RSA No. 1845 of 2005 (1) IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 1845 of 2005 Date of Decision: 9.7.2009 Samsher and another ......Appellants Versus Smt. Chiriya and others .......Respondents CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA. 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Shri J.P. Sharma, Advocate, for the appellants. Shri Kulbhushan, Advocate, for the respondents. HEMANT GUPTA, J. (Oral). The plaintiffs are in second appeal aggrieved against the judgment and decree passed by the learned first Appellate Court, whereby the suit for declaration in respect of the inheritance of tenancy rights of Ismile, was dismissed in appeal. One Karim Baksh, was a tenant over the land in dispute. He had three sons, Ali Baksh; Ismile and Kurda. Ismile had two daughters i.e. defendants and a son. The plaintiffs are the grand sons of Ali Baksh. The son of Ismile has migrated to Pakistan on partition of the country, whereas two daughters of Ismile i.e., the present defendants continued to stay in India. The plaintiffs have sought declaration that the tenancy rights vesting with Ismile stand inherited by the plaintiffs as his daughters do not have any RSA No. 1845 of 2005 (2) right to inherit tenancy rights under Section 59 of the Punjab Tenancy Act, 1887. The learned first Appellate Court has taken into consideration Section 59 of the Punjab Tenancy Act, 1887 and Section 8(b) of the Punjab Security of Land Tenures Act, 1953. Section 8(b) of Punjab Security of Land Tenures Act, 1953 contemplates that the continuing of the tenancy shall not be affected by death of tenant, except when the tenant leaves no male lineal descendant, mother or widow. Section 59 of the Punjab Tenancy Act, 1887 is in respect of succession of right of occupancy tenant. Sub section (a) of Section 59 of the said Act, contemplates that when a tenant having a right of occupancy in land dies, the right shall devolve upon his male lineal descendants. The right of occupancy is provided in Sections 5 and 8 of the Punjab Tenancy Act, 1887. It contemplates that a tenant who at the commencement of the Act has for more than two generations in the male line of descent through a grandfather or grand-uncle and for not less than twenty years been occupying land, paying no rent therefor beyond the amount of the land revenue thereof, has a right of occupancy. There is no evidence of occupancy tenancy right with the plaintiffs in terms of Section 5 of the Punjab Tenancy Act, 1887. In the absence of occupancy tenancy right, as defined under Sections 5 of the Punjab Tenancy Act, 1887, Section 59 of the said Act, would not be applicable. Even otherwise, the appellants are not the male lineal descendants of Ismile. Therefore, the tenancy rights cannot be inherited by them even under the Punjab Security of Land Tenures Act, 1953, which is a special and later statute. The continuing of the tenancy is not affected by the death of tenant, except when the tenant leaves no male lineal descendants. RSA No. 1845 of 2005 (3) Though Ismile has a male lineal descendant, but even if such descendant is not living in India, the tenancy rights will not devolve upon the appellants. Consequently, I do not find any patent illegality or material irregularity in the finding recorded or that the finding recorded gives rise to any substantial question of law in the present second appeal. Hence, the present appeal is dismissed. (HEMANT GUPTA) JUDGE 09-07-2009 ds