Judgment

G.N. RAY, J.

(1) THIS appeal is directed against the judgment and decree dated 14/03/1984 passed by the High court of Punjab & Haryana in the Civil Regular Second Appeal No. 319 of 1979. The aforesaid Regular Second Appeal No. 319 of 1979 arose out of Civil Appeal No. 96 of 1978/1975 of the court of Additional District Judge, Gurgaon which arose out of the judgment and decree passed by the Subordinate Judge, First Class, Gurgaon in Civil Suit No. 81 of 1973. The appellant, Sri Chand, was the plaintiff in the said Title Suit No. 81 of 1973 instituted against the respondents being defendant 1 Inder, defendant 2, Smt Bidya, defendant 3, Gram Panchayat of Village Kalwaka, for a declaration in respect of some agricultural lands referred to in the schedule to the plaint or in the alternative a decree for joint possession in respect of the said lands. The plaintiff contended that the suit properties were held by one Shri Narain, maternal grandfather of the plaintiff in occupancy tenancy. The plaintiff is the son of the predeceased daughter of Narain, namely, Sohna and defendant 1 is the husband of the other daughter of Narain, namely, Smt Bidya, defendant 2. It is the case of plaintiff that the said Narain had died some time before 1956 and on his death his widow, Smt Bhagwani, held the said lands in occupancy tenancy and after the death of said Bhagwani some time in 1972, the occupancy tenancy being heritable had devolved on defendant 2 and the plaintiff who are the sole heirs and legal representatives of the deceased Bhagwani. As defendant 2, Bidya and her husband, Inder, defendant 1, had attempted to grab the said property by obtaining a declaration of their occupancy tenancy from the Assistant Collector, Grade I, Palwal, the aforesaid title suit had to be instituted for the declaration and/or for joint possession of the disputed property. Such suit was contested by defendants 1 and 2. Defendant 3, Gram Panchayat, however, did not appear and contest the suit. Defendants 1 and 2 had contended that Narain was only a tenant at will in respect of the disputed property and he had died some time in 1943-44 and on his death tenancy came to an end. Thereafter, the proprietors of the lands had given tenancy to the widow of Narain, namely, Smt Bhagwani on the same terms and conditions. Such fresh tenancy of Bhagwani continued but Bhagwani did not carry on the cultivation and defendants obtained a fresh tenancy from the proprietors during the lifetime of Bhagwani and carried on cultivation in the disputed lands and their rights v/ere recorded in Girdawari Entries in the record of rights (Ex. P-10. As the defendants from the time of their predecessor-in- interest had continued possession of the said lands, they made an application for declaration of occupancy tenancy under the provisions of Punjab Occupancy Tenants (Vesting of Proprietory Rights) Act, 1952 (hereinafter referred to as the Occupancy Tenants Act) before the Assistant Collector, Grade I, Palwal. Such proceeding was contested by the Gram Panchayat but the Assistant Collector held inter alia that the said defendants 1 and 2 having fulfilled all the conditions under Section 5 of the Occupancy Tenants Act, they were entitled to get a declaration of occupancy tenancy rights in respect of the disputed lands. The defendants also contended that the interest of Bhagwani not being that of an occupancy tenant, was not heritable. The defendants also contended that the mother of the plaintiff, Sohna, was not the other daughter of Narain and of Bhagwani and as such there was no question of inheriting the interest of Bhagwani even if any. After a contested hearing the trial court held inter alia that the plaintiff was the daughter of Sohna who was a predeceased daughter of Narain but the tenancy rights of Narain not being heritable, Bhagwani did not inherit such tenancy but she was given a fresh tenancy on the same terms and conditions by the proprietors after Nara