GHULAM FATIMA AND OTHERS vs RAHIM BAKHSH AND OTHERS

ORDER

1. ' NASIM HASAN SHAH, J.-This is a petition for leave to appeal against the judgment and decree of the Lahore High Court in R. F. A. No, 67 of 1965, passed on 25-2-1978, whereby the trial Court's decree under appeal was set aside and the respondents' suit decreed only to the extent of 1525/1920 share of the land in dispute.

2. ' The relevant facts stated very briefly are that respondents 1 to 21, who were occupancy tenants, filed a suit for a declaration that they are owners of the entire agricultural land measuring 693 kanals 16. Mar/as in village Ferozepur, District Multan ; a relief for perpetual injunction was also sought. The trial Court, however, declared them to be the owners of 483/2243 share in the'. Suit property while of the remaining 1760/2243 Share the petitioners landlords were held to be the owners. The respondents aforesaid perferred an appeal (R. F. A. No, 67 of 1965) before the Lahore High Court and a learned Judge was pleased to vary the decree in their favour declaring them owners of 1525/1920 share. The suit against Karam Din defendant, whose legal representatives are impleaded in the petition for leave to appeal before us as respondents 25 and 26, was dismissed by the High Court because his legal representatives were not impleaded within time.

3. ' The High Court, while being conscious of section 114 (2) (b) of the Tenancy Act that it intended to confer ownership on the occupancy tenants of such portion of the land as corresponds to their share of the produce, however, relying upon the jamabandi (Exh. P. 3) showing the shares of the malguzars as 1/6th and that of chakdar kasoor khwars 3i seers of a maund, held that the share of the petitioners was 61/240 and the remaining share (179/240) would be of the respondents.

4. Besides, the abatement of the appeal to the extent of 7/1920 would have the effect of giving the remaining 1525/1920 also to the respondents. The petitioners, feeling aggrieved by this determination, have filed this petition for leave to appeal.

5. In support of this petition, the learned counsel contends that respondents 1 to 24, being occupancy tenants, on getting proprietary rights under section 114. (2) of the. Tenancy Act, could only be declared owners to so much of the land comprised in their tenancy as corresponded to their share of the produce and that the High Court has declared them owners to an extent greater than that ordained by law. In this connection he has relied upon the provisions of section 114 (2) (b) and section 114 (4) of the Act.

6. ' We think that the matter raised is of some importance involving, as it does, the interpretation of section 114 of the Tenancy Act, 1887, particularly the provisions of clause (b) of subsection (2) when read in the light of subsection (4). Leave is, accordingly, granted. Security in the sum of Rs, 1,000.

7. Notice of the stay. .Application for 26-6-1978.