' SYED ZAHID HUSSAIN, J.---A declaratory suit with consequential relief instituted by the respondents/plaintiffs in the year 1989 was contested by the petitioners-defendants which after trial was decreed by the learned Senior Civil Judge, Narowal on19-12-1995. On appeal filed by the petitioners the said judgment has been maintained by the learned appellate Court and the appeal was dismissed on 13-3-2000 by the learned Additional District Judge, Narowal. Through this revision petition, these judgments are sought to be assailed. C.R. No.989 of 2000 also arises in the similar circumstances which will stand disposed of through this common judgment.
2. Assailing the findings recorded by the two Courts below, it is contended by the learned counsel that orders passed by the Revenue Authorities qua entries in the Revenue Record and applicability of the relevant clause of section 114 of Punjab Tenancy Act, has not been given due weight by the Courts. It is contended that even the relevant entries in the Jamabandi for the year 1949/1950, (Exh.P.5 and Exh.D.3) have not been correctly construed by the Courts below. It is further contended that the suit was time-barred which should have been dismissed accordingly.
' On the other hand, the learned counsel for the respondents-plaintiffs while supporting the concurrent judgments passed by the Courts below has contended that the entries in the Jamabandi of 1949/1950 were decisive of the issue involved in the case and that the Tehsildar/Revenue Officer himself had similarly interpreted these entries as has been found by Courts below. According to him, the two Courts have committed no error of fact or law which could warrant interference by this Court in revisional jurisdiction.
3. The perusal of the record would show that there had been a long drawn litigation between the parties as to the application and true import of section 114 of Punjab Tenancy Act. The matter was in the first instance dealt with in the revenue hierarchy commencing from order dated 18-3-1974 passed by Tehsildar/ Assistant Collector-1, Shakargarh, order dated 3-8-1976 passed by Assistant Commissioner/Collector, Shakargarh and order dated 27-12-1977 passed by the Additional Commissioner (Revenue) Lahore Division Lahore. The matter was then agitated before the Civil Court which culminated into C.R. No.1225 of 1982 which was disposed of on 29-3-1989, observing "in view of the statement of the learned counsel for the parties, the petitioners are allowed to withdraw respective suits with permission to file fresh suits in respect of the same subject-matter. The respondents shall of course be entitled to defend the suits by raising such pleas as may be available to them under the law." The suit which gave rise to the present litigation was then instituted. Before the trial Court, the petitioners pleaded that the suit was time-barred and an issue was also framed to this effect i.e. Issue No.3, however, the said issue and Issues Nos.1, 2, 4 and 8, onus of which was upon the petitioners/defendants, were not pressed before the learned trial Court and were decided accordingly against the petitioners-defendants. Before the lower appellate Court even, the finding on the said issues were not agitated. The appellate Court thus had no occasion or opportunity to dwell upon the same. It is not open now for the petitioners/defendants to take up and agitate the matter before this Court in revisional jurisdiction.
Reference in this context may be made to Bahadur Khan v. Junaid Khan (PLD 2000 Lahore 299).
4. So far as the essential controversy between the parties is concerned, the same was reflected through Issues Nos.5, 6 and 7 which are reproduced as under:-- "5. Whether the plaintiffs along with pro forma defendants 21 to 27 are owners of the property in dispute to the extent of 1/2? OPP
6. Whether order with regard to award of proprietary rights dated 18-3-1974, the order dated 18-8- 1976, Mutation No.9 with regard to change of ownership, the order dated 3-8-1976 passed by Assistant Commissioner/Collector, Shakargarh and the order dated 27-12-1977 passed by Additional Commissioner, Lahore are mala fide, illegal, against facts void and ineffective qua the rights of the plaintiffs? OPP
