PLD 1971 SC 330 (PLP)

MUHAMMAD YAQUB ALI, J.-This appeal under Article 58(3) of the 1962-Constitution is against the judgment of a learned Single Judge of the erstwhile High Court of West Pakistan, Lahore Seat, in a revision petition under section 115 of the Code of Civil Procedure which was on the enactment of the Code of Civil Procedure (Amendment) Act III heard a9 a second appeal. The appeal arose out of a suit brought by the present appellants for a declaration that they were owners of certain lands measuring 80 kanals and 15 marlas in Khasra No. 700 of village Khidwal in the district of Campbellpur. The land belonged to the predecessors-in-interest of the appellants, but had been given by them to the respondents in occupancy tenancy right on payment, of half batai. The appellants claimed that this occupancy tenancy bad been abandoned by the said respondents by ceasing to cultivate the lands without any sufficient cause some 35 years before the institution of the suit and thereafter the predecessors-in-interest of the appellants re-entered into possession and let out the lands to tenants-at will for cultivation. Notwithstanding the re-entry of their predecessors-in-interest land was mutated in favour of the res pondents and one Nur Alam on the 24th December 1955, under the provisions of the Punjab Tenancy (Amendment) Act of 1952. It was alleged that this had cast a cloud on the title of the appellants and they challenged the mutation as being void on the ground that the occupancy tenancy had been abandoned and the tenant's had no further right in the land. In the suit two specific issues were raised amongst others for the determination of the questions as to whether the respondents and their ancestors had lost their occupancy tenancy rights and whether the plaintiffs were in adverse possession for more than 12 years. The trial Court decreed the suit, but on appeal the District Judge found that the issues regarding adverse possession had not been properly decided. The suit was there upon remanded to the trial Court for proper decision of this issue. The trial Court again passed a 4ecree in favour of the plaintiffs which was upheld in appeal by the District Judge. The second appeal by the respondents was from this decree of affirmance. The High Court reversed the concurrent findings of fact by the Courts below and held that on the evidence adduced in the suit there was no proof on the record to show that the land had been left uncultivated by the respondents for over a year. Without the proof of this fact the High Court was inclined to the view that no case of abandonment could be established under section 8 of the Punjab Tenancy Act. For arriving at this decision the High Court relied on an earlier decision in the case of Sher All. Khan v. Nawab and others (P L D 1962 Pesh. 110). In this view of the matter no question of adverse possession arose in the case. Consequent upon it the judgments and decrees passed by the Courts below were reversed and the suit was dismissed. The learned counsel appearing in support of the appeal contended that the requirements of section 38 of the Punjab Tenancy Act were fully complied with as ample evidence was produced by the appellants in support of their claim that the occupancy tenants had stopped cultivating the land without any sufficient cause and that the landlords had re-entered into possession and let out the land to tenants-at-will who paid batai to them direct. The mere fact that the entries in the revenue records did not show that the land was left uncultivated was in the opinion of the counsel not sufficient to rebut the evidence of abandonment adduced by the plaintiffs. We have perused the record with the neap or the learned counsel for the parties which supports the finding recorded by the High Court on the issue of abandonment. The entries in the revenue record which carry a presumption of correctness under section 44 of the Land Revenue Act show that the respondents have all along been shown as occupancy tenants of the suit land. The oral evidence led by the appellants was too, meagre as will be seen presently to rebut the presumption. Further whenever a tenant died his occupancy rights were mutated in the names of his legal heirs. On one occasion the landlords exchanged some land with another proprietor and in that transac tion acknowledged the occupancy rights of the respondents and their predecessors-in-interest. This belied the assertion that 35 years ago the occupancy tenants had abandoned their rights and the landlords had entered into possession. On the plaintiffs' side only two witnesses were examined, namely, Haji (P. W. 1) and Sher Khan, plaintiff (P. W. 2). Haji stated that he was given possession of the land by the owners and that he has been paying batai to them since 1949-50. He admitted that he was residing in a house of which the site belonged to the appellants. He was thus a riyat of the appellants and his testimony could not be accepted on its face value. Sher Khan, plaintiff, reiterated his claim in the suit that the respondents and their predecessors had abandoned their tenancy and ceased to cultivate the land without any sufficient cause and that they had re-entered the land and leased it out to tenants-at-will who paid the batai to the owners directly. The assertion was denied by Jahan Dad, defendant, who maintained that the tenants and their predecessors had all along been in possession and that there was no occasion for them to abandon the tenancy and the land had been cultivated throughout by tenants who paid the one-half share of the batai to the owners on their behalf. The onus to prove abandonment was on the plaintiffs appellants. The oral evidence of one of the plaintiffs and Haji (P. W.) was not sufficient in quantity and quality to rebut the presumption arising from the entries in the revenue records that the respondents and their predecessors-in-interest had all along been occupancy tenants of the suit land. It also did not stand to reason why should they have abandoned their valuable rights by leaving the land uncultivated. The entries in the revenue records also did not bear out the conten tion that the land was in fact left uncultivated for a period of one year. There was also the admission by some of the owners that the respondents were the occupancy tenants of the suit land. These important items of evidence were left out of consideration by the Ist Court of appeal. The High Court was, in the circumstances, justified in interfering with the concurrent finding of fact that the respondents had abandoned their occupancy rights. No question of adverse possession arose because Haji and others who from time to time cultivated the land were according to the entries in the Revenue Records tenants-at-will under the respondents. The onus to prove extinguishment of occupancy rights of abandonment lay on the appellants which they had plainly failed to discharge. The contention that the High Court could not interfere with a finding of fact in a second appeal also does not held good. As seen the Courts below had failed to raise presumption of correctness attaching to the entries in the Jamabandi as provided by section 44 of the Land Revenue Act. In similar circumstances the Privy Council in Dhanna Mal v. Moti Sagar (A I R 1940 P C 192) held "But the existence of the Record-of-Rights does not appear from the judgment of the learned District Judge to have been appreciated by him, and as he has given no effect whatever to the statutory presumption, their Lordships are unable to regard the appellant as taking any advantage from the circumstance that five of the cases were dealt with in the High Court upon second appeal. The questions of fact as well as of law are open to the High Court and must be considered by the Board." The same proposition was repeated in Shankarrao Dagadujirao Jahagirdar v. Sambhu Nathu Patil (A I R 1940 P C 192). "When the existence of a document does not appear from the judgment of the first Appellate Court to have been appreciated by it, and no effect whatever is given to the .statutory presumption arising from the document, the questions of fact as well as of law are open in second appeal as well as in Privy Council appeal." In the instant case too the Courts below had failed to give statutory presumption of correctness to the entries in the Jama bandi over a long course of time. They also omitted from consideration the admission made by the plaintiff about the existence of the tenancy rights of the defendants to which reference has been made earlier. The findings of fact recorded by the 1st Court of appeal were, therefore, not binding on the High Court and it could come to its own conclusion on the question whether the respondents were possessed of tenancy rights or not in the suit land when the mutation of ownership was attested in their names under the Punjab Tenancy (Amend ment) Act, 1952. On merits we have found no reason to differ with the opinion formed by the learned Judges that the plaintiffs had failed to substantiate their claim in the suit. The appeal is, in this view dismissed, but, in the circumstances of the case, we will leave the parties to bear their own respective costs. S. Q. Appeal dismissed.