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Civil Regular Second Appeal No. 163 of 1955, decided on 23rd June 1958, from the decree of the Court of Muhammad Akbar, District Judge, Attock at Campbellpur, dated the 29th January 1955.

(a) Punjab Tenancy Act (XVI of 1887), Ss. 38 & 59‑Several co‑sharers, joint tenants under one landlord‑Tenancy constitutes one joint tenancy‑Such tenancy cannot be extinguished in part.

As against the landlord all co‑sharers in the tenancy constitute one tenant. The shares of the tenants inter se are no concern of the landlord and as against him each tenant, though he be the holder of 1/100th share, is entitled to the possession of the whole of the tenancy. A tenancy cannot be extinguished in part. If the rights of a co‑sharer in the tenancy, who holds any part whatsoever of the tenancy right had not been extinguished, the tenancy sub sisted as against the landlord.

Moti Lal v. tartar Singh A I R 1930 Lah. S 515 rel.

(b) Civil Procedure Code (V of 1908), Order XL, r. 22 ---- Second appeal‑‑Respondent can show that certain findings of facts given against him by lower Appellate Court are not correct, even though he has not appealed against order of lower Appellate Court Principles of S. 100, Civil Procedure Code (V of 1908), not applicable in such case.

Mhand and two others v. Mst. Amautul Hafeez and others P L D 1954 Lah. 278 foll.

Fateh Chand and others v. Kirpa Singh and others 48 P R 1912 and Ma Lon and another v. Ma Mya May A I R 1939 Rang. 59 rel.

(c) Punjab Tenancy Act (XVI of 1887), S. 38‑Tenant being woman noz sufficient cause for not cultivating land‑Old age and infirmity may be reason for not arranging cultivation for short period only.

(d) Punjab Tenancy Act (XVI of 1887), S. 38‑Handing over of land to landlord for future cultivation, amounts to abandon ment by tenant.

M. Muhammad Shafi for Appellant.

Zia Ullah for Respondents.

Dates of hearing : 13th March 1958, 15th April 1958, 16th April 1958, 5th May 1958, 5th June 1958 and 6th June 1958.

This appeal arises out of the suit filed by the plaintiffs appellants, who were the previous occupancy tenants of the land in dispute and on the 29th of January 1952 on account of an amendment in the Punjab Tenancy Act had become owners of a part of that land. The suit was for possession of 3/5th of the total area of 141 kanals and JO marlas of land which constituted the occupancy tenancy. According to section 114 of the Tenancy Act, the ownership of land held in occupancy right was to be divided between the landlord and the tenant, in the case of produce rent, in accordance with the shares which the landlord and tenant had in the produce. In this case the landlords were entitled to 2/5th of the produce and the tenant would, therefore, become entitled to 3/5th of the ownership. The plaintiffs claimed possession of 3/5th of the land in dispute on the basis of ownership so conferred. The contention of the defendant landlords, which found favour in both the Courts, is, that the plaintiffs had abandoned the land and under section 38 of the Tenancy Act their rights as tenants stood extinguished on the 29th of January 1952. However, both the Courts have held that there was sufficient cause for failure to cultivate in the case of Mst. Mehr Nishan and Mst. Fazal Nishan, two of the plaintiffs, who were together entitled to 2/9th of 84 kanals and 18 marlas. The suit was, therefore, decreed to the extent of this share. This is a second appeal by the plaintiffs, the defendants having not appealed against the appellate decree.

