1980 PLP 768 (CLC)

(d) The attempt on the part of the appellants to rebut the entries made in the record of rights by Khasra Gridwari and by oral evidence was not believed. The evidence produced by the respondents or the contrary was believed and in way, showy that Tenants had been cultivating land under the respondents. (e) The appellants did not make any attempt to get the entries in the revenue record made in favour of Khuda Bakahsh as occupancy tenant and that they were only alerted when entries were made in favour of Khuda Bakhsh as owner on the basis of the previous entries. (f) The predecessor-in-interest of the respondents did not pay any batai to owners and the 'and land revenue was also being paid by the occupancy tenants. It was further held that even if it was not paid the on entries would not be rebutted.

5. As already stated above, the learned counsel challenged the above findings of fact on the ground that the evidence produce by the appellants have been completely ignored by the learned District Judge and the evidence on record had been misread. Tire misreading as pointed out by the learned counsel for the appellant in relation to the entries in the jamabandi showing Kasht maqbuza malkaan and the evidence that is said to have been ignored was the oral evidence and the Khdra girdawari by which an attempt was made to show that the tenants had cultivated under the owners and not under the occupancy tenants. This contention has no legal force. The learned District Judge has discussed the entire evidence and has come to the conclusion that the entries in the jamabandi would raise a presumption of truth, and that unless the same were set aside by' way of another mutation, the occupancy tenants were entitled to be recorded as owners on section 114 of the Punjab Tenancy Act having been added on 4-2-1952, and that the entries made in the revenue record in favour of Khuda Bakhsh as the full owner on 7th September, 1955 was justified. Heavy onus lay on the appellants to prove abandonment before the coming into force of the amendment at the time of the addition of section 114 and none of the ingredients of section 38 were fulfilled.

6. Therefore the main question involved in the present appeals is whether Khuda Bakhsh the predecessor-in-interest of the respondents had abandoned his occupancy tenancy before the introduction of section 114 of the Tenancy Act and had extinguished his right. The case of the appellant before the trial Court was that he had left cultivation 25 years before the filing of the suit. Section 38 of the Punjab Tenancy Act reads as follows .- "Section 3F.-If a tenant having a right of tenancy 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 the payment of rent thereof as it falls due, the right of occupancy shall be extinguished from the end of that year." . The learned District Judge was right tan formulating three ingredients of section 38 which are as follows : (i) when the tenant fails for more than one year to cultivate his tenancy either by himself or through some other person; (ii) when he so fails without sufficient cause to cultivate the tenancy ; and (iii) when he fails to arrange for the payment of rent for the tenancy as it falls due.

7. The entries in the Revenue record showing Khuda Bakhsh to be the occupancy tenant having never been set aside before the introduction of section 114, the predecessor-in-interest of the respondents was entitled to be recorded as full owner The relevant authorities on the proposition may be examined. In, the case reported as Sher Ali Khan v. Nawab and others (P L D 1962 Pesh. 110) the question of abandonment was examined in the light of section 38 in connection with the onus to prove. It was observed :- "Where a landlord claims that a tenancy has been extinguished by abandoment i.e has is prove that all the above-mentioned three conditions are satisfied. The onus to prove the sufficiency of the cause leading to the abandonment would shift to the tenant after the other two conditions are proved." . As regards the extinction of the mutation it was observed that the plaintiff in that case had not got any mutation of extinction of tenancy attested in his favour. This was taken to be as a circumstance to show that the tenant had not abandoned his occupancy rights in the land solely in view of the fact that it continues to be shown as occupancy tenant in revenue record throughout the period, as are the facts in present case. The words appearing in sec tion 114, "occupies the land as such" were interpreted in the light of an earlier judgment reported as Umar Said and others v. Faiz Muhammad and others (P L D 1961 Pesh. 110) and the relevant observation from this judgment relied upon may be quoted below "The words `occupies land` as such' necessarily do not mean physical occupation, for a tenant may be in constructive possession through a tenant-at-will. In the same way, he may have been thrown out of possession by some illegal process but if he has time to avail of a legal process to restore himself to possession, whether actual or constructive, he should be allowed to make use of that remedy. If however, he has allowed time to run against him, then the N. W. F. P. Tenancy Act, 1950, has not the effect of reviving a claim which has been extinguished." In the case reported as Ameer Bakhsh and others v. Khuda Yar (1) it was observed that the names of the occupancy tenants can be deleted from the record only by means of a mutation and under the orders of the Collector or Assistant Collector. These observations were made .as the name of one of the occupancy tenants was omitted while preparing the khasra girdawari. The disappearance of the name of the occupancy tenant from the Khasra. girdawari was theretore taken to be of no legal effect. In the case cited as Umar Said and others v. Faiz Muhammad and others it was observed that Faiz M uhammad was originally a tenant and even if at subsequent time he had paid rent to the landlord it would not make out a case of abandonment of land and would not affect section 38 of the Punjab Tenancy Act. The appeal was allowed and the suit filed by the plaintiff was dismissed. In the case reported as Allah Dina v. Bagh Ali and others (2) the question of abandonment was also examined in the light of the observations in the case reported as Sher Ali Khan v. Nawah and others. It was observed that all the conditions as laid down in section 38 of the Punjab Tenancy Act must be satisfied before it can be said that a tenancy had been abandoned. The effect of the occupancy tenant having not been shown to be it1 possession of the land under his occupancy was held to be not by itself sufficient to ;make out a case of abandonment. It was also held that a mutation as regards to the extinction of the tenancy was necessary in order to invoke the provisions of section 38 of the Punjab Tenancy Act. In this connection it was observed as follows : "According to law where a landlord claims in 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 38 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 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 their occupation of the land. It has been held in Sher Ali Khan v. Nawab and others 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 hr 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."

