P L D 1969 Peshawar 128 (PLP)

(4) Whether mutation No. 468 attested on 14‑2‑1952 is not binding on the plaintiffs ? (5) Whether the plaintiffs alone are entitled to receive the compensation of the suit land ? (6) Relief.

6. The trial Court on the basis of evidence both oral and documentary produced by the parties, came to the conclusion that the contesting defendants Nos. 1 to 9 and before them their predecessors‑in‑interest, were occupancy tenants in the suit land, and, therefore, were entitled to the benefits accruing under section 4‑A of the N.‑W. F. P. Tenancy Act. The learned trial Judge also found that the occupancy tenancy in favour of the defendants was still subsisting and not extinguished when the Act, came into force. As a consequence of these findings, the learned trial Judge also found that mutation No. 468 was validly attested in favour of defendants Nos. 1 to 9 and accord ingly the plaintiffs' suit was dismissed vide judgment dated 4‑2‑1960.

7. The plaintiffs filed appeal which was heard by the learned Additional District Judge, Peshawar. From the judg ment dated 16‑7‑1960 of the learned Additional District Judge, it appears that the fact that defendants Nos. 1 to 9 were occupancy tenants in the suit land was not controverted by the plaintiffs and the main controversy was confined to Issue No.

3. The learned Additional District Judge found that the defendants Nos. 1 to 9 had never been in possession of the land and, therefore, had lost their occupancy rights by aban donment and adverse possession of land by the plaintiffs for more than 12 years. Accordingly, he reversed the judgment of the trial Court and declared that the plaintiffs had become exclusive owners of the entire land and as such entitled to the compensation for the acquisition of the same to the exclusion of defendants Nos. 1 to

9. Hence this second appeal by the contesting defendants.

8. It is no more in dispute that defendants Nos. 1 to 9 and their predecessors‑in‑interest were occupancy tenants in the suit land under the plaintiffs. Indeed the order of the Super intendent Settlement dated 7‑8‑1872 (Exh. D. W. 1/1) which was given ‑effect in the settlement records of 1870 and repeated in settlement record of 1895‑96 must resolve all doubts on the point. I, therefore, as in the lower appellate Court, the argument before me was confined only on the alleged abandonment of occupancy rights by the defendants Nos. 1 to 9.

9. In support of his conclusion shat defendants Nos. 1 to 9 bad abandoned their occupancy rights, the learned Additional District Judge was greatly influenced by the statement of Abdul Ghaffar, defendant, and Ghulam Rasool (P. W. 3). The former admitted that he was in possession of the land through Ghulam Rasool P. W. and before him through his father Dilawar who had been attorning to the plaintiffs, but he qualified his state ment that Ghulam Rasool had been paying rent to him and the other defendants after the Tenancy Act, 1950. Ghulam Rasool, on the other hand, stated that he and his father had been in cultivating possession of the land, and had been attorning to the plaintiff‑landlords and not to the defendants. From this, the learned Additional District Judge concluded that defendants Nos. 1 to 9 had abandoned their occupancy rights in the land. This conclusion, if I may say so, however, proceeds on a superficial view of the matter. It also does not take into account the terms on which the occupancy tenancy was held by defendants Nos. 1 to 9 ; nor the judgment refers to the provisions of law under which an occupancy tenant will suffer forfeiture of his tenancy by abandonment. It is common ground between the parties that under the terms of the tenancy, the defendants Nos. 1 to 9 were paid one‑half of the produce as rent to the landlords and retained the other half to themselves. Therefore, the statements of Abdul Ghaffar and Ghulam Rasool must be read in that context. Therefore, if Ghulam Rasool or for that matter his father Dilawar paid the produce of the land to the plaintiff ‑landlords, that was in pursuance of the terms of the tenancy on which defendants Nos. 1 to 9 held the land. The learned Additional District Judge did not refer to the entries in the Khasra Girdawari placed on record by the plaintiff themselves and marked Exh. P. W. 1/3. In the Khasra Girdawari, relating to the year 1949‑50, the occupancy tenants are recorded in posses sion of land through different tenants until Rabi, 1950 when N. W. F. Tenancy Act came into force which inter allia abolished occupancy tenancies in the former Province of N. W. F. The possession of the defendants continued as such in Khasra Nos. 1024, 1346, 1025, 1357/1047, 1246, 1248 and 1255 even after Rabi, 1950. It is difficult in the face of these entries to say that the occupancy tenants had abandoned their tenancy in favour of the landlords, therefore, the conclusion arrived at by the learned Additional District Judge cannot be sustained on the evidence on the record.

