1988 PLP 1498 (CLC)

This second appeal is by the plaintiffs whose suit was dismissed by learned trial Court on 31‑10‑1968 and first appeal by learned District Judge on 1‑7‑1969. Appeal raises a question in regard to the nature of payment of one rupee by the plaintiffs, whether it was part of rent or was a cess. This question arose in the facts given below. Some land at Mauza Langar belonged to Sultan Mahmood Khan and others, Khattars Ferozal of Mauza Dhrek, Tehsil Fateh Jang. Mohammad Ji was its occupancy tenant and paid Batai rent to the owners of the land. Plaintiffs are successors of aforesaid Mohammad Ji. By Punjab Act VII of 1952, substantial amendments were made to Punjab Tenancy Act, 1887. By its section 114, occupancy rights in respect of lands other than lands owned by Government or by any person who was evacuee were extinguished and instead ownership rights were conferred on erstwhile occupancy tenants in accordance with its sub‑section (2) clause (a) to clause (d). With the enforcement of aforesaid Act on 4‑2‑1952, plaintiffs as successors of Mohammad Ji were given ownership rights in the land held by them as occupancy tenants in proportion to the share of Batai rent paid by them to their landlords. To this extent, there is no dispute between the parties. Plaintiffs, however claimed that they paid rent partly in cash and partly in the form of share of the produce. It was asserted that they were entitled to acquire rights in the entire land held by them and in support relied on payment of Rs.45 as compensation deposited on 28‑6‑1960 to the credit of their landlords. On these allegations, plaintiffs filed a suit on 8‑4‑1966, against defendants to have it declared that they were owners in possession of total land measuring 249 kanals, 13 marlas denying any right therein to the defendants Sultan Mahmood Khan and others. Defendants. contested the suit. It was alleged that plaintiffs had abandoned their occupancy rights and were not entitled to get ownership rights. It was also alleged that "one rupee" entered in the revenue records was a cess and was not part of the rent in kind payable by the plaintiffs to them. Pleadings gave rise to following issues:‑ (1)??????? Whether the plaintiffs are entitled to the proprietary rights in the entire suit land under the Amended Tenancy Law of 1952? O.P. (2)??????? If issue No.l stands proved, whether the predecessor in interest of the plaintiffs had lost his rights of occupancy in the suit land by abandonment? O.D. (3)??????? Whether the suit is maintainable in the present form? 0 . P. (3‑A) Whether the civil Court lacks jurisdiction for the suit? O.P.D. (4) Relief. Issues 1 and 2 were taken up together for discussion by the learned trial Judge. It was held there under that plaintiffs paid rent in kind only and payment of one rupee in addition thereto was merely a cess. In regard to issue No.2, no finding was recorded. Issue No.3 was held not proved and in regard to issue No.3‑A, it was held that civil Court had jurisdiction to adjudicate upon the dispute. On these conclusions, civil suit was dismissed. In appeal, learned District Judge agreed with the trial Court in regard to the nature of payment of one rupee and held that it was not part of the agreed rent to be taken note of under section 114 for determining the entitlement of the plaintiffs. It was also found that even if it was taken to be part of rent, consolidated cash rent plus produce rent exceeded Rs.45 said to have been deposited by the plaintiffs in this behalf. On 20‑4‑1988, appeal was adjourned at the request of Ghulam Muhammad appellant for today's date of hearing to enable him to arrange for his counsel. Adjournment notwithstanding he did not choose to engage a counsel and preferred to address the Court himself. Respondents were represented by Malik Mohammad Jaffar, Advocate. Both have been heard at length. Original record has also been examined. Only point falling for decision is in regard to the nature of payment of one rupee by the plaintiffs to the defendants. Ghulam Muhammad appellant asserted that it was part of cash rent payable with produce rent and the case of the appellants was governed by section 114 (2), clause (d). It was argued by him that on deposit of Rs.45 which represented the amount of consolidated rent, plaintiffs were entitled to get the entire land comprised in their occupancy tenancy. Malik Mohammad Jaffar learned Advocate on behalf of the respondents argued that it was a cess and could not be counted towards rent which the plaintiffs paid as tenants to the defendants ?landlords. In this behalf, learned counsel invited my attention to column 10 of Jamabandi for 1944‑45 Ext. P‑1 and argued that plaintiffs paid produce rent only and the payment of one rupee in addition thereto was merely a cess which having been already abolished by Act XVII of 1950‑‑Punjab Tenancy (Amendment) Act, 1950 on 13‑6‑1950, could not be taken as part of cash rent. Nature of rent and its break up is given in Khata No.l of jamabandi for 1944‑

