RIGHT OF OCCUPANCY UNDER PUNJAB TENANCY ACT, 1887.

A PROJECT SUBMITTED TO:

ARMY INSTITUTE OF LAW, MOHALI.

BY

ABHIDHA GUPTA (1868)

UNDER THE GUIDANCE OF MS. UPAGAYA SHARMA

LAW OF CRIMES- I

IN PARTIAL FULFILLMENT OF THE REQUIREMENT FOR

THE AWARD OF DEGREE OF B.A. LL.B.

PUNJABI UNIVERSITY, PATIALA, PUNJAB.

SUBMISSION YEAR: AUGUST- DECEMBER 2022.

 DECLARATION

It is certified that the project work presented in this report entitled “RIGHT OF OCCUPANCY
UNDER PUNJAB TENANCY ACT, 1887.” embodies the results of original research work
carried out by me. All the ideas and references have been duly acknowledged.

Date of Submission: 14th October 2022. Name:Abhidha

Roll No.: 1868

 ACKNOWLEDGEMENTS

I would like to thank my teacher Ms. Upagaya Sharma for giving me this opportunity of making
this project. I would also like to thank my college Army Institute of Law, Mohali for providing
me with the resources to carry out the research and make this project. I would like to extend my
grateful attitude towards my parents, friends and family for their continuous support. Last but not
the least I thank the Almighty for all his blessings.

Name: Abhidha Gupta

Roll No.: 1868

 PUNJAB TENANCY ACT, 1887

Object:

The issue of tenant rights in Punjab by express legislation was the outcome of controversy
carried on for several years. On one hand, some officers found no legal authority for conceding
special privileges to one class of tenants as compared to other class.

They therefore, refused to recognise any complete fixity of tenure connected with the mere
cultivation of soil.

On the other hand, some officers were unable to exclude from their consideration the
immemorial custom which different parts of the Punjab was found to treat some class of men
more favoured who had helped to find the village and to clear the waste, or who, in the ups and
downs of fortune, had once been full proprietors or revenue assignees, but now had fallen to an
inferior position.

Both parties, however, were agreed that mere length of possession had never been held to confer
an absolute right to permanency of occupation.

In 1868, the Indian Legislature passed an enactment which largely favoured the second set of
views and this first installment of legislation afforded a timely relief too many thousands of
agriculturists who would otherwise have been placed at the mercy of greedy proprietors, who
just wanted to improve their own income by reducing their tenants to mere tenants-at-will status
and making them liable to eviction whenever it suited their purpose to exercise their power of
ejectment.

The new legislation provided fixed occupation periods to certain classes of tenants who were
entitled to such consideration with reference to the custom of the country.

The result was the Punjab tenancy Act, 1887 that is Act XVI of 1887.

The new act erased and improved the defects in the old Act. The Act is not an exhaustive Act as
the preamble states that this act has been defined with the “view of defining amending the law
relating to certain matters connected with tenancy of land in Punjab.” The Act is also not a
consolidating Act.

The Act no. 16 of 1887 was enacted “to amend the law relating to the tenancy of land in the
Punjab. “WHEREAS it is expedient to amend the law relating to the tenancy of land in the
Punjab”. It is therefore, clear that with regard to matters which are not specifically provided in
the Act, the general principles of law of landlord and tenant are still in force. But if a particular
matter is covered by a Specific provision of an Act, it must be taken so far as that matter is
concerned, the Act is an exhaustive one and should not go beyond it for the purpose of deciding
any question, which may rise in connection to the said matter.
The Act has been enacted to regulate the relationship between landlord and tenant. It has nothing
to do with the rights of reversioner which were governed by the rules of inheritance based on the
personal law of the parties or the on the customary law.

Application:

The Act came into force in 1st November, 1887, is applicable to Haryana despite having been
divided from Punjab by virtue of Section 88 State Reorganisation Act, 1966 that all the laws
enforced in the State of Punjab before its division that is 1st November. 1966 shall continue to be
in force in the State of Haryana until replaced by competent legislatures or other competent
authority of the respective States.

In totality, on the bare perusal of the Act is considered, the same is divided into 8 chapters, each
chapter dealing with a specific aspect of the tenancy.
 RIGHT OF OCCUPANCY: GENERAL CONCEPTS

The right of occupancy tenant has been created by following essential conditions. The tenant
having a right of tenancy when he stays for more than two generations in the male
descendant or when he occupies the land for not less than twenty five years or by occupying
the land by paying rent and such other payments beyond the value of land revenue at the time
of commencement of this Act even if he is a Jagirdar.

The tenant having right of tenancy even when he was forfeited from being owner of his own
land by the Government or settled in a village or estate as a cultivator or who are having the
right of tenancy by way of having the records as tenant in the record of rights before
incorporation of this Act or in such other ways and means the tenant shall prove his rights of
occupancies.

