P L D 1952 Federal Court 138 (PLP)

CORNELIUS, J.‑This is a plaintiff's appeal from an appel late judgment of the Lahore High Court whereby the appeal of the defendant against the decree awarded to the plaintiff by the Senior Subordinate Judge of Gujrat was accepted, and the suit dismissed. The plaintiff had sued for possession, by ejectment of the defendant, of 538 kanals of land in Daffar village. The history of title, as pleaded by the plaintiff, is that the land originally was included in the undivided shamilat (common land) and was owned by the village proprietary body. In 1938, he became separate owner by virtue of a partition. The pleading is sup ported by the Revenue Records, in which the land has throughout been shown in the possession of various persons, and lastly in 1938, as well as at the institution of the suit, viz., 1945, there was a single occupant, named Jallu, now represent ed on the record by five sons. It is agreed between the parties that the devolution of the occupancy of the land upon Jallu followed inheritance and partition inside his family, and accordingly in setting out the facts of several earlier cases which are relevant to the present suit, it will be convenient to apply the descriptions "proprietors" and "occupants" to the contesting parties. The occupants are non‑proprietors but settled in the village along with the founder. They are shown in all the available revenue records as being tenants‑at‑will under the proprietor, and paying land revenue and cesses only, but no proprietory dues, a condition tersely described in the revenue records as ba shara malikan, prior to the year 1939‑

40. In that year, tile words ba waja kabza were added, but the addition connotes no contemporaneous change in the nature of the possession, and if it did, would yet be ineffective to perfect the occupant's claim of title by prescription. About the year 1916, the village proprietary body was met with resistance by the occupants, when they attempted to partition the suit land, then included .in one of a number of such larger areas, of which the occupants had .similarly obstructed partition. In 1919 the proprietors granted a lease of about 7500 kanals, including the suit land to a group of Hindu contractors, for the express purpose of getting the land cleared of its occupants. The lessees were to hold such land as was vacated through their efforts for a period of eight years, at a very favourable rate of rent. The risks and expense of the litigation involved were undertaken by the lessees, who proceeded to issue notices of ejectment to the occupants under the Punjab Tenancy Act, 1887. These notices were .contested by means of a suit filed in 1919, in a Revenue Court, in which the occupants claimed only to be occupancy tenants under the aforesaid Act of the entire area, including the suit land. Put shortly, their case was that they had been in possession of the land since 1857, paying no rent beyond land revenue and cesses, and reference to subsections (1) (c) and (2) of section 5 of the aforesaid Act will show that, if established, these pleas were sufficient to secure permanent rights of occupancy for the claimants. The Revenue Court had no records for any year prior to 1890‑91 on which to go. In the 1890‑91 record, only 182 kanals 16 marlas out of about 1280 kanals which were the subject‑matter of dispute in the relevant suit, were shown in possession of the occupants, and the Court allowed a period of grace to make up the thirty‑year period under section 5 (2), and decreed occupancy rights accordingly. In appeal, the occupancy area was increased to 200 kanals, but the remaining area of 1080 kanals was found to be held by the occupants as tenants‑at‑will under the proprietors. A sum of money was assessed as compensation for improvements made by them to the non‑occupancy land, payable on account of the ejectment. These proceedings terminated finally, as regards the land on the 14th June 1921, when a warrant of possession issued by the Revenue Authorities, was executed on the spot by the Girdawar Kanungo, whose report reads as follows :‑‑ "Possession of land measuring 1080 kanals and 8 marlas which was lying vacant was given to the proprietors by means of ploughing the same as also of the standing crops of cotton and jawar, etc. Out of the tenants, Mussammat Alam, widow of Salabat and Mussammat Bbage, grandmother of Shana (?) arse present. Hata and Jallu, tenants came to know about the possession last night. They went towards Gujrat. Possession was delivered according to law, in obedience to the Court's order. It has been announced in the village .by beat of drum". As respects the compensation money, this was duly deposited by the proprietors, but was not withdrawn by the occupants until the 22nd August 1933, about eight months after the final termination of certain Civil Court proceedings which will be noticed immediately. It is common ground between the parties that the proceedings of the 14th June 1921 were ineffective to disturb the actual possession of the land by the occu pants. The legal effect of those proceedings will be considered in due course. Dissatisfied with the Revenue Court decision, the occupants sued the proprietors in a Civil Court, viz., the Court of Mr. Kundan Lal, Senior Subordinate Judge, Gujrat, for a declaration with respect to 1080 kanals of land (of which they had been held to be