P L D 1961 (W (PLP)

M. R. KAYANI, C. J.

This case has been referred to us by Qadeeruddin, J., largely by reason of the fact that he did not agree with the view of Kaikaus, in Mirza v. Muhammad Zaman Khan (P L D 1957 Lah. 242) on the interpretation of section 114 of the Punjab Tenancy Act as amended in 1952. In the present case, we are concerned with an analogous provision contained in sections 4 and 4-A of the N.-W. F. P. Tenancy Act (XXV of 1950).

2. The land in suit, which is 73 kanals 5 marlas in the village Bari Bandan of Charsadda Tehsil, was in the occupancy tenancy of one Zarullah, father of the four petitioners, Umar Said, Rahim Dad, Umar Ali and Muhammad Ali. The respondents, who are plaintiffs in the suit, are the owners of the land. This was the position in the jamabandi of 1931-32. In 1935-36 (Exh. P. 4) except in respect of field No. 4/233 which is a graveyard, the name of the occupancy tenants does not appear but one Gul Imran, son of Kamran, has been shown to be a tenant-at-will. In the column of rent, th batai is shown payable in respect of certain khasra numbers, and in respect of others, cash rent at the rate of Rs. 5 per jarib per annum is the rent fixed. There is a reference to khata No. 27 which apparently would show the person from whom rent is payable and the person to whom it is payable. This, however, has not been produced before us.

3. In 1939-40 (Exh. P. 5), the entry of 1935-36 in the column of cultivation is repeated without the mention of the occupancy tenants, while in the column of rent there occurs the following entry :- "Payable to Fazal Qadir Khan hissadar from then on-occupancy tenant, cash rent at the-rate of Rs. 13 per jarib annually, apart from land revenue, abiana and rates."

4. In 1945-46 (Exh. P. 6), the column of cultivation shows that the landlords are in occupation through Umar Said etc., occupancy tenants mentioned in khata No. 318, actual culti vation being of Muhammad Gul and Gul Imran, sons of Kamran, as tenants-at- will. In the column of rent, there is the following entry:-- "Payable from the tenants-at-will, cash rent at the rate of Rs. 44 per jarib annually, apart from land revenue, rates and abiana payable to Fazal Qadir Khan hissadar." S. In 1949-50 (Exh. P. 10), Umar Said and his three brothers have been shown to be occupancy tenants in the column of cultivation with Muhammad Gul and Gul Imran, sons of Kamran, as tenants-at-will, and Faiz Muhammad Khan and Fazal Qadir Khan etc., as landlords. In the column of rent, again, the ad entry is as follows :

"Payable from the tenants-at-will, cash rent at the rate of Rs. 60 per jarib annually, in addition to land revenue and abiana, payable to Fazal Qadir Khan hissadar."

6. It would thus appear that according to the land records, although the sons of Zarullah are mentioned as occupancy tenants, except in 1939-40, the tenants-at-will are the sons of Kamran and they pay rent directly to the landlords. These entries will perhaps be explained by the litigation between the parties which started sometime before 1944 owing to mortgage of the tenancy by the occupancy tenants in favour of Gul Imran. This mortgage resulted in a revenue suit by the landlords against Gul Imran challenging the mortgage. It ended in a compromise dated the 12th February 1944 by which the mortgagee, Gul Imran, agreed to extinguish the mortgage. It will be noticed that the jamabandi of 1945-46 which followed this compromise showed a direct payment of rent by the tenant-at-will to the landlords. On the 12th of April 1944, the occupancy tenants sued the landlords, and Gul Imran for possession on the ground that there was a fraudulent compromise between the landlords and Gul Imran, and that the mortgage by which Gul Imran was in possession had consequently become .non-existent. This plea was accepted and the suit of the occupancy tenants was decreed on the 24th of July 1945. The decree, however, was not executed and the occupancy tenants found it necessary to institute a fresh suit for possession on the 20th of March 1951 stating as an excuse that Gul Imran and his brothers had taken forcible possession, although at the same time there was no allegation that the previous decree had been executed. This suit was dismissed on the 5th of May 1952 on the ground that the first decree had become time-barred. In appeal, however, the dismissal was set aside and the case remanded for retrial.

