1. DORAB PATEL, J.-The dispute in this appeal relates to the occupancy rights of land in Attock District, Ghulam Muhammad, the respondent's father was the owner of the said land, whilst Hayat, Lai and Slier, three brothers (the predecessors-in-interest) of the appellant were the occupancy tenants of the said land, and they used to pay 2/5 share of the produce of the land to Ghulam Muhammad. And, as they retained 3/5 share of the produce of the said land, on the promulgation of section 114 of the Punjab Tenancy (Amendment) Act, 1952 (hereinafter called the said Act) on the footing that they were occupancy tenants, they had to be recorded as owners of 3/5 of the land (hereinafter called the said land). Therefore, the necessary mutation in this respect was effected by the Revenue authorities being Mutation No. 910 which was attested on 31-1-1953. More than ten years after this mutation had been attested, the respondent filed a declaratory suit to challenge it on the plea that the appellants and/or their predecessors---in-interest had abandoned the said land within the meaning of section 38 of the said Act. The respondent relied on adverse possession.
2. The appellants and/or their predecessors-in-interest contested the suit and although they admitted that they had given possession of the said land to the respondent's father, they denied the allegation that they or their forefathers had abandoned the said land.
3. The respondent examined himself in support of his claim and in his evidence he introduced for the first time a new and additional plea. This was that the appellants had requested his father in or about 2924-25 to take over the cultivation of the said land. Now, his claim for possession of the said land was not only supported by the Revenue Records, but Baz one of the appellants, admitted in his evidence that possession of the said land had been delivered to the respondent's father. Therefore, the learned Civil Jude, Pindigheb, decreed the respondent's suit by his judgment dated 12 -12-1963.
4. The appellants challenged this judgment in an appeal in the District Court and their contention, inter alia, was that although Baz, the appellant admitted that possession of the said land had been given to the respondent's father he had also explained that this was at the latter's request, who wanted some land to cultivate. And, they also relied on the Revenue records in which they were cons1stently shown as Maurosi tenants, another circum--stance ignored by the trial Court.
5. Therefore, the learned District Judge, Campbellpur, who heard the appeal, observed in his judgment:- "an occupancy tenant does not cease to be so merely because the landlord has been in possession of the land for a number of years. Where there is no proof on record at all for reaching a sure conclusion that the landlord had come to occupy the land because of the failure of the occupancy tenant for a whole year prior to his occupation of the land or, that he got any mutation of extinction of tenancy attested in his favour, the fact that the landlord has been in possession of the land for at least 10 or 12 years, does not make it to be the case of a legal abandonment."
6. Accordingly, he allowed the appeal and dismissed the respondent's suit.
7. The respondent, therefore, filed a second appeal in the Peshawar Seat of the West Pakistan High Court and this appeal was allowed by Qaisar, Khan, J. (as he then was), by his judgment-dated 5- 2-1970. In allowing this appeal, Qaisar Khan, J., observed that it was clear from Baz's evidence that the appellants had failed to pay rent to the landlord /respondent and to cultivate the said land themselves or through other persons within the meaning of section 38 of the said Act, therefore, these two defaults within the meaning of the section had to be explained by them and 4s there was no such explanation and as the respondent's claim was supported by the entries of possession in his favour in the Revenue Records, the learned Judge allowed the appeal and restored the judgment and decree passed by the trial Court.
8. The appellants filed a petition for leave in this Court and submitted that Baz's evidence had been misread by the learned Judge, who had also ignored the fact that for a period of nearly thirty years, the appellants and/or their predecessors-in-interest had been shown as occupancy tenants in the Revenue records although they had handed over possession of the said land to the respondent's father in or about 1924-25. Therefore, their submission was that the learned Judge had misread section 38 of the said Act in holding that they had abandoned the said land. Leave was given to examine this question and we have heard this appeal with the ass1stance of Maulvi Sirajul Haq and Mr. Malik Jafar.
9. Section 38 of the said Act reads :- "38. Abandonment of tenancy by occupancy tenant.--(1) It .x tenant having a right of occupancy fails for more than one year without sufficient cause to cultivate his tenancy, either by himself or some other person, and to arrange for payment of the rent thereof as it falls due, the right of occupancy shall be extinguished from the end of that year. (2).. ---------.."
10. As rightly observed by the learned Judge, in order to prove that the appellants had abandoned the said land the respondent had to prove that they had Tailed to cultivate it either by themselves or through some other persons for more than one year and that they had failed to pay for the rent due from, them then on proof of these circumstances, the appellants had to explain their default and if on the evidence on the record, they have failed to show sufficient cause, no exception can be taken to the view of the learned Judge.