45. The entry as to oavment of rent reads:‑ Identical entry from Attock district couched in similar language was examined by Mr. Justice Aftab Hussain, later Chief Justice Federal Shariat Court of Pakistan, in `RSA 711 of 1970 who after examining the entry in the light of various provisions of Punjab Tenancy .act including the provisions of Punjab Act VII of 1952 found that payment A of one rupee was a cess and was not part of rent. This conclusion, in my judgment, enunciates a correct statement of law. I respectfully agree with it and hold that plaintiffs paid Batai rent only‑ and the averment that they paid rent partly in cash and partly in form of share of produce cannot be accepted as true version on the present record. Reliance of the plaintiffs on clause (d), subsection (2) of section 114 does not appear to be correct. Clause (d) ordains that an occupancy tenant who at the time of coming into force of Act VII of 1952 occupied any land shall become its owner of the whole or a portion of the land comprised in his tenancy on payment of such compensation in such form and within such time to the landlord as B may be determined by Government by rules framed under this Act where he paid rent partly in cash and partly in the form of share of the produce. So long as the relevant rules were not framed by the Government, status quo ante prevailed. However, necessary Rules were framed and gazetted on 17th March, 1953. Rule 4 governed the case in clause (d). It reads:‑ "Compensation under clause (d) of subsection (2) of section 114 of the Act shall be paid within two years from the date these rules come into force, at 20 times the annual rent (consolidated cash rent plus produce rent) payable to the owner. Explanation:‑Produce rent shall be commuted into cash rent on the basis of the yearly average of the previous 5 years' produce of that kind of land in the assessment circle in which the land is situated, multiplied by the average price of each type of produce for the same period". Close reading of section 114 Punjab Tenancy Act produces the following results:‑ (a)An occupancy tenant who paid no rent beyond the amount of land revenue etc became owner of the entire land comprised in his tenancy without payment of any compensation therefore; (b) An occupancy who paid Batai rent became owner of the land in proportion to the share of Batai rent paid by him; (c) An occupancy tenant who paid cash rent in respect of the land comprised in its tenancy became owner of the entire land on payment of the compensation in acccordance with the rules framed by the Government. As far as the case of occupancy tenant who paid rent partly in cash and partly in form of a share of produce was concerned, it was enacted that he shall become owner of the whole c or a portion of the land comprised in his tenancy on payment of such compensation in such form and within such time to the landlord as may be determined by Government by rules framed under this Act. Though rule 4 framed by the Government to give effect to clause (d) of subsection (e) of section 114 gave a formula for ascertaining the compensation payable by the tenant yet it did not say anything as to conferment of ownership rights whether it shall be in respect of whole or part of the land comprised in occupancy tenancy. It may be a legislative omission and lacuna cannot be filled in by the Court. It is for the Government to look to it and supply, the omission. Be that as it may, plaintiffs have failed to show as to how they have worked out Rs.45 as compensation (consolidated rent) payable for the land. Therefore, even if it could be assumed that plaintiffs paid rent partly in cash and partly in form of produce, it has not been satisfactorily proved on the present record that the amount of compensation had been worked out in accordance with the principles laid down in Rule 4 of the Rules framed under section 114 D. of Punjab Tenancy Act 1887 as amended. Unless it was shown to the satisfaction of Court that this amount correctly represented the compensation as provided in Rule 4, plaintiffs could not be benefited.. It is no longer in dispute that the time fixed for deposit of compensation has since long expired and no law exists to extend it by the Court. Therefore, the appeal is without merits and is dismissed with no order as to costs. A. A./G‑149/L???????????????????????????????????????????????????????????????????????????????????? Appeal dismissed