The primary rights of the Landlord are to collect the rent from the tenants. In order to pay the
rent the tenants are allowed to harvest for irrigation in due course of his husbandry without
interference not only that he is provided with the exclusive possession of his produce until it
is divided, etc.

There may be any alterations in commutation of rent by way of distribution or appraisement

of the produce, by fixation of rent based on the cultivation of the crops, by the measurement
of area that has been recognized or by way of collecting the rent on gross tenancy or in such
other way as it deems fit to collect the rent. In case of any tenant occupying the land without
the permission of the landlord, he shall pay his rent based on his agricultural activities or in
any such mode or he shall be liable to pay the rent based on the order of the Court in a fair
and equitable way.

In case of two or more landlords, the tenant shall not be liable to pay the rent in parts to each
of them. In case if the tenant removes any portion of his produce in order to avoid
distribution or appraisement by the landlord in violation of this Act, the rent shall be
collected in such a manner as that of cultivation made in a similar land of neighbours. In case
if any of the party fails to attend the appraisement of the produce, then such referee shall be
appointed by the Revenue Officer on application to make such functions to appraise the
produce for payment of rent. Before the appraisement of the produce of the tenant, the
Revenue Officer shall give such notice with regard to the appointment of the referee and
appraisement as being exparte by either of the landlord or the tenant.

The Revenue Officer after receiving the appraisement record from the referee, he scrutinize
the records and shall Order to confirm the divisions and appraisement. The Revenue Court in
case of any dispute shall either enhance or reduce the payment of rent on his occupancy as
tenant. Such rent fixed shall not in any way less than the land revenue as per the provisions
of this Act. Every tenant shall be liable to pay rent in excess to which he occupy and produce
higher than the land revenue and in order to collect the rent the Revenue Officer shall
investigate and conduct the inquiry as it deems fit and in some cases if any dispute arises the
concern Court shall pass such Order or direct the Revenue Officer, landlord or the tenant
depending upon the case in pursuance to the payment of rent in a fair and equitable manner
after proper scrutiny of the land, situation and case.

In certain cases the rent shall be deposited to the Revenue Officer instead of landowner. In
case if the tenant fails to pay rent, then his produce shall be attached or any Officer shall be
appointed to investigate his produce in pursuance to the tenant’s eligibility to pay rent. In
case of tenancy occupancy, the competent authority shall pass such order to relinquish or
abandoned and ejectment of his tenancy either with or without notice to the tenants as
specified under the provisions of this Act. No suit shall be instituted against any Officers
appointed under the provisions of this Act in case of any activities done in pursuance to this
Act.

Section 5.

TENANTS HAVING RIGHT OF OCCUPANCY.–

(1) A tenant–

(a) who at the commencement of this Act has, for more than two generations in the male line
of descent through a grandfather or grand uncle and for a period of not less than twenty
years, been occupying land paying no rent therefore beyond the amount of the land revenue
thereof and the rates and cesses for the time being chargeable thereon, or

(b) who having owned land, and having ceased to be land-owner thereof otherwise than by
forfeiture to the Government or than by any voluntary act, has, since he ceased to be land-
owner, continuously occupied the land, or

(c) who, in a village or estate in which he settled along with, or was settled by, the founder
thereof as a cultivator therein, occupied land on the twenty-first day of October, 1868, and
has continuously occupied the land since that date, or

(d) who, being Jagirdar of the estate or any part of the estate in which the land occupied by
him is situate, has continuously occupied the land for not less than twenty years, or having
been such Jagirdar, occupied the land while he was Jagirdar and has continuously occupied it
for not less than twenty years,

has a right of occupancy in the land so occupied, unless, in the case of a tenant belonging to
the class specified in clause (c), the land-lord proves that the tenant was settled on land
previously cleared and brought under cultivation by, or at the expense of, the founder.

(2) If a tenant proves that he has continuously occupied land for thirty years and paid no rent
therefor beyond the amount of the land revenue thereof and the rates and cesses for the time
 being chargeable thereon, it may be presumed that he has fulfilled the conditions of clause (a)
of sub-section (1).

(3) The words in that clause denoting natural relationship denote also relationship by
adoption, including therein the customary appointment of an heir and relationship, by the
usage of a religious community.

CLASSES OF OCCUPANCY TENANTS

1) Tenants under Section 5(1) (a)

2) Tenants under Section 5(1) (b), (c) and (d)
3) Tenants under Section 6 and 8
I Category

Hence, in order to fall in the first category, it is required that the tenant must be on 1 st
November, 1887:

a) In occupation of the land for more than two generations in the male line descent through
a grandfather or granduncle
b) Occupation of the land should not be less than twenty years
c) No more rent is paid than that of the land revenue required.
In the case of Lal Chand v UOI1, it was held that according Section 5(1) (a) of the Act a
tenant who at the commencement of this Act should have occupied the land for more than
two generations in the male line of descent for at least 20 years or been occupying land
paying no rent beyond land revenue chargeable at that time and should have been occupying
the land since 1st November, 1868, enjoys occupancy rights.

II Category

Occupancy right of the second class includes every tenant:

1) who having owned land, and having ceased to be land-owner thereof otherwise than by
forfeiture to the Government or than by any voluntary act, has, since he ceased to be
land-owner, continuously occupied the land,
The following are the necessary ingredients to fall under this class:
a) The tenant should earlier be the owner of the land
b) He ceased to be the land owner
c) Such cessation should not be either forfeiture by the government or by his voluntary
acts
d) Despite his cessation of status as proprietor, he continues to cultivate the land

1
2001 (3) RCR (Civil) 309 FCH
 2) who, in a village or estate in which he settled along with, or was settled by, the founder
thereof as a cultivator therein, occupied land on the twenty-first day of October, 1868,
and has continuously occupied the land since that date.
3) Same as the bare provision
Occupancy Right of the third class:

It is necessary to show that:

a) Any tenant entered in a record in a record of rights sanction by local government before
passing of Act XXVIII of 1868, as a tenant having a right of occupancy in land
b) At the time of the preparation of the record, he has been in occupation of such land.
This may be negated by landlord by decree of competent court in a suit instituted before
passing of Act of 1887 and has been declared not to be entitled to such a right.

II

Any tenant can establish a right to occupancy on any ground other than those described in
section 5 and 6 (section 8)

In the case of Khairati v Mannu Khan,2 describes ways in which right of occupancy maybe
acquired:

a) the right has been generally or customarily or by the act of proprietors conceded to other
tenants similarly circumstanced in the same neighbourhood
b) the recognition of the right would be in accordance with the custom of the country
c) there has been a promise never to eject
d) the right would exist but for a palpable error in the settlement records
Section 6. Right of occupancy of other tenants recorded as having the right before
passing of Punjab Tenancy Act, 1868.

A tenant recorded in a record-of-rights sanctioned by the 26[Provincial Government], before

the twenty-first day of October, 1868, as a tenant having a right of occupancy in land which
he has continuously occupied from the time of the preparation of that record, shall be deemed
to have a right of occupancy in that land unless the contrary has been established by a decree
of a competent Court in a suit instituted before the passing of this Act.

Section 7. Right of occupancy in land taken in exchange.

2
43 PLR 1900
If the tenant has voluntarily exchanged the land, or any portion of the land, formerly
occupied by him for other land belonging to the same land-lord, the land taken in exchange
shall be held to be subject to the same right of occupancy as that to which the land given in
exchange would have been subject if the exchange had not taken place

Section 8. Establishment of right of occupancy on grounds other than those expressly

stated in Act.

Nothing in the foregoing sections of this Chapter shall preclude any person from establishing
a right of occupancy on any ground other than the grounds specified in those sections.

Section 9. Right of occupancy not to be acquired by mere lapse of time.

No tenant shall acquire a right of occupancy by mere lapse of time.

Section 10. Right of occupancy not to be acquired by joint owner in land held in joint
ownership.

In the absence of a custom to the contrary, no one of several joint owners of land shall
acquire a right of occupancy under this Chapter in land jointly owned by them. This section
is based on the well-known principle that the possession of one co-owner is the possession of
all.

Section 11. Continuance of existing occupancy rights.

Notwithstanding anything in the foregoing sections of this Chapter, a tenant who

immediately before the commencement of this Act has a right of occupancy in any land
under an enactment specified in any line of the first column of the following table shall,
when this Act comes into force, be held to have, for all the purposes of this Act, a right of
occupancy in that land under the enactment specified in the same line of the second column
of the table.

This means that the existing occupancy shall continue for a tenant who has obtained
occupancy status under Act of 1868, under the new Act as well.
 CONCLUSION

There are certain provisions which speak about forfeiture of mortgage of right of occupancy, sale
on execution of Decree, transfer of rights to occupancy, succession and such other relevant
provisions which is done in pursuance to this Act as prescribed. There were several provisions in
related to the improvement made by the tenant and landlord in pursuance to the reduction and
enhancement of rent.

The occupancy tenant who in case made any improvement made in the land shall be entitled to
get compensation that is determined by the Revenue Officer or in case of dispute; the Revenue
Court shall decide the amount of compensation. The Revenue Officer or the Revenue Courts
shall perform their functions based on their jurisdictions and rules made under the provisions of
this Act. The Finance Commissioner shall act as a superintendence and controller over the
Revenue Officer and Revenue Courts in matter prescribed under this Act. This Finance
Commissioner shall act in pursuance to this Act. Appeal shall lie to all or any such Order passed
by the competent authority. The Procedure that is followed either civil nature or Criminal nature
with the help of the Limitation Acts and Evidence Act and such other Acts that deems necessary
to perform in pursuance to this act.