P L D 1956 (W (PLP)

Sh. Muhammad Shafi for Respondents. S. A. RAHMAN, C. J.‑This is an appeal under clause 10 of the Letters Patent from an order passed by a learned Single Judge in Regular Second Appeal No. 260 of 1951, The appeal arose in the following circumstances. The suit land comprising an area of 70 kanals 11 marlas was last held as an occupancy tenant in village Dhok Jhakkar in the Chakwal Tahsil by Mst. Mehro, widow of Nadir. She died in the year 1949 without any issue. On her demise the land was mutated in favour of the landlords. The collaterals of her husband, appellants Ahmad Din etc., then brought a suit for a declaration that they were entitled to be recorded as occupancy tenants of the land in question. They alleged that Mughal, the common ancestor of the plaintiffs and Nadir deceased, had "occupied" the suit land, within the meaning of section 59 of the Punjab Tenancy Act. The trial Civil judge found that although Mughal had occupied the land at one time, he had abandoned it, and subsequently three of his seven sons, Muhammad, Shah Alam and Pira, had reoccupied it. He held that the relationship of the plaintiffs with the deceased tenant, Nadir, through the common ancestor, was established and that. the tenancy continued in the family. The suit was, therefore, decreed in respect of the suit land except for Khasra No. 31, regarding which it was found that it was not traceable beyond 1880 in the revenue papers. The parties were left to bear their own costs. An appeal taken to the Court of the District Judge, Jhelum, by the defendants‑landlords was dis missed with costs. The plaintiffs had also appealed in respect of Khasra No. 31 which had been excluded from the trial Court's decree, but their appeal too was dismissed with costs. A Second Appeal was then filed in this Court by the landlords and Kayani J. holding that Mughal was not in occupation of the land within the meaning of section 59 of the Punjab Tenancy Act, allowed the appeal and dismissed the suit with costs. A certificate under clause 10 of the Letters Patent was, however, granted and the aggrieved plaintiffs have presented this appeal. The first contention raised by Mr. Chiragh Din on behalf of the appellants is that Mughal had not really abandoned the land. According to the learned counsel he had left it temporarily owing to failure of rains but had the animus revertendi and that in fact his sons reoccupied the land basing their claim on their father's previous occupation of it. Secondly, it was urged that the interpretation placed on the proviso to sec tion 59 of the Punjab Tenancy Act by the learned Single Judge was erroneous and the proviso was satisfied in this case by the mere fact that Mughal had occupied the land at one time though not till his death. Learned counsel for the appellants concedes that there is no evidence on record to show that Mughal himself returned and reoccupied the land in Dhok Jhakkar, which is a part of the revenue estate of Lohesar. Our attention was invited to Exh. P. 7, which is naqsha mudakhilat of the year 1857‑58, pertaining to village Lohesar. This document incorporates a statement made by one, Murad, who is, however, not the descendant of Mughal but was descended from a remoter ancestor, Karam Ullah. The statement was to the effect that Khatas Nos. 54, 55 and 56 had been occupied by that branch of the family, after their return, they having previously migrated due to conditions of scarcity. There is no specific reference to Mughal or his line in the statement. These khatas do not include the suit land and, therefore, whatever Murad said cannot be deemed to cover the branch of Mughal. We con sider that this document was rightly excluded from considera tion by the learned Single Judge. Reliance was then placed by Mr. Chiragh Din on the naqsha mudakhilat, Exh. D‑

6. This document contains a statement made by Pira, son of Mughal, to the effect that he and his brothers had come from village Kharali, some twenty years back, to village Lohesar, had set up their own dhok and had occupied the land which was once in the possession of Mughal, without being ejected there from ever since. It was specifically mentioned in this statement that Mughal had gone away and now Pira and his brothers had returned to reoccupy the land. The statement was apparently made in 1858. It was endorsed by the landlords who stated that the father of the present tenants had actually cultivated the land previously but had gone away. Pira and his brothers were recognised as occupancy tenants, but it cannot be said that the main ground of this recognition was that Mughal's occupation of the land had created a title in their favour. It does not appear from this document when Mughal abandoned the land and why. In these circumstances, we find ourselves in agreement with the finding of the Courts below and that of the learned Single judge that Mughal abandoned the land and went away, with out ever returning to occupy it. There is no indication in the evidence that he entertained the intention of reverting to his occupancy. The main question in the case, however, is as to the inter pretation to be placed on the proviso to section 59 of the Punjab Tenancy Act. Although in the grounds of appeal the contention is also raised that the amendment 01 the Punjab Tenancy Act in 1951 altered the provisions of section 59, it is now conceded that the amendment has no bearing on the present case which arose prior to the amendment. The un-amended section lays down that when a tenant having a right of occupancy in a land dies, the right shall devolve first on his male lineal descendants, if any, in the male line of descent; failing such descendants, on his widow if any, until her death or remarriage or abandonment of the land or ejectment there from, in accordance with the provisions of the Act; failing both these categories of heirs, on his widowed mother, if any, and in the last resort on his male collaterals in the main line of descent from the common ancestor of the deceased tenant and those relatives. There is a proviso to this clause to the effect that the collaterals would only be entitled to inherit if the common ancestor "occupied the land." The learned Single judge has taken the view that the expression "occupied the land" in this context means "occupied it till his death". The learned judge has observed that the intention of the proviso seems to be that the common ancestor should have occupied the land continuously till he died, or in other words that his sons should have succeeded him by their father's right. He pointed out that if the intention could be fulfilled merely by a temporary occupation, which had been subsequently given up, it would be possible to contemplate a case as falling within the proviso where a common ancestor had sold the tenancy which had been bought back by one of his sons after his death. Mr. Chiragh Din has strenuously contested this interpretation as incorrect before us. Learned counsel takes his stand on the wording of the proviso and argues that the language used therein would be satisfied if the common ancestor occupied the land for some time in any capacity and that it was not necessary that he should have been succeeded in possession by his sons or heirs. Learned counsel was unable to cite any authority in support of his contention. On the contrary, Mr. Muhammad Shafi for the respon dents referred us to Single Bench judgment of the Lahore High Court reported as Mula Singh v. Muhammad Sher (132 I C 391). The facts of that case were that one, Wazir Singh, purchased an occupancy tenancy from a stranger, Ganga Singh. He died and was succeeded by his widow, Mst. Ghero. She sold away the occupancy tenancy and two persons, Mula Singh and Dhera Singh, sued for possession of the land by pre‑emption of the tenancy. Their suit was dismissed by the lower appel late Court and the matter came up in Second Appeal before Addison Judge. It was found that the plaintiffs were the great grandsons of one, Mitha Singh, who was the grandfather of Wazir Singh, and that Mitha Singh, the common ancestor, did hold the land in question for one harvest at least, as a tenant of the then occupancy tenant, Ganga Singh. The lower appellate Court decided that this fact was not enough to make the pre‑emptors heirs and it was conceded that if the pre emptors were not entitled to succeed to the occupancy tenancy, they could not pre‑empt the sale. Addison J. upheld this finding as correct. In the learned judge's opinion, section 59 of the Punjab Tenancy Act did not make it necessary to decide in what capacity the common ancestor held the land provided he did hold it and the land descended from him, to his heirs. He went on to say that it was impossible to construe the proviso to section 59 (1) as meaning that a tenant holding an occupancy tenancy for a brief period under the existing occupancy tenant or a trespasser holding the land, say for two days, is a person who occupied the land. This is an authority which is directly in point. With respect we are inclined to think that the interpretation placed on the proviso by Addison J. was correct. This proviso apparently takes note of the agnatic theory of succession prevailing under the Punjab custom by virtue of which collaterals can claim the land which had descended from their common ancestor in certain circum stances. If the bond of succession from the common ancestor is broken and there is no continuity of possession in the line of the common ancestor, the claim of the descendants to inherit the land would rest on no solid foundation. In the present case we find that suit land did not descend from Mughal, the common ancestor, to his sons as he had abandoned it in his lifetime and his sons reoccupied it in their own right. There is no clear evidence that they derived their right by virtue of descent from Mughal. The sons of Mughal had themselves occupied the land for over twenty years when they were recognised as occupancy tenants. We find ourselves in agreement with the view taken by the learned Single judge in this respect, and hold that the contention raised by learned counsel for the appellants is devoid of force. The circumstance that on the death of Khuda Bakhsh, son of Mughal, in 1887, his share also was mutated in favour of his existing brothers vide mutation Exh. P‑1 sanctioned on the 28th of November 1887, does not advance the case for the plaintiffs‑appellants to any extent. It is obvious that the brothers were jointly holding the tenancy and on the death of one of them the remaining brothers were entitled to the possession of the whole land and the landlords could not come into the picture. This is probably why the landlords did not lay a claim to the share of Khuda Bakhsh on his death, though they appeared to have made a feeble attempt in that direction in 1889 when the brothers got a partition mutation sanctioned, after privately partitioning their tenancy. Exhibit P‑A is the mutation in question, and it appears from the record of pro ceedings entered thereon that at that time some of the land lords objected that Khuda Bakhsh's share should have gone to them. Their plea was rejected by the revenue authorities and they were told that if there was any substance in their objection, they should have gone to the Civil Courts. This advice was apparently not followed by the landlords and probably for good reason. Mr. Chiragh Din referred to these mutations for raising the argument that at that time it was incumbent on the landlords to have challenged the competency of the sons of Mughal to occupy the land in their father's right, and as they failed to do w, according to the learned counsel, the principle of constructive res‑judicata embodied in Explanation IV to section 11, Civil P. C., should bar the landlords' present plea against the collaterals. This argument is frankly unintelligible to us. There was no question of constructive res‑judicata with reference to mutation proceed ings. The principle of res‑judicata is available only in respect of judicial proceedings. The suggestion made by learned counsel that at the relevant time there were no Civil Courts so that the revenue authorities themselves functioned as Civil Courts is not factually correct. Be that as it may, it would be fantastic to argue that proceedings on a mutation before a revenue officer could be assimilated to the status of judicial proceedings. We find that there is no force in this appeal which we dismiss with costs. A. H. Appeal dismissed.