P L D 1962 (W (PLP)

This second appeal has arisen in the following circumstances :-- The plaintiff-appellant Sher Ali Khan was the landlord of 148 Kanals 7 Marlas entered in Khasra Nos. 1551, 1579, 15h0, 1582 to 1588 and 1677 (eleven in number) situated in the area of village Khaur, Tehsil Pindigheb, of which the defendant respondents were occupancy tenants. On the 28th of May 1956 the plaintiff brought a suit against the defendants (Suit No. 184 of 19:6) for a declaration that the occupancy rights of the defendants in the Khasra Nos. mentioned above were extinguished because they had abandoned them since more than twenty years, and that the revenue entries which still recorded them as occupancy tenants were wrong needing rectification. The Tahsildar of Pindigheb (Assistant Collector, Second Grade) was also impleaded as defendant No. 6 in the suit, and a second prayer was included in the plaint for a permanent injunction that defendants Nos. 1 to 5 should be restrained from getting any mutation attested in their favour from defendant No. 6, who should similarly be stopped from attesting any such mutation. The suit was prompted by the change in the legislation brought about by the Punjab Tenancy (Amendment) Act (VII of 1952), which, amongst other changes, added section 114 to the Punjab Tenancy Act of 1887, providing for the extinction of occupancy tenancies and their conversion into ownership rights, the extent of which varied according as the tenants paid no rents to the landlord or the proportion in which they paid the rent or the produce. The defendant-respondents based their claim, that they had become the owners of half of the land mentioned above, on subsection (1) and clause (b) of subsection (2) of the newly-added section 114, which are as follows :- "(1) . . . . . the existing occupancy rights in respect of all lands other than lands . . . shall on the coming into force of the aforesaid Act (Punjab Tenancy Amendment Act, 1952) be extinguished, and the land comprised in a tenancy so extinguished shall vest as hereinafter provided. (2) (b) of such portion of the land comprised in his tenancy without payment of any compensation as corresponds to his share of the produce, where he pays rent in the form of a share of the produce." In the Jamabandi for the year 1953-54 (copy Exh. P. 1), which was the latest, before the institution of the suit, the defendants were recorded as occupancy tenants in the cultivation column, and in the rent column were shown to be paying half the produce to the landlord.

2. During the pendency of the suit mutation No. 1981 was attested on the 30th of June 1956, upholding the contentions of the tenants that they bad become owners to the extent of half of the land comprised in the relevant Khasra Nos. Thereafter, for reasons not understandable, the plaintiff-landlord amended his Plaint changing his reliefs of declaration and injunction into one for possession of the suit land. In the written statement filed on behalf of the defendant-respondents it was denied that they had abandoned their tenancy rights which were thus extinguished. They claimed that being the occupancy tenants of the suit land they had become entitled to half portion of the land in ownership rights under the new tenancy legislation. To the plaintiff's allegation that the tenant-defendants had abandoned their tenancy by ceasing to cultivate it, the reply contained in para. 3 of the written statement is as follows :- "Para. 3 of the plaint is denied. Even if the land in suit be found to be In possession of the plaintiff, the mere fact of the cultivation being with the plaintiff will not extinguish the occupancy rights because the defendants had at no time left their residence in the village, nor had they abandoned their occupancy rights in the suit land. If the relationship between the parties was terminated the names of the defendants would have been struck off from the revenue papers, which was not done."

3. The trial proceeded on the two issues struck by the trial Judge to the following effect :- (1) Whether the suit in the present form cannot proceed ? (2) Whether the occupancy tenancy of the defendants is extinguished ? (3) Relief ?

4. Issue No. 1 ceased to have any practical purpose as the objection about the frame of the suit related to its form as originally instituted. The Court had permitted its conversion into a suit for possession by way of amendment which was duly accorded to the plaintiff.

5. On the second issue the trial Court came to the con clusion that the defendants according to the revenue papers had left possession of some Khasra Nos. before 1939 and of all before 1945 which amounted to abandonment on their part. He decreed the plaintiff's suit.

6. On appeal the learned Senior Civil Judge (Qureshi Gul Muhammad) held that abandonment on the part of the defendant-tenants, as contemplated by section 38 of the Punjab Tenancy Act, was proved only with respect to Khasra No. 1551, which had remained banjar qadim for more than one year prior to its possession by the plaintiff-landlord. There was no abandonment of the other Khasra Nos. According to him the landlord had taken forcible possession of these Khasra Nos. and therefore there could be no question of abandonment on the part of the tenants. He dismissed the plaintiff's suit in regard to the Khasra Nos., other than Khasra Nos. 1551. This has led to the present second appeal on behalf of the plaintiff appellant to this Court.

