P L D 1962 (W (PLP)

SHAKIRULLAH JAN, J.

The suit, out of which this further appeal arises, was brought by Abdul Aziz and 44 others, residents of village Shakki Bands-cum-Thatti Nasrati, against Gulzahid Shah and others of Khojakki Kalla for possession of a considerable landed property, bearing Khasra numbers as specified in the heading of the plaint `situate in the area of village Thatti Nasrati and, in the alternative for the recovery of compensation under section 4 (1) of the North-West Frontier Province Tenancy Act, 1950, on the allegation that they were the owners of the land in dispute, which was mortgaged by their predecessors-in-interest to the predecessors- in-interest of the defendants before 1903-04. It appears from the record that a suit for possession by redemption of the land in dispute was brought by the predecessors-in-interest of the plaintiffs against the predecessors-in-interest of the respondents, and a decree for possession by redemption was passed in their favour by Shahzada Muhammad Sultan Khan, Sub-Judge, 1st Class, Kohat, by his order dated 30-3-1900, but it was not given effect in the Revenue Record. After the passing of the North -West Frontier Province Tenancy Act of 1950 the names of the plaintiffs were removed from the column of ownership and the tenants were entered as owners of the suit land in the Revenue Record. It appears that after the redemption decree was passed in their favour by Shahzada Muhammad Sultan Khan, the predecessors-in-interest of the plaintiff-appellants seem to have mortgaged the disputed land to Sardar Makhan Singh. An applica tion was made by the mortgages in the Revenue Court, urging that they were the occupancy tenants of the land in dispute under section 5 (1) (c) of the Punjab Tenancy Act, 1887. The suit was decreed in their favour by the Assistant Collector, but the Collector accepted the appeal filed by the new mortgagee I.e. Sardar Makhan Singh, and found that the defendant-respondents were not the occupancy tenants under section 5 (1) (c) or any other section, and set aside the order of the Assistant Collector. The tenants i.e., the defendant-respondents appealed to the Court of the Revenue and Divisional Commissioner, Mr. M. F. O'Dwyer Revenue and Divisional Commissioner, North West Frontier Province, by his order dated the 23rd of November 1904, accepted the appeal, set aside the order of the Collector, and restored that of the Assistant Collector, declaring the defendant-respondents as occupancy tenants under section 5 (1) (c) of land measuring 1468 Kanals 11 Marlas. The plaintiff-appellants alleged that since the dispute relating to occupancy tenancy was between the defendant-respondents and Sardar Makhan Singh of which they had no knowledge, and the order of the Revenue Commissioner mentioned above was not binding on them.

2. The defendants resisted the suit and urged that the suit was not maintainable in the Civil Court, that It was not properly valued for the purposes of Court-fee and jurisdiction, and that they were the occupancy tenants of the land in dispute and after the passing of the North-West Frontier Province Tenancy Act of 1950, their tenancy was converted into ownership. The following issues were framed :- (1) Has this Court jurisdiction to try the suit ? (2) Whether the suit has not been properly valued for the purposes of Court-fee and jurisdiction ? (3) Is the suit not proper in its present form ? (4) Whether defendant No. 29 Khani, son of Ghulam Sarwar has been misdescribed in the heading of the plaint, if so, with what effect ? (5) Whether the suit is barred by res judicata ?

3. After recording the evidence produced by the parties Muhammad Inam Khan, Sub-Judge, Kohat, while discussing issue No. 1 came to the conclusion that the question as to whether the defendants were occupancy tenants and as to whether the last order of the Collector was correct or not, was the jurisdiction of the Revenue Court and, therefore, the Civil Court had no jurisdic tion to entertain the suit. After finding issue No. 1 against the plaintiffs and leaving the other issues undetermined, the Sub-Judge, by his order dated the 26th of February 1958, dismissed the plaintiffs' suit, leaving the parties to bear their own costs.

4. The plaintiffs preferred an appeal, and Mr. Amirzada Khan, Additional District Judge, Peshawar at Kohat, who heard the appeal, found that the plaintiff-appellants' assertion that defendant respondents were not the occupancy tenants of the land in suit was obviously not triable by a Civil Court, and similarly the order converting the occupancy tenants into owners of the land in suit was good and valid in law, and the Civil Court had no jurisdiction to question the same. He, therefore, upheld the judgment and decree of the Court below, and dismissed the appeal with costs throughout by his order dated the 30th of June 1959. The aggrieved plaintiffs have come up in further appeal to this Court.

