1988 PLP 250 (SCMR)

SHAFIUR RAHMAN, J.--Three appeals, by the leave of the Court, have come up for disposal together as they raise a common question of law with regard to the true meaning and scope of section 114 of the Punjab Tenancy Act particularly, its clause (b) of subsection (2) and subsection (4). Two of these appeals (Civil Appeals Nos 495 and 496 of 1980) arise out of the decision of the High Court, dated the 15th June, 1977 in a Constitutional Petition (Writ Petition No. 1234 of 1969) and the third appeal (Criminal Appeal No. 168 of 1978) arises out of the decision of the High Court dated 25-2-1978 in a Regular First Appeal. The factual background of cases and the proceedings are somewhat different though the law point ultimately coming up for decision in all of them is substantially the same. In Civil Appeal No. 168 of 1978 respondent-tenants instituted a civil suit claiming that they were the owners of land in dispute measuring 693 Kanals 16 Marlas in village Ferozpur, Tehsil and District Multan and the appellants who were recorded as their landlords had no title or interest in the same. According to the plaintiffs, treating them to be the occupancy tenants, mutations were attested in compliance with section 114 of the Tenancy Act whereby on 30-6-1957, they were allowed the 3/4th share as owners in the land leaving 1/4th share for the landlords. On review, by an order dated 23-10-1963, their share was altered and reduced to 345/2780 while that of the landlords-appellants was increased to 2435/2780. The landlords-appel lants contested the suit and on the strength of the entires in the Revenue Record, contended that the plaintiffs-tenants were occupancy tenants of the land and were entitled under section 114 to the share which had been allocated to them as owners on review of the mutation on 23-10-1963. The following issues were framed on the pleadings of the parties "(1) Whether the suit is rightly valued for the purposes of court-fee and jurisdiction? (2) Are the plaintiffs owners of the entire land in dispute? (3) If the above issues is not proved, what is the share of the plaintiffs? (4) Relief" The trial Court after recording evidence held that the suit was rightly valued; that the plaintiffs were admittedly not the owners of the entire land, being occupancy tenants thereof and entitled to share the land with the owners on the promulgation of section 114 of the Punjab Tenancy Act. However, in working out the proportionate share of the landlords and the tenants, reliance was placed on a report prepared by Shamsul Islam Naib Sadar Qanungo. The shares were worked out relying on the following factual contents of that report-- "According to this net profit share of-the owner is 1148/4485, share of the occupancy tenants is 483/4486, share of Chakdar Kasoorkhwar is 612/4485 and share of tenants-at-will is 2242/4485 .....He has after extensive calculations found out the shares of the parties. According to him share of owner Malguzar is 1148, Chakdar Kasoorkhar is 612, occupancy tenants 483 and tenant-at-will 2242." The trial Court on this data concluded as follows-- "In my view the share of the tenant-at-will is not to be considered as produce of land while considering the snare of the occupancy tenants and owners regarding the land in suit because that share is neither the share of the occupancy tenants nor that of the owners and it is the share of the person who actually cultivates it. If the plaintiffs are actually cultivating it then they are entitled to one-half share of the produce as tenants-at-will and to 483 share as occupancy tenants; so in my view while calculating the share of the parties the share of the tenant-at-will is not to be included in the share of either of the parties." and the trial Court further concluded as hereunder-- "This clearly means that share of the tenant-at-will is not to be included in the produce to be distributed among the occupancy tenants and the owners. If that is the intention of the legislature regarding clause same appears to be the intention of the legislature regarding rights of the occupancy tenants and owners in cases falling under clause B." On this reasoning, the trial Court re-fixed the shares of the parties concerned as follows-- "In view of the above discussion I am of the view that the shares of the parties in the instant case are as under-- Plaintiffs 483/2243 Share of owners 1148/2243 Share of Chakdar Kassorkhwar 612/2243" The tenants appealed against the judgment and decree of the trial Court to the High Court. A learned Judge accepted the appeals of the tenants and re-fixed their shares hereunder:-- "The intention of Section 114(2)(b) of the Act appears to confer ownership on the occupancy tenants of such portion of the land as corresponds to their share of the produce. As per the Jamabandi (Exh. P/3) the share of the Malguzars is 1/6th and that of the Chakdars Kasoor Khawars is 32 seers out of a maund which comes to 7/80. Thus, the combined share of the landlords of both categories is (1/6 + 7/80) 61/240 and the share of the appellants is 179/240, being