7. The learned counsel for the appellant has contended before me that. the plea that the appellant had taken forcible possession of the land was not taken up by the respondents in their written statement, and that the learned lower appellate Court has built up an entirely new case for the tenants in appeal. The contention is correct, inasmuch as the plea was not specifically raised in the written statement wherein the defendant-respondents had generally stated that no legal abandonment of the lurid in suit had taken place. It was for the first time in his statement in Court that the defendant Lal alleged forcible dispossession of the defendants by the plaintiff from the land in suit. However by this circumstance alone I do not feel justified to interfere with the finding of the learned lower appellate Court that the defendant tenants bad not abandoned their occupancy rights in the suit land. Essentially it is a question of fact whether or not the tenants had failed for more than one year without sufficient cause to cultivate the tenancy and had failed to arrange the payment of the rent thereof as it fell due resulting in the extinction of their tenancy. It would be useful here to refer to the provisions of section 38 of the Punjab Tenancy Act, which read as follows:- "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." It would appear from the section that to constitute abandonment, 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 so 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.

8. 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. In the present case, the point certainly goes in favour of the appellant landlord as found by the Courts below that the defendants were not proved to be in physical possession or cultivation of the land in suit since kharif 1942 of any of the Khasra Nos. except No. 1551 over which also their possession ceased after 1945-46. The plaintiff-landlord has been in possession ever since, and this was admitted by the defendant Lal himself as D. W. I in his statement to the effect that the plaintiff had been in possession of the land for the last ten to twelve years. While the possession of the plaintiff is proved, there is no proof on the record at all for reaching a sure conclusion that the plaintiff came to occupy the land because of the failure of the defendants for a whole year prior to his occupation of the different Khasra Nos. to cultivate the land either themselves or by some other persons and to arrange for payment of the rent to the plantiff-landlord when it fell due, as envisaged by section 38 of the Tenancy Act. It was not the plaintiff's case that the defendants had voluntarily abandoned the land in favour of the landlord for all times to come to make it a case of an irretrievable surrender. It is difficult to accept this position, even otherwise, because the defendants had not left residence of the village and held other lands also in that village. Whether it was a case of a forcible dispossession, as held by the lower appellate Court, or it was a case of a provisional transfer of possession to the landlord by an arrangement that they should take charge of the land as the tenants had taken up service in al company in the same village, to my mind, it is not proved to be B a case of a legal abandonment of the occupancy rights.

9. The plaintiff did not get any mutation of the extinction of tenancy attested in his favour, nor had he brought any suit to recover arrears of any produce from the tenants because of their failure to pay him his share of the produce for any period prior to his occupation of the land. This circumstance, to my mind, strongly indicates that the tenants had not quitted their occupancy rights in this land. On the contrary, the fact that they are continuously shown as occupancy tenants in the revenue papers throughout the period that they were out of possession shows that their interests subsisted, and that they and their landlord were fully alive to the situation.

10. The learned counsel for the appellant also argued that under section 114, as introduced by the Punjab Tenancy (Amendment) Act, 1952, only those occupancy tenants could claim ownership in their respective rights who were "occupying the land as such" at the time of the coming into force of the aforesaid amending Act. In a Division Bench judgment of this Court reported in Umar Said and others v. Faiz Muhammad Khan and others (P L D 1961 Pesh. 110) 1n which the judgment was delivered by the Chief Justice M. R. Kayani, his Lordship observed as follows :- "The words 'occupies land as such' necessarily do not mean physical occupation, for a tenant may be in constructive possession through a tenant-at-will. In the same way, he may have been thrown out of possession by some illegal process but if he has time to avail of a legal process to restore himself to possession, whether actual or constructive, he should be allowed to make use of that remedy. If, however, he has allowed time to run against him, then the N.-W. F. P. Tenancy Act, 1950, has not the effect of reviving a claim which has been extinguished."

11. The learned counsel for the appellant referred me to sections 50 and 50-A of the Punjab Tenancy Act for the contention that the respondents cannot agitate the claim of their occupancy rights in a civil Court. The former section provides a period of one year for the institution of a suit for recovery of possession by an occupancy tenant who has been dispossessed from the tenancy without his consent. Section 50-A lays down that no person whose ejectment has been ordered by a revenue Court under section 45, or whose suit under section 50 has been dismissed, may institute a suit in a civil Court to contest his liability to ejectment or to recover possession of occupancy rights, or to recover compensation. In the present case, if the tenants were forcibly dispossessed they could have brought a suit under section 50, but if they have not done so, the only effect is that their remedy under that section was lost. Section 50-A obviously has no application to the case. The failure of the tenant-respondents to avail of the summary remedy provided in section 50 did not take away their ordinary remedy under the civil law to gain possession of their occupancy tenancy in a Civil Court unless it had become time-barred which would happen in cases where the tenant C has discontinued possession for a period of more than twelve year and the landlord has in the meantime matured his adverse possession to it. Even if it were to be accepted that the tenants had discontinued the possession of their tenancies since 1942, their rights were still subsisting when the new tenancy legislation was enacted in 1952, giving them the right to claim the conversion of their tenancy rights into ownership rights. In view of my finding that legal abandonment within the meaning of section 38 has not been proved by the appellant in this case, except in regard to Khasra No. 1551, as held by the lower appellate Court, I feel constrained to dismiss this appeal. However, in view of the fact that the tenants had allowed the landlord to remain in possession of their occupancy rights for a long time, I would leave the parties to bear their own costs throughout. K. B. A. Appeal dismissed.