FATEH KHAN Versus BEGUM JAN
This matter arises from a petition for leave to appeal against concurrent judgments of the lower courts decreeing the respondents' suit for possession of land based on occupancy rights. The core legal question was whether the occupancy rights had extinguished due to abandonment under section 38 of the Tenancy Act. The Supreme Court held that the lower forums correctly concluded that abandonment was not established, as the revenue records consistently showed the occupancy tenant cultivated the land through tenants-at-will, including co-owners, and the conditions for statutory abandonment were not met. The key principle laid down is that physical self-cultivation by an occupancy tenant is not mandatory, and cultivation through sub-tenants or lessees—even if they are co-owners—prevents the extinguishment of occupancy rights under section 38 of the Tenancy Act, provided the requirements of cultivation and rent arrangement are satisfied.
- Whether the occupancy rights of a tenant are extinguished under section 38 of the Tenancy Act when the land is cultivated through a tenant-at-will?
- Is physical self-cultivation by an occupancy tenant obligatory under the law to prevent abandonment?
- Can co-owners in possession of land as tenants-under the occupancy tenant deny the rights of the occupancy tenant?
- Section 38, Tenancy Act
1. WALI MUHAMMAD KHAN, J. ‑‑‑Hassan Din and others, heirs of Fateh Khan defendant, petitioners herein, have called in question the judgment, dated 29‑4‑1992, whereby their appeal against the judgment of the Civil Judge dated 22‑12‑1966 decreeing the suit of the plaintiffs/respondents against them and that of the District Judge, dated 18‑9‑1967 dismissing their appeal, was dismissed.
2. The facts of the case, briefly stated, are that Faqir father of Bashir, predecessor‑in‑interest of Mst. Begum Jan and others/ plaintiffs, was the occupancy tenant of the suit land under Fateh Khan and others, defendants/petitioners herein,. and on his death his son Bashir Ahmed who was minor at that time succeeded to his occupancy right. It is alleged in the, plaint that the defendants/petitioners occupied the suit land as tenants on payment of half Batai to the occupancy tenant Bashir Ahmed who was minor and that. on his attaining majority he was entitled to the possession of the suit land. The suit was contested, the allegations made in the plaint denied in toto and it was averred that the father of Bashir Ahmed plaintiff had abandoned occupancy rights and thus had ceased to have any interest in the suit property under section 38 of the Tenancy Act. Necessary issues in the case were framed, evidence led pro and contra thereon recorded and the learned trial Court, vide its judgment, dated 22‑12‑1966, decreed the suit of the plaintiffs/respondents and the appeal and the second appeal filed against it having been dismissed, the instant petition for leave to appeal has been preferred.
3. We have heard Sardar .Muhammad Aslam, Advocate, for the petitioners, Mr. M. Munir Peracha, Advocate, for the respondents; and have perused the record of the case. The only question for determination is whether the occupancy rights of. the plaintiffs/respondents . had extinguished under section 38 of the Tenancy Act or not. It is, therefore, proper to reproduce the provision of section 38 as under:‑‑‑
4. "38. Abandonment of tenancy by occupancy tenant.‑‑‑(1) If a tenant having a right of occupancy fails for more than one year without sufficient cause to cultivate his tenancy, either by himself or through some other person, and to arrange for payment of the rent thereof as it falls due, the right of occupancy shall be extinguished from the end of that year.
(2) For the purposes of this section a Muqarraridar shall be deemed to be a tenant having a right of occupancy.
5. According to the above provision of law the following conditions must co‑exist before an occupancy tenant can be held to have extinguished his right (i) that the tenant must have failed to cultivate his tenancy for more than one year either by himself or through some other person; (ii) that he failed to do so without sufficient cause; and (iii) that he failed to arrange for the payment of rent of the tenancy to the landlord as it fell due.
6. There is no dispute between the parties that Faqir father of Bahsir Ahmed plaintiff was the occupancy tenant of the suit land and he is recorded as such in the Jamabandi for the year 1942‑43 to which presumtpion of truth is attached. Vide Mutation No.578 his inheritance was attested in the name of Bashir Ahmad, his son, who was recorded as occupancy tenant in the subsequent Jamabandi for the year 1946‑47 and continued recorded as such till the Jamabandi 1950‑51. Vide mutation No.811 attested on 21‑1‑1956 the suit land was reverted to the owner on account of the abandonment of the occupancy right which gave rise to the filing of the instant suit. In spite of the entry in the name of Bashir Ahmed plaintiff as occupancy tenant the physical possession of the suit land is recorded in the possession of Fateh Khan and Akbar Khan co‑owners as tenants‑at‑will on payment of half Batai as is evident from the copy of Jamabandi 1946‑47. Thereafter the possession remained with the same two co‑owners as tenant‑at‑will according to the Jamabandis 1950‑51 and 1954‑55. Presumption of truth is attached to every entry of the Jamabandi and, as such, Bashir Ahmed occupancy tenant shall be presumed to have cultivated the suit land through tenant‑at‑will may be co‑owners and cannot, by any stretch of imagination, be held to have failed to cultivate his tenancy. The co‑owners in possession entered upon the same, not as owner/landlord on 8 account of abandonment but as tenant‑at‑will and they were legally estopped to deny the rights of their landlord/occupancy tenant, namely, Bashir Ahmed. It is not obligatory under the law for the occupancy tenant to physically cultivate the land himself and all that is expected of him is to arrange the cultivation thereof which can be through sub‑tenant/lessees as well and in the instant case for valid reasons, on account of minority and lunacy, the land was cultivated through some of the landlords on payment of half Batai. The non‑payment of produce to the landlord by the occupancy tenant is out of question because the produce of the land was in the hand of some of the co‑owners/tenants‑at‑will and there is no allegation, muchless proof on the file, that the entire produce was paid to Bashir Ahmed occupancy tenant. The judgment of this Court in case Muhammad Afsar v. Allah Ditta 1970 SCMR 118 is fully attracted to the instant dispute and the relevant paragraph therefrom is quoted below:‑‑‑
7. "In the present case important material evidence had been ignored. The Courts below, the High Court had failed to take into account the entries in the revenue records which consistently showed the respondents as tenants and even mutated the names of the heirs of a tenant upon his death. The landlords never objected to these entries nor made attempt to have their possession recorded as adverse to those of the tenants. In the circumstances, the mere fact that the landlords were themselves paying the taxes and cesses or not giving any share of the produce to the recorded tenants was not sufficient to lead to the inference of abandonment. No exception can, therefore, be taken to the High Court's finding that the case of abandonment had not been established."
8. There is no legal flaw in the factual conclusions arrived at by the learned lower three forums and, in consequence, this petition is dismissed and leave to appeal is refused.
9. A.A./F‑255/S Leave refused.