P L D 1962 W (PLP)

Sheikh Muhammad and others, tenants, instituted a suit against the landlords, Haji Fazal Elahi and others for establishing occupancy rights in certain lands situated in village Manga of Martian district under section 5 of the Punjab Tenancy Act read with section 4 of the N.‑W. F. P. Tenancy Act of 1950. The total area of the land involved was 488 Kanals and 4 Marlas bearing Khasra Nos. 372, 876, 968, 457, 548, 595, 464, 553, 797, 463, 596, 616, 542, 471, 549, 456, 513, 917, 546, 759, 543, 542, 461, 492, 511, 547, 899, 818, 458, 463, 595, 512, 915, 464, 542 and 596 of Jamabandi for the year 1951‑

52. It was contended that the petitioners and their forefathers had been in continuous possession of the land in dispute over since the village was founded and where they had settled with the founders of the estate. The trial Court held partly in favour of the tenants and declared that they had occupancy rights in Khasra Nos. 616, 549, 548, 457, 511, 471, 459, 464, 453, 465, 462 and part of

461. The tenants, however, went in appeal to the Collector and claimed occupancy rights in the remaining land as well. A cross‑appeal was also filed by the landlords for setting aside the decree passed against them. The learned Collector held that in addition to the fields mentioned above the tenants had tenancy occupancy rights in Khasra Nos. 544, 457, 452, 512, 595 and the remaining part of Khasra No. 461 as well. In revision the learned Additional Commissioner further added. Khasra No.

458. Thus the Courts below have decreed that the tenants have occupancy rights in Khasra Nos. 616, 545, 448, 457, 411, 471, 459, 464, 453, 465, 462, 461, 457, 455, 512 and

595. Aggrieved with order of the Additional Commissioner dated 9‑5‑1959, the landlords Haji Fazal Elahi and others have instituted two separate revisions. The tenants Sheikh Muhammad and others have also filed a revision petition claiming rights in all the disputed land. The Courts below have taken some pains to determined whether the tenants and their forefathers had been in continuous occupation of the disputed land since 21st October 1868 and whether they had settled in the village at the time when it was founded. After going through the record of rights prepared in, 1870 when the first regular settlement took place, they arrived at the conclusion that one Abdul Wahab, a forefather of the tenants was in possession of the land at the time and this possession was maintained upto the Jamabandi of 1951‑

52. There is, however, one exception which is that the Jamabandi of 1885‑86 records their possession in respect of Khasra Nos. 616, 549, 547, 548, 595, 512 and 511 only and the rest of the land was in occupation of some other tenants. In the succeeding Jamabandi they are again in possession of the entire land. Since there were no Jamabandis for the year 1868, it was presumed by the officers below that the position as given in the First Record‑of Rights of 1870 also existed on the 21st of October 1868. Further, that the loss of possession of several fields as recorded in the Jamabandi of 1885‑86 may be due to some mistake. With these two presumptions they arrived at the conclusion that the tenants had remained in continuous possession of the suit land since 21st October 1868. It may be mentioned that they also held that one Sheikh who was a cultivator in the village in 1852, when the Summary Settlement took place, was the predecessor‑in‑interest of the plaintiffs. It has been contended very strongly on behalf of the tenants that no grounds exist for exercising revisional jurisdiction, which can only be invoked in accordance with the provision of section 56 of the N: W. F. P. Tenancy Act. This section lays down that if after examining the record the Board of Revenue is of the opinion that it is expedient to interfere with the proceedings or the order or decree on any ground on which the High Court in the exercise of its revisional jurisdiction may under the law for ire time being in force interfere with the proceedings or an order or a decree of a Civil Court the Board shall . . . . . pass such order as it thinks fit in the case. Section 115 of the Civil Procedure Code which defines the revisional jurisdiction of the High Court, allows interference on three grounds, namely that the subordinate Court appears :‑ (a) to have exercised jurisdiction not vested in it by law, or (b) to have failed to exercise jurisdiction so vested, or (c) to have acted in the exercise of its jurisdiction illegally or with material irregularity. The point made out by the learned counsel for the petitioner is that a mere error of law or fact is not a ground for revision and where a decision on either of these two questions has been arrived at in a legal manner no interference on revision would be tenable unless the jurisdiction has been exercised in an illegal way or with material irregularity. It is contended by Khawaja Abdur Rahim, Advocate, for the landlords that the two presumptions drawn by the lower Courts in holding that the tenants were in continuous possession of the entire land in suit since 21st October 1868, were illegal or at least constitute a material irregularity in the exercise of their jurisdiction by the Courts, below and therefore interference in revision would by justified. There was no revenue record for the year 1868. The entries in the Jamabandi of 1884‑85 definitely go against the tenants except for a few fields. There was no justification for the presumption of any mistake in Jamabandi of 1884‑85 and there was no evidence at all on this point. The learned counsel relied on the latest decision of the Supreme Court on this subject in Sardar Muhammad Sadiq Khan and others v. K. B. Abdul Hayee Khan and others ((1) P L D 1957 S C (Pak.) 18'). Though the facts in that case were somewhat different, there is no doubt that in the case under consideration the presumptions drawn by the lower Court regarding continuity of possession are open to grave and serious objection. There could be some justification for assuming possession in favour of the tenants on the 21st October 1868. On the strength of entries in the First Regular Settlement Record of 1870 as investigations and inquiries begin sometime before the records are prepared and finalised. There is, however, no justification at all for the second presumption against the entries in the Jamabandi of 1884‑85 since there was no evidence at all that these entries were incorrect. It can, therefore, be stated that the resumption in favour of continuity of possession is illegal in character of at least constitutes a material irregularity. Further section 56 of the N. W. F. P. Tenancy Act authorises the Court of revision to interfere if expediency in, the interest of justice so demands Under these circumstances there is no force m the contentions that heave been urged on behalf of the tenants against interference in revision. On the contrary it is a fit case for interference as on account of the illegality referred to above, a miscarriage of justice has resulted. I would accordingly accept the revision petition of the landlords and modify the order passed by the lower Courts to the extent of restricting the rights of occupancy to those fields only which have remained continuously in possession with the tenants i.e., respect the entries in the Jamabandi of 1884‑

85. The revision petition of the tenants, i.e., Sheikh Muhammad and others stands dismissed. K. M. A. Petition of landlords accepted.