1979 PLP 607 (CLC)

This is a petition to challenge an order dated 26th June, 1978, by which a temporary injunction was issued in favour of the respondents restraining the petitioner from interfering with the former's possession over Killas Nos. 11 to 16 of Square No. 46

2. The facts are that Hakam who was the father of the parties was allotted land under the Criminal Tribes Scheme framed under the Coloni zation of Government Lands (Punjab) Act, 1912. He died in 1930. After his death the entire property is said to have been allotted in the name of the petitioner. The two respondents recently filed a suit to challenge this allotment on the ground that the tenancy had devolved on all the heirs of Hakam and the said allotment had been obtained by the petitioner by fraud. It was contended that the plaintiffs-respondents have throughout been in possession of the property. The respondents also applied for a temporary injunction for maintenance of status quo in regard to their possession over the area referred to above. That application was dismissed by the learned trial Court. The learned District Judge reversed this order on the 26th June, 1978, and finding the respondents to have been able to make out a prima facie case and answering the other points of irreparable loss and injury in their favour, issued a temporary injunction against the petitioner.

3. The learned counsel for the petitioner argued that the respondents can prima facie succeed only if they are successful in proving that the tenancy right of Hakam was subject to devolution on his heirs. But according to him, his property being in the nature of the scheduled tenancy as specified in section 4 of the Act of 1912, it was not subject to the provisions of sections 20 to 23 and consequently the tenancy right of Hakam was not heritable. It was in these circumstances that the petitioner applied for a fresh allotment in his name arid was successful in obtaining that .allotment.

4. Section 4 provides in its proviso that "unless the Provincial Government by general or special order otherwise directs nothing in sections 20, 21, 22 and 23, or in the proviso to section 14 of this Act, shall apply to tenancies specified in Schedule I of this Act. or any class of tenancies created hereafter which the Provincial Government may declare to be scheduled tenancies under this section." Admittedly, the type of tenancy conferred upon Hakam is not specified in Schedule I of the Act. For this reason the learned counsel has drawn my attention to the Scheme for Allotment of Land to certain Criminal Tribes in Lower Bari Doab Colony. In para. 2 it was provided that- "tenancies granted in accordance with these conditions shall be tenancies deemed to be scheduled tenancies within the meaning of section 4 of the said Act." He further drew my attention to paragraph No. 27 of the Scheme as amended by Correction Slip No. 134-C, dated the 20th March, 1952, which provides that- "At or after the expiration of 15 years from the date of the commence ment of the tenancy, the tenant having duly paid all sums due to Government under the conditions hereinbefore described and having duly observed all the stipulations herein contained and to be by him observed, shall be entitled at any time to receive from the Government a Sanad giving him a right of perpetual tenancy and of succession as provided by sections 20, 21, 22 and 23 of the Act aforesaid in the said lands, which shall cease to be a scheduled tenancy." This is followed by certain provisos which are not relevant in the present case.

5. On the basis of this correction slip which has been added in 1952, long after the death of Hakam, the learned counsel argued that it was from then for the first time that the provisions of section 20 etc., were applied to the scheduled tenancy. granted under the above Scheme of Criminal Tribes. In view of this section 20 could not be held applicable on the date when Hakam died.

6. Mr. Asghar Ali, however, argued that even in the year 1930, it was the duty of the petitioner to take all the sons into confidence and to get the tenancy on behalf of all of them.

7. The question before me which is a short one is whether the learned District Judge was right in holding that the respondents have been able to make out a prima facie case. Once it is held that section 20 would not prima facie apply to the devolution of the interest of Hakam, this question cannot be answered in favour of the respondents. In view of this, T allow this petition without any order as to costs, set aside the order of the learned District Judge and restore the order of the learned trial Court. Revision allowed.