7. Meanwhile the N: W. F. P. Tenancy Act (XXV of 1950) had come into force on the 3rd of July 1950, and in pursuance of section 4-A thereof 3/4th of the tenancy was mutated in favour of the occupancy tenants as owners. The mutation was attested on the 29th of May 1953. On the 29th of July 1953 the occu pancy tenants withdrew the suit which had been remanded for retrial, with permission to bring a fresh suit, if necessary. No fresh suit was instituated.

8. On the 12th of April 1955 the landlords brought a suit for a declaration that the mutation of 29th May 1953 in favour of the occupancy tenants, which they called a mutation of "correction", was invalid and that the defendants had no right to the land. The suit was decreed and an appeal by the occupancy tenants was dismissed. They have now come in revision.

9. Section 4-A of the N.-W. F. P. Tenancy Act of 1950 is as follows :- "4-A (1) Any occupancy 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."

10. It was by virtue of this provision that the mutation of 29th May 1953 awarded to the occupancy tenants 3/4th of the land as owners. The plaintiffs, namely, the landlords contended that section 4-A requires not only that a person should be an occupancy tenant but that he should be a person who "occupies land as such". In other words, he should be in actual occupation. Mr. Peer Bakhsh, arguing the case for the occupancy tenants, relied on the view expressed by Kaikaus, J. in Mirza v. Muhammad Zaman Khan that these words do not mean actual possession in the present context and are "a mere superfluity.

11. It seems to us that before we reach the stage where we have to examine the meaning of the words "occupies land as such", we have also to see whether the person on whom the right has been conferred can be regarded as an occupancy tenant on the date when the Act of 1950 came into force for section 4-A requires, primarily, that a person should be an occupancy tenant and, only secondarily, that at the commencement of the Act should occupy the land as occupancy tenant. Now, although the petitioners in the present case were held to be occupancy tenants by the judgment dated the 24th of July 1945, (Exh. P. 11), the decree in that judgment was not executed and became a dead letter. The second suit which the petitioners instituted on the 20th of March 1951 was again for possession and, by reason of the finding in the first suit, it might have succeeded. That suit, however, was withdrawn and the present position is that if the Act of 1950 had not come into force, no remedy was open to the occupancy tenants to recover possession. If the effect of the Act of 1950 had been to make available a remedy which had become extinct, then the occupancy tenants can recover possession. That, however, cannot be regarded to be the effect or purpose of the Act of 1950, the purpose clearly being to confer the status of a proprietor on persons who are admittedly occupancy tenants. In 1950, the petitioners' claim to the occupancy tenancy was not recognised and they were compelled to resort to a suit for possession in 1951 again.

12. Mr. Peer Bakhsh contended that these two suits for possession were misconceived because the remedy of the dispossessed occupancy tenant lay in section 50 of the old Act, the corresponding section of the new Act being section 33 which is to the following effect :- "33. (a) If a tenant has been dispossessed without his consent of his tenancy or any part thereof otherwise than in execution of a decree or than in pursuance of any order under section 27 or section 28, (b) * * * * * the tenant may, within one year from the date of his dispossession or ejectment, institute a suit for recovery possession or for compensation, or for both"

13. If that be the correct view, then since the petitioners did not file a suit within a year of "disposession" their remedy has become barred and they are no longer occupancy tenants. When faced with this situation, Mr. Peer Bakhsh argued that, properly speaking, the petitioners had not been "dispossessed" because they had parted with possession in favour of Gul Imran on the execution of a possessory mortgage deed and it was because the mortgage had been extinguished that the petitioners had become entitled to possession again. We do not find it necessary to decide whether the petitioners' remedy lay in section 33 of the Tenancy Act of 1950 or in an ordinary civil suit. We wish only to point out that both remedies bad become barred.

