' MAZHAR ALAM KHAN MIANKHEL, J.--- A suit for declaration by Gul Rehman and others was filed that they were the occupancy tenants of the suit property since their forefathers and unlawfully and without any justification their such status was changed to that of tenant-at-will by the revenue official, while preparing the Record of Rights of Settlement of 1971-72 whereas in Khasra numbers (old Nos.1978/1915, 1977/1915) (New Khasra Nos.1991-1992-1993) defendants NoS.1 to 3 were recorded as tenant at-will without any justification by replacing the entries in the names of plaintiffs.
2. Learned counsel for the parties were heard at length. Record of the case perused with their assistance.
3. Record of rights available on the file since 1903-1904 up-till 1964-1965 is in support of Gul Rehman etc., the plaintiffs. Whereas, at the time of settlement a fresh record of right (Misal Haqiyat) was prepared in the year 1971-72, which reflected that status of plaintiffs as occupancy tenants was changed to that of tenants-at-will and in Khasra numbers referred to above, defendants Nos.1 to 3 were recorded as such without any justification or without any proof on the record.
4. The suit of the plaintiff was decreed in the shape of different observations against the defendants. Against the said decree of Civil Judge, Hangu two Appeals bearing No.21/31 of 2003 titled Noor Dil v. Muhammad and Appeal No.25/13 titled Muhammad v. Gul Rehman and others, were filed. The District Judge Hangu dismissed the appeal of the plaintiff i.e. Appeal No.21/13 and allowed the connected Appeal bearing No.25/13 by dismissing the suit of the plaintiffs Gul Rehman etc. Hence the present Revision.
5. It 'is strange to note that there are two civil revisions C.R.No.586 of 2003 titled Noor Dil and others v. Muhammad and others and Civil Revision No.588 of 2003 titled Gul Rehman and others v.
Muhammad and others both have been filed by the plaintiffs of the main case. This situation was also put forth by this Court in a hearing vide its order dated 1-12-2008 and learned counsel for the petitioner had requested for some time to meet the situation.
6. Today, once again, during the hearing, the learned counsel for the petitioners was unable to justify the filing of two revision petitions against the judgment and decree of the appellate Court by the same party by simply submitting to be an inadvertent mistake. While considering the present state of affairs, this Court having no option but to dismiss the subsequent, revision petition i.e. Civil Revision No.588 of 2003 being unnecessary and without justification which is dismissed as such.
7. The learned two Courts below have, to the best of their ability, tried to decide the matter as reflected in their judgments but as far as the legal aspect of the matter in dispute is concerned that needs to be resolved in accordance with the law.
8. In this case, ownership of the property lies in the name of Provincial Government since the availability of the revenue record and Gul Rehman and other the plaintiffs are recorded as occupancy tenants of the same since their forefathers. No doubt, in one or two `Jamabandies' they have been recorded as tenants at will but in the subsequent Jamabandies their status as that of occupancy tenants was rectified and it seems to be an inadvertent mistake of the officials concerned and later on these mistakes were rightly rectified during the preparation of subsequent Jamabandies.
9. As far as, the entries in the name of defendants Nos.1 to 3 regarding the above said Khasra numbers are concerned, same get no support from the revenue record and evidence produced by the defendants. The entries made in their names are not in accordance with the record and have unlawfully been substituted which are hereby declared against the record and the defendants No.1 to 3 have got no concern with the possession of Khasra numbers referred to above as tenants-at- will, such entries need rectification. This being the factual position of the case as reflected in the revenue record but as far as the status of the plaintiff as occupancy tenants is concerned, certain questions are hereby framed in this regard.
(i) Whether after promulgation N.-W.F.P Tenancy Act, 1950, the plaintiffs would still be able to claim their status as that of occupancy tenants under section 3 of the Act?
(ii) In presence of case law given by the Shariat Appellate Bench of august Supreme Court of Pakistan in Shariat Appeal No.16/84 dated 10-8-1989 titled Sultan Khan v. Government of N.-W.F.P.
And Review Petition No.2-R of 1989 dated 7-5-1991 titled Sardar Muhammad Yousaf v. Government of Pakistan what would be the legal status of the plaintiffs being recorded as occupancy tenants?
10. The N.-W.F.P. Tenancy Act, 1950 (hereinafter to be referred as the Act) was promulgated on 3rd July, 1950 and was made applicable to the whole of the N.-W.F.P. Section-3 of which provides that after the commencement of this act no person whether he is a tenant or not can acquire, have or continue to have a right of occupancy in any land under any enactment, contract, decree or order of any Court or officer which clearly reflects that after the promulgation of the Act ibid no one can claim himself to be the occupancy tenant of the land. For ready reference E section 3 is reproduced as under:--- Non-acquisition of occupancy rights.--- Subject to the provisions of this Act no person whether a tenant or not, shall after the commencement of this Act, acquire, have or continue to have a right of occupancy in any land under any enactment contract, decree or order of any Court or Officer.
11. The case of the plaintiff/petitioner is only to the extent that entries in their names as occupancy tenants be rectified and names of the defendants appearing as tenants at will be declared as unlawful having no support from the record or the spot. However, after the commencement of the Act, occupancy tenants were given a right under section 4 to become owner of the property within the parameters given in the said section. The provisions of section-4 read with N.-W.F.P Tenancy (Fixation of Compensation to Landlords) Rules, 1981 (hereinafter to be called as Rules) were declared against the injunction of Islam by the Shariat Appellate Bench of august Supreme Court in Shariat Appeal No.16 of 1984 vide its judgment dated 10-8-1989 reported in (NLR 1990 SD 90) titled Sultan Khan v. Government of N.-W.F.P. And Review Petition No.2-R of 1989 dated 7-5-1991 titled Sardar Muhammad Yousaf v. Government of Pakistan, wherein a target dated of 23rd March of 1990 was given and the Government of N.-W.F.P. Was directed to amend section 4 of the Act, otherwise the same will cease to have its effect from the said target date and the person whose cases were dealt with under the provisions of section 4 of the Act prior to the said date were protected and after the said date no one would be able to claim ownership under section 4 of the Act.
12. Record of the case reveal that the plaintiffs in the case have failed to avail the concession given time to time by the Provincial Government under section 4 of the Act, now they cannot claim such concessions. By considering the old and long possession, their status over the property would be at the most as that of tenants-at-will and in the circumstances of the case, it is hereby declared that their names be entered as such in the column of cultivation of the Register Haqdaran Zamin in future.
13. So this being the legal position of the entries in favour of plaintiff/petitioners as occupancy tenants, there status would only be of a tenant at will after the promulgation of the Act and they cannot also claim ownership of the land under their occupation under the provisions of section 4 which has ceased to have its effect.
14. So with the observation made above, question No.1 is answered in negative and answer to question No.2, is that their status would only be that of tenants-at-will.
15. With these observations by acceptance of this Revision Petition suit of the plaintiff/petitioner is partially decreed to the extent that entries appearing in the name of defendant/respondent as tenants at will are against the record. However, the plaintiff/petitioner cannot claim themselves to be the occupancy tenants of the said land the their status would only be of tenants-at-will.