MISRI Through Legal Heirs And Others vs MUHAMMAD SHARIF And Other

ORDER

MUHAMMAD BASHIR KHAN JEHANGIRI, J.---This is a petition for special leave to appeal from the .Order dated 28-9-1995 of a learned Single Judge of Peshawar High Court, Abbottabad Bench, Abbottabad, whereby Civil Revision No. 190 of 1992 filed by the petitioners was dismissed and the order of the Appellate Court dated 11-10-1992 upholding the order of the trial Judge dated 8-11-1989 non-suiting the petitioners was not interfered with.

2. The facts which have given rise to this petition are that Misri, Sarwar and Mada filed a suit against the respondents for a declaration that they were co--sharers in possession to the extent of 1/3 share in the suit land with the respondents; that omission of their names from the Revenue Record was void and ineffective qua their rights as aforesaid; and finally that they were entitled to receive proportionate share of compensation for the sale of 'chir' trees from the land. The allegations set up in the plaint were traversed by respondents Nos. 1 to 10, 13, 14 and 16 to 39. It was pleaded that the predecessors-in- interest of the respondents originally being occupancy tenants of the land had acquired statutory title thereto on coming into force of N.-W.F.P. Tenancy Act (XXV of 1950) (hereinafter called as the Tenancy Act) and were since then exclusive owners-in- possession thereof. It was further urged that the predecessors-in---interest of the petitioners, who had neither asserted such right nor paid any compensation as envisaged by section 4(a) and (b) of the Tenancy Act, were debarred to lay claim to the occupancy tenancy and its consequential acquisition of title thereto. The learned trial Judge held that the name of Umar predecessor---in- interest of the petitioners was omitted as co-occupancy tenant of the suit land at the the of preparation of the Jamabandi for the year 1904-05 and thereafter the predecessors-in-interest of the respondents continued to be recorded as occupancy tenants till the Jamabandi for the year 1947-48 and further that the petitioners had not been able to substantiate their claim of co- shareship of the land with the respondents. As a cumulative effect of these and other findings on legal pleas, the petitioners were non-suited.

3. The petitioners went up in appeal, which was heard by the learned District Judge, Haripur. The learned Appellate Court affirmed the findings of the trial Court holding that prior to coming into force of the Tenancy Act the names of the petitioners did figure as occupancy tenants whereas the respondents were duly recorded as such and, therefore, "by operation of sections 4 and 4-A of the Tenancy Act, 1950, they had become owners of the suit property and were recorded as such for the first the in the Jamabandi for the year 1958-59". The learned Appellate Court placed implicit reliance on the law laid down by the erstwhile High Court of West Pakistan, Peshawar, in the case of Akram and others v. Zakaria Khan and others (PLD 1962 (W.P.) Peshawar 7) and arrived at the conclusion that "sections 4 and 4-A will come into play only if a person is an occupancy tenant at the the of the commencement of the Act and he satisfies the other conditions laid down in the sections". Further that "if he is not recorded as an occupancy tenant at the commencement of the Act his case seems to be governed by section 83 of .The Act" whereunder he will have to obtain a declaration of his occupancy right failing which he would not be entitled to the benefit of sections 4 and 4-A of the Act". In this view of the matter, as the petitioners or their predecessors-in-interest have not been able to obtain such a declaration, they could avail of the provisions of section 4 and 4-A ibid and, therefore, the appeal was also dismissed.

4. The petitioners then filed a revision petition in the High Court. The learned counsel for the petitioners sought to argue before the High Court that necessary issues arising from the pleadings of the parties were not settled by the trial Court but the contention was repelled by the learned Judge in Chambers of the High Court and rightly so because it was not the case of the petitioners that they had claimed any issue but the same was not framed. The fact that the petitioners did not claim any particular issue during more than five years; and that the suit remained pending before the trial Court precludes them from agitating this point at this belated stage. Besides, from the tenor of judgment of the trial Judge and that of the Appellate Court, the parties appeared to have been cognizant of their respective pleadings, led evidence and decision rendered therefore, omission to frame a particular issue as such loses its force. It was next contended on behalf of the petitioners before the High Court that the mere omission of the names of the petitioners from the Revenue Record could not extinguish their rights particularly when the suit land was reserved forest in possession of the Forest Department on account of which the petitioners had no knowledge of the omission of their names from the Revenue Record. While repelling this contention the learned Judge in Chambers to the High Court also invoked the law laid down by the Peshawar Bench of the West Pakistan High Court in the case of Akram supra in the following paragraph:------ "In PLD 1960 (West Pakistan) Peshawar 7 it was held that sections 4 and 4-A of the Act will come into play only if a person is an occupancy tenant at the the of commencement of the Act and he satisfies the other conditions laid down in the sections. If he is not recorded as an occupancy tenant at the commencement of the Act, his case clearly seems to be governed by section 83 of the Act, and in order to avail himself of the benefits conferred by sections 4 and 4-A, such person shall have to obtain, in the first instance, a declaration of his occupancy right, and until such the as such a declaration has been obtained, he cannot be deemed to have become the owner by the operation of sections 4 and 4-A of the Act. In the present case the plaintiffs were not recorded as occupancy tenants at the relevant the. Moreover, they had neither obtained any declaration of their alleged occupancy rights nor applied for such declaration within the prescribed period in terms of section 83, Tenancy Act, 1950, therefore, they cannot be deemed to have become the owners by the operation of sections 4 and 4-A, Tenancy Act, 1950. "

