P L D 1957 (W (PLP)

KAIKAUS, J.‑

The land in suit out of which the present appeal arises was held in occupancy rights by Ata Muhammad, the father of the present appellants. Ata Muhammad mortgaged his occupancy rights in the year 1943 for a sum of Rs. 600 in favour of one Shah Mir. The landlords sued for cancellation of the mortgage and ejectment of the mortgagee and obtained a decree on the 12th of July 1944. They claim that they ejected the mortgagee in execution of the decree. The revenue papers show, however, that Shah Mir was in possession from 1943 up to October 1952. Shah Mir filed a suit against Ata Muhammad for recovery of the mortgage money and obtained a decree on the 18th of September 1956. Ata Muhammad died on the 16th of September 1950. On the 8th of September 1950, the landlords sued Shah Mir for possession in the Civil Court and obtained a decree on the 13th of July 1951. In execution of this decree, Shah Mir was ejected on the 18th of October 1952, and on the basis of this ejectment, a mutation of abandonment of occupancy rights was entered on the same day and sanctioned on the 30th of the same month. The present suit was filed by the heirs of Ata Muhammad for possession of 3/4th of the land on the ground that by virtue of section 114 of the Punjab Tenancy Act, which was introduced by Act VII of 1952, they had become owners of 3/4th of the land as the rent of the tenancy was 1/4th of the produce, and in the alternative for possession of the whole of the land as occupancy tenants. The defendants denied that the plaintiffs had either become owners of 3/4th share of the land or were occupancy tenants at all of the land in suit. They pleaded that the plaintiffs had abandoned their occupancy rights. Some more pleas were taken which it is not necessary to mention as they are no longer the subject of the contest between the parties. The trial Court held on the question of abandonment against the landlords. It dismissed the suit, however, on the ground that under section 114 of Tenancy Act it is on the occupancy as in Occupation as such of his tenancy on the coming into force of the Punjab Tenancy (Amendment) Act VII of 1952, who acquires ownership rights in the land and the plaintiffs not being in occupation could not avail of that provision. It refused to grant them a decree with respect to tenancy rights on the ground that by virtue of the same section 114, all rights of occupancy tenants stood extinguished on the coming into force of Act VII of 1952. On appeal, the learned District judge agreed with the trial Court‑in holding that as the plaintiffs were not occupying the land as such on the date of coming into force of Act VII of 1952, they could not acquire rights of ownership. He disagreed with the trial Court on the question as to whether occupancy rights stood extinguished by virtue of section

114. He was of the opinion that extinction of occupancy rights could take place only where ownership was acquired, and if ownership did not come into existence, occupancy rights would subsist, He held, however, that the plaintiffs had lost their occupancy rights on account of abandonment in accordance with section 38 of the Tenancy Act. On these findings, he affirmed the decision of the trial Court. This is an appeal by the plaintiffs. Two questions arise for decision. The first is whether the occupancy rights were extinguished by abandonment in accordance with section 38 of the Punjab Tenancy Act. The second is as to the effect of section 114 of the Punjab Tenancy Act on the rights of occupancy if they had not been extinguished by the abandonment. As regards abandonment by virtue of section 38 the trial Court had decided this question in favour of the plaintiffs on the ground that there was no proof of abandonment. The learned District judge said in his judgment that the issue relating to the interpretation of section 114 was the contested issue in this case and, after dealing with that question at some length and holding that although the plaintiffs did not acquire ownership by virtue of section 114 they did not, at the same time, lose their occupancy rights, he just wrote the following two sentences with respect to abandonment of occupancy rights under section 38 :‑ "In my opinion, the occupancy rights of the plaintiffs appellants stood extinguished on account of their failure to have pair: any‑ rent to the defendants landlords from the time of the original mortgage up to October 1952. Provisions of section 38 of the Tenancy Act apply to this case." This is all that he said in his judgment with respect to abandonment. This is hardly a satisfactory way of dealing with a matter the decision of which is to settle the fate of the suit. The learned judge has failed to consider the elements that constitute abandonment as stated in section 38, the evidence on the record that relates to them and their inter pretation with reference to the circumstances of this case. Section 38 runs :‑ "38. (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. (2) For the purposes of this section a muqarraridar shall be deemed to be a tenant having a right of occupancy . The section requires three circumstances for extinction of rights of occupancy : (1) failure to cultivate for more than failure one year personally or through sonic other