ALLAH DIWAYA Versus ABDUR REHMAN
ABDUL LATIF KHAN, J.--- Through the instant revision petition, the petitioners namely, Allah Diwaya and others, have called in question the judgment and decree dated 10.02.2012 passed by the learned Additional District Judge-V, D.I. Khan vide which on acceptance of the appeal of the respondents, the judgment and decree dated 28.9.2010 passed by the learned Civil Judge-VIII, D.I. Khan was set aside and suit of the petitioners/plaintiff was dismissed.
2. Brief facts giving rise to the instant revision petition are that the petitioners/plaintiffs brought a suit for declaration to the effect that they and the proforma defendants are occupant tenants of the property fully detailed in the heading of the plaint under section 5 of the Punjab Tenancy Act, 1887 and subsequently by virtue of the provisions of NWFP Tenancy Act, 1950 and the respondents/defendants have got no concern with the said property and the entries in the revenue record in favour of the respondents/defendants are against law and facts and liable to rectification in favour of the petitioners/plaintiffs. The petitioners/ plaintiffs also sought permanent/mandatory injunction as consequential relief.
3. The suit was contested by some of the respondents/defendants by filing their written statements. The learned trial Court framed as many as nine issues including the relief, from the pleadings of the parties. The parties produced their respective evidence as they wished to adduce and after hearing the arguments of learned counsel for the parties, the learned Civil Judge-VIII, D.I. Khan decreed the suit in favour of the petitioners/plaintiffs as prayed for vide judgment and decree dated 28.9.2010.
4. Aggrieved of the judgment and decree dated 28.9.2010, the respondents/defendants preferred an appeal which was accepted by the learned Additional District Judge-V, D.I. Khan on 10.02.2012, the impugned judgment and decree dated 28.9.2010 was set aside and suit of the petitioners/plaintiffs was dismissed, hence the instant revision petition.
5. The learned counsel appearing on behalf of the petitioners contended that the forefathers of the petitioners were in possession of the suit land as occupant tenants since 1890 and have acquired the title as owners of the suit property. He contended that the vital issue between the parties was with regard to the character of ownership in respect of occupancy tenancy which has been closed after the cut date given by the Shariat Appellate Bench of honourable apex Court of the country. He contended that the appellate Court has misinterpreted the relevant provision of law and thus prayed for restoration of judgment and decree passed by the learned trial Court, the same being well reasoned. He contended that the mischief of limitation would not run against the petitioners/plaintiffs for the reason that when there is fault or correction of record is sought, no limitation is provided for that and the appellate Court has wrongly dismissed the suit of the petitioner/plaintiffs on the ground of limitation. He argued that the learned appellate Court has not properly evaluated the evidence and interpreted the law applicable to the case in hand, therefore, the impugned judgment is liable to be restored.
6. As against that, learned counsel for the respondents/defendants contended that after cut date i.e. 23.3.1990, given by the apex Court in Sultan Khan's case (NLR 1990 SD 90), no conversion from occupancy tenancy into ownership can be made. He contended that the petitioners/plaintiffs were unable to produce evidence with regard to their possession as occupancy tenants since 1890 and supported the impugned judgment passed by the learned appellate Court.
7. I gave my anxious consideration to the arguments of learned counsel for the parties and perused the record with their valuable assistance.
8. The petitioners/plaintiffs have filed the instant suit for declaration to the effect that on the basis of occupancy tenancy under section 5 of the Punjab Tenancy Act, 1887 read with NWFP Tenancy Act 1950 on the basis of entries in the jamabandi for the year 1993-94, are owners and to this effect, they be entered as owners substituting the entries regarding occupancy tenancy in the revenue record. They further claimed that the respondents/defendants are not entitled to claim dual ownership and be restrained from doing so and necessary correction be made in the revenue record in this respect. They have also sought mandatory injunction and perpetual injunction seeking indulgence of Court to restrain the respondents/defendants from interfering in their rights and claiming ownership of the suit property. The suit property basically belonged to the evacuee land owners and on their repatriation, the same went to the ownership of Central Government. The petitioners/plaintiffs claim to be the occupancy tenants since forefathers over the suit property and on the promulgation of Act XXV in the year 1950, became the owners of the property but on the basis of claim of the non-muslim land owners and conversion of ownership into the name of Central Government, the matter was kept pending and the petitioners/plaintiffs remained occupant tenants, recorded in the revenue record.