the remainder. It is also to be kept in mind that as the expenses of the labourers, kamins and other privileges granted to the landlords, as stated earlier, are necessarily to be deducted from the entire produce, such deduction, even if it is still less or more, is not likely to affect the shares of the landlords and the tenants. The shares, however, remain unaltered and unaffected. The appellants are, therefore, entitled to the owner ship of 179/240 share of the land and not as decreed by the trial Court. But since the appeal to the extent of 7/1920 has abated, the remaining 1525/1920 shall, therefore, go to the appellants." Ch. Muhammad Aslam, Advocate-on-Record, the learned counsel for the appellants, contended that in giving effect to Section 114 subsection (2) clause (b), the share of the occupancy tenants should have been kept in view and after determining that share whatever remained was to become the ownership of the landlords without the intervention of any other category of right-holders. Applying that test, according to the learned counsel for the appellants, the share of the tenant-at-will in the occupancy tenancy who was to get half the produce had to be excluded from the share receivable by the occupancy tenant. Similarly, what he was obliged to pay to the land lords had to be excluded in working out the share of the occupancy tenant. According to the learned counsel, the trial Court had adopted the correct test and had divided proportionately between the landlords and the occupancy tenants the land in accordance with law and there was no scope for interference in first appeal. The learned counsel has also taken an objection to that part of the judgment of the High Court where it is mentioned that the "share of the tenant is 179/240" being the remainder. According to the learned counsel, it is provided in subsection (2) clause (b) read with subsection (4) of Section 114 of the Tenancy Act that the remainder goes to the landlords and not to the tenant. To this extent, according to the learned counsel for the appellants, the High Court, by the impugned judgment, has not given due effect to the law itself. Mr. Munir Hussain, Advocate, the learned counsel for the respondents, does not object to what has been conceded to the land lords of the two categories, i.e. Malguzars and Chakdar Kasoor Khawars i.e. 1/6 and 7/8. As regards the rest, the learned counsel contends that excluding the share of the landlords what remains is the share of the occupancy tenants. What individual cases to the tenant-at-will, cultivating the land is actually the expense for arranging cultivation of the land and that has not to be taken into account for reducing their share in the produce restricting it to net profits, a concept unknown to the law. In Civil Appeals Nos. 495 and 496 of 1980, for giving effect to Section 114 as introduced by Punjab Act VII of 1952 a mutation was attested on 13-7-1964 whereby following the decision of the Additional Commissioner in other cases, 2/6th share was allowed to occupancy tenants and 4/6th to the landlords. The Collector of the District upheld this decision on 15-12-1964 on the ground that it was in accordance with the decision of the Additional Commissioner. The matter was then taken in revision and review to the Commissioner who altered the share of the occupancy tenants to 1/6th allowing 5/6th share to the landlords. The matter finally came up before the Member, Board of Revenue, who concluded as follows-- "From the above discussion I find that the petitioners are the occupancy tenants of the respective respondents under section 5 of the Punjab Tenancy Act as per entries of the Jamabandi for 1949-50 ....I am also convinced that in view of the authority relied upon by the petitioners, it is immaterial whether the occupancy tenants cultivated the land themselves or through tenants because the share of the landlords cannot be improved unless the land in dispute is proved to have been abandoned by tenants. Moreover, there is no legal bar for the occupancy tenants to sub-let the land for the purpose of cultivation. The learned counsel for the respondents has stressed to rely upon subsection (4) of section 114 that after excluding share of the occupancy tenants, the rest of the land comprising the tenancy should go to the landlords-respondents. His contention that it must be in the physical occupation of the occupancy tenants, cannot be accepted. I am satisfied that for all practical purposes the share of the respondents/ landlords is to the extent of 116th and they are entitled to possession of the land only to this extent. The remaining 5/6th share should therefore go to the petitioners /occupancy tenants." He accordingly allowed 5/6th share to the occupancy ,tenants and 1/6th share to the landlords. The landlords invoked the constitutional jurisdiction of the High Court and challenged the decision of the Member, Board of Revenue. The High Court negatived their claim and dismissed their Constitutional Petitions interpreting the provision of law applicable to the case in the following words "The only reasonable interpretation of clause (b) of subsection (2) and subsection (4) would be that each of the two parties (the landlord and the tenant) would be entitled to the area comprised to tenancy corresponding to his share of the produce. There is no warrant for holding that despite the specification of share of the landlord he would be entitled to any area exceeding that share or the area corresponding to something which is not his share of the produce." The learned Judge further held as follows-- "There is no justification in law for this categorization. According to law, if a person who was once a non-occupancy tenant is vested with occupancy rights, his non-occupancy tenancy stands either extinguished or merged with the same consequence in the occupancy tenancy. The personality of an occupancy tenant cannot be split up into occupancy tenant and his own occupancy tenant. In these circumstances he remains an occu pancy tenant despite cultivating the land himself." Mr. A.R. Shaikh, Advocate, the learned counsel for the appellant has submitted that persons belonging to the Maltla Tribe were the owners in this village who sold their proprietary rights well before 1859 in favour of the predecessors-in-interest of the appellants-landlords. There was litigation and a decree of the Court in 1859. After having sold the land their cultivation over the land came to be cps of tenants-at-will but in fact they carne to be recorded in the first settlement and that after as occupancy tenants under section 5 which was in fact an erroneous entry. As regards the sharing of the produce it was consistently maintained in the revenue record and otherwise that 1/6th was the share of the landlords, 1/6th the share of the occupancy tenants and 3/6th the share of the "Rehkan" or cultivator. The remainder 1/6th was for "Cher" that is clearing of silt from the water channel payable to whosoever discharged that duty. The occupancy tenants have in fact been mortgaging 1/6th share of the produce and never more than that. According to the learned counsel, such an old agreement based on the decree of the Court as came to be recorded in the revenue record is protected under section 111 of the Punjab Tenancy .Act and if those conditions and terms are kept in view the share of the occupancy tenants cannot and does not exceed 1 /6th if at all the status of occupancy tenants is. conceded to the respondents. The other contention of the learned counsel for the appellants is that reading clause (b) of subsection (2) of section 114 with its subsection (4) the conclusion is clear that the occupancy tenants' share alone is to be worked out for giving proportionate ownership in the tenancy and as their share was specified and reflected constantly in the revenue record for the last over hundred years it could not be altered either on the principle of merger or on the principle of accretion of other shares, even when those duties and these distinct capacities were combined in the occupancy tenants themselves. Accord ing to the learned counsel, the cases referred to in the judgment of the High Court and decided by the various Courts all relate in any case to the abandonment of the tenancy by the occupancy tenants and the effects thereof. None of those cases frontally deals with the issue involved in this case, namely, how occupancy tenants' share is to be worked out. Ch. Khalil-ur-Rehman Advocate, the learned counsel for the occupancy tenants the respondents, has raised two preliminary objec tions with regard to the grounds taken up by the learned counsel for the appellants. In the first place, his contention is that as this first ground was not specifically taken up at any stage earlier nor is it dealt with in the judgment of the High Court nor in the Leave granting order it is not open to the learned counsel to invoke this late stage Section III of the Tenancy Act. Secondly, it is contended that in the basic mutation from which these proceedings have arisen, namely, No.588 Karimullah was also an occupancy tenant owning 1/3rd share in the occupancy rights. He was a party before the Member, Board of Revenue, but as he had been excluded in the Constitutional Petition his share in the occupancy tenancy cannot be the matter of adjudication and to that extent, the appeal of the landlords is imperfectly constituted. On merits, the learned counsel contended that interpretation given by the Member, Board of Revenue, and upheld by the High Court is correct and has been also substantially in issue in the cases referred to in the judgment of the High Court and no objection on this ground as has been raised in these appeals was ever raised. In Civil Appeal No. 496 of 1980, the appellant Ahmad Saeed, purchased land which was the subject-matter of dispute between the landlords and tenants on 13-11-1974. The purchase was from one of the co-owners Qayyum Nawaz. He made an application under Order I, rule 10, C.P.C. on 21-7-1975 for being impleaded in the Constitu tional Petition which was instituted by the landlords in 1969. The application was kept pending by a learned