2000 PLP 2188 (YLR)

On 6‑5‑1974, the appellants filed a suit seeking a declaration that they are owners of the suit land being its occupancy tenants which occupancy tenancy having been abolished and under the provisions of law, they have become the owners of the land and in the alternate it was prayed that they have become owners of the land by way of adverse possession. According to the plaint, Bisharat Shah, the predecessor of the appellants dug a well and made the land culturable somewhere in the year 1903 and the fact was recorded in Sharat Wajib‑ul‑Arz by the Settlement Officer on 13‑8‑1904 where after the said Bisharat Shah had been occupying the land and so are the appellants. There is allegation in the plaint also that the occupancy started in the year 1898 and that the appellants or their predecessor had not been paying any rent other than the Government dues. The suit was contested by the respondents who stated that the appellants are occupying the suit land as non‑occupancy tenants under them. Issues were framed. Evidence of the parties was recorded. The learned trial Court dismissed the suit vide a judgment and decree dated 11‑6‑1978. A first appeal filed by the appellants was heard by a learned Additional District Judge‑1, Muzaffargarh who dismissed the same on 16‑1‑1982.

2. Learned counsel for the appellants contends that the appellants had proved that they had been in possession of the land for over 30 years and as such they shall be deemed to be occupancy tenants within the meaning of section 5 of the Punjab Tenancy Act, 1887. Learned counsel for the respondents support the impugned judgment and decrees.

3. I have gone through the records of the learned trial Court. To my mind, this matter can be decided on the basis of the allegation in the plaint itself read in the light of the provisions of section 5 of the said Act. In view of the plea taken by the learned counsel, the relevant portions of section 5 applicable would be section 5(1)(a) and section. 5(2) of the said Act. The terms for acquisition of a right of occupancy according to section 5(1)(a) are as follows: ‑‑ (a) the person concerned must be in possession of the land at the commencement of the said Act; (b) the possession must relate back to two generations in the male line of descent through grand‑father or grand‑uncle; and (c) the period of possession must not be less than 20 years on the said date. The date of commencement of the said Act is 1‑11‑1887.

4. Subsection (2) of section 5 of the said Act provides that:‑‑ "If a tenant proves that he has continuously occupied land for 30 years and paid no rent therefore beyond the amount of the land revenue thereof and the rates and cesses for the time being chargeable thereof it may be presumed that he has fulfilled the conditions of clause (a) of subsection (1) of section 5 of the said Act." It is this subsection (2) of section 5 of the said Act which has been sought to be pressed into service by the learned counsel for appellants. I have already referred to the contents of the plaint. It is not even the case of the appellants that they or any of their predecessors had been in possession of the land at the time of commencement of the said Act i.e. 1‑11‑1887. By no stretch of imagination can the interpretation sought to be placed by the learned counsel on the said section 5(2) of the said Act is possible or even plausible. A combined reading of subsection (1)(a) and subsection (2) of section 5 of the said Act can lead only to one conclusion i.e. if the person claiming right of occupancy can prove that he had been in possession for a period of 30 years prior to the date of commencement of the said Act i.e. 1‑1.1‑1887 then the presumption would be that he is so in possession for two generations in the male line of descent through a grand father or grand‑uncle. It would border on absurd if it was to be held that any person at any time may walk into the Court and simply by alleging and proving that he is in possession of the land for 30 years be held to be a holder of ‑occupancy rights in the suit land. On the other hand, the plain reading of section 5 of the said Act leaves no manner of doubt that a plaintiff in the case must prove that the person whose successor‑in‑interest he claims to be must be in occupation of land on 1‑11‑1887. There is no way that this intention can be attributed to the framers of the Punjab Tenancy Act, 1887 'that they intended to allow acquisition of the rights under section 5(1)(a) of the said Act after the passing of the Punjab Tenancy Act, 1887.

5. No other point has been urged. This R.S.A. is without any force and is accordingly dismissed with costs. Q.M.H./M.A.K./A‑95/L Appeal dismissed.