non‑occupancy tenants) that they were owners by adverse possession over a period exceeding twelve years. The suit was dismissed on the 31st January 1924, and the occupants instituted an appeal in the Lahore High Court, which remained pending for over eight years, until on the 6th December 1932, the appellants withdrew the appeal and it was dismissed. The plaint and the judgment of Mr. Kundan Lal have been placed in evidence, and it is clear that in that suit, just as in the present case, the essential matter in dispute was whether the occupants were tenants‑at‑will under the proprie tors, or had acquired proprietary rights against them, by prescription. The suit being by the occupants, the finding by Mr. Kundan Lal on this point, viz., that the occupants were merely tenants‑at‑will under the proprietors is a denfinitive determination of the status which the occupants held qua the land and the recorded proprietors, on the date of institution of the suit (this is variously given as 22nd June 1922 and 7th March 1923, in any case, a date subsequent to the 14th June 1921). In the view which we take, unless the occupants can show that this status was altered after the 31st January 1924 up to date more than 12 years prior to the filing of the present suit, and that by the alteration, their possession became openly and exclusively hostile and adverse to the proprietors, their defence to the present claim of the plaintiff must fail. The entries in the Revenue Records have been consistent with the finding given by Mr. Kundan Lal in 1924, ever since that date. Moreover, the withdrawal of the appeal in the High Court in 1932 would appear to lead directly only to one inference, namely that as far as the litigation thereby concluded was concerned, the occupants were content to abide by the finding of Mr. Kundal Lal regarding their status under the Punjab Tenancy Act. It is unprofitable to speculate as to the motives behind the withdrawal, in relation to the other effort e.g., by the Hindu lessees, to oust the occupants. The events which succeeded the decree of 1924 may be dealt with quite briefly. The Revenue Records appear to show that from about 1926 to 1934, the Hindu lessees secured possession from the occupants, whom they obliged to attorn to them, and to pay appreciable cash rents, but the oral evidence is, in the main, to the contrary effect, and we are inclined to agree with the learned judge of the High Court that in fact, there was no disturbance of the occupant's pos session during this period. The relative position ‑of the proprietors and the occupants remained during this period, in our opinion, as it had been before, and as it was shown in the Revenue Records to be after, this period. Next, about the year 1938, the village proprietary body succeeded in doing what they had failed to do in 1918, viz., they carried out a partition of the undivided shamilat including several of the areas which, through the recalcitrance of the occupants had been left undivided twenty years earlier, and Sammun, father of t)c present plaintiff, Muhammad Hayat, became separate owner of the land now in suit, viz., 538 kanals. He was placed in possession in symbolic form on the 18th September 1938, under a proper warrant of the reve nue authorities, by a Girdawar Kanungo, whose report shows that the occupant‑defendant Jallu was present at these pro ceedings, and was "fully informed" concerning them, and while he offered no obstruction, he yet declined to endorse the report. Such a proceeding, even though it may be defective in form (which is not the case here), would have operated to terminate the occupant's possession, for purposes of prescription, provid ed that he was a party to the litigation as a result of which the warrant was issued : Sri Radha Krishan Chander Ji v. Ram Bahadur A I R 1917 P C

197. The High Court has found that Jallu, as a non‑proprietor, was no party to the partition, and consequently, the delivery proceedings of the 18th September 1938 are without effect on the case. Sammun followed up the delivery of possession by instituting a suit in the Revenue Court against the occupant Jallu, in February 1939 for ejectment and arrears of rent. He claimed that Jallu was a tenant‑at‑will under him, and had failed to pay him his share of produce. The defence pleas were that no relationship of landlord and tenant existed between the parties, and that the occupant having been in adverse possession since 1915‑16, his possession had matured into title by prescription. There was a decision, followed by a remand on appeal, and the Revenue Court finally decided the case on the 5th February 1943, Ignoring the Civil Court decision by Mr. Kundan Lal in 1924 (on the superficial ground that identity of subject -matter had not been established), the Revenue Court held that the occupant had acquired title by prescription, that his pos session dated from 1915‑16, and that the possession was shown to be adverse by the single fact that throughout, he had been paying, as a consideration, nothing more than the land revenue and cesses. As a supplementary or subsidiary finding, it was held that at any rate since Mr. Kundan Lal's judgment was delivered the occupant had been holding adversely to the proprietors. Sammun did not choose to appeal to a higher Revenue Court, but his son Muhammad Hayat took the matter before a Civil Court, viz, the Senior