A claim to ownership and a right of cultivation amounts to a claim of occupancy tenancy under Section 5(1)(d) of the Punjab Tenancy Act.

Kapur, J. :- This judgment will dispose of two second appeals, R. S. A. No. 2162 of 1946, Ralla v. The Managing Committee Gurdwara Anandgarh and r. S. A. No. 190 of 1948, The Managing Committee Gurdwara, Anandgarh v. Ralla. In both the appeals the point in controversy is the same.

2. Two suits were brought by the plaintiff, The Managing Committee Gurdwara, Anandgarh against the plaintiff, one for possession of land measuring 53 kanals 3 marlas, khewat No. 3, khatauni No. 348 and other for possession of 41 kanals 10 marlas of land in the same khewat and the same khatauni, but bearing different khasra numbers.

3. Under S. 3, Sikh Gurdwaras Act, a notification dated 12-3-1927, was issued wherein certain rights in regard to these properties were claimed. In regard to these properties the claim was ownership and right of cultivation (malkiat wa haq kasht). It was also claimed that the Gurdwara was a maufidar with regard to these lands. Objections were then put in by certain persons, with regard to ownership by those claiming to be landlords and with regard to occupancy rights by one Chanda Singh, whose objection was that he was the occupancy tenant of the land and had the right to cultivate the same, and the third by certain ragees. Claims with regard to proprietary rights were admitted and were so declared and those of Chanda Singh and the ragees claiming rights of occupancy were dismissed. An appeal to the High Court also failed.

4. The first suit brought by the Managing Committee Gurdwara, Anandgarh, was for possession on the allegation that the Gurdwara had occupancy rights in the land and the defendant had taken forcible possession six or seven years before the suit and he was, therefore, merely a trespasser. The suit was resisted by the defendant on the ground that he was a tenant under the proprietors of the land and that the Gurdwara had no right of occupancy. Plea of limitation was also raised. The only two issues framed in this case were :

1. Is the suit within time ?

2. Is the plaintiff an occupancy tenant of this land and is entitled to eject the defendant ?

5. The trial Judge, Mr. Bhatnagar, held that the plaintiff was the occupancy tenant, but was only entitled to hold the land for cultivation without payment of rent as this was the only right claimed by it under the Sikh Gurdwaras Act and as it was not in possession, the relief claimed by it was not open to it. Against this decree the plaintiff took an appeal to the learned District Judge, who reversed the finding and held that the claim of the plaintiff in the notification was not merely to a right of cultivation, but was to a right of occupancy in the land and that it was this, which was being litigated before the Sikh Gurdwaras Tribunal, and as Chanda Singh had failed, the right of the Gurdwara to occupancy rights should be taken to have been decided in favour of the plaintiff. On this ground he allowed the appeal and decreed the plaintiffs suit.

6. In the other suit the plaintiffs suit was as a maufidar and occupancy tenant of the land in dispute, on the ground that it had been so held by the Tribunal. The defendant, Ralla, denied the claim and also that no such declaration had been given by the Tribunal. He pleaded that he was a tenant-at-will under the proprietors, and, therefore, ho could not be ejected by the plaintiff. In short his defence was not different in this case from what it was in the other. The learned trial Judge in this case held : (1) that the Tribunal had not decided that the plaintiff was occupancy tenant of the land ; (2) that the Gurdwara did not claim any such right in the notification and (3) that the Tribunal did not make any reservation in favour of the plaintiff regarding occupancy rights. He also held that the suit was barred by time. Against this decree the plaintiff went up in appeal to the Senior Subordinate Judge who confirmed the judgment of the trial Judge.

7. The points for decision in both the appeals are what was the claim m