1985 PLP 610 (SCMR)

SHAFIUR RAHMAN, J.‑‑ The petitioners, the recorded transferees from owners of agricultural land, seek leave to appeal against the judgment of the Lahore High Court dated 15‑10‑1983 whereby on two constitutional petitions filed by the erstwhile occupancy tenants a decision was given whereby the orders of the Board of Revenue dated 14‑12‑1982 was set aside.

2. The respondent‑writ petitioners were at one time the recorded occupancy tenants of the petitioners paying the share of the produce. They claimed that on the promulgation of Punjab Tenancy Amendment Act, 1952 the occupancies tenancies were extinguished and the tenants became the owners proportionate to their share of the produce. Their contention that they were the occupancy tenants and were paying the share of the produce to the landlord was upheld but it was held by the Revenue authorities that such a right could be exercised by them only upto the year 1954. As they had failed to take the benefit of the law in time and did not try to get the land transferred in their name they had lost the right.

3. It was this bar of limitation imposed in the revenue hierarchy, which was upset by the High Court in the constitutional petitions holding that by the operation of the law itself they had become the owners of the land proportionate to their share of the produce, and there was no limit imposed on their entitlement.

4. The learned counsel for the petitioner has voiced two grievance against the judgment of the High Court. The first is that the exact share of the produce payable to the landlord remained undetermined and for determining that a finding of fact had to be recorded by the revenue authorities for which remand was necessary and the High Court could not in constitutional jurisdiction fix the ratio as 3/4th and 1/4th. Secondly, it is said that the erstwhile landlords had sold the property to some of the petitioners who were transferees for valuable consideration and had sought protection in civil Court under section 41 of the Transfer of Property Act. Their entitlement to claim such protection should not have been prejudged or decided in the constitutional petitions.

5. As regards the first objection, we find that there is a positive clear finding on the question by the Additional Commissioner Revenue, Lahore Division, as would appear from the following portion of his order:‑ "It is an admitted fact that the appellants were occupancy tenants of the land in dispute and have been paying batai share in kind. Such a category of occupancy tenants were entitled to have ownership rights of 3/4th of land, but that right existed only upto the year 1954."

6. As regards the second question, we have heard the learned counsel, Malik Muhammad Qayyum, for the caveator, and he is in agreement that the observation made with regard to the protection under section 41 of the Transfer of Property Act should not bar or influence the adjudication in civil Court and it had become necessary only because the petitioners invited it.

7. We find no merit in the petition and except for the remarks teat the observations of the High Court shall not prejudice the civil Court in deciding the question of protection under section 41 of the Transfer of Property Act if at all such a protection is sought, the leave to appeal is refused. S. Q. Leave to appeal refused.