Subordinate Judge of Guirat, by filing the present suit for ejectment. Here, also, as before Mr. Kundan Lal and in the revenue suit of 1939, the point of contest is whether the proprietary right is with the recorded proprietor, or has passed by prescription to the occu pant, whose main claim is that his adverse possession extends over forty years, the alternative claim, undoubtedly suggested by the finding of the Revenue Court in 1943, being made that such adverse possession commenced " at any rate " in 1924 The trial Court found in favour of the proprietor, that the occupant was no more than a tenant‑at‑will and grantee ejectment, but on appeal, the High Court held that the occupant had been continuously in adverse possession sine, the 14th June 1921, and by 1945, his rights had become those of an owner ; in the alternative, it was held that the pre existing tenancy was determined on the 14th June 1921, any under Article 139 of the Limitation Act, the proprietor had twelve years from that date in which to seek ejectment, which period had long since expired when the suit was brought Accordingly, the appeal being accepted, the suit was dismissed. The date 14th June 1921 was first relied on by the occu pant as a terminus a quo at the stage of arguments in the trial Court. In the Revenue suit of 1939, the terminus was placed in the year 1915‑16, while before Mr. Kundan Lal, the general allegation of more than twelve years adverse possession was made, no precise terminus being mentioned, and he found that the first occasion on which the occupants, then plaintiffs, had asserted a hostile title was on the 27th April, 1916. Ob viously, the 14th June, 1921 could not have been relied upon as the terminus by the occupants in the suit they filed before Mr. Kundan Lal in 1922 or 1923, for their claim of title by prescription would have been put of Court at once. But in seeking such a declaration, from a Court of general and unli mited jurisdiction, which would have the effect of settling their status in respect of the land, as against the proprietors, on the date of suit, definitively, it was not open to the occu pants to conceal any facts or events affecting the continuance or nature of their possession during a period of just over twelve years before suit, with the object of employing it as a terminus a quo in subsequent litigation. The very nature of their claim, viz., of acquisition of title by virtue of possession of a particular character, continuing uninterruptedly over a protracted period required that in order to succeed in obtaining the equitable relief they claimed, they should disclose all the facts within their knowledge concerning such possession throughout its duration. The declaration by Mr. Kundan Lal that the occupants possession had been obtained under a pro vision of the wajib‑ul‑arz which will be noticed presently, that it had never been adverse to the proprietors, and that on the date of suit (a date subsequent to the 14th June, 1921), they were tenants‑at‑will under the proprietors appears to us to efface all rights of either party arising out of any anterior events or proceedings, and the determination of their relative status by him, as on the date of suit, provides the basis for resolution of all their rights and obligations inter se under the existing law, until such time as an event or events should occur which might operate to bring about a change. We are unable to see, and our attention has not been invited to, any event in the period between Mr. Kundan Lal's decisions and the present suit, which could be effective to produce such a change. The delivery proceedings of the 18th September 1938 left the situation unchanged. The occu pants' denial of the proprietors' title and assertion of title in himself in the Revenue Suit of 1939 could not produce such an effect, even if it were upheld by the Revenue Court; Muhammad Mumtaz Ali Khan v. Mohan Singh 50 I C

202. On the other hand, in the Revenue Records, the position as settled by Mr. Kundan Lal was confirmed by repetition from year to year, throughout the period in question. In the view we take of the effect of Mr. Kundan Lal's judgment on the relationship between the parties a view which it appears was not pressed before the learned judges of the Lahore High Court, it is plain that the decree of the trial Court must be restored. Before parting with the case, however, we propose to deal briefly with certain arguments which were pressed before us on behalf of the occupants‑respondents. It was contended that the finding of the Revenue Court in the suit of 1939 that the possession of the. occupants had matured into ownership was res‑judicata for the purposes of the present suit. The claim was not founded on concurrency of jurisdiction but upon exercise of exclusive jurisdiction by the Revenue Court. On reference to section 77, Punjab Tenancy Act, which exhaustively sets out the matters, within the scope of the Act, in respect of which the jurisdiction of Revenue Courts is exclusive we find none which can be thought to include, however indirectly, the question of acquisi tion of title by prescription. It was urged, however, that since the Act provides that a suit in a Civil Court which involves any matter of the kind enumerated in section 77 shall be refer red to a Revenue Court, which, thereby acquires jurisdiction to decide all points arising therein, whether