion of the tenancy land ; otherwise how could the landlord let it to some other person or cultivate it himself We are, therefore, of the opinion that in the absence of all proof of the material fact that the defendants had actually relinquished the land at any time even for a moment, their mere assertion of title in themselves, howsoever and for how‑long‑so‑ever made, cannot make their possession adverse to the plaintiffs.

In this view of the matter it is unnecessary for us to decide the other question viz. whether over some of the plots in suit the defendants have not held adverse possession continuously for twelve years.

For the foregoing reasons we allow this appeal with costs throughout and, setting aside the judgment and decree of the lower appellate Court, restore the decree of the trial Court.

A. H. Appeal allowed.

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