Judge and was decided finally alongwith the main Constitutional Petition. The learned Judge held that as the landlord's constitutional petition had been filed in 1969 and the transfer had taken place pending that writ petition the purchaser was neither a necessary nor a proper party. Nevertheless, his counsel was heard on the legal aspects of the case. Being an assignee pending litigation and the principles of Civil Procedure Cod being applicable the appellant cannot claim to be a necessary or a proper party. Kh. Mushtaq Ahmad, his learned counsel has conceded that position but all the same the right of hearing was given in the High Court and also in this Court. He has adopted the argument on merits as advanced by Mr. A.R. Shaikh, the learned counsel for the other landlords. So far as the Appeals 495 and 496 of 1980 are concerned, I find that invocation of section 111 of the Punjab Tenancy Act is at this stage of no avail to the learned counsel. This is so because that agreement decree or record from which the learned counsel wants to build up a case for the appellant itself records the status of respondents as occupancy tenants under section 5from the beginning. It was never challenged as such. There is no decision of any authority otherwise. As a matter of fact at various stages the appellant admitted the status of the respondents to be that of the occupancy tenants. In the Court of Additional Commissioner in the review petition filed by the landlords this is the very first ground and reads as hereunder. "It is an admitted fact, conceded on all hands and also in the findings of this Honourable Court that the respondents are occupancy tenants .." In view of this position of the parties and the record the first ground is not available to the learned counsel for the appellants. As regards the other preliminary objection of the learned counsel for the respondents, it appears that it is somewhat misconceived. In the mutation order and the record prepared on that occasion only Ahsanullah is shown to be the existing occupancy tenant though both Ahsanullah and Karimullah are shown as co-sharers in 'owner column'. The dispute being confined to between landlords and occupancy tenant Karimullah cannot claim induction as occupancy tenant on the basis of the record which does not support him. Section 114 which requires interpretation is re-produced hereunder-- "

114. Extinction of occupancy tenancies.--(1) Notwithstanding anything contained in any law or the time being in force, including this Act, no person shall, after coming into force of the Punjab Tenancy (Amendment) Act, 1952, acquire or have occupancy right in any land under any enactment of contract or any decree, order of any Court or other authority, and the existing occupancy rights in respect of all land 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) Any 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 therefor beyond amount of the land revenue, and rates and cesses for the time being chargeable therefor; (b) of such portion of the land comprised in his tenancy without payment of any compensation as correspondents 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 ail encumbrances 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 encumbrance 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 rate and in such installments as the Government may 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 land into different categories and prescribe different principles for assessment of compensation." The case of the parties admittedly falls in clause (b) of subsec tion (2) of section 114 and of its subsection (4). An examination of the law, section 114 of the Tenancy Act, irresistibly leads to the conclusion that the entire scheme of subsection (2) is to provide more or less exhaustively and completely a code for proportionate vesting of ownership in the occupancy tenant and the landlord taking into account no other interest, no other share, no other sharer. Clause (a) excludes the owners altogether by operation of law in cases covered by it leaving nothing for anyone else to do. Clause (b) is also self-operative. Clauses (c) and (d) are neither exhaustive nor self-operative inasmuch as they both leave something to be done by the Government, in a specified manner, that is, by framing of the rules. Reading clause 2(b) with subsection (4) it follows that what is left out as not his share by the occupancy tenant is taken by the landlord as the remainder. The crux of the controversy is what is the share of the occupancy tenant where the occupancy tenant pays rent in the form of a share of the produce. It is clear from a reading of revenue record right from its inception to the crucial year 1952 that a landlord cannot claim more than one-sixth of the produce nor can he deny the tenant 5/6th of the share. It is for the occupancy tenant to keep the entire 5/6th for himself or share it with those discharging his duties of (i) silt clearance or o (ii) cultivation of the land. Notwithstanding the specification of these internal shares of 5/6th the occupancy