person, (2) to pay rent, and (3) absence of sufficient cause. As held in Lakha v. Thakar Dial and another (2 P R (Rev.) 1901) and Muhammad Umar Khan and another v. Fazi Khan etc., (170 P R 1919), all the three elements must exist in order that occupancy rights may be extinguished. The evidence on the record shows that from the year 1943 up to 13th of October 1952, Shah Mir was in possession of the land in dispute. There is no proof that he was ever ejected in execution of the decree of the Revenue Court though it is admitted that the mortgage was set aside. The first question that arises is whether, in a case where the tenancy is alienated and the alienee continues in possession after the alienation has been set aside, the first condition of section 38 is fulfilled. Can it be said that the tenant has failed "to cultivate the tenancy by himself or other person ?" Is not the position of the alienee only that of a trespasser after an alienation has been set aside? An alienation by an occupancy tenant which is not effected in accordance with the provisions of the Punjab Tenancy Act is avoidable, according to section 60 of that Act, .at the instance of the landlord. Once the landlord exercises his option to avoid the alienation, the alienation becomes non est. No title passes under it. The position of the alienee, therefore, becomes similar to that of a trespasser once the alienation is set aside though not exactly that of a trespasser, for he may resist an attempt at his ejectment by the tenant to this extent that a decree for possession in favour of the tenant may be made conditional on the payment of the consideration received by the tenant. To the suit for ejectment, however, of the landlord the alienee will have no defence and in fact a decree for ejectment is passed at the same time as the transfer is cancelled if the alienee be in possession. But although the alienee may have an equitable defence to the suit for possession filed by the tenant it cannot be said that it is the tenant who is cultivating the land through another person as long as the alienee is in possession. The alienee does not hold on behalf of the tenant but adversely to him. Of course, after the alienation is set aside the alienor and the alienee may enter into some arrangement under which the alienee holds on behalf of or with the permission of the tenant. But barring such arrangement the first requisite of section 38 would not be satisfied. I should state here that till an alienation is set aside no question of the application of section 38 arises if the alienee is cultivating the land by himself or some other person. Till the alienation is set aside the alienee is a tenant. By virtue of section 4 (7) of the Tenancy Act the mortgagee of a tenant is also a tenant. Can we say that there was in this case no such arrange ment between Ata Muhammad and Shah Mir? Ata Muhammad is dead. The landlords failed to agitate the question of abandonment in his lifetime. If the landlord fails to take timely action, we may infer that circumstance did exist which excluded the application of section

38. I am not satisfied on the record that Shah Mir was not cultivating in consequence of an arrangement with Ata Muhammad and I would hold that even the first condition of section 38 is not proved. I will next consider whether, assuming that there was failure to cultivate, there was absence of sufficient cause (the second condition, that is, non‑payment of rent is conceded). The initial onus of proving sufficient cause has to be on the landlord, for he is to prove the three elements of section

38. Of course, to shift the onus, a bare statement may, be sufficient, but that statement should be there. There is no such statement on this record. I agree that in a case where the tenant to whom abandonment is attributed is himself the defendant (and not his heirs), it is necessary that the tenant should take up a plea as to what was the cause that prevented him from cultivating the land. If he fails to take up such a plea, the failure would, in the absence of an explanation be sufficient to shift the onus on to him and would ordinarily be presumptive proof of absence of sufficient cause. If the record o case no sufficient cause appears to have been alleged and no reason for failure to cultivate has been advanced, there would a justification for holding tat; absence of sufficient cause has established. This con sideration, however, will not apply in the case where the tenant to whom abandonment is attributed is dead, and the suit is being defended by his heirs who may not be in a position to know why the tenant failed to cultivate. Ata Muhammad had died on the 16th of September 1950. The plea of abandonment truly relates to his lifetime, for, so far as the period subsequent to the 16th of September 1950, is concerned, it is capable of the explanation that the heirs had yet to enter into possession by some litigation before they could be in a position to control the cultivation of land. There is some authority too for the proposition that in the case of an heir who has not yet taken possession of the look at section 38 from a different angle) tenancy we have to but I will overlook that for the present. It is to be remembered that the Punjab Tenancy (Amendment) Act VII of 1952 had come into force