ALLAH DITTA Versus BAGH ALI

The dispute relates to one-half share in the land measuring 9 kanals, bearing Khasra Nos. 103, 107, 108 and 141, situated at village Narali Kaswal, Tehsil Gujar Khan, District Rawalpindi.

2. The appellant Allah Ditta instituted a civil suit for joint possession of one-half share in the land mentioned above on the ground that he was owner of the said share alongwith respondents 1 to 9. Defendant No. 1, Murad Ali, accepted his claim in toto while defendants Nos. 4 to 6 and legal representatives of defendant No. 9 contested his right in the property in question. The following issues were framed on the basis of the pleadings of the parties:-

(1) Is not the plaintiff's suit within time ? O. D.

(2) Is the plaintiff estopped from bringing this suit by his conduct ? O. D.

(3) Does a previous decision in respect of the land in suit operate as res judicata ? O. D.

(4) Is the plaintiff one of the owners of the land in suit ? O. P.

(5) If issue No. 4 is not proved, was the plaintiff an occupancy tenant of the land in suit and had abandoned his rights of occupancy tenancy ? O. D.

(6) Are the defendants entitled to any compensatory costs under section 35-A of the C. P. C.? O. D.

(7) Relief.

The learned trial Court decided all the issues in favour of the appellant and decreed his suit, but the learned District Judge in appeal, preferred by defendants Nos. 4 to 8 and legal representatives of defendant No. 9 set aside the judgment and decree passed by the learned trial Court in favour of the appellant on issues Nos. 1, 2, 4 and 5 and thus dismissed the suit.

3. The main question to be seen in this case is as to whether the appellant ever abandoned his occupancy rights by not cultivating his land for more than one year, without sufficient cause, either himself or through some other person and has failed to arrange for payment of the rent thereof. The case of the defendants as put forth in the written statement was that the appellant though occupancy tenant had abandoned his rights after the death of his father some 40 years ago and thereafter he had nothing to do with the land in question. It was further contended that he bought a suit under section 50 of Tenancy Act before the Revenue Authority in regard to a portion of the land which was in his occupancy tenancy, in 1937, which was dismissed. In the said suit it was contended by the contesting defendants that the appellant had abandoned his occupancy rights and, as such, his occupancy tenancy had been extinguished. The case of the appellant in his plaint as well as in the replication in reply to the points raised by the contesting defendants in their written statement was that he as well as defendants had been in joint possession of the land and since he had gone out of the village on account of his service matter, therefore, the defendants were cultivating the land on his behalf and had been paying him his share as well.

4. The present suit, filed by the appellant, was the result of mutation No. 243 vide Jamabandi for the year 1955-56 whereby the appellant has been shown owner of one-half share of the land, described above, on account of the newly added provision of section 114 of the Tenancy Act vide by Punjab Act VII of 1952, whereby the occupancy rights were extin guished and the occupancy tenants, who at the time of coming into force of the aforesaid amendment Act were in occupation of any land became owners thereof. The case of the appellant falls under subsection (2) (b) of section 114 of the Act, which lays down that an occupancy tenant shall become owner of s,rch portion of the land comprised in his tenancy without payment of any compensation as corresponds to his share of the produce. After the said mutation was effected in favour of appellant he submitted an application before the Tehsildar, Gujar Khan, for the partition of his share. His right in the property was, however, denied by the defendants 1 to 6 and 9, and, as such, the Revenue Authority concerned held that he had no jurisdiction to decide the matter and directed the appellant to take possession of the land according to his share through the civil Court.