tenant may be discharging these obligations himself, without necessarily spending anything, appropriating whole of it or he may arrange the discharge of these obligations by giving nothing, gratis, or by giving less than the specified share, or more than the specified share. Neither the landlord, nor the revenue authorities can enforce it against the occupancy tenant unless it be necessarily a condition of contract between the occupancy tenant and those undertaking the discharge of these obliga tions on his behalf. That being the case, at the division of produce he gets 5/6th, the landlord cannot claim or get any reduction in it nor can he augment his own share to more than 1/6th. This makes the share of the occupancy tenant 5/6th the remainder being 1/6th. The learned counsel for the appellant is correct in his submission that the decided cases taken note of by the High Court did not directly relate to the exact, gross or net, share of the occupancy tenant in the produce of the land but examined the question of abandonment of occupancy tenancy by the tenant himself. Besides, according to the learned counsel the Peshawar cases are under a different law, the language of the law being not the same. Therefore, these decisions are of limited value for affording any guidance in resolving the present dispute. In the case of Mirza and others P L D 1957 (W.P.) Lah. 242 two questions arose as was specifically noted in the judgment in the following words-- "The first is whether the occupancy rights were extinguished by abandonment in accordance with section 36 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." The second question which is relevant to the controversy before us was dealt with in the following words-- "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 posses sion of Shah Mir who was a mere trespasser, the occupancy tenants do not become owners 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 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." In the case of Amir Bakhsh and others P L D 1960 (W.P.) Lah. 256 the share of the tenant-at-will under the occupancy tenant was tagged to the share of the occupancy tenant and not, as claimed in these appeals, taken as the residue by the landlord. The relevant observations are as hereunder appearing at page 260:-- "We did go into the question as to whether the rent which was to be paid by the tenant-at-will to the occupancy tenant was not the same as the occupancy tenant had to pay to the landlord. In such a case it may have been said that there was no benefit to the occupancy tenant out of the land and he was not interested in retaining it. We recorded the statement of the Patwari on this point and we found that there was a difference between what was paid to the occupancy tenant by the non-occupancy tenant and what was paid by the occupancy tenant to the landlord, so that there was good reason why even as occupancy tenants, the defendants should go on keeping possession of this land although they were unable personally to cultivate it." The case of Muhammad Akram Khan P L D 1963 (W.P.) Pesh. 49 was decided under the Punjab Law. This decision is relevant because the share of the produce receivable by the occupancy tenant qua the share receivable by the landlord, as distinguished from the share actually received by the occupancy tenant was made the basis of apportionment between the two. The actual receipt of the produce or its non-receipt was found to be inconsequential. The relevant observations are hereunder:-- "In the instant case, the occupancy tenant was to pay half the produce to the landlord, as rent. From the entries of the annual record of 1925-26 up to the entries of the annual records, of the present time, it is clear that Qaim Din was recorded as an occupancy tenant in the cultivation column and plaintiff No.2 and his predecessors-in-interest as landlords. In column relating to laghan, it has all along been recorded that the occupancy tenant was to pay one-half of the batai to the landlord and the land was in occupancy of a non-occupancy tenant on payment of half batai, but he was paying this batai direct to the landlord and the occupancy tenant was not being given anything, because of the lack of possession. Since the landlord had been receiving the rent up to the extent of one-half of the produce, which the occupancy tenant was liable to pay to him during all this time, therefore, it cannot be said that the occupancy tenant has abandoned the occupancy rights as contemplated under section 38 of the Punjab Tenancy Act." It follows from the above discussion that the High Court has in the two impugned decisions correctly interpreted and applied the provisions of section 114(2), (b) and section 114(4) of Punjab Tenancy Act in apportioning the land covered by the occupancy tenancy of the respondents. Hence, the three appeals are dismissed. The judgment in Civil Appeal No. 168/78 was already announced orally while it was reserved in the other two. all the three appeals are, therefore, dismissed. No order as to costs. M.I. /G-49/S Appeals dismissed.