2. Out of the occupancy tenants, there were three, who were in cultivating possession of the land, i.e., Faqir Muhammad, Nur Muhammad and Fazal Ilahi, all brothers and ‑ sons of Ahmad. Faqir Muhammad became employed in the Army in the year 1941 And the land was then cultivated by Nur Muhammad and Fazal Ilahi. Fazal 1lahi died in the year 1943 and the cultivation was continued by Nur Muhammad. In 1946 Nur Muhammad became too ill to carry on. According to the case of the plaintiffs the land was then cultivated by one Bahadur as a tenant under. them. The contention of the defendant land lords was that Bahadur was a tenant under them. They had at the same time pleaded that they had been in possession of the land for about 14 or 15 years. Both the Courts below found that entries in the revenue records relating to this land had been tampered with and both of them decided on the basis of oral evidence which was available that Bahadur had been a tenant under the landlords. They ignored the revenue entries altogether on the ground that they were tampered with and it was not possible to say who was responsible for the tampering. I was not satisfied with these judgments inasmuch as that they had altoge ther ignored the revenue records arid I was of the opinion that a good deal of help could be derived from that part of the records which was genuine in arriving at a finding as to who had been in possession of the land in dispute. I sent for the jamabandis and khasra girdawaris and examined them myself carefully. While everything on the record pointed to the conclusion that it was the defendants or some of the defendants who had tampered with the record, it became clear that this tampering was only by the insertion of "khud kashat Muhabbat Khan" and that even if this entry was disregarded, the record would establish that the land in dispute had been during the disputed period, not in possession of the plaintiffs but in that of the defendants. Three of the khasra numbers in dispute were admittedly in possession of Jahandad and others who were shown as tenants under the land lords. Bahadur was himself the tenant of landlords for some other land of the landlords besides a part of the land in dispute and the revenue entries did not show that he was paying any rent to the occupancy tenants. I am speaking of those entries about whose genuineness there is no dispute. It appears to me that the interpolation in the record was made only in order to prove the plea of "khud kasht" which in fact was wholly unnecessary. I am satisfied that the finding of both the Courts that the land was cultivated by tenants under the defendants is correct.

3. This, however, would not conclude the appeal. Both the lower Courts found that on the 29th of January 1952, the day when the Punjab Tenancy (Amendment) Act came into force, rights of those who were co‑sharers in the tenancy to the extent of 2/9th had not been extinguished, and yet they held that the tenancy right with respect to shares of others had been extinguished. Both the Courts have 'failed to realize that as against the landlord all co‑sharers in the tenancy constitute one tenant. The shares of the tenants inter se are no concern of the landlord and as against him each tenant, though he be the holder of 1/100th share, is entitled to the possession of the whole of the tenancy. A tenancy cannot be extinguished in part. If the rights of a co‑sharer in the tenancy, who holds any part whatsoever of the tenancy right had not been extinguished, the tenancy subsisted as against the landlord. This proposition, which is a well settled one, was accepted by a Full Bench of the Lahore High Court in Moti Lai v. Kartar Singh (A I R 1930 Lah. 515). In that case one of the co-sharers of the tenancy had died without leaving any heir so that, in accordance with section 59 of the Tenancy Act, the right of that co‑sharer lapsed to the landlord. It was held, however, that a part of the tenancy right could not be extinguished and in spite of the provisions of section 59, relating to lapse to the landlord, the whole of .the tenancy would subsist for as against the landlord because each co‑sharer in a tenancy has a right to the whole. The principle of that judgment is fully applicable to the present case.

4. The lower Courts, therefore, had gone wrong in dismissing part of the suit or rather the major portion of it, in spite of the finding that the rights of some co‑sharers in tenancy had not been extinguished and, if there was nothing further to be said in the matter this appeal would be accepted and the suit decreed. Learned counsel for the respondents contends, however, that thoughts they have not appealed from the decree they are entitled to contest the finding of the learned District Judge that as regards two of the plaintiffs there had been no abandonment of the tenancy. It is true that this plea is not consistent with the decree which the learned District Judge has passed and against which two respondents have not appealed. But the fact that they have not appealed does not debar them from contesting the finding on which that decree is based. This has been held in Ahmadd and two others v. Mst. Amautul Hafeez and others (P L D 1954 Lah. 278 ), which is a Full Bench judgment and settles the law so far as this Court is concerned.

5. There would seem to be another hurdle in the way of the respondents for taking this plea, but that too is only apparent. The finding of the learned District Judge on the question of abandonment is, according to learned counsel for the appellants, a finding of fact which is not liable to be attacked in second appeal. This contention is without force. There is only section 100, C. P. C., which debars an appellant from agitating a question of fact for he is confined by the words of that section to an appeal on questions of law only There is no provision which debars a respondent from challenging a finding of fact in second appeal. On the other hand Order XLI, rule 22, C. P. C., expressly allows tile respondent to "support the decree on any of the grounds decided against him in the Court below". There is no limitation provided here as to any question of fact. Order XLI, rule 22 applies mutatus mutandis to second appeals also by virtue of Order XLII, rule 1, C. P. C., and if the intention were that the respondent should not be permitted to agitate questions of fact in second appeal, it should have contained a proviso to that effect. In any case there is no provision debarring the respondents from agitating the questions of fact as there is in the case of the appellants. I may also refer to two cases where it has been held that the respondent is not debarred from agitating a question of fact in second appeal. They are Fateh Chand and others v. Kirpa Singh and others (48 P R 1912) and Ma Lon and another v. Ma Mya May (A I R 1939 Rang. 59).

