P L D 1975 Lahore 94 (PLP)

Briefly summarised the facts giving rise to this appeal are these. The suit land measuring 14 marlas has been sold by Habib Ullah, the second respondent, to Allah Rakha, the appellant, for Rs. 1,500.00. Sardar, the first respondent, brought a usual declaratory suit under custom in respect of this transaction against Allah Rakha and Habib Ullah. The suit was decreed by the trial Court and the appellant has remained unsuccess ful in his appeal before the learned District Judge.

2. In this second appeal, the only point raised is that Habib Ullah was an occupancy tenant and he became absolute owner of the land in question only after enforcement of the 1952 Amendment of the Punjab Tenancy Act when occupancy tenancy in the Punjab was extinguished and proprietary rights were ordered to be conferred on tenants in the manner provided in section 114 of the Punjab Tenancy Act, as amended and because of merger of occupancy rights with proprietary rights, the land is not to be treated as ancestral. Learned counsel has relied on the following dictum in Firm Shankar Das Bhagmal v. Labh Singh A I R 1937 Lah. 596. "It is beyond dispute, that only that property can be held to be ancestral in the hands of Mahna Singh qua his son which had devolved on him (Mahna Singh) from his father. It has been found that in the time of Mahna Singh's ancestors, occupancy rights had been created in this land in favour of third parties, and the estate so carved out had passed away from their hands. Therefore, all that devolved on Mahna ', Singh on his father's death was the proprietary rights in the land. At that time occupancy rights were held by third parties, and it was long after his father's death that Mahna Singh had purchased these valuable rights from the tenants for a considerable sum of money belonging to himself. This was clearly his own self-acquisition and the estate so acquired could not possibly be immune from attachment in execu tion of a decree against his estate." Attention has also been invited to Sangat Singh and another v. Ishar Singh and others A I R 1927 Lah. 536(1). The headnote reads: "Where the common ancestor occupied the lands as an occupancy tenant and the rights of the landlord were purchased by the last male holder, the occupancy rights merged in the proprietary rights and the property cannot then be treated to be ancestral property."

3. Both the authorities above support the contention of learned counsel for the appellant. No decision to the contrary has been brought to my notice on behalf of the respondents. In view of this legal position, the ancestral property in the form of occupancy rights having been intermingled with self-acquired acquired property inextricably, Sardar could not have successfully impugned the sale as a reversioner under custom. Atar Singh and others v. Thakar Singh 35 I A 206 is in point.

4. For the reasons above, the appeal succeeds and is allowed. The judgments and decrees of the Courts below are set aside and the suit dismissed. However, in the circumstances of the case, the parties are left to bear their own costs. K. B. A. Appeal allowed.