P L D 1963 (W (PLP)

Pir Bakhsh for Appellant. Shah Zaman Khan for Respondent. Date of hearing : 13th November 1961. Qaim Din defendant‑respondent was admittedly the owner of occupancy rights in Khasra Nos. 520, 521, 523, 524, 525, 527 and 571, measuring 158 kanals 18 marlas, situated in the area of Ratwal, Tehsil Fatehjang, on payment of rent in kind up to half of the produce. He was recorded as such also in the records‑of- rights and annual records. On the enforcement of the Punjab Tenancy Amendment Act VII of 1952, mutation No. 433 was entered for the determination of ownership rights in accordance with the provisions of section 114 of the Act. According to it, the occupancy tenancy had been terminated and the tenants had become owners up to the extent of the share of produce of the land they were entitled to have, at the time of the enforcement of the Act. In the instant case, the occupancy‑tanant was to pay half of the produce to the landlord and was to retain the rest to himself. About four days previous to the attestation of this mutation, e.g. 21st of July 1955, Muhammad Akram Khan, person ally and as next friend of Tahir Ahmad Khan, his minor nephew, instituted a suit for a declaration that Qaim Din had abandoned the occupancy rights since the last sixty years and, therefore, he was not entitled to the benefit contemplated in section 114 of the Act and in case the abandonment was not proved, then the plaintiffs acquired the rights of occupancy by adverse possession for more than 12 years. This suit was dismissed by Mr. A. U. Khan, Civil Judge, 2nd Class, Campbellpur, by his judgment dated the 22nd of March 1956, in appeal to the District Judge, Campbellpur, the plaintiffs with no better fate. The plaintiffs have now preferred the present second appeal challenging the findings of the Courts below given in favour of Qaim Din to the effect that he had not abandoned the occupancy rights and that the plaintiffs had also not acquired these rights by adverse possession.

2. Counsel for the respondent raised a preliminary objec tion to the effect that the question of abandonment of occupancy rights is that of fact and since there has been concurrent finding of both the Courts below, in this respect, in favour of the res pondent, therefore, it could not be disturbed in the second appeal. He has relied on Hans Gir v. Raghbir Singh (A I R 1934 Lah. 163). The counsel for the petitioners met this preliminary objection by citing a number of authorities in his support. He relied on Muhammad Umar Khan and another v. Razi Khan etc. ((1919) 170 P R 450), wherein it was held that the decision on abandonment of occupancy rights and its acquisition by the landlord by prescription based on misreading or misconstruction of Tenancy Act can be challenged in the second appeal. He has also relied on Muhammad Din v. Khushi Muhammad (A I R 1930 Lah. 215), wherein it was found that the question whether facts found by lower Courts amounted to abandonment of rights of occupancy can be challenged in the second appeal. He has further cited another authority reported as Aswan! Kumar Dhupi v. Har Kumar Ghosh (A I R 1928 Cal. 891), wherein it has been laid down that the inference from facts found as to whether there was abandonment or not is a question of law and, therefore, can be attacked in the second appeal. In another authority, which has been relied upon by him and reported as Dipnarain Rai v. Pundeo Rai (A I R 1947 Pat. 99), it was held that a question of adverse possession is a mixed question of law and fact. To decide what are the elements that are necessary, in view of the special feature of a particular case, in order to attribute the character of adverseness to the defendants' acts of possession is a question of law and if the Court in fact has misdirected itself as to these elements, it must be deemed to have committed an error of law. Reference was also made to Nizamuddin v. Mangal Sen (A I R 1949 All. 699) which supports the Patna view referred to above. I agree with the counsel for the appellant and find that the question of abandonment of rights of tenancy and of adverse possession is mixed question of law and fact, and therefore can be disturbed in the second appeal.