11. Now, although the entries in the Revenue records show that the' respondent was in possession of the said land, nothing turns on this, because, the Revenue records also show the appellants as Maurosi tenants. Therefore, the question really is of the effect of Baz's evidence. Now, although Baz admitted that possession of the said land had been handed over by the appellants and/or their predecessors-in-interest to the respondent's father he said this was on the request of the respondent's father, who had said that he had not enough land to cultivate.
12. Now, on the footing that this statement is true, the question of the payment of rent by the appellants to the respondent's father did not arise because it was they who were allowing him to cultivate the said land. And, in holding that they were in default of their obligation "to arrange for the payment of rent" within the meaning of section. 38 of the laid Act, the learned Judge failed to notice that these words in the section are followed by the words "thereof as it falls due". Thus on Baz's evidence, there was no question of any rent falling due from them to the respondent's father from and after the date when they had handed over possession of the said land to him in accordance with the his request. Therefore, with respect, we are unable to agree with the view of the learned Judge that the respondent had proved the two defaults as prescribed in section 38 of the said Act the appellants, and, therefore, they had to make out sufficient cause under the section which they had failed to do.
13. Mr. Jafar then referred us to a circumstance which had escaped the attention of the three Courts below. This was that even according to Baz's evidence, when the respondent's father entered into the alleged agreement with the predecessors-in-interest of the appellants, he was only three years old. Obviously, the witness's evidence was hearsay, and so learned counsel wanted us to exclude it on this ground.Mr. Sirajul Haq's reply to this argument was that as the predecessors-in-interest of the appellants, were dead, the burden of proving the terms on which possession of the said land had passed to the respondent automatically fell on him, and in support of his submission, learned counsel relied on a judgment of the Lahore High Court in Mirza and others v. Muhammad Zaman Khan and others (PLD 1957 Lah. 242). As we do not want to decide any question not necessary for the determination of this appeal, we would refrain from expressing any opinion on the validity of the view taken in this judgment, and we will assume that Baz's evidence was wrongly brought on the record by the trial Court.
14. Now, if Baz's evidence is excluded, we are left only with the respondent's evidence and the copies of the Revenue records, therefore, Mr. Jafar submitted that the respondent had proved his claim. But the burden of proving his claim was on the respondent, because it was he who was the plaintiff in the trial Court. Would his mere word be sufficient to discharge this burden of proof Whatever be the position if the matter had rested here, Mr. Sirajul Haq submitted that in the circumstances of the case, the respondent's evidence was not sufficient to prove his claim and there is force in this submission.
15. In the first place, the respondent had based his claim in the suit on two pleas abandonment and adverse possession. But, he introduced new plea in his evidence. This was that his father had taken possession, of the said land at the request of the predecessors-in-interest of the appellants. Now, if this plea be true, it would go a long way to prove the respondent's claim. But the plea is one of the fact, therefore, it should not be accepted on the short ground treat it introduces a completely new cause of action which has not been pleaded by the respondent in his plaint. Additionally, according to the respondent, although the predecessors-in-interest of the appellants had handed over the said land to his father in or about 1924-25, as neither his father nor he ever took any steps to effect a mutation for the extinction of the rights of the appellants as occupancy tenants, Mr. Sirajul Haq submitted that this was fatal to the respondent's claim, and in support of this submission, he referred us to the judgment of this Court in Hayat Khan v. Jahandad (PLD 1971 SC 330).
16. Although as submitted by Mr. Jafar, the facts in this case tire not identical to those in the instant case, the rule laid down in this case is that where landlords who have objected to the entries in the Revenue records have not "made attempts to have their possession recorded as adverse to those of the tenants, mere oral evidence will not normally by itself be sufficient to rebut the evidence of the entries. We respectfully agree with this dictum. And, in the instant case, although the respondent said that the appellants and/or their predecessors-in-interest had abandoned the said land, this evidence is not supported by any corresponding entry in the Revenue records showing that the occupancy rights in the said land had been surrendered by the appellants and/or their predecessors-in-interest. But the Revenue records were corrected on the death of the respondent's father and similarly there are mutations in favour of the present appellants on the death of their predecessors- in-interest. In this background, the failure of the respondent to have the Revenue entries corrected in order to show that the appellants had ceased to be occupancy tenants is fatal to his claim, as the burden of the issue was on him. Unfortunately, this aspect of the case was also ignored by the learned Judge, therefore, we allow the appeal and restore the judgment of the, first appellate Court, dismissing; the respondent---s suit. However, we leave the parties to bear their own costs.