14. It was next argued that an occupancy tenancy could not be extinguished except in the manner stated in section 38 of the old Tenancy Act, namely, that the tenant failed to cultivate the land and to arrange for the payment of rent. Now, section 38 did not show by its language that this was the only mode of termination of an occupancy tenancy. It merely shows the effect of a tenant failing to cultivate land and arranging for the payment of rent. An occupancy tenancy is subject to adverse possession as effectively as a properietary holding, and an occupancy tenant equally with a proprietor loses his right if A adverse possession operates against him' for over twelve years The fact that on the 12th of April 1944 the occupancy tenants were compelled to file a suit for possession against both the landlords and the tenant Gul Imran contains an obvious admission that the possession of both parties, namely, the landlords and the tenant, was adverse to the occupancy tenants. There was also an argument that if anybody was in adverse possession it was the tenant Gul Imran, not the landlords, but this argument loses sight of the fact that the revenue records show Gul Imran as a tenant-at-will paying rent to the landlords. It is true that at a subsequent stage the landlords had to eject Gul Imran also, but that would not make any difference to the united front which the landlords and the tenant presented to the occupancy tenants in 1944.

15. Without reference to the judgment of Kaikaus, J., therefore, we find it possible to hold that the petitioners were not occupancy tenants within the meaning of section 4-A of the Act of 1950.

16. Kaikaus, J., had a more or less similar case before him. The land in suit was held in occupancy tenancy by one Ata Muhammad who mortgaged his rights in 1943 to one Shah Mir. The landlords sued for the cancellation of the mortgage and ejectment of the mortgagee and obtained a decree on the 12th of July 1944. Whether the decree was executed or not is not, clear. Shah Mir subsequently filed a suit against Ata Muhammad, the occupancy tenant, for the recovery of the mortgage money and obtained a decree in 1946. He died in 1950 but before his death the landlords sued Shah Mir for possession and obtained a decree on the 13th of July 1951. In execution of this decree Shah Mir was ejected on the 18th of October 1952 and on the basis of this ejectment a mutation of termination of occupancy rights was recorded and attested. The heirs of Ata Muhammad filed a suit for the possession of 3/4ths of the land on the ground that by virtue of section 114 added by. the Punjab Tenancy Act (VII of 1952), they had become owners of 4ths of the land as the rent of the tenancy was 4th of the produce. The trial Court and the Court of first appeal dismissed the suit on the ground that under section 114 of the Tenancy Act it was only the occupancy tenant in occupation as such who acquired the ownership rights. Kaikaus, J., did not accept this view, and observed as follows:

"Superficially considered, there does appear in section 114 a further condition for the acquisition of ownership, namely, that the occupancy tenant should be in occupation as such * * * * *. It can be contended that words in a statute should not be- regarded as redundant or superfluous. "These arguments would have some weight if the acceptance of them would not lead to absurd results which could never have been intended by the Legislature. The Punjab Tenancy (Amendment) Act was enacted with the object of granting to the tenants more than they already had and not for taking away what they already had. Section 114 provides that all occupancy rights are extinguished.. It does not say that the occupancy rights of only those tenants who are in occupation as such will be extinguished. If the interpretation contended for by the defendants be placed on this section, then those occupancy tenants who were not in occupation on the day the Act came into force will lose their occupancy rights without at the same time acquiring ownership. There can be little doubt that this was not the intention of the Legislature. At the same time there is no reason for imputing to the Legislature an intention that merely because a trespasser was in occupation of the land at the commencement of the Act, the occupancy tenant should lose the benefit of the Act. A trespasser may have taken possession by force and the occupancy tenant may have filed a suit to recover possession. Is the tenant to be penalised just for an accident for which he is in no way to blame ? Also it may be that the occupancy tenant having died, his heir has not as yet been able to take possession. The occupancy tenant may be a minor or an insane person incapable of looking after his own interest." On this reasoning, Kaikaus, J., held that the words "occupies as such" were "a mere superfluity" and that if the occupancy right existed, it had to be changed into ownership.