3. Turning to the instant case, on merits, the Courts below interpreted the entries of the revenue record and had also con sidered the other evidence produced by the parties, to decide if Qaim Din had lost his right of occupancy by abandonment as contemplated under section 38 of the Punjab Tenancy Act, 1887 (Act XVI of 1887), (which section is still in force), or the landlord had acquired the rights of occupancy by adverse posses sion for more than 12 years: The abandonment of tenancy by an occupancy tenant has been defined in section 38 of the Act. The relevant part of the section reads as under :‑ If a tenant having a right of occupancy fails for more than one year without sufficient cause to cultivate his tenancy, either by himself or some other person and to arrange for payment of rent thereof as it falls due, the right of occupancy shall be extinguished from the end of that yea. In the instant case, the occupancy tenant was to pay half the produce to the landlord, as rent. From the entries of the annual record of 1925‑26 up to the entries of the annual records, of ..the present time, it is clear that Qaim Din was recorded as an occupancy tenant in the cultivation column and plaintiff No. 2 and his predecessors‑in‑interest, as landlords. In column relating to laghan, it has all along been recorded that the occupancy tenant was to pay one‑half of the batai to the land lord and the land was in occupancy of a non‑occupancy tenant on payment of half batai, but he was paying this batai direct to the landlord and the occupancy tenant was not being given anything, because of the lack of possession. Since the landlord had been receiving the rent up to the extent of one‑half of the produce, which the occupancy tenant was liable to pay to him during all this time, therefore, it cannot be said that the occupancy tenant has abandoned the occupancy rights as contemplated under section 38 of the Punjab Tenancy Act. The occupancy tenant under section 38 was required to cultivate land either by himself or to make arrangement for its cultivation through another including a tenant‑at‑will and so long as the land had been regularly cultivated and the landlord been receiving his due share the occupancy tenant could not be considered to have abandoned the tenancy. The words recorded in the column of laghan of the annual records and the fact that tenant‑at‑will had been directly paying half the batai to the landlord were much stressed before me, with a view to arrive at a conclusion, that the occupancy tenant had abandoned the occupancy tenancy. In my view these words recorded in the laghan column of the annual records support the existence of the occupancy tenancy rather than its abandonment. If the tenant‑at‑will was occupying the land on behalf of the landlord and not on behalf of the occupancy tenant since the last thirty or sixty years then the predecessors of the plaintiff No. 2 would have sued for adjudication in the revenue Courts as was contemplated under section 77, Second Group (d) of the Punjab Tenancy Act of 1887. No such claim was preferred by the landlord and no adjudication had been obtained by him that the occupancy tenant has abandoned the occupancy rights. This is a circumstance which cannot lightly be ignored. The mere fact that, Fazal Ahmad (P. W. 5), now recorded to be as tenant‑at‑will in the revenue record, sided with the plaintiff and stated in the Court that he was occupying this land as a tenant‑at‑will on behalf of the plaintiff, would not necessarily prove that this was true. In a similar case reported ? Amir Bakhsh v. Khuda Yar (P L D 1960 Lah. 256), at page 259, in the concluding part of para. 8, which is relevant to the circumstances of the present case, the learned Judges observed :‑ If a tenant‑at‑will who is cultivating land under an occu pancy tenant colludes with the landlord, he cannot thereby, in any way, affect the rights of the occupancy tenant and the occupancy tenant cannot in such a case be said to have abandoned the land. In the revenue records the different tenants‑at‑will, at different times, were recorded to be in possession on behalf of the occupancy‑tenant, but they were paying the rent to the extent of one‑half of the produce direct to the landlord because, that much was payable to him as rent even by the occupancy tenant. It appears, therefore, that the tenants‑at‑will were put into possession of the land by the occupancy tenant by way of arrangement for the cultivation of the land and payment of rent to the landlord, so that he may not be considered as having abandoned the right of occupancy as contemplated in section 38 of the Tenancy Act. It is, therefore, clear that Qaim Din had not abandoned the tenancy as he had duly arranged for the cultivation of the land and for payment of the batai to his landlord through his tenant‑at‑will. The fact of abandonment of the occupancy rights by Qaim Din has not been established and the learned Courts below had correctly found it in favour of the defendant‑respondent.

4. The question of adverse possession was argued by the learned counsel for the appellant with reference to the words recorded in the laghan column of the jamabandi. When the occupancy tenant put the tenant‑at‑will in possession of the land in the course of making an arrangement for cultivation and pay ment of the rent to the landlord, then the possession of the tenant at will would be permissive and the possession of such a tenant could not be, by any stretch of imagination, be considered as adverse under the law. The words are distinguishable from the words. If the latter words had been used then the necessary inference would have been that the occupancy tenant had renounced all connections with the land. No doubt a landlord could acquire the occupancy rights by adverse possession also but for that a very clear evidence is required which should lead one to no other conclusion except the one that the E possession of the landlord was not in pursuance of any other circumstance except that the occupancy tenant had abandoned it or that his possession to these rights was open, hostile and adverse to the tenant. In the instant case no such circumstance has been proved. The oral evidence produced by both the parties was not relied upon by the Courts below and in my view quite rightly.

5. The learned counsel for the appellant has relied upon Umar Said and others v. Faiz Muhammad Khan (P L D 1961 Pesh. 110) and urged that the defendant‑respondent was not in occupation of this land as an occupancy tenant as contemplated in section 114 of Act VII of 1952 and, therefore, legally he was not competent to derive benefit of this section. In this very judgment the 'follow ing has been said on page 116 :‑ We must not be understood to hold that the words occu pies land as such necessarily mean physical occupation, for a tenant may be in constructive possession through a tenant‑at -will. In the same way, he may have been thrown out of possession by some illegal process, but if he has time to avail of a legal process to restore himself to possession, whether actual or constructive, he should be allowed to make use of that remedy. In the instant case, Qaim Din was found to be in constructive possession of the land when Amending Act VII of 1952 came into force. The learned lower Courts, therefore, had correctly decided these points of abandonment and adverse possession in favour of the defendant‑respondent and 1, therefore, find no reason to interfere in their concurrent findings in this behalf. The appeal has, therefore, got no substance and is dismissed with costs. K. B. A. Appeal dismissed.