P L D 1957 (W (PLP)

HABIBULLAH, J.‑

Sardar Barkat Ali plaintiff instituted suit No. 84/1 on the 20th March 1953, against the Provincial Government, Mst. Bakht Jana and three other defendants in the Court of Sub‑Judge, 1st Class, Peshawar, for a declaration to the effect that he was the owner of J share in the land measu ring 116 kanals, 12 marlas situated in village Larama and that mutation No. 456 attested on 14th October 1952, whereby the ownership rights in the suit land were mutated in favour of defendants 2 to 5 was null and, void, and ineffective against his rights. He further prayed for the grant of a permanent injunction restraining the defendants from ejecting him out of the land, A similar suit No. 83/1 was instituted on the same date in the same Court by Mst. Dur Marjan plaintiff against the Provincial Government, Abdul Ghafar and six other defendants for an identical declaration and relief in respect of 1/2 share in land measuring 48 kanals 3 marlas, whereby the validity and effectiveness of mutation No. 469, attested on 14th October 1952, was challenged. Both the suits were tried side by side and decided on the same date. Decree for declaration as prayed for was granted in both the suits, but relief for permanent injunction was refused. In both the cases the defendants went up on appeal to the Court of the District Judge, (Appeals Nos. 37 and 33 of 1955). The learned District Judge without giving any decision on the merits of the cases accepted the appeals, set aside the judgments and decrees, and directed the trial Court to return the plaints under O. VII, rule 10, Civil P. C. for presentation to a competent Court. In his opinion section 77, subsection (3) Second Group (d) of the Punjab Tenancy Act of 1887, barred the jurisdiction of Civil Courts to entertain the suit. Two miscellaneous appeals have been filed in this Court against the order of District Judge, one Civil Appeal No. 75/4 of 1955 by Sardar Barkat Ali Khan plaintiff and another Civil Appeal No. 76/5 of 1955, by Mst. Dur Marian. Since both the appeals involve common questions of facts and law, they are being disposed of together by one judgment. The sole question for decision in the two appeals is, whether a Civil Court is competent to try the suits? For the determination of the question it is necessary to refer to the relevant provisions of law laid down in the Punjab Tenancy Act of 1887 and N. W. F. P. Tenancy (Amendment) Act of 1952 (Act VI of 1952). It may be pointed out here that the N. W. F. P. Tenancy Act is designed to convert occu pancy tenants into full owners of a certain portion of the land in their occupation on certain terms and conditions. In other words the scheme under the Act is to confer owner ship rights on occupancy tenants to a prescribed extent. Before the enactment of the N. W. F. P. Tenancy Act, the Punjab Tenancy Act of 1887 was in force in the former North West Frontier Province. But by section 85 of the former Act a number of other Acts including the Punjab Tenancy Act of 1887 were repealed. A proviso was, however, added that "until the rights of an occupancy tenant are determined under section 4 and 4‑A of this Act, all the pro visions of the Punjab Tenancy Act of 1887 as applied to the N. W. F. P. . . . . . . . . so far as they relate to the occupancy tenancy shall remain in force". For the purpose of the legal question in dispute we are concerned only with section 4‑A, subsection (1) of the N. W. F. P. Tenancy Act, which provides that "any occu pancy tenant who at the commencement of this Act occupies land as such and pays rent by division of the produce shall become full owner of the portion of the land in proportion to his share of the produce which he retains for himself without payment of any compensation to the landlord." Section 85 and section 4‑A, subsection (1) of the Act, reproduced above, read together, make it clear beyond dispute that the Punjab Tenancy Act would be deemed to be in force, until the rights of an occupancy tenant are determined under section 4‑A. To put it in plain language, it means that after the determination of the rights of an occupancy tenant the Punjab Tenancy Act would cease to apply. The question now remains, whether in the present two cases the rights of the occupancy tenants have or have not been determined under section 4‑A, subsection (1). It is common ground between the parties that the Revenue Authorities, in execution of the scheme under the N. W. F. P. Tenancy Act and in compliance with section 4‑A, subsection (1) attested mutations Nos. 456 and 469 on 14th October 1952, whereby the rights of the defendants as occupancy tenants were determined, and they were declared as full owners of 1/2 share in the lands under their respective occupation. I do not agree with the argument of the learned counsel of the defendant respondents that the mutation did not finally determine the rights of their clients and that the mutation proceedings were simply of a summary nature. It is quite obvious that if the mutations were not intended to finally determine the rights of the defendants, the Revenue Autho rities had to take some further steps to finalise their decision. The learned counsel failed to show any other provision under the Act, apart from section 4‑A subsection (1), under which the rights of an occupancy tenant could be determined finally. I have no doubt in my mind that so far as section 4‑A, subsection (1) was concerned, the rights of the defendants were determined when the mutations were sanctioned by the Revenue Officer, and after the rights were determined, the Punjab Tenancy Act ceased to apply to the cases. As such section 77, subsection (3) Second Group, clause (d) of the Punjab Tenancy Act, not being in force, cannot oust the jurisdiction of Civil Courts. For the reasons discussed above, I accept both the appeals, set aside the orders of the lower appellate Court and remand the appeals to it for disposal on merits. In view of the complicated question of law involved in the cases I leave the parties to bear their own costs A. H. Appeals accepted.