6. I have, therefore, to consider myself whether there was an abandonment of tenancy rights within the meaning of section 38 of the Tenancy Act even in the case of Mst. Fazal Nishan and Mst. Mehr Nishan. My finding on this point is against the appel lants. Mst. Fazal Nishan is the widow of Fazal Ilahi who died in 1943. Up to the year 1946 when Nur Muhammad was cultivating the land she need not have made any arrangement but after that there is no excuse for her for not arranging for cultivation of the land. It is impossible to accept the argument that her being a woman is by itself a sufficient cause within the meaning of section 38 of the Tenancy Act for not cultivating or arranging for cultivation of the land. The Legislature may as well have said that section 38 would not apply to female tenants if being a female was sufficient cause. A female tenant though she may be unable to cultivate the land herself is quite capable of arranging for cultivation. Learned counsel for the appellants have relied upon Lakha v. Thakar Dial and another (2 p R 1901 (Rev)), but that was a case of a minor whose guardian had handed over the cultivation to the landlord and the principle of that case cannot be applicable to the present case. The other co-sharer, whose share has been held not to have been extinguished, is Mst. Mehr Nishan who is the daughter of Nur Muhammad. Nur Muhammad had died during the pendency of this suit. The reason for holding that there was sufficient cause for not cultivating in his case was that he had become old and infirm in 1946. Old age and infirmity may be a reason for excusing failure to cultivate or arrange for cultivation for a short period but cannot be a sufficient cause for failure to arrange for cultivation for about six years.

The case of an old and infirm person is similar to that of a female. It is nobody's case that Nur Muhammad was so ill that he was not capable of arranging for cultivation. There was some suggestion on the file that Muhabbat Khan landlord was a zabardast person but no plea was put forward that he had forcibly taken possession of the tenancy. The plaintiffs' claim was that they had been in possession which was found to be untrue. What appears to have happened is that in 1946 the only persons who were taking some interest in the tenancy became debarred for one reason or the other from personally cultivating it. Faqir Muhammad had gone to the Army, Fazal Ilabi had died and Nur Muhammad became incapable of physical effort. The cultiva tion of the land was then arranged by the landlord himself. It does not appear that the land was yielding much for there are other male co‑sharers in the tenancy, all belonging to the same village, who have not taken any interest in the cultivation. It is not contended that they were prevented by the landlord from cultivating the land. Sometimes in 1946 the tenants appear to have given up connection with the cultivation of this land and it is only when the Tenancy Act was amended and the tenants were granted ownership rights that they chose to make a claim.

7. One more argument remains to be noticed. It was contended on behalf of the appellants that section 38 should apply only in a case where the landlord suffered some loss and as the landlord had throughout been in possession and had been in receipt of rent, he was not in any way affected. On this interpretation, if the landlord remained either in cultivating possession of the tenancy or in its possession through tenants even for a century and the tenant had no connection whatsoever with the cultivation of the land, there would be no abandonment and no extinction of the occupancy right. It is not possible for me to accept this interpretation for which there is no support either in the wording of section 38 or in the general principles regulating the relationship of landlord and tenant. If the tenant hands over the tenancy to the. landlord, to whom is shifted the future responsibility of its cultivation, .that would be a clear case of abandonment by the h tenant. Section 38 does not provide that loss is a requisite of extinction of occupancy right.

8. The result, therefore, is that on account of my disagreement with the finding or the learned District Judge as to abandonment I have, to reject the plea that the suit of the other plaintiffs should also decreed on the ground that the right of some co‑sharers has‑ been established. This appeal is, therefore, dismissed. The parties are left to bear their own costs throughout.

K.M.A. Appeal dismissed.

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