1980 PLP 1929 (CLC)

3. The respondents filed a suit for a declaration that the land measuring 10 kanals and 12 marlas situate in village Ojhari Garanani was in their exclusive possession and that the appellants had no subsisting interest therein and as such defendants Nos. 1 to 5 had no right to recover the compensation from the Capital Development Authority, Rawalpindi, impleaded as defendant No.

6. In this Court the representative of the Capital Development Authority appeared and made a statement that the C. D. A. had no concern with the dispute between the parties. After that the representative was discharged.

4. Admittedly the appellants were formerly occupancy tenants of the land under the respondents but the case of the respondents was that about 10 or 15 years prior to 1952 they had abandoned the tenancy and left the village and since then had failed to cultivate the tang or arrange for the payment of the rent. In nutshell they built up a case of extingu ishing the right of tenancy and claimed that the land exclusively vested in them. This declaration was sought as the land in question had been acquired by the Capital Development Authority and the names of the appellants had continued to be entered in the revenue record and were held to be entitled one-half share of the compensation. The suit was contested by the appellants. The factum of the abandonment of the tenancy was specifically decayed and it was pleaded that the suit was barred by time and that the respondents were estopped by their own conduct from filing the present suit. On the pleadings of the parties the following issues were framed :- (1) Whether the defendants had lost their occupancy rights before 1952 ? O. P. P. (2) Whether the suit is within time ? O. P. P. (3) Whether the plaintiffs are estopped by their conduct from filing the present suit ? O. P. P. (4) Relief.

5. The learned trial Court decided Issues Nos. 2 and 3 in favour of respondents but Issue No. 1 was found against them and as such the suit was ordered to be dismissed. The respondents filed an appeal and the learned District Judge, Rawalpindi had Tightly remarked that Issue No. I was only material issue. The learned District Judge found that the appellants had abandoned their occupancy rights and the land had always been cultivated by the tenants of the plaintiffs at least since Rabi 1944. It was further found that the appellants never cultivated the land in dispute nor arranged for the payment of its amount to its landlords for the period of at least 9 or 10 years prior to 1952 and as such were not entitled to reap the benefit of section 114 of the Tenancy Act as introduced by the Amending Act of 1952 and as such the whole of the land vested in the respondents.

6. The learned counsel for the appellants submitted that the finding of the learned District Judge was against the record and that in any case the suit was barred by time. The other question involved in the case is whether the ingredient of section 38 of the Punjab Tenancy Act had been fulfilled. The learned counsel for the appellants has argued the appellants' rights of occupancy tenant with those of 1/2 share in ownership in 1952 the respondents as such lost their occupancy rights before 1952 but they never challenged the same within 6 years of abandonment nor did they challenge the revenue entries changed in 1952 in which the occupancy rights were changed. The remedy to get abandonment of occupancy declared is barred by time. However, the learned counsel for the respondents has argued that the suit filed in March, 1963 was well within time under Article 120 of the Limitation Act. It is further argued that without an adverse entry in the revenue record is made as ex parte the limitation would run when the actual claim to the land is made upon the strength of the entry so made. According to the learned counsel for the respondents the time starts to run on every fresh attack on the plaintiffs' title or on a fresh claim of right. The learned trial Court had found that the plaintiff's were in possession of the property and the cause of action had accrued when the defendants claimed their title. Reliance is placed on Manji Sahib v Mani Rant (A I F 1940 Lah. 154).

7. In Sher Ali Khan v-. Nawab anti others (P L D 1962 Pesh. 110) it was held that to constitute abandonment of an occupancy tenancy under section 38 of the Punjab Tenanry Act, 1887, three things must exist in combination with each other, these are :- (1) that the tenant fails for more than one year to cultivate his tenancy either by himself or through some other person ; (2) that he fails without sufficient cause to cultivate the tenancy, and (3) that he fails to arrange for the payment of the rent for the tenancy as it falls due. It was further held that where a landlord claims that a tenancy has been extinguished by abandonment he has to prove that all the above-mentioned three conditions are satisfied. The onus to prove the sufficiency of the cause leading to the abandonment would shift to the tenant after the other two conditions are proved. An occupancy tenant does not cease to be so merely because the landlord has been in possession of the land for a number of years: Where there is no proof or) record at all for reaching a sure conclusion that the landlord had come to occupy the land because of the failure of the occupancy tenant for a whole year prior to the occupation of the land or that he got any mutation of extinction of tenancy attested in his favour the fact that the landlord has been to possession of the land for at least ten or twelve years does not make it to be a case of legal abandonment of occupancy rights Reliance may also be placed on Allah Ditta v: Bagh Ali and other (P L D 1975 Lah. 49) In this case it was held that onus of the extinction of the tenancy lies on the landlord to prove the three elements of section 39 --numerated above and emphasis were laid in order to determine whether there was an abandonment the fact that no mutation of extinction of tenancy had been effected would be an important consideration. The observations in this case may be quoted below "According to ire law the initial onus of proving sufficient cause has to be on the landlord for he is to prove the three elements of section 3h of the Act In the present case to my mind the appellant has given sufficient evidence to prove that he never abandoned his occupancy tights in the land. His explanation that on account to his being absent to connection with the service matter the contesting defendant who were his close relations, cultivated the land on his behalf, as well as the parties held joint possession, appeals to be satisfactory. This fact also supports his contention that at no stage any mutation on' extinction of occupancy rights of the appellant was gut effected by the defendants. They were fully alive that the entries with regard to the status of the appellant as occupancy tenant were continuously recorded in the relevant revenue record right from the beginning, but no effort was ever made to get the them changed in the circumstances, the plea of the defendants that the appellant had abandoned his occupancy tenancy cannot be accepted." Similarly, in a judgment of the Supreme Court reported as Muhammad Afsar and others v. Allah Ditta and others (1970 S C M R 118) it was observed that where the entries in the revenue record which consistently showed the respondents as tenants and even mutated in the names of the heirs of a tenant upon his death, and the landlord having never objected to these entries nor made attempt to have their possession recorded as an adverse to those of the tenants, the mere fact that the landlords were themselves paying the taxes and aesses or not giving any share of the produce to the recorded tenants was not sufficient to lead to the inference of abandonment.

8. In the light of the above discussion this appeal is accepted and it is held that abandonment of the tenancy had not been proved according to law and that the appellants were entitled under the law to receive of the compensation on the basis of the entries in the record. M. Y. M. Appeal accepted.