2002 PLP 1700 (YLR)

(ii) The said allotment in favour of Niaz Muhammad was never cancelled hence without canceling the said allotment, land could not be legally proposed or allotted in favour of predecessor‑in‑interest of respondents; as was done vide Mutation No.72 dated 11‑2‑1985 (Exh. P.1) which was attested without any notice to the petitioners. Reliance was placed on the case titled. "Ghulam Muhammad and another v. Muhammad Ilyas and others "(1989 SCMR 50). (iii) That in Jamabandi for the year 1956 57 (Exhs.P.5 and P.6), their predecessor Niaz Muhammad is shown as owner and in possession of the suit land and in subsequent Jamabandis for the years 1962‑63 (Exh.P.7) and 1967‑68 (Exh.P.8), possession of Abdul Majeed son of Niaz Muhammad, who is one of the petitioners, is recorded. That Allah Wassaya P.W.2, had deposed that he is tenant on the suit land since long and is paying share of produce to the petitioners; his testimoney was not rebutted. It was, therefore; urged that both the Courts below had overlooked the aforesaid documentary and oral evidence wherefrom it was established that the respondents were not in physical possession of the suit land since 1956‑57 upto 1967‑68 and even thereafter, for a period of more than 12 years and had, therefore, abandoned their occupancy tenancy. (iv) That occupancy rights could be determined only by a regular suit and not through mutation as was done in this case vide Mutation No.72 (Exh.P.1) which was attested on 11‑2‑1985, hence the said mutation was manifestly illegal and void. Reliance was placed on the case of "Mgt. Begum Ji v. Muzaffar Khan and others" (PLD 1954 (Rev.) Punjab 14) and "Din Muhammad and others v. Muhammad Zarin "(PLD 1955 (Rev.) Punjab 30); and (v) that both the Courts below had acted in exercise of their jurisdiction illegally and with material irregularity.

6. Revision petition was strongly opposed by the learned counsel for the respondents. Arguments heard. All Annexures and documents appended with the revision petition have also been perused.

7. The following facts were admitted on record; (1) the suit land was formerly evacuee property, (2) Niaz Muhammad-predecessor‑in interest of the petitioners was confirmed evacuee land measuring 27 Kanals and 12 Marlas vide RL‑II No. 50, on 13‑11‑1968 (Exh.P.12). (3) Suit land measuring 6 Kanals, 12 Marlas is part of the aforesaid land measuring 27 Kanals, 12 Marlas and that, (4) in Revenue Record Ahmad etc. predecessor‑in‑interest of the respondents are recorded as occupancy tenants of the land which was allotted to Niaz Muhammad vide RL‑II No.50.

8. The dispute is only regarding aforesaid land measuring 6 Kanals and 12 Marlas.

9. Adverting to the said first contention of the petitioners counsel, it may be observed that Niaz Muhammad, predecessor‑in‑interest of the petitioners, was allotted evacuee land against his claim vide RL‑II No.50 (Exh.P.12) and that very land was the subject‑matter of the suit was an admitted fact; respondents had never challenged the said allotment, therefore, there was absolutely no need for the Courts below to have considered and discussed that document which was not denied or challenged. It is, therefore, of no legal consequence in RL‑II No.50, Exh.P.12, is not specifically mentioned and discussed in the impugned judgments.

10. Adverting to the above second contention of the learned counsel for the petitioners, it may be observed that in 1952, amendment was made in the Punjab Tenancy Act, section 114 was introduced whereby occupancy tenancies were extinguished and proprietary rights were given to occupancy tenants corresponding to the share of produce paid by them. It was on the basis of said amendment in the Tenancy Act that a report Roznamcha Waqiati regarding substitution of tenancy rights by proprietary rights was made by the concerned Patwari and Mutation No.72 (Exh.P.1) was entered on the basis of that report and was put up for attestation before the Revenue Officer who attested the same on 11‑2‑1985. Through this mutation proprietary rights in the suit land were conferred by operation of law on the respondents (occupancy tenants) to the extent of 11/16 share in the land which was in their tenancy while remaining 5/16 share was mutated in the name of landlords (Petitioners) who were allottees of that land. It was, therefore, obviously not a case of allotment of land in favour of respondents by the Settlement and Rehabilitation Department which may have required cancellation of allotment in favour of Niaz Muhammad predecessor‑in‑interest of the petitioners. In the circumstance stated above notice was therefore, not required to be given to Niaz Muhammad or his successors‑interest prior to sanctioning of mutation No.72, aforesaid The said mutation was simply made for correcting and updating Revenue Record by incorporating the consequential change in ownership of the parties due to operation of law.

11. Argument of the learned counsel for the petitioners that since allotment made in favour of Niaz Muhammad vide RL‑II No.50 was not cancelled, therefore, suit land could not have been legally allotted to the respondents and for the said reasons Mutation No.72 was illegal, is misconceived and the authority cited by him i.e. 1989 SCMR 50 is also not applicable wherein it is held that without canceling confirmed allotment made under the Settlement and Rehabilitation Scheme, proposal of allotment of that land in favour of another claimant cold not be made under the said Scheme. In this case the respondents were neither claimants under the Settlement and Rehabilitation. Scheme nor any allotment in their favour was proposed or made on the basis of their claim under the said scheme. For the reasons stated above contention No.2, of the petitioners counsel is devoid of any force.