7. Whether the plaintiffs are entitled to declaration and permanent injunction as prayed for? OPP."
' Apart from the documentary evidence in the form of Revenue Record, Mukhtar Ahmad, P.W.1 appeared for the plaintiffs, whereas Asghar Ali, D.W.1 appeared for the defendants. The trial Court vide its judgment dated 19-12-1995 recorded finding on perusal of the entries in the Jamabandi of 1949/1950 in favour of the plaintiffs and the pro forma defendants. In appeal the matter was thrashed by the learned Additional District Judge exhaustively who being conscious of the real controversy as to which clause of section 114 of Tenancy Act, was applicable to the case, recorded finding by considering the relevant entries in the Jamabandi for the year 1949/1950. It needs no reiteration that while dealing with a matter in revisional jurisdiction, in particular when the findings and approach of the Courts below are concurrent, one is not to be oblivious of the legal position that re-appreciation and reappraisal of the evidence over again is not the function of this Court, nor the concurrent findings which are ordinarily considered as final can be interfered. However, due to repeated reference being made by the learned counsel to the entries in Exh. P.5, and Exh.D.3 (both copies of Jamabandi of the year 1949/1950) they have been perused and considered. Suffice it to observe that subsection (2) of section 114 of Punjab Tenancy Act, lays down that:-- "(2) An occupancy tenant, who at the time of coming into force of the aforesaid Amendment 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 therefor; (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 landlords 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."
When this amendment namely Punjab Tenancy (Amendment) Act, 1952 came into force, the determinative and decisive entries were of Jamabandi/record of the rights then in existence. It was Jamabandi of year 1949/1950. Thus there can be no cavil about this aspect that entries in the Jamabandi of 1949/1950 were to be taken into consideration for this purpose by the Court. Such entries have been taken note of and correctly interpreted by the learned appellate Court:-- "To resolve this controversy, the Revenue Record in the shape of register of record of rights for the year 1949-1950 Exh.P.5 and Exh.D.3 are very much relevant on the subject. In the column of "Lagan" which is mentioned in both the documents:- {{URDU TEXT}} ' Exh.D.3 which has been produced by the appellant in the column of cultivation, it is mentioned as such:-- {{URDU TEXT}} ' It is obvious from the above entries in Exh.D.5 and Exh.D.3 that the appellants were shown as occupancy tenants over the disputed land on {{URDU TEXT}}and they paid share-produce equal to half of the crops to its owners i.e. Contesting respondents. The learned counsel pointed out the entries on last page of Exh.D.3 in which rates of rent have been mentioned for certain crops but mere mentioning of rate is not sufficient to hold that the appellants paid rent for some crops as relevant column of the register of record of rights Exh.P.5 and Exh.D.10 under head; {{URDU TEXT}} does not disclose that the appellants ever paid any rent for any crops grown on the disputed land.
11. A perusal of section 114 reveals that the occupancy tenancy were extinguished by the Punjab Tenancy Amendment Act, 1952 and the status of an occupancy tenant immediately prior to the promulgation of the said Act would be taken into consideration as enunciated in subsection (2) of section 114 of the Punjab Tenancy Act. The latest record of rights prior to the promulgation of the amendment in the year 1952, periodical record for the year 1949-1950 can only be considered. The entries prior to that would not be helpful to resolve the controversy between the parties.
12. In view of above discussion, it has been found from the entries mentioned in Revenue Record Exh.P.5 and Exh.D.3 that the appellants were occupancy tenants over the suit-land and were paying the share-produce equal to share to the contesting respondents. The learned trial Court rightly observed that the contesting respondents were entitled to 1/2 share of the land in accordance with the provisions of section 114(2)(b) of the Punjab Tenancy (Amendment) Act 1952."
' It may be added that even the Tehsildar/Assistant Collector-I, Shakargarh while dealing with the matter had in his order dated 18-3-1974 construed the entries of the Jamabandi of 1949/1950 as follows:-- {{URDU TEXT}} 1 So far as the construction of the relevant entry of the Jamabandi of 1949/1950 by the Tehsildar is concerned that is consistent with the interpretation and construction placed by the learned Additional District Judge, however, the Tehsildar went wrong in relying upon the other entries in the Revenue Record of previous years. Thus it is evident that so far as the entries of the Jamabandi of 1949/1950 are concerned, the same were correctly understood and appreciated by the Courts below. The evidence on the record fully justify and support the view taken by the learned appellate Court.
In view of the above, I find no valid justification to interfere with the concurrent view taken by the Courts below. The revision petition is dismissed with no order as to costs.