5. The learned counsel for the appellants urged that the occupancy tenancy had been converted into ownership and, therefore, the Civil Court had jurisdiction to entertain the suit. The sole question for decision in this appeal is whether the Civil Court is competent to try this suit or not. For the determination of this question it is necessary to refer to the relevant provisions of law laid down in the Punjab Tenancy Act of 1887, the North- West Frontier Province Tenancy Act of 1950 and the North-West Frontier Province Tenancy (Amendment) Act of 1952 (Act VI of 1952). The North-West Frontier Province Tenancy Act, 1950 was enacted to convert the occupancy tenancy into full ownership of a certain portion of the land in occupation of occupancy tenants with certain terms and conditions. It is an admitted fact that before the enactment of the North-West Frontier Province Tenancy Act, 1950, the Punjab Tenancy Act of 1887 was in force in the former North-West Frontier Province. Section 85 of the North- West Frontier Province Tenancy Act, 1950 repealed a number of Acts, Including the Punjab Tenancy Act of 1887. A proviso was, however, added to this section which reads as under :- "Until the rights of an occupancy tenant are determined under sections 4 and 4-A of this Act, all the provisions of the Punjab Tenancy Act of 1887 as applied to the N.-W. F. P. . . . . so far as they relate to the occupancy tenancy shall remain in force. From the evidence on the record, as also found by the Courts below, it appears that the defendant-respondents were entered as occupancy tenants of the disputed land on the strength of the order of Mr. M. F. O'Dwyer, Revenue and Divisional Commissioner, dated the 23rd of November 1904, and since then they were recorded as occupancy tenants and remained as such till 1950-51 without payment of the share of produce to the owners, and therefore, their occupancy tenancy was converted into full ownership without paying any compensation. Sections 4 and 4-A of the North-West Frontier Province Tenancy Act permitted the occupancy tenants to become owners of the land in their occupa tion to the extent to which they retained the share of produce for themselves, and when rent was payable in cash they could become owners of the whole on payment of prescribed compensation. Section 4 of the North-West Frontier Province Tenancy Act is as under :- "4 (1). Any occupancy tenant who at the commencement of this Act: (a) occupies any land as such paying no rent thereof beyond the amount of the land revenue thereof and the rates and cesses for the time being chargeable thereon, shall become full owner of such land without payment of any compensation, (b) occupies any land as such on payment of the rent in cash, shall become full owner thereof on payment of the compensation to the landlord at such rates and within such period as may be prescribed by the Provincial Government under this section." Section 85 and section 4-A, subsection (1) of the North-West Frontier Province Tenancy Act read together would show that the Punjab Tenancy Act, 1887 would be in force until the rights of occupancy tenants are determined under section 4-A, and it would cease to apply after the rights of the occupancy tenants are determined and mutations attested. From the file it also appears that the rights of occupancy tenancy of the defendant-respondents were determined, and they were declared as full owners of the land in dispute. The Punjab Tenancy Act, therefore, ceased to apply to the case by virtue of proviso to section 85 of Act XV of 1950, and as such section 77, subsection (3), Second Group, clause (d) e of the Punjab Tenancy Act, which had barred the jurisdiction of the Civil Court no longer being in force, the Civil Court had, therefore, jurisdiction to entertain the suit. In this view we are fortified by Arsala Khan and another v. Mir Hassan and others (P L D 1960 Pesh. 70), where it was held that :- "by the attestation, of mutations, the rights of occupancy tenants were determined in accordance with sections 4 and 4-A of the N.-W. F. P. Tenancy Act, 1950, and were converted into the rights of full ownership ; and thereafter, in respect of those tenancies, the Punjab Tenancy Act, 1887, stood repealed under section 85 of the Act of 1950, hence the access to Civil Courts, barred by section 77 (3) (d) of the Act of IF87, became available to the landlord under the Act of 1950."

6. From the perusal of the judgment of Mr. M. F. O'Dwyer Revenue Commissioner, dated the 23rd of November 1904, it would further appear that beyond the land revenue and cesses, the occupancy tenants were paying nothing more. He had, however, directed the owners in that order to bring a suit for the enhancement of the rent under section 22 of the Tenancy Act if so advised. No action was brought by the plaintiff-appellants for the enhancement of the rent and, therefore, the defendants-respondents continued to be in possession of the disputed land as occupancy tenants on payment of the land revenue and cesses only without paying any share of produce.

7. As a result of the above discussion, we accept this appeal, set aside the judgment and decree of the two Courts below, and remand the case under Order XLI, rule 23, C. P. C. to the trial Court for deciding the issues left undetermined. Costs to follow the event. A. H. Appeal accepted.