9. The respondents/defendants hotly contested the suit by filing written statements and raised the plea that the status of occupancy tenancy stands extinguished after the cut date given for conversion into ownership as the petitioners/plaintiffs failed to avail the opportunity provided under the law. In support of their suit, the petitioners/plaintiffs produced Patwari Halqa as PW-1 and Naib Saddar Qanungo as PW-2, who have produced the revenue papers, available on file. The petitioner/plaintiff namely, Allah Diwaya appeared himself as PW-3, as sole witness, and stated in his examination-in-chief that in the year 1950, on the orders of Government of NWFP, occupancy tenants were given the right of ownership but due to the inadvertence of the revenue officials, their names were omitted from conversion into ownership from occupant tenants. He further stated that prior to this, another suit regarding the disputed property was filed by them which was decreed in their favour. This statement does not support the averments made by the petitioners/plaintiffs in their plaint, rather the inadvertence on the part of the revenue officials is a development made by the petitioners/plaintiffs, amounting to departure from the pleadings, not permissible under the law. In cross-examination, he has admitted that the previous suit filed by them was short of facts as some Khasra numbers were not included in it, however, stated that the same was decreed in their favour. He admitted that the suit property has been incorporated in the name of Central Government and prior to that, in the name of non-muslim evacuees and on their repatriation, transferred in the name of respondent/defendant No.1, Central Government. He also admitted that the instant suit has been filed in the year 1989. He admitted that he was not born in the year 1950 and is unaware of the facts with regard to the said year. He was unable to produce the 'abiyana' receipts with regard to the suit property. He showed his ignorance as to whether in the light of judgment of the Honourable Supreme Court of Pakistan, the occupancy tenancy could be converted into ownership. He admitted that the name of the Central Government is correctly recorded in the column of ownership in the revenue record. He also admitted that defendants Nos.4 to 10 i.e. Jamal Din and others are hissadar owners in possession incorporated in the revenue record who have constructed houses over it and are residing therein. The said property was purchased by them from original owners. He admitted that the suits titled Abdur Rehman v. Allah Diwaya and Mehmood Qadri v. NWFP were previously filed and dismissed up to the honourable apex Court. This sole statement of the plaintiff, if assessed in true perspective, makes the case of the petitioners/plaintiffs as case of no evidence. The allegations made in the plaint are not supported by any evidence, what to talk of concrete and cogent evidence, which is requirement of law and burden heavily lies on the petitioners/plaintiff to discharge the same as provided under Articles 117 and 118 of Qanun-e-Shahadat Order, 1984.
10. On the other hand, the respondents/defendants produced Senior Clerk, Settlement Office as DW-1, who produced the record with regard to the auction in favour of respondents/defendants Jamal Din and others, copy of which was posted as Ex.D.W.1/1, registered RL-II vide which allotment was made, was posted as Ex.D.W.1/2. The suggestions made to this witness by the petitioners/plaintiffs were against their stance taken in the plaint. However, they were unable to dislodge the claim of the respondents/defendants through legal process by participating in the auction conducted by the settlement authorities and became owners as a result of legal proceedings conducted under the law. Respondent/ defendant No.10 and attorney on behalf of respondents/defendants Nos.4 to 9 appeared as DW-2 and supported the contentions raised by them in their written statement. The petitioners/plaintiffs while cross-examining this witness put damaging questions to him contrary to their stance and impliedly accepted the claim of the respondents/defendants. One Haji Jalal Khan, attorney for defendants Nos.11 to 13 appeared as DW-3 and reiterated the stance taken by the respondents/defendants in their written statements. Legal Advisor of the government functionaries/settlement authorities appeared as DW-4. The evaluation of the evidence produced by the respondents/defendants leads to conclusion that the property was acquired by them lawfully in auction offered by the settlement authorities, Central Government, who became owner on the repatriation of the non-muslim evacuee owners and under the law could auction the property, which they did and the respondents/defendants participated in the auction and became owners on payment of auction money and during all this process, right from the creation of Islamic Republic of Pakistan and the promulgation of Act XXV of 1950, whereby conversion from occupancy tenancy into the ownership, was allowed, the petitioners/plaintiffs or for that matter, their predecessors kept mum and raised no objection at any stage to the effect that they had acquired the status of ownership on one pretext or the other, however, filed the instant suit in the year 1989 which is hopelessly time barred and to this effect, the learned appellate Court has rightly observed that the suit of the petitioners/plaintiffs is hit by the mischief of limitation.