10. There is yet another aspect of the matter. As pointed out already, the N. W. F. P. Tenancy Act inter alia abolished occupancy tenancies in what was then the Province of N. W. F on the terms and the conditions specified in sections 4 and 4‑A of the Act. The case of the defendants Nos. 1 to 9 is covered b5 section 4‑A which was inserted by N.‑W. F. P. Act V1 of 1952 which came into force on 18th January 1952, vide Gazette Notifi cation No. 487‑L‑D dated the 21st January 1952. The section as present amended reads :‑ "Determination of occupancy tenancies in cases where rent in kind is paid.‑(1) Any occupancy tenant who at the commence ment 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. (2) Any occupancy tenant acquiring land in accordance with the provisions of subsection (1) shall acquire it free from any incumbrance created in respect of that land by the landlord. (3) Subject to the provisions of subsections (1) and (2), the landlord shall take possession of the remaining portion of the land at the expiry of the current agricultural year, free from any incumbrance or lease created by the tenant and occupancy rights therein shall be extinguished." The real question that, therefore, falls for determination is whether on the commencement of the N.‑W.F.P. Tenancy Act, the occupancy rights of defendants Nos. 1 to 9 still subsisted or were lost to them by abandonment as averred by the plaintiffs. This question will have to be answered with reference to the provisions of section 38 of the Punjab Tenancy Act, 1887, which was then applicable to the former N.‑W. F. P., vide the North West Frontier Province Law and Justice Regulation, 1901. Section 38 of the Punjab Tenancy Act for the material purpose reads :‑ "Abandonment of tenancy by occupancy tenant.‑(1) If a tenant having a right of occupancy fails for more than one year without sufficient cause to cultivate his tenancy, either by himself or some other person, and to arrange for payment of the rent thereof as it falls due, the right of occupancy shall be extinguished from the end of that year. This section recently came in for interpretation in Mirza v. Muhammad Zaman (P L D 1957 Lah. 245) wherein Kaikaus, J. following the earlier two rulings in Lekha v. Thakar Dial and another (2 P R 1901 (Rev.)) and Muhammad Umar Khan and another v. Fazi Khan (170 P R 1919) held that to constitute abandonment by an occupancy tenant of his occup ancy tenure, the section requires three conditions to be satisfied namely that the tenant‑ (i) failed to cultivate for more than one year personally or through some other person; (ii) failed to deposit rent ; and (iii) without sufficient cause. According to the learned Judge, these three conditions must co exist for the extinction of right of occupancy of a tenant. In other words, if any of these conditions was wanting, then them will be no extinction of occupancy tenancy. In the instant case, at was never the plaintiff's case that the land in dispute had lair uncultivated or they did not receive the annual rent in king from the sub‑tenants in actual possession of the land. Rather their case was that they had throughout been receiving the entire rent in kind from the sub‑tenants (as if they were tenants under them), The entries in the Khasra Girdawaris Exh. P. W. 1/3 produced by the plaintiff and the Jamabandis also show that the land had been under cultivation without interruption. Failure to cultivate by an occupancy tenant either by himself or througu an another person for more than one year is the essential condi tion for the forfeiture of occupancy by abandonment, under section 38 of the Punjab Tenancy Act. This condition is singularly lacking in this case. The second and the third .conditions are also lacking on the plaintiff's own showing. Therefore, none of the above three conditions is satisfied in ‑the instant case and it would be idle in these circumstances to canvass the extinction of tenancy by abandonment by defendants Nos. 1 to 9.

11. As to the plea of adverse possession, which incidentally was not adverted to by the learned Additional District Judge, it is highly pertinent to point out that the plaintiff landlords did not agitate the question of abandonment prior to the coming into force of the N.‑W. F. P. Tenancy Act, nor even after the commencement of that Act until 1956 when the question of compensation for the acquisition of the suit land for the purpose ,of Nishat Textile Mills arose. As pointed out already the Act abolished occupancy tenancies in the former N: W. F. P. and, therefore, there was no question of any forefeiture by abandon ment of any such tenancy or its extinction by prescription after that Act came into force in 1950. And there is no evidence worth the name concerning the period prior to 1950, supporting the plaintiff's claim. If it were a fact that defendants 1 to 9 had abandoned the tenancy or the plaintiff had otherwise perfected their exclusive title by prescription before the commencement of the N.‑W. F. P. Tenancy Act, there is no reason why they should have delayed the action in that behalf till about six years, after the abolition of occupancy tenancies under the statute. The Khasra Girdawaris for the year 1949‑50 show the occupancy tenants in possession and the veracity of these entries is not displaced by the evidence of Ghulam Rasul. The entries in the Jamabandis including the records of two settlements also negative the plaintiff's case.

12. For the foregoing reasons, I accept this appeal and reverse the judgment of the learned Additional District Judge and restore that of the learned trial Judge dismissing the plaintiff's suit with costs throughout. A. E./K. B. A. Appeal accepted.