MAULVI ANWARUL HAQ, J.-This judgment shall decide C.R. No. 2614/96 to C.R. No. 2618/96 as common questions are involved and these matters were ordered to be heard together.
2. The petitioners in all these cases filed suits on 23-11-1970. In the similarly worded plaints, it was stated that the contesting respondents were occupying the suit land as and not as occupancy tenants. It was further stated that they had abandoned the said rights and the C.L.R. ' petitioners have taken over possession 30/40 years ago and are continuing in possession and earlier decisions in proceedings inter partes operate as the res judicata. The grievance made out was that the said contesting defendants have got a mutation of conferment of ownership rights attested on 30-11-1961 in collusion with Revenue Officers and are trying to deposit the Zar-e- Malkana. They sought a declaration accordingly. The contesting defendants pleaded that they were occupancy tenants and after the extinguishments of the said tenancy have obtained ownership rights by depositing of Zar-e-Malkana and the mutation has been correctly attested.
Issues were framed. Evidence of the parties was recorded in all these cases which is similar. The learned Trial Court dismissed all the suits on 08-1-1987. First appeals filed by the petitioners were dismissed by a learned ADJ, M.B. Din on 30-09-1996.
3. Learned counsel for the petitioners contends with reference to copy of Fard Intikhab prepared for the year 1958-59 produced by the petitioners in all these cases that the said respondents are described as and not as occupancy tenants i.e.{{URDU TEXT}} He also refers to the earlier judgments referred to in the plaint to urge that the suits filed by the respondents for possession of the land were dismissed. In the same breath, he contends that the said respondents had abandoned the tenancy within the meaning of Section 38 of the Punjab Tenancy Act, 1887 and were not entitled to benefit under Section 114 thereof. No one has turned up for the respondents.
4. I have gone through the copies of the records, appended with all these cases, with he assistance of the learned counsel. To my mind, the very judgments being relied upon by the petitioners go to establish that the contesting respondents were occupancy tenants in the land. It was found as a fact by the learned Trial Court as also the Appellate Court that they were occupancy tenants. However, the relief claimed by them i.e. The possession of the land was refused on the ground that since the occupancy tenancy has C.L.R. been extinguished by Section 114 of the Punjab Tenancy Act. 1887, i.e.f. The date of addition of Section 114 by Punjab Act (VII of 1953) and they have not deposited the Zar-e-Malkana as they were paying cash rent, they have lost their rights and the land vests in the petitioners.
5. It is a matter of record that Punjab Tenancy .(Amendment) Rules, 1953 prescribing the period for deposit of Zar-e-Malkana to be two years from the date of amendment of the said Rules i.e. 16-03- 1953 was amended from time to time so as to extend the period upto 30-06- 1990. Thereafter, the Punjab Tenancy (Validation and Extension of Period for Payment of Compensation) Ordinance, 1969, was promulgated and the period was further extended upto 01-12-1977. There is no denial on record that the Zar-e-Malkana was deposited with the said extended period. This being so, the land came to vest in the said occupancy tenants by virtue of Section 114(2)(c) of the said Act of 1887.
6. So far as the contention regarding abandonment in terms of Section 38 of the said Act is concerned, learned counsel contends that since the said respondents left the village if shall be deemed that why have abandoned the tenancy. The contention is fallacious. It is not even the plea of the petitioners that they came to occupy the land because of the failure of the occupancy tenants for a whole year prior to their occupation of the land or that they got any mutation of extinction of tenancy attested in their favour. In somewhat similar circumstances in the case of Baz and others v. Yar Muhammad (1981 SCM R 569) their Lordships of the Hon'ble Supreme Court of Pakistan held that notwithstanding the fact that the landlords have been in possession for several years, a case of legal abandonment is not made out. All the five civil revisions are accordingly dismissed but without any orders as to costs.