' The petitioner is a tenant under respondent No,
5. According to the entries in the revenue record he had been cultivating the land of respondent No, 5 and his co-share, from 1960 onwards and the terms of the tenancy were that he was required to pay the cash rent at the rate of Rs, 100 per acre to the respondent. These entries remained intact until Kharif, 1975 and Rabi, 1976 when an entry in the Khasra Girdawari was made to the effect that the petitioner will be paying the rent to the landlord at the rate of 50 Per cent. Of the produce. The petitioner challenged before the Settlement Officer/Collector, Sialkot through an application for correction of the entries in the Khasra Girdawari. The Collector dismissed the application on 31-84976 stating that sharing of the produce in the ratio of 40,0 50 was the customary rate and no proceedings were necessary to change the terms of agreement between the parties as a normalcy was being aught for regarding the payment of rent. This order was maintained; in appeal before the Additional Commissioner (Revenue) and in the revision before the Member Board of Revenue. Review application was also moved before the learned Member Board of Revenue but was dismissed. The petitioner then filed a suit and even a stay' 'Order was granted but finding that the civil Court had no jurisdiction the suit was withdrawn and the petitioner instead filed the present writ petition.
2. The case of the petitioner is that under section of the Tenancy Act no commutation or alteration of rent can be made without the consent of both the landlord and the tenant. It has been pointed out that the change of the mode of payment of rent from a cash of Rs, 100 per acre to that of the Batat in fact amounts to enhancement of the rent many times. According to the learned counsel no enhancement could be made by the landlord except through a suit under section 24 of the Tenancy Act.
3. The learned counsel for the respondent, on the other hand, has argued that the change in the entry of Khasra Girdawari from cash rent to Batai was made in 1975 with the consent of the petitioner and that it was subsequently that he changed his mind and started making efforts for the correction of the entries. It has been stated that the petitioner agreed to this change because in the meantime he has lost his status of the tenant on account of having obtained a part of the land in mortgage and was permitted to continue as a tenant on the basis of new arrangement of the share of produce in the ratio of fifty fifty. The learned counsel has also contended that the order of the Collector cannot be questioned in a writ petition as it did not suffer from want of jurisdiction.
4. The land falling in the share of Muhammad Sued, a co-sharer of the respondent in the joint Khata had been mortgaged to the petitioner. Subsequently this mortgage was redeemed and the land was purchased by the sons of the petitioner. The respondent, however, obtained a decree o pre-emption against the sale and subsequently obtained Malkana possessio of this land. The fact, however, remains that the present petitioner continue to be in possession of the land while the land was under mortgage or been purchased by his sons and given later after the Malkana possession had reverted back to the respondent. The status of the petitioner throughout, therefore, can be none other than a tenant. The relevant Khasra Girdawari of the entire period in the column of possession shows that. Muhammad Shafi petitioner was in possession as mortgagee as in his capacity as a tenant paying the cash rent at the rate of Rs, 100 per acