P L D 1960 (W (PLP)

KAIKAUS, J.‑

This is a defendants' appeal in a suit for a declaration that the defendants have lost their occupancy rights in the land in dispute on account of abandonment.

2. The allegations in the plaint were that the defendants had failed for the last thirty years either to cultivate the land or to arrange for its cultivation and had also not paid its rent to the plaintiff, its landlord, and the plaintiff had been getting the land cultivated through his own tenants‑at‑will for about thirty years before the suit. The defendants denied the allegations and took a number of pleas to which it is not necessary to refer. The issue on the merits framed by the trial Court was issue No. 5 which is in the following words:‑-- "Whether the occupancy rights of the defendants in the suit land have been extinguished on account of failure to cultivate it ?"

3. The plaintiff, in addition to making his own statement, produced three other witnesses and at the same time produced Exh. P. 1, copy of Jamabandi for 1939‑40, and Exh. P. 2, Khasra Girdawri from Kharif 1950 to 1951. Faiz Bakhsh (P. W. 1) stated that for about thirty years, he had been cultivating the land in dispute as a tenant, in the first place, under the father of the plaintiff, and after the death of his father under the plaintiff. His own sons were associated with him in cultivation. The defendants had not taken any rent from him, nor had they ever cultivated the land along with him. He was also a tenant of the plaintiff with respect to some other land. Ghulam Qadir (P. W. 2), whose land is at a distance of two or three miles from the land in dispute, stated that he had been seeing Faiz Bakhsh in cultivation of the land in dispute for the last thirty years under the plaintiff and his father and that the defendants were owners of other land which they cultivated themselves. P. W. 3 is Allah Wasaya, son of Faiz Bakhsh (P. W. i), who corroborated his father. The plaintiff himself stated that Faiz Bakhsh P. W. had been and was a tenant under his father and himself in respect of the suit land ; that for twenty or twenty‑eight years the defendants had not cultivated the land nor had they paid any rent ; and that the defendants them selves owned considerable area which they cultivated either personally or through tenants. The Khasra Girdawri Exh. P. 2 which was produced by the plaintiff showed that the land in dispute was being cultivated by Faiz Bakhsh and his sons as tenants‑at‑will. The names of the defendants did not occur as occupancy tenants anywhere in the Khasra Girdawri. It would be proper to state even here that the deletion of the names of the defendants was due to a mistake.

4. It should also be made clear before proceeding further that the land in dispute was in fact never owned by the father of the plaintiff. It belonged to his wife, and on the death of his wife, which occurred in the year 1948, it had been mutated in his favour. It may be that the plaintiff's father had been manag ing the land.

5. The defendants produced only two witnesses. The first was Allah Ditta who stated that in the beginning the defendants had been cultivating the land personally but afterwards they got it cultivated through Faiz Bakhsh as a tenant ; that another person, Allah Bakhsh by name, was also cultivating as a tenant two or three killas out of this land under the defendants ; and that Mst. Amir Bibi the plaintiff's wife used to get the produce of the land and after her death, the plaintiff was getting it. The second witness was Haider Bakhsh defendant himself who said that the land belonged to Mst. Amir Bibi who had died four and a half years before the suit was brought, that the land was originally under the cultivation of the defendants but later on Faiz Bakhsh along with his sons Ashiq Husain and Allah Wasaya cultivated it under the defendants. The defendants produced Exhs. D. 1 to D. 3, copies of Khasra Girdawris from Kharif 1941 to Kharif 1950. In these Khasra Girdawris Faiz Bakhsh had at some places been shown as cultivating the land under the occupancy tenants, while at other places there were entries which simply referred to Khasra No. 514/24 or to some other numbers but the entry related to the Khasra Nos. referred to was not on the record, and it was not quite clear as to what exactly the entries meant.

6. The learned Civil Judge who tried the suit, relied firstly on the Khasra Girdawris produced by the plaintiff wherein the names of Faiz Bakhsh and his sons appeared as tenants‑at‑will with the name of the plaintiff as owner, and secondly on the statements of Faiz Bakhsh and Allah Wasaya who said that they were cultivating under the plaintiff. The learned Civil Judge, without discussing the contents of the Khasra Girdawrls produced by the defendants, held that Faiz Bakhsh and his sons had been cultivating the land under the plaintiff or his predecessor‑in‑interest, and granted the plaintiff a decree that the occupancy tenants had lost their rights by abandonment.

7. When we examined the Khasra Girdawris produced by the defendants, we found that unless either the statement of Patwari of the circle was recorded or other relevant revenue records produced, it was not possible to understand fully the contents of the Khasra Girdawris. There were number of matters which required elucidation. In the first place, there was a reference to No. 514/24 in the Khasra Girdawari which was not explained. This occurred at a number of places. At some places there were references to some other numbers also which too were not explained on the record. Then there was the fact that the names of the defendants as occupancy tenants stood altogether deleted from the Khasra Girdawris from 1945. In the Khasra Girdawris the entries of the ownership and cultivation columns of the last Jamabandi have to be copied. While in the Jamabandi of 1939‑40 the names of the defendants as occupancy tenants did appear, their names did not appear in the relevant entries in the Khasra Girdawris. The Jamabandi of 1939‑40, it may be noted here, is the last Jarnabandi which had been prepared for this village. We also found that with respect to the batai which was to be paid either by the occupancy tenants or by the tenants‑at‑will, there is a reference to some note in the beginning of the Khasra Girdawri which note did not appear in the copies produced. In order to elucidate all these points, we summoned the Patwari and recorded his statement.

8. The point for determination is whether Faiz Bakhsh was not, at least originally, a tenant under the defendants. If he was a tenant under the defendants, he could not, at any subsequent time, by simply paying rent to the landlord cease to be a tenant under them. If we were to come to the conclusion that Faiz, Bakhsh originally was a tenant of the defendants, the plaintiff's case would fail, because in that case it could not be said that the occupancy tenants had not arranged for the cultivation of the land. If a tenant‑at‑will who is cultivating land under an occupancy tenant colludes with the landlord, he cannot thereby, in any way, affect the rights of the occupancy tenant and the occupancy tenant cannot in such a case be said to have abandoned the land.

9. On recording the statement of the Patwari it became quite clear that Faiz. Bakhsh had entered the land as a tenant under the occupancy tenants. In Rabi 1942 a small part of the land was being cultivated by the occupancy tenants themselves, while the rest of the land, with the exception of Khasra No. 520/22 which was being cultivated by one Yara, was under the cultivation of Faiz Bakhsh, Khuda Yar, etc. There are two kinds of entries with respect to this land. One is "Amir Bakhsh etc., occupancy tenants, kasht Khuda Yar etc. basharah No. 514/24". The other is "Faiz Bakhsh etc., non‑occupancy tenants under the occupancy tenants No. 514/24". The effect of both the entries, according to what is disclose in the Patwari's statement, is the same. The second of these entries clearly shows that the non‑occupancy tenants are occupying under the occupancy tenants. There is, at the same time, a reference in it to 514/22. This reference is of value as will presently appear. The first of the entries shows Faiz Bakhsh etc. as being cultivators basharah 514/24. When we examined 514/24, we found an entry which runs thus: Now this entry is obviously partly incorrect for Khuda Yar was not a hissedar. He was just the husband of Mst. Amir Bibi, the owner. There were no co‑sharers in the ownership at all because Mst. Amir Bibi was its exclusive owner. When there is an entry that one hissedar cultivates land on his own behalf as well as on behalf of other hissedars, it means that one of the co‑sharers of the land cultivates on behalf of himself as a co‑sharer and on behalf of other co‑sharers as their tenant. Here there being no co‑sharer in the ownership, the word "hissedar" as the petitioner admits in his statement, can have reference only to the occupancy tenants. This becomes clear when we see that in the second entry, referred to above, although reference is to 514/24, Faiz Bakhsh etc. are shown as non‑occupancy tenants under the occupancy tenants. That Faiz Bakhsh had entered the land in the first instance as a non‑occupancy tenant under the occupancy tenants is thus apparent from the entries in the Khasra Girdawris for Rabi 1942. In Kharif 1943, the land, according to the Khasra Girdawri, was being cultivated, either by Faiz Bakhsh or by Faiz Bakhsh and others, and on the same terms as had been stated with reference to Rabi 1942. There is reference in this Khasra Girdawri to .514/21 and when we look at the entry relating to this number where it is said: This entry means that Faiz Bakhsh was cultivating the land under the occupancy tenants. In 1945 the name of Khuda Yar disap peared from the cultivation column and the land was shown as being jointly cultivated by the non‑occupancy tenants.

10. What has led to a wrong judgment by the learned Civil Judge is the disappearance from the revenue record of the names of the defendants altogether. We have already said that this was due to a mistake. The names of occupancy tenants can be deleted from the record only by means of a mutation and under the orders of a Collector or Assistant Collector. What happened in E the year 1945 was that when the Patwari was preparing the Khasra Girdawari he just copied out the last cultivation entry of the old Khasra Girdawri in that column of the new Khasra Girdawri in which the cultivation column of the Jamabandi is to be copied, with the result that in this column only the names of Faiz Bakhsh etc. appeared. When the learned Civil Judge examined the Khasra Girdawris from Kharif 1950 to Kharif 1951, he found in the ownership column only the name of Khuda Bakhsh and as there appeared in the cultivation column the name of Faiz Bakhsh etc., he concluded that Faiz Bakhsh was cultivating the land under the owner. He did not take the trouble to examine the various entries made in the Khasra Girdawris produced by the defendants, nor did he enquire into the disappearance of the names of the defendants from the Khasra Girdawris altogether without any mutation.

11. The land in dispute is Nehri and productive land. Ordinarily no occupancy tenants can be expected to abandon it. It was urged on behalf of the plaintiff that the defendants own considerable land themselves and, therefore, they were not very anxious, as long as they were occupancy tenants, to retain this land, and it is only on account of the amendment in 1952 which gave the occupancy tenants ownership rights that they thought of claiming this land. The fact that a person owns himself not a small area of land would not be by itself a good reason for abandoning Nehri land which is very valuable but 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. This, however, is only an additional fact and we are satisfied apart from it that abandonment is not established.

12. We find that Faiz Bakhsh was originally a tenant under the defendants and even if at any subsequent time he had paid F rent to the landlord, that would not make it a case of abandon ment of land and would not affect section 38 of the Punjab Tenancy Act. This appeal is allowed and the suit of the plaintiff is dismissed with costs throughout. K.M.A. Appeal allowed