or not such other matters be within exclusive Revenue Court jurisdiction, the question of title which arose in the suit of 1939 must beheld to have been decided under such exclusive jurisdiction. We are unable to accept the argument. The jurisdiction exercisable by a Revenue Court in respect of matters outside those enumerated in section 77 is to be regarded, in these circum stances, rather as an extended jurisdiction, on one conse quential upon the reference, than as exclusive jurisdiction. For, as reference to section 98 of the same Act will show any matter arising in a suit before a Revenue Court which such Court regards as " more proper for decision by a Civil Court" may be reserved by such Court and required to be submitted for decision by a Civil Court. There can be no clearer indi cation that a Revenue Court's decision on a matter not falling within section 77 is not a decision within its exclusive jurisdiction, and, consequently, no finality can be claimed for it, in any subsequent suit in Court of general jurisdiction. We will also observe, that the Revenue Courts, in their decisions of 1939 and 1943, appear to have exceeded their function, and acted in disregard of the principles of revenue administration and law in reaching the conclusion that the occupants had become owners by prescription, solely on the ground that for a period exceeding twelve years before the suit, they had been shown to have paid nothing more than the land revenue and cesses, as consideration for holding the land. Tenants who pay nothing more than land revenue and cesses are by no means uncommon in the Punjab as the following extracts from the two principal manuals of the Revenue admi nistration will clearly show :‑ " (1) The chief fact in connection with the history of rent in the Punjab is that it owes its origin mainly to fiscal arrangements, and not directly to economic cases. This is obvious in the case of the rents consisting of the land revenue and cesses with or without a small additional payment on account of malikana, which are still commonly paid by tenants‑at‑will in some parts of the country. (Punjab Settlement Manual, para. 206 " History of Rent in the Punjab"). (2) Where the land was abundant and the proprietary body small, outsiders might he voluntarily admitted as culti vators or forced upon the community by the action of Stare officials. In the latter case the landowners were fortunate they could secure some small grain fee at harvest as acknowledgement of the superior title. (Punjab Settlement Manual, Para. 130). "(3) About 43 per cent. of the land in the province titled by the landowners themselves, 9 per cent. by occupancy tenants and 49 per cent. by tenants-at‑will, a few whom pay no rent ". (Punjab Land Administration Manual, para. 54). So much may also be clearly deduced from certain provisions contained in section 5 of the Punjab Tenancy Act, which confer a right of permanent occupancy in the capacity of tenants, but no higher right, on persons who, in 1887 had been occupying land for certain lengthy periods which are specified and had paid no rent therefore beyond the amount of the land‑revenue thereof and the rates and cesses for the time being chargeable thereon ". And where, as by section 9, it is provided that "no tenant shall acquire a right of occupancy by mere laps of time", it is hardly to be supposed that the much larger right of ownership could be so acquired. It is desirable in our opinion, to remind the revenue Courts of the limitations upon their jurisdiction in respect of title. We shall adopt for this purposes the language of Mr. C. L. Tupper, Financial Commissioner in the Punjab in 1901, who in the reported case Gurdas v. Hassan (Rev,) 13 P R 1901 observed as under :‑ " It is not permissible for the Revenue Courts to go behind the decision of Civil Courts and re‑open matters already decided by competent judicial authority. In a suit like this for rent where the claim was eased on a Civil Court decree, it was altogether wrong to enter on enquires which substantially involved the issue whether that decree had been rightly given or not " The other contention with which we propose to deal may be stated as follows :‑In the absence of proof to show that the occupants were placed in possession by the proprietors, or that there was any agreement or contract of lease, there can be no relationship of tenant and landlord between them. The argument proceeds on failure to appreciate the nature of" tenancy " as the expression is employed in the Punjab Tenancy Act. " Tenant " is defined in the Act‑section 4 (5) as "a person who holds land under another person, and is, or but for a special contract would be, liable to pay rent for that land to that other person ". The essential characteristics of the status are (a) subordination to a landlord and (b) liability to pay rent. The primary source of evidence for determination of these questions is the record of rights maintained for each village by the Revenue administration. The following extract, contained in para. 103 of the Punjab Settlement Manual, states the position with clarity and completeness "Advisability of recording all rights in land and the customary rights and obligations of all classes in villages‑It soon became apparent that the tenure of land was sometimes very complex, and that the proprietary right was not enjoyed as a whole by a single