1999 PLP 2727 (MLD)

Brief facts leading to this writ petition are that the petitioner claimed to be an owner in possession of land measuring 2 Kanals in Khasra No. 1220 in village Dhamthal, Tehsil Narowal, District Sialkot (now District Narowal). In the aforesaid land, proprietary rights were given to Mst. Karim Bibi on the basis of her claim that she was occupancy tenant in the said property vide order, dated 4-10-1989 recorded by Mr. Jahanzeb Khan, the then Assistant Commissioner/Collector, Narowal on the payment of Rs.21 as compensation as fixed by the Government.

2. Against the aforesaid order a review petition was filed by the present petitioner, which came up for hearing before Mr. Farooq Haider Khawaja, learned Assistant Commissioner Collector, Sialkot as the matter was transferred to him. The review petition was accepted by him. The impugned order, dated 4-10-1989 was set aside vide order, dated 27-2-1990 passed in the review petition whereby the petition of Mst. Karim Bibi moved through Mst. Sairan Bibi for obtaining proprietary rights was dismissed. Against that order an appeal was filed by Mst. Sairan Bibi, which was dismissed vide order, dated 24-7-1990 passed by the learned Additional Commissioner (Revenue), Gujranwala. Against the dismissal of that appeal Mst. Sairan Bibi etc. filed a revision petition against the present petitioner, which came up for hearing before Mr Akhtar Saeed, Member (Judicial-I), Board of Revenue, Punjab, Lahore. The revision petition was accepted on the ground that all the abovementioned Revenue Officers had wrongly interpreted legal position vis-a-vis the proprietary rights arising out of the occupancy tenancy claimed by the petitioners i.e. Mst. Sairan Bibi etc. being the legal heirs of Mst. Karim Bibi. In this respect, it was observed in the revisional order that the petitioners were continuously in possession through their predecessor-in-interest for more than 30 years prior to 1952 and as such by virtue of section 5(2) of the Punjab Tenancy Act had acquired occupancy rights by operation of law in view of the provisions contained in section 114(2) of the Act ibid.

3. The learned counsel for the petitioner has submitted that all the Revenue Officers have proceeded on wrong premises to decide the matter. In this regard, it is contended that in fact the respondents or their predecessor-in -interest were never in possession as occupancy tenants of the property in dispute.

4. Secondly it was submitted that the land in question was a ' Dharam Earth' belonging to Evacuee Hindu and would not fall within the definition of land given in subsection (2) of section 4 of the Punjab Tenancy. Act, 1887; hence no occupancy right could be claimed in such land; that Mst. Karim Bibi never applied for acquiring tenancy rights during her lifetime and a petition was moved on her behalf through Mst. Sairan Bibi after her death, which would not be considered a proper application in the eyes of law; that respondents were never persistently recorded as occupancy tenants nor they were shown to be in uninterrupted possession for more than 30 years and as such they would not be considered occupancy tenants; that since the question of tenancy was in dispute, therefore, the same ought to have been settled through a suit under section 77 of the Punjab Tenancy Act. It was, therefore, prayed that the order declaring the respondents as occupancy tenants was bad in the eyes of law, and as such was not sustainable.

5. The learned counsel for the respondents, however, submitted that the order passed by the learned Member (Judicial), Board of Revenue, Punjab was good in the eyes of law as the respondents were recorded as occupancy tenants in the Revenue Record and on the basis of those entries they had acquired the status of occupancy tenants by operation of law and even no formal application was required to be moved for acquiring those rights. As such the impugned order passed by the learned Member (Judicial), Board of Revenue, Punjab was defended in the light of provisions contained in sections 5 and 144 of the Punjab Tenancy Act, 1887.

6. The learned Assistant Advocate-General while appearing for respondent No.1 also subscribed to the views expressed by the learned counsel for respondents Nos.2 and 3.

7. I have considered the foregoing facts and have also gone through the material placed on record. It appears from the record that predecessor-in-interest of respondents namely Mst. Karim Bibi was given proprietary rights on the ground that she had held the land as occupancy tenant. However, it is an admitted fact that the petition allegedly moved on behalf of Mst. Karim Bibi by Sairan Bibi i.e. her daughter was instituted after her death. It was, thus, obvious that a dead person could not claim any right and if any right was to be claimed it was to be claimed by the legal heirs of deceased Mst. Karim Bibi. The learned Assistant Commissioner, who made the initial order committed gross illegality by entertaining application from one of the legal heirs of Mst. Karim Bibi who moved a petition on behalf of her deceased mother.

8. Secondly the perusal of record i.e. an extract from theist granting occupancy rights appearing at page 18 of the file would show that Mst. Karim Bibi was recorded in the column of occupancy tenants, but was shown as tenant at will. In column No.3 of that extract the entry appears. However, in column No.6 recommendation was made that she could be given status of occupancy tenant and be clothed with proprietary rights in the land in question. Similarly the Register Haqdaran Zamin for the year 1923-24 will show that land is part of 'Shamlat Deh' and according to column No.8, it was shown as, Likewise in the Register Haqdaran Zamin for the year 1987-88 Mst. Karim Bibi i.e. predecessor-in-interest of the respondents has been recorded as tenant without payment of rent being part of 'Dharam Earth'. A similar entry regarding Mst. Karim Bibi is also found in the extract from register Haqdaran Zamin for the year 1983-84. The aforesaid Mst. Karim Bibi is also recorded as through Piara in column No.4 according to Jamabandi for the year 1969-70 whereas in column No.8 the entry is recorded. Muhammad Yousaf son of Nabi Buksh is recorded in that Khewat as owner alongwith others in column No.3. Likewise the entry in the Jamabandi for the year 1973-74 shows Mst. Karim Bibi aforesaid as tenant-at-will, and the corresponding entry in column No.8 shows her. In the column of owners Muhammad Yousaf son of Nabi Bukhsh is recorded as owner alongwith others.

9. Perusal of the Revenue Record shows that Mst Karim Bibi was not shown as occupancy tenant persistently of the property in question, In some documents, she has been recorded as tenant-at-will being in possession of ' Dharam Earth' for rendering services to the cause for which the land stood reserved. In such a situation and in view of divergent entries in respect of the nature of ownership/tenancy recorded in the Jamabandis for different years, factual inquiry was necessitated to settle the matters in issue; under section 77 of the Punjab Tenancy Act.

10. In view of my above discussion, I come to an irresistible conclusion that factual controversy regarding ownership and tenancy between the parties was not settled by the Revenue Officers in accordance with law. Accordingly the writ petition is accepted with the observation that all the orders passed by the Revenue Officers i.e. order, dated 4-10-1989 passed by the Assistant Commissioner, order, dated 27-2-1990 setting aside the order, dated 4-10-1989, the order, dated 24-7-1990 passed by the learned Additional Commissioner (Revenue), Gujranwala and that of the learned Member (Judicial-I), Board of Revenue, Punjab, dated 12-11-1991 being bad in the eyes of law are set aside. Any body claiming ownership/tenancy in respect of the land in question may file suit under section 77 of the Punjab Tenancy Act, 1887 for the settlement of controversy.

11. Parties are left to bear their own costs. A.K./M-932/L Petition accepted.