P L D 1961 W (PLP)

Revision ‑Jurisdiction of Commissioner and Board n' Revenue‑Concurrent‑Presumptions law made by Commis sioner contrary to Law‑Material irregularity‑Revision competent. The respondents Mosam‑Khan etc., who are tenants of the land in dispute situated in village Paniala, District D.

1. Khan, brought a suit for a declaration that they were occupancy tenants under section 8 of the Tenancy Act, as the result of an agree ment between the predecessors‑in‑interest of the parties. The Assistant Collector dismissed the tenants' suit and their appeal was also dismissed by the Collector. In revision the learned Additional Commissioner intervened and held that the predecessors in‑interest of the parties had entered into an agreement in, 1898, as a result of which the tenants' predecessors were given rights of occupancy on payment of 1/4th batai. The following two important points in the Additional Commissioner's decision deserve mention :‑ ‑ ' (i) The possession of the tenants was found by him to have been not continuous as entries in the Jamabandis of 1912‑13 and 191E‑17, showed that parties other than the predecessors of the tenants were in possession of the suit land. The learned Additional Commissioner, however, observed as following :‑ "The short break in their possession as recorded in the Jamabandis of the years 1912‑13 and 116‑t7, can safely be ignored and. it may be presumed, that the land has always been in the possession of this family. Such minor mistakes are likely to occur in revenue papers and have to be inter preted in favour .of the family which has been in possession for the longest period." (ii) The entries regarding payment of rent have also changed from 1/4th to 1/3rd and this change took place in the year 1932‑

33. The Additional Commissioner again observed as follows: "Regarding batai, I would observe that both under the old and new law the rate can not be enhanced except with the concept of the landlord and the tenant. As the tenant had agreed in the year 1898, not to pay rent at a rate higher than I/4th it was not likely that he would agree to its enhancement in the year 193‑

33. The presumption, therefore, is that the rate of rent from 1/4th to 1/3rd has been made without the consent of the tenant and is, therefore, not binding on him. The landlord had now come up in second revision. The main ground that has been urged is that the interference of the Additional Commissioner was contrary to law as in both the two points mentioned above the presumptions drawn by him are against the specific legal provisions that entries in the records‑of rights have a presumption of truth attached to them and no reliable evidence to rebut these presumptions was adduced by the tenants. In the circumstances the provisions of section 115 of the Civil Procedure Code read with section 84 of the Tenancy Act should be invoked for the ends of justice. It was argued on the contrary that the entire matter had been gone into carefully by the learned Additional Commissioner. No material irregularity was involved and even if the decision is erroneous the matter was not open to revision. Reliance in this behalf on Paras Ram and others v. Makhan Lai and others (P L D 1950 Ph. (Rev.) 123) what, however, the learned counsel for the respondents forgot was that on the same facts he agreed that the learned Additional Commissioner was competent to interfere in revision and that the revisional jurisdiction of the Commissioner and Board of Revenue is concurrent. I have no doubt in my mind that the two presumptions drawn by the learned Additional Commissioner are contrary to law and constitute a material irregularity which resulted in a miscarriage of justice. The same view has been expressed by me in a repent decision R. O. R. No: 257 of 1957‑58 Muhammad Akram Khan and others v. Karam Dad and others. I would accordingly accept the revision petition, set aside the order passed by the learned Additional Commissioner and restore V2at of the trial Court. In the particular circumstances of the case the parties shall bear their own costs. K. M. A. Petition accepted.