individual or by a village community in common, but was split up among two or more individuals pos sessing titles none of which could properly be regarded as full ownership. The tenures of land under which the proprietary right is divided will be described later on. It is enough to say here that three classes were early recognised, superior proprie tors or taluqdars inferior proprietors, and hereditary tenants. All these classes had permanent rights in the soil, the record of which was essential. By showing as separate holdings the fields held by each tenant‑at‑will under each landowner and noting the rent paid in each case, and by exhibiting in a separate statement the customary rights and liabilities of all members of the village community in its widest sense, including owners, hereditary tenants‑at‑will, shopkeepers and menials, the record was made complete. It is self‑evident that in the case of undivided common land, cultivated by a non‑occupancy tenant, the landlord under whom the tenant would be holding the land is the village pro prietary body, and such would be the entry in the record of rights, which as provided by section 44 of the Punjab Land Revenue Act, 1887, carries a presumption of accuracy. Such are the entries with respect to the suit land throughout the long period covered by the enquiry in this suit as well as the several earlier suits which have come under examination in this suit, and as we have held that this condition has not been disturbed at any time since the year 1924 at least, the point of subordination would appear to be free from obscurity. Indeed, it is conceded, in no uncertain terms by the conduct of the occupants in suing in the first instance only for occupancy rights, and being content with such rights in respect of 200 kanals out of a parcel of about 1280 kanals, of which the suit land, viz., 538 kanals forms part. The Punjab Tenancy Act sets out in detail numerous respects in which an occupancy tenant is subordinate to his landlord. Where there is no right of occupancy, the subordination is even more marked. As regards the entry into possession, we are satisfied that the view taken by the trial Court is correct, namely that by a provision in the Wajib‑ul‑arz of the village, the large area of waste common land was allowed to be brought under cultiva tion by proprietors, occupancy tenants and non‑occupancy tenants indifferently, subject only to payment of malikana dues (i.e. land revenue and cesses) which sums were to be divided among the proprietors in proportion to their khewat i.e., an cestral shares. Any supposition that, by utilising this freedom, those reclaiming the waste become owners of the area they cultivated or held such areas adversely to the village proprie tary body is completely negatived by the absence of any words connoting transfer of title, or of any independent right, to such persons. Indeed, even as to proprietors, the liability to eject ment at partition under the ordinary law remained, and is expressed in the Wajib‑ul‑arz. Moreover the revenue records from year to year continued to show such cultivators as non -occupancy tenants under the proprietary body. Thus, the possession of the occupants in the present case at its inception is referable to the general permission conveyed by the stipula tion in the Wajib‑ul‑arz. As to payment of rent, we entertain no doubt that the stipulated payments under the Wajib‑ul‑arz, viz. land revenue and cesses must be regarded qua those making the payments in the first instance, particularly if such persons were non‑proprietors, as rent issuing out of the land in favour of the proprietary body. This follows plainly from the provision that such payments were to be made shared among themselves by the members of the proprietary body, and also from the statutory provision in section 61, Punjab Land Reve nue Act, 1887, that only the proprietors are liable to pay the land‑revenue assessed on an estate. The whole course of the litigation, which we hope will be finally terminated by our judgment, and in particular, the inconsistencies between the stand taken by the occupants at different times, indicate clearly to our minds the natural and strong desire of the occupants to be preserved in the enjoy ment of the fruits of the labour and care they have expended in reclaiming and developing the suit land, and other lands held by them on the same basis. Similar efforts, by other persons similarly situated, but having the advantage of priority in point of time, have earned occupancy rights for a great number of tenants under section 5 of the Punjab Tenancy Act. In some districts, further west of Gujrat, rights of inferior proprietorship have accrued in the past, and perhaps may still accrue, under the village administration paper of Wajib‑ul‑arz in favour of persons who have claimed waste land. Therefore, although we have no alternative but to decree the claim for their ejectment, we find it impossible to withhold our sympathy for them. Indeed, we allowed the parties an interval after the close of argument, in which to make efforts for a compromise on the basis of division of the suit land. To our regret, no compro mise was found possible. We allow the appeal and setting aside the judgment of the High Court, restore the judgment and decree of the trial Court. We leave the parties to bear their own costs throughout. A. H. Appeal allowed.