within two years of the 16th of September 1950, and as will appear from the discussion later in judgment, if occupancy tenancy was subsisting at the date of the Punjab Tenancy (Amendment) Act the occupancy tenant would become an owner. The period subsequent to the 16th of September 1950, is not, therefore, of any significance. So far as the period up to the 16th of September 1950, is concerned, there may very well have existed sufficient cause of which we are not aware. As I have already stated, the landlords never claimed that there was abandonment till the 18th of October 1952 and their conduct can be the basis of an adverse inference. The record does not even contain a bare statement that there was no sufficient cause. I would not hold, therefore, that the absence of sufficient cause is established. I now come to the effect of section 114 of the Punjab Tenancy Act. It runs :‑-- "114. (1) Notwithstanding anything contained in an; law for the time being in force, including this Act, no person shall after the coming into force of the Punjab Tenancy (Amendment) Act, 1952, acquire or have occupancy rights in any land under any enactment or contract or any decree or order of any Court or other authority, and the existing occupancy rights in respect of all lands other than lands owned by Government or by any person who under the law for the time being in force is an evacuee, shall on coming into force of the aforesaid Act, be extinguished, and the land comprised in a tenancy so extinguished shall vest as hereinafter provided. (2) An occupancy tenant, who at the time of the coming into force of the aforesaid Amendment Act occupies any land as such shall become owner as under :‑ (a) of the entire land comprised in his tenancy without payment of any compensation where he pays no rent therefore beyond the amount of the land revenue, and rates and cesses for the time being chargeable therefore ; (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 ; (c) of the entire land comprised in his tenancy on payment of compensation to the landlord in cash at such rates and within such periods as may be prescribed by the Government by rules framed for the purpose, where he pays rent only in cash ; (d) of the whole or a portion of the land comprised in his tenancy on payment of such compensation in such form and within such time to the landlord as may be determined by Government by rules framed under this Act, where he pays rent partly in cash and partly in the form of a share of the produce. (3) So long as Government does not frame rules for purposes of clauses (c) and (d) of subsection (2), an occupancy tenancy falling under any of those clauses shall, notwithstanding the provision made in subsection (1), continue to subsist, and the landlord and the occupancy tenant shall continue to enjoy the same rights, and be subject to the same liabilities, as before. (4) In a case falling under clause (b) of subsection (2) the landlord shall, without payment of any compensation, be entitled to the possession of the rest of the land comprised in the tenancy. (5) An occupancy tenant acquiring land in accordance with the provisions of subsection (2) shall acquire it free from all encumbrance created in respect of that land by the landlord and if any encumbrance be created by the tenant, the share of the land received by the landlord shall be free from it and notwithstanding any provision of any law for the time being in force to the contrary each such encum brance shall become the exclusive liability of the landlord or the occupancy tenant, as the case may be. (6) Where compensation is to be paid by a tenant in cash under clause (c) of subsection (2) Government may, with a view to enabling an occupancy tenant to acquire land in accordance with the provisions of this section, advance a loan which shall be recoverable as arrears of land revenue with interest at such rates and in such instalments as the Government array fix generally or in particular cases. (7) Government shall frame rules to give effect to the provisions of this section, and while framing rules it may classify lands into different categories and prescribe different principles for assessment of compensation." This section was introduced by the Punjab Tenancy (Amendment) Act VII of 1952 which came into force on the 4th of February 1952. In accordance with this section, every occupancy tenant who occupied his tenancy as such on the day when the Act came into force and who was paying produce rent became owner of a proportionate share of the land. In the present case, the rent which the occupancy tenant is to pay is one fourth of the produce. So the plaintiffs had become owners of land if they were occupying the land as such on the day when the Punjab Tenancy Amendment Act came into force. The contention of the defendants which has been accepted by both the lower Courts is that as the land was not in possession of the occupancy tenant at all on the above‑mentioned day but was in the possession of Shah Mir who was a mere trespasser, the occupancy tenants do not become owners. When I was discussing the question of abandonment I had accepted that Shah Mir was in possession without any arrangement with Ata Muhammad. But the onus of abandonment was on the defendants and the onus of proving acquisition of