5. The relevant revenue record, jamabandis for the years 1919-20 to 1951-52 (Exhs. D. 1 to D. 10), produced by the defendants, show that Dheru son of Noor Ahmad, who was father of the appellant, was shown as occupancy tenant in the year 1919-20 up to 1923-24 while the appellant has been shown to be the occupancy tenant from 1927-23 up to 1951-52. It is correct that portions of the land have been shown to be in the cultivation of some of the defendants, but the fact that the appellant has always been shown to be the occupancy tenant has not been denied nor any relevant order or document has been produced on record to show that the occupancy rights of the appellant had been extinguished on account of his abandonment of the land under section 38 of the Punjab Tenancy Act. The learned District Judge has dismissed the suit of the plaintiff-appellant on the ground that no presumption of ownership arises in his favour on account of the entry in the jamabandi for the year 1955-56, whereby he is shown to be the owner of half of the said land in the absence of any order by a competent autho rity passed in this behalf. Since the appellant has not been shown to be in cultivating possession of the land, therefore, according to the learned District Judge it can be safely presumed that he had abandoned tenancy and the same was extinguished under section 38 of the Act. He has specifically referred to the litigation between the parties on the revenue side in 1937 when the suit for possession of the appellant was dismissed on account of lack of jurisdiction. In the proceedings with regard to that suit, the contesting defendants had denied the title of the appellant as occupancy tenant and according to the learned District Judge since thereafter till 1958 the appellant kept silent, therefore, it could not be said that he had not abandoned the land and some of the contesting defendants had been cultivating the same on his behalf. It has further been held by the learned District Judge that on account of his long silence for more than 20 years from 1937, the appellant was estopped by his conduct to agitate the matter further. The learned counsel appearing for the contesting respon dents has supported the arguments as well as the findings given by the learned District Judge.

6. According to law where a landlord claims that a tenancy has been extinguished by abandonment he has to prove that all the conditions as laid down in section 38 of the Tenancy Act have been satisfied. It is correct that the appellant has not been shown to be in cultivating possession. since 1927-28 while some of the contesting defendants have been shown to be as such in respect of the land under his occupancy tenancy, but there is nothing on record to show that the contesting defendants came into possession of certain portions of the land on account of the failure of the appellant, for a whole year prior to their occupation, to cultivate the land,. either himself or by some other persons, and to arrange for payment of the rent to the defendants-landlords when it fell due, as envisaged by section 3 , of the Tenancy Act. It is also not proved on record that the defendants landlords got any mutation with regard to the extinction of tenancy o of the appellant attested in their favour nor they have proved that they ever brought any suit to recover arrears of any produce from the tenant because of his failure to pay them their share of the produce for any period of thei occupation of the land. It has been held in Sher Ali Khan v. Nawab an others P L D 1962 Pesh. 110 that where it was a case of a forcible dispossession, as held by the lower appellate Court, or it was a case of a provisional transfer of possession to the landlord by an arrangement that he should take charge of the land as the tenant had taken up service in a Company, it was not proved to be a case of legal abandonment of the occupancy rights. It was further observed that the fact that the tenants were continuously shown as occupancy tenants in the revenue papers throughout the period they were out of possession showed that their interest subsisted and that they and their landlords were fully alive to the situation.

7. The facts of the case as referred to above are that the appellants before the High Court were the landlords of particular land situated in Tehsil Pindi Gheb while the respondents were the occupancy tenants. The appellants filed a civil suit against the respondents for declaration that their occupancy rights in the land had extinguished because they had abandoned the same since more than 20 years and that the revenue entries, which still recorded them as occupancy tenants, were wrong needing recti fication. Apart from the other facts of the case the respondents had pleaded that they had become owners of half of the land on account of subsection (1) and clause (b) of subsection (2) of the newly added section 114 of the Tenancy Act. In the Jamabandi for the year 1954-55, which was the latest one before the institution of the suit, the respondents had been shown as occupancy tenants in the cultivation column. However. during the pendency of the suit mutation was attested in favour of the respondents showing them owners to the extent of half of the land comprised in the relevant Khasra numbers. The respondents had claimed that they being the occupancy tenants had become the owners of half of the land under the law. It was further contended that even if the landlord was shown to be in cultivating possession of the land it did not mean that the rights of the tenants as occupancy tenants had extinguished as they had never abandoned the land. All the pleas raised by the respondents in that case were accepted by the High Court and the appeal filed by the landlords against them was dismissed.

8. In view of the circumstances discussed above, it cannot be said in the present case that the appellant had ceased to be an occupancy tenant on account of the entries in the revenue record, showing the defendants landlords in cultivating possession of certain portions of the land. Since he was, right from 1927-28 up to the date of the institution of the civil suit, shown as occupancy tenant in the relevant revenue record, therefore his right, as such, continued subsisting and when the amended law as contained in section 114 of the Tenancy Act was enforced he was rightly shown as owner of half of the land. The observation of the learned District Judge in regard to the entry as made in the jamabandi for the year 1955-56 in favour of the appellant to the effect that no presumption with regard to his ownership can be raised in the absence of any order by a competent authority has no substance. It is evident that on account of the amended law since the occupancy rights of the appellant were subsisting, therefore' mutation in this behalf was to be effected in his favour.

9. According to law, under section 44 of the Punjab Land Revenue Act, there is a statutory presumption that the entries in the record-of-rights are correct and unless it is shown that the mutation order is a false document the contesting party cannot succeed. In the absence of any proof that the order of mutation itself is false, the contesting party cannot be held to have discharged the burden that lay upon it. Reliance in this respect can be placed upon Nizam Din and others v. Godar A I R 1934 P C 40.

In the present case nothing has been brought on record to show that the entry as made in the jamabandi for the year 1955-56 is false. As discussed above, the said entry is based upon the occupancy rights of the appellant which continuously subsisted till the time the relevant amendment in the Tenancy Act was introduced.

10. The matter with regard to abandonment or otherwise of tenancy was subject in Hayat Khan and others v. Jahandad and 2 others P L D 1971 S C 330. It was contended on behalf of the appellants, in the said case, before their Lordships of the Supreme Court that the requirements of section 38 of the Tenancy Act were fully complied with as ample evidence was produced by the appellants in support of their claim that the occupancy tenants had stopped cultivating the land without any sufficient cause and that the landlords had re-entered into possession and let out the land to tenant-at-will, who paid batai to them direct. After perusing the relevant record, their Lordships observed that even if the revenue records. which carry a presumption of correctness under section 44 of the Land Revenue Act, shows that the respondents have all along been shown as occupancy tenants of the suit land, the oral evidence led by the appellants was too meager to rebut the presumption.

In the present ease the appellant has been, throughout, shown as occupancy tenant though some of the contesting defendants have also been shown in cultivating possession of some portions of the land. Since it is not shown on record whether defendants came into possession on account of the abandonment of the land by the appellant, therefore it cannot be said that they have discharged the onus laid on them under section 38 of the Tenancy Act.

11. According to law the initial onus of proving sufficient cause has to be on the landlord for be is to prove the three elements of section 38 of the Act. In the present case to my mind the appellant has given sufficient evidence to prove that he never abandoned his occupancy,, rights in the land. His explanation that on account of his being absent in connection with the service matter the contesting defendants, who were his close relations, cultivated the land on his behalf, as all the parties held joint possession, appears to be satisfactory. This fact also supports his contention that at no stage any mutation of extinction of occupancy right's of the appellant was got effected by the defendants. They were fully alive that the entries with regard to the status of the appellant as occupancy tenant were continuously recorded in the relevant revenue record right from the beginning, but no effort was ever made to get them changed. In the circumstances, the plea of the defendants that the appellant had abandoned) ,his occupancy tenancy cannot be accepted.

12. As in the case of co-sharers in the tenancy against the landlord, they all constitute one tenant. The shares of the tenants inter se are no concern of the landlord and as against him each tenant, though he be the holder of I/100th share, is entitled to the possession of the whole of the tenancy. A tenancy cannot be extinguished in part. If the rights of a co-sharer in the E tenancy, who holds any part whatsoever of the tenancy rights, had not been extinguished, the tenancy subsists as against the landlord. Reliance in this respect can be placed upon Motilal and another v. Kartar Singh and others A I R 1930 Lah. 515 and Faqir Muhammad v. Muhabbat Khan and others P L D 1958 Lah.918.

The principle as enunciated above will have to be followed in the case of the landlords in the present case. There are many landlords as against one tenant, the appellant. It is admitted that all the landlords have not admitted the alleged abandonment of the occupancy rights by the appellant. The Khata being joint and all the landlords being co-sharers it cannot be said that abandonment can be effected in part and, as such, the question of extinction of occupancy rights will not arise in such a case. If the occupancy rights of the tenant had been extinguished qua some of the landlords, then the landlord being a co-sharer the tenancy would subsist against such landlord.

13. Notices were issued to the respondents for today on 26-4-1974. :Mr. Zafar Iqbal, Advocate, has appeared only on behalf of respondents Nos. 5 and 8. The notices to the other respondents have not been received `back with the report that they have not been served upon. It can, therefore, be safely presumed that they have been served upon. Even otherwise since respondents Nos. 5 and 8 have been served upon, therefore, they must also have been served upon. Since they have not appeared in spite of service, therefore, they are proceeded against ex parte.

14. As a result of the above discussion, the findings of the learned District Judge on issues Nos. 1, 2, 4 and 5 cannot be maintained and his, judgment and decree on the said issues is hereby set aside. The appeal is accepted with costs.

S. A. H. Appeal allowed.