8. In the case reported as Hayat Khan v. Jahandad and others (P L D 1971 S C 330) their Lordships of the Supreme Court were pleased to observe that the vendors in the revenue record all along showing the respondents as occupancy tenants the oral evidence even if available was held not sufficient to rebut presumption of correctness attaching to the present record and the principles laid down in the case of Sher Ali Khan v. Nawab and others were also approved by their Lordships of the Supreme Court. In this connection it was observed ac follows :

"We have perused the record with the help of the learned counsel for the parties which supports the finding recorded by the High Court on the issue of abandonment. The entries in the revenue record which carry a presumption of correctness under section 44 of the Land Revenue Act show that the respondents have all along been shown as occupancy tenants of the suit land. The oral evidence led by the appellants was too meagre as will be seen presently to rebut the presumption. Further whenever a tenant died his occupancy rights were mutated in the names of his legal heirs. On one occasion the landlord exchanged some land with another proprietor and in that transaction acknowledged the occupancy rights of the respondents and their predecessor-in-interest. This belied the assertion that 35 years ago the occupancy tenants had abandoned their rights and the landlord had entered into possession."

9. In the judgment reported as Mirza and others v. Raja Muhammad Zaman Khan and other, (P L D 1957 Lah. 242) the question of abandonment was also examined and the words "occupies any land as such" appearing in section 114 were interpreted. It was observed that wherever occupancy tenancy exists ii will be changed into ownership irrespective of such tenancy was or was not in the occupation of occupancy tenant. The words "occupies any land as such" appearing in section 114 were field to be a mere superfluity. Reliance may also be placed on an unreported judgment of this Court titled as Allah Ditta, etc. Muhammad Jiwan; etc. R. S. A. No. 190 of 1958 by Mr. Justice Karam Elahee Chauhan (as his Lordship then was) wherein the question of abandonment was examined in the light of the law laid down in Sheir Ali Khan v. Nawab, etc. The change in the revenue record in order to create an extinction was held to be essential. The relevant observations are quoted below;

"Respectfully following the above law, I hold that in the instant case as well, the mere entries in the revenue record showing the cultivation as to be of the landlord would not be enough to infer an abandonment therefrom, especially, when they never got any mutation of extinction of tenancy attested in their favour. Similarly, if the landlords were themselves in possession, the question that the tenants had not made arrangements for the payment of rent to them does not arise. On the present record, there is no suggestion as to why should have the tenants abandoned this occupancy. No circumstances have been brought forward to attribute- such a conduct in the occupancy tenants. Rather the entries in the Jamabandis show that upto 19-3-1954, they retrained to be the occupancy tenants in their respective shares.

10. In view of the above discussion therefore it is held that on account of the Continuous entries of occupancy tenants in favour of Khuda Bakhsh and others anal there being no entry of extinction aver got recorded by the appellants Khuda Bakhsh tae predecessor-in-interest of the respondents was entitled to the benefit of section 114 of .he Punjab Tenancy Act and the evidence on record as regards the abandonment was not sufficient to rebut the presumption of truth attached to the revenue record. The learned District Judge has dealt with the evidence strictly in conformity with the law discussed above and no infirmity was pointed out in appreciation of evidence. No misreading of the evidence; had also been pointed out. The findings of facts already indicated above therefore are unexceptionable. These appeals have no force and are hereby dismissed in limine. S. Q. Appeal dismissed.