ownership (if a question of fact be involved) by virtue of section 114 is on the plaintiffs. While I could not positively hold that Shah Mir was in possession without an arrangement with Ata Muhammad I cannot at the same time positively hold that there was such arrangement. So, for the purpose of determining the effect of section 114 I will assume that Shah Mir was only a trespasser. The question then is whether it is the effect of section 114 that if the land be on the date of coming into force of the Punjab Tenancy (Amendment) Act VII of 1952 in the possession of a trespasser, the occupancy tenants will not acquire ownership. Superficially considered, there does appear in section 114 a further condition for the acquisition of ownership, namely that the occupancy tenant should be in occupation as such, and it can be urged that if the intention was that mere existence of occupancy right was sufficient to confer owner ship, there was no need for the additional qualification. It can be contended that words in a statute should not be regarded as redundant or superfluous. These arguments would have some weight if the accep tance of them would not lead to absurd results which could never have been intended by the legislature. The Punjab Tenancy (Amendment) Act was enacted with the object of granting to the tenants more than they already had and not for taking away what they already had. Section 114 provides that all occupancy rights are extinguished. It does not say that the occupancy rights of only those tenants who are in occupation as such will be extinguished. If the interpretation contended for by the defendants be placed on this section then those occupancy tenants who were not in occupation on the day the Act came into force will lose their occupancy rights without at the same time acquiring ownership. There can be little doubt that this was not the intention of the legislature. At the same time, there is no reason for imputing to the legislature an intention that merely because a trespasser was in occupation of the land at the commencement of the Act the occupancy tenant should lose the benefit of the Act. A trespasser may have taken possession by force and the occupancy tenant may have filed a suit to recover possession. Is the tenant to be penalized just for an accident for which he is in no way to blame. Also it may be that the occupancy tenant having died his heir has not as yet been able to take possession. The occupancy tenant may be a minor or an insane person incapable of looking after his own interest. As there can be no doubt that it was not the intention of the legislature to deprive occupancy tenants of their rights it is open to the Courts to treat the words "occupies as such" as superfluous and the result of inartistic drafting. As Maxwell says in his Interpretation of Statutes (Ninth Edition, page 236) :‑ "Where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contra diction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice, presumably not intended, a construction may be put upon it which modifies the meaning of the words, and even the structure of the sentence. This may be done by departing from the rules of grammar, by giving an unusual meaning to particular words, by altering their collocation, by rejecting ' them altogether, or by interpolating other words, under the influence, no doubt, of an irresistible conviction that the Legislature could not possibly have intended what its words signify, and that the modifications thus made are mere correcti6ns of careless language and really give the true meaning. Where the main object and intention of a statute are clear, it must not be reduced to a nullity by the draftsman's unskilful ness or ignorance of the law, except in a case of necessity, or the absolute intractability of the language used. The rules of grammar yield readily in such cases to those of common sense." Maxwell was dealing with a legislature where a good deal of care is ordinarily exercised in drafting and yet the above mentioned rule was laid down. I am dealing with a legislature where I cannot expect the same degree of care in drafting and where there is greater need of a liberal interpretation. In more than one judgment, I have had to refer to the inartistic drafting of the Acts of the Punjab Legislature. While dealing with the amendment of section 59 of the Tenancy Act the other day I found an absurd situation created. Similarly, dealing with the Punjab Muslim Personal Law Amendment Act of 19511 found a number of absurd results. In construing such Acts we have to avoid stress on the particular words used and have to give effect as far as possible to the intention of legislature though that may not always be possible for the words may be intractable. I hold that the words "occupies as such" are a mere superfluity. If the occupancy right exists it will be changed into ownership. In this case, the rent payable was one‑fourth of the produce. By virtue of section 114, the occupancy tenants have become owners of three‑fourth of this land and are entitled to a decree for possession to the extent of 3/4th share. This appeal is accepted. The decrees of the Courts below are set aside and the plaintiffs' suit for possession of 3/4th share as owners is decreed with costs throughout. A.H. Appeal accepted.