11. The important issue involved in this case is that the Shariat Appellate Bench of Honourable apex Court in Sardar Muhammad Yousaf's case (PLD 1991 SC 760) has given a cut date i.e. 23.3.1990 with the observations that section 4 with all its clauses of the NWFP Tenancy Act, 1950 became ineffective, however, prior to cut date, those benefited under the referred provision, shall not be disturbed. However, after the cut date, the right of occupancy tenancy shall not be converted into ownership with an explanation that those who were declared maurusi kashtkaar' under section 5(1)(c) of the Punjab Tenancy Act, who were owners of the lands and not tenants in the light of dictates of sharia, can seek the ownership without payment of consideration under section 4 referred above, even after the cut date. The operative paragraph of the judgment is reproduced below for ready reference:-
The above referred judgment was delivered in Shariat Review Petition No.2 in Shariat Appeal No.15/1984 ( Sultan Khan v. NWFP ) by the Shariat Appellate Bench of Honourable Supreme Court of Pakistan, wherein section 4 with all its clauses of the NWFP Tenancy Act, 1950 were declared against the injunctions of Islam and held that after 23.3.1990, these laws would be considered ineffective.
12. As far as the entries recorded in the names of petitioners/plaintiffs are concerned, on the promulgation of NWFP Tenancy Act, 1950, no person, whether a tenant or not, shall acquire, have or continue to have a right of occupancy tenancy in any land under any enactment, contract, decree or order of any Court or Officer, can claim his occupancy tenancy of the land. Section 3 of the NWFP Tenancy Act, 1950 is reproduced below:-
"3. Non-acquisition of occupancy rights ---Subject to the provisions of this Act, no person, whether a tenant or not, shall after the commencement of this Act, acquire, have or continue to have a right of occupancy in any land under any enactment, contract, decree of order of any Court or Officer."
The revenue record speaks about status of petitioners/plaintiffs. If their status as occupancy tenants is taken as per their version made in the plaint, in no eventuality, after the cut date, could be improved. They were given a right under section 4 of the NWFP Tenancy Act, 1950 to become owners of the property under the mandate of the said section. The petitioners/plaintiffs have brought the suit in the year 1989, much after the declaration of said section as repugnant to the injunctions of Islam, therefore, they cannot claim concession given and duly extended by the Provincial Government several times and now they are estopped by their conduct to claim and are debarred under the law also.
13. The status of petitioners/plaintiffs has changed since then for the reason that they remained no more occupancy tenants as they do not qualify to be occupancy tenants as the same status lost its legal base and after the promulgation of the Act, they can neither claim ownership nor a right of occupancy tenancy and if are in possession of the property, would be clothed with no more status than that of tenants-at-will and such being the case, they have got no locus standi to file the suit nor entitled for the decree as discussed above. The learned appellate Court correctly appraised the facts of the case and law on the subject and arrived at just and lawful conclusion while dismissing the suit of the petitioners/plaintiffs.
14. For the reasons mentioned above, the instant revision petition being bereft of any merit is hereby dismissed, leaving the parties to bear their own costs.
ZC/378/P Petition dismissed.