The conversion of a sale of occupancy rights into a mortgage, pursuant to a declaratory decree, does not affect the reversioners' rights to redeem the land on the death of the alienor, and the vesting of proprietary rights in the alienee under the Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act, 1953 does not nullify the declaratory decree.

PREM CHAND JAIN, J.

1. In order to appreciate the controversy, certain salient features of the case may be noticed : -

One Vakilo was the last male owner of land measuring 163 Kanals. He sold his occupancy rights on 7th July, 1934, in respect of the said land for a consideration of Rs. 2,900.00 through a registered sale-deed to Lachhman Dass father of Ram Parkash respondent No. 1 and Mehar Chand, predecessor-in-interest of respondents Nos. 2 to 5. Rattan Chand, plaintiff-appellant, who was minor at that time, filed a declaratory suit, challenging the sale made by his father, on the pleas that the land was ancestral and the sale was not for legal necessity. The suit was decreed by the trial Court on 17th October, 1945, and the alienation was held to be not binding on the decendants of Vakilo, after his death. Lachhrnan Dass, Vendee, preferred an appeal, which was accepted to this extent that the sale of the occupancy rights was converted into mortgage, which was made to become operative on the death of Vakilo, whereafter Rattan Singh or the legal reversioners would be entitled to redeem the mortgage on payment of Rs. 2,900.00 . This decree passed by the Appellate Court became final as the matter was not carried any further. Vakilo died on 19th January, 1977, with the result Rattan Singh and Puran Singh sons of Vakilo filed a suit for possession by way of redemption of the land in dispute. The suit was contested by the respondents. One of the pleas raised by the respondents with which we are concerned in this appeal is that Lachhman Das who had purchased the occupancy rights had become the owner of the suit land during the life time of Vakilo by virtue of the Punjab Occupancy Tehants (Vesting of Proprietary Rights) Act, 1953 (hereinafter referred to as the Act) and as such the plaintiffs appellants were not entitled to any relief, as the rights sold by their father to Lachhman Dass had ceased to exist. On consideration of the entire matter, the trial Court decided this point in favour of the defendants-respondents and it was held that by operation of law the respondents had become the owners of the land in dispute. Consequently, the suit of the plaintiffs was dismissed.

2. Feeling aggrieved from the judgment and decree of the trial Court, the plaintiffs preferred an appeal, but did not succeed. Still dissatisfied, the present appeal has been preferred by the plaintiffs.

3. On 27th January, 1982, the appeal came up for motion hearing before a learned single Judge of this Court, who admitted the same to hearing by a Division Bench. Thereafter, the appeal came up for hearing before a Division Bench. As is evident from the referring order, the Bench found that there was a conflict between the two Division Bench judgments of this Court in Jiwan Singh V/s. Ram Kishan, (1966) 68 Pun LR 626 and Khushi Ram V/s. Jaswant Rai, (1966) 68 Pun LR 922, and found that the controversy deserved to be resolved by a larger Bench. Consequently, the matter was referred for decision by a larger Bench and that is how we are seized of the matter.

4. The only point that needs determination in this case is whether Lachhman Dass in whose favour Vakilo had sold the occupancy rights had become the owner of the land by operation of law. It was contended by Mr. Sarin, learned counsel for the appellant that as the sale in favour of Lachhman Dass had been converted into a mortgage, Lachhman Dass could not become the owner of the land in dispute in view of the provisions of Section 3 of the Act. It was further submitted by the learned counsel that the sale of the occupancy rights was held to be not binding on the reversioners, that Lachhman Dass during the lifetime of Vakilo could only enjoy the usufruct of the land in dispute, that Lachhman Dass could not be treated as an occupancy tenant of the land in dispute and that he could not by operation of law be deemed to have become the owner of the land in dispute. In the alternative it was submitted by the le