12. Reverting to the above 3rd contention of the learned counsel for the petitioners, it may be observed that in Revenue Record, to which presumption of truth is attached, comprising of Jamabandis (Exhs.P.3 to P.5 and P.7 to P.10) for the period 1950‑51 to 1978‑79, Ahmad etc., predecessors‑in‑interest of the respondents are recorded as occupancy tenants, in cultivating possession of the suit land. Only in one Jamabandi Exh.P.6, for the year 1956‑57, pertaining to a portion of suit land, they are recorded as "Ghair Qabiz", however, this entry was not repeated in subsequent Jamabandis. In Jamabandis Exhs.P.5 and P.6 for the period of 1956‑57 Niaz Muhammad (predecessor‑in‑interest of the petitioners) is not recorded as owner as was alleged by the petitioners counsel, Hindu (Evacuees) are recorded in the column of ownership whereas Ahmad etc. predecessors of the respondents are shown as occupancy tenants. In Exh.P.5 possession of Niaz Muhammad is shown as tenant at will under the said occupancy tenants whereas in Exh.P.6, also entry is same with the variation that occupancy tenants are stated as "Ghair Qabiz".

13. In all subsequent Jamabandis Exhs.P.7 to P.10 Ahmed and others, are again recorded as occupancy tenants and Abdul Majeed son of Niaz Muhammad is shown as their tenant at will.

14. According to the long‑standing entries in Revenue Record, respondents' predecessors are shown as occupancy tenants of the disputed land and initially Niaz Muhammad and later on one of his sons Abdul Majeed is recorded as tenant at will of the said occupancy tenants. Abdul Majeed is also one of the petitioners. His possession in the capacity of tenant at will of the occupancy tenants for more than 12 years coupled with the fact that he did not pay share of produce to the occupancy tenants was neither a proof of abandonment of tenancy nor that of adverse possession of the petitioners. It is held in case of Muhammad Akram Khan v. Qaim Din (PLD 1963 (W.P.) Peshawar 49), that when a tenant at will pays 'batai' directly to the landlord and gives nothing to the occupancy tenants, in such case occupancy tenant would not be considered to have abandoned his tenancy because under section 38 he is required to cultivate land either himself or through another including tenant at will and in such case his possession would be deemed as, constructive. It is laid down in the case titled "Sher Ali Khan v. Nawab and others "(PLD 1962 (W.P.) Peshawar 110) that an occupancy tenant does not cease to be so merely because and the landlord has been in. possession of the land for a number of years. Neither such possession of landlord would make it a case of legal abandonment of occupancy rights.

15. Hence documentary evidence referred by the petitioners' counsel viz Jamabandis (Exhs.P.5 to P.10) did not support the version of the petitioners that they had become owners due to adverse possession or that the occupancy rights in the suit land were abandoned by the respondents.

16. Regarding testimony of P.W.2, Allah Wassaya, suffice it to say that his name does not figure anywhere in any of the aforesaid Jamabandis as a tenant; apart from that even if his statement is taken on its face value it was also of no legal consequence if he paid 'batai' to the petitioners and not to the occupancy tenants.

17. Where a landlord claims that tenancy has been extinguished by abandonment he has to prove that the following three facts co exist; (i) The tenant failed for more than year to cultivate his tenancy either, himself or through some other person. (ii) that he so failed without sufficient cause and (iii) that he tailed to pay rent of the tenancy.

18. According to the documentary evidence (Exhs.P.5 to P.10) Jamabandis for the years 1950‑51 to 1978‑79, suit land is shown as cultivated. According to record, prior to the grant of proprietary rights suit land was in possession of occupancy tenants (respondents), through their tenants at will. No complaint was ever made to the Revenue Authorities by the petitioners that the respondents had failed to pay the rent.

19. For the foregoing reasons 3rd contention of the petitioners counsel is also devoid of any force, that both the Courts below had overlooked documentary and oral evidence wherefrom it was established that respondents had abandoned that tenancy and petitioners had become owners on account or adverse possession.

20. Relying on PLD 1954 (Rev.) Punjab 14 and PLD 1955 (Rev.) Punjab 30, learned counsel for the petitioners had urged that occupancy rights could be determined only through civil suit and not through mutation proceedings as was done in this case vide mutation No.72 dated 11‑2‑1.985. This contention is entirely misconceived because the authorities referred by the learned counsel for the petitioners are to the effect that abandonment of occupancy rights should be determined by suit and not during mutation proceedings. The said citations are in respect of abandonment of occupancy tenancy. Through Mutation No.72 question of abandonment of occupancy tenancy was not, determined.

21. Adverting to the last contention of the petitioners counsel, it may be observed that the term "acted illegally" means acting in breach of some provision of law and the terms" acted with material irregularity", refers to committing of some error of procedure in the course of trial which is material, in that it may affect the ultimate decision.

22. Petitioners' counsel had utterly failed to draw my attention to any portion of the impugned judgments wherefrom it could be spelt out that any provision of law was contravened or any error of procedure was made in the course of trial. Both the Courts below had correctly examined and assesses evidence and their findings are based on evidence.

23. For the reasons stated above, the revision petition fails and the same is hereby dismissed with costs. Revision dismissed. Q.M.H./M.A.K./H‑95/L