17. We agree that if the occupancy right existed at the commencement of the Act, it had to be changed into ownership. We have pointed out, however, that it did not exist. The learned Judge has himself observed in the passage quoted above that "a trespasser may have taken possession by force and the occupancy tenant may have filed a suit to recover possession", thus assuming, and we think rightly, that if a suit for possession has been instituted against a trespasser, it cannot be argued, c before the termination of such a suit, that the occupancy tenancy had ceased to exist. In our opinion, the correct view would be that if there is any such contest between the occupancy tenant and the trespasser, then before section 114 of the Punjab Act or sections 4 and 4-A of the N.-W. F. P. Act are brought into play, the contest must have been decided. If the result of the t contest is to oust the trespasser, the tenant would be held to be an occupancy tenant occupying land as such. If the result of the contest is in favour of the trespasser, then no occupancy tenancy is left to be disposed of under the aforesaid provisions.

18. We must not be understood to hold that the words "occupies land as such" necessarily mean physical occupation, for a tenant may be in constructive possession through a tenant at-will. In the same may, he way have been thrown out of possesion 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. If, however, he has allowed time to run against him, then as we have already observed, the Act of 1950 has not the effect of reviving a claim which has been extinguished.

19. Kaikaus, J., held that the words in question were "a mere superfluity" because they lead to absurd results which could not have been intended by the Legislature. The Act, he said, was enacted with the object of granting to the tenants "more than what they had and not for taking away what they already had." We respectfully point out that in the present situation and even in the situation visualised by Kaikaus, J., there was nothing which the tenants "already had", their remedy having become barred, and that consequently the Act was not taking away anything which they had. The Legislature could not have intended to confer upon the tenants a right which had become non-existent. There was consequently no fear of any absurd results following. The words "occupies land as such have been used no less than four times in sections 4 and 4-A and should not be regarded as a mere superfluity, because they can be correctly interpreted, as we have tried to interpret them.

20. Mr. Peer Bakhsh also raised the question of jurisdiction, and after some argument we told him that it was not a question which we expected him to raise. In the first instance, he relied on section 48 (1) (d) of the Tenancy Act, which states that an application by a landlord for the possession of land the right of occupancy in which has become extinct, shall be disposed of by the revenue officers, and no Court shall take cognizance of any such matter. We told him that this was not an application by the landlords for possession, because the landlords were already in possession. Next, he relied on section 49 (3), second group, clause (f) which states that a suit between landlord and tenant arising out of the lease or conditions on which a tenancy is held, shall be heard and determined by revenue Courts and not by Civil Courts. We replied that this was not a suit between "landlord and tenant", and it was not a suit on the ground of a difference arising out of the conditions of a tenancy.

21. Mr. Peer Bakhsh then argued that the Tenancy Act was special Act and that having provided in sections 4 arid 4-A that occupancy tenancies had been extinguished and that the tenants became landlords of the whole or part of the tenancy, the question whether those sections applied to a particular case was for the decision of the Revenue Court or revenue officer. This is clearly an untenable argument because whatever matters or suits are excluded by the Act from the Civil Court are meticulously mentioned in sections 48 and 49, and there is no provision in any other part of the Act indicating how a dispute of the present nature can be decided by a revenue officer or a Revenue Court. Mr. Peer Bakhsh- suggested that against the order mutating the land in favour of the petitioner, the plaintiffs could have taken an appeal to the Collector. We are, however, familiar with the ordinary resort to a Civil Court after a mutation has been effected when a question of title arises.

22. We, therefore, dismiss this petition with costs. K. M. A. Petition dismissed.