5. Mr. Fida Muhammad Khan, learned counsel appearing on behalf of the petitioners, reiterated before us the a forenoted contention which he had raised before the High Court that mere omission of the names of the petitioners as occupancy tenant alongwith the respondents from the Revenue Record since 1904-05 without any legal hypothesis would revive the old entry. In support of this proposition, the authority of Azam Khan v. Azad Khan and 6 others (PLD 1986 Lahore 275) was cited which itself is based on the old to precedents from Lahore High Court and one of Rajasthan from Indian jurisdiction, namely, Allah Dad v. Muhammad Ali and others (PLD 1956 Lahore 2.45), Ganesha Mal v. Ibrahim and others (AIR 1919 Lahore 237) and Parma and Giriraj v. Madanlal (AIR 1955 Raj. 173).

6. We are in general agreement with the broad principle laid down in the case of Ganesha Mal supra and reiterated in Patina and Giriraj's authority supra that the persons forcibly dispossessing an individual from a plot comprised in a Shamilat land were trespassers. There is also no cavil with the proposition of law enunciated in Allah Dad's case supra and later followed in Azam Khan's precedent that once an entry in the Revenue Record is proved to be illegal, the previous is deemed to stand, inasmuch as, an entry subsists till a new one is lawfully substituted for it. The ratio deducible from `the above-cited case-law is, however, not helpful to the petitioners because it was not a case of omission simpliciter of their names from the Revenue Record. On the contrary, as we have noticed earlier, the predecessors-in-interest of the petitioners, were occupancy tenants jointly with the ancestors of the respondents till 1903? It was in the Jamabandi for the year 1904-05 that their names stood omitted and the predecessors-in-interest came to be recorded as occupancy tenants exclusively of the disputed land. It was precisely on 12-2-1984 that they filed a suit for declaration of their title to and confirmation of their possession over the suit land and not only sought the correction of Revenue Record accordingly but also laid claim of their entitlement to their share in the compensation for the trees standing therein. The learned to Courts below and a learned Single Judge in the High Court, therefore, rightly invoked the dictum in the case of Akram supra which was pronounced in the similar factual background. Facts of the precedent case were that the plaintiffs, who had not been shown occupancy tenants in the Revenue Record at the commencement of the N.-W.F.P. Tenancy Act, 1950, brought a suit for declaration that they had become owners of the land by virtue of the operation of section 4 of the Act. The suit was decreed by the trial Court holding that the plaintiffs were occupancy tenants of the land paying half ' Batai' and, therefore, they had become owners of the land to the extent of its one-half in accordance with the provisions of the N.-W.F.P. Tenancy Act, 1950. In appeal, however, the suit was dismissed holding that the case was governed by section 83 of the N.-W.F.P. Tenancy Act, 1950, which gives a period of three years from the date of the commencement of the at for presentation of an application by a tenant for obtaining a declaration of his occupancy tenancy so as to be entitled to the benefit of section 4 of the Act and as the suit was instituted beyond three years prescribed under the Act, the suit was held to be barred by limitation and so was the jurisdiction of the Civil Court.

7. It was in this background that in the case of Zakaria supra the learned Judge in Chambers of the High Court held that sections 4 and 4-A of the Tenancy Act came into play if a person is an occupancy tenant at the commencement of the Act and satisfies other conditions laid down in the section. It was further observed, and rightly so, that if he is not recorded at the commencement of the Tenancy Act his case would be covered by the provisions of section 83 of the Tenancy Act whereby he shall have to get a declaration of his occupancy rights so as to entitle himself to the benefits of sections 4 and 4-A of the Tenancy Act.

8. We are inclined to approve this dictum of the High Court and reiterate that where a person is not recorded as occupancy tenant and until such the as such a declaration has been obtained from such authorities as have been empowered to grant it, he cannot be deemed to have become the owner by the force of sections 4 and 4-A of the Tenancy Act. In the present case to, petitioners were admittedly not recorded as occupancy tenants in the Revenue Record at the relevant the, therefore, they were not deemed to have become owners by operation of sections 4 and 4-A of the Tenancy Act. For obtaining a declaration of the kind referred to above from the competent Revenue Courts, the mode provided in the Tenancy Act itself should have been followed before seeking the requisite declaration of ownership and other consequential reliefs.

9. In the instant case, the findings of the High. Court does not suffer from any legal infirmity calling for our interference. In the circumstances, leave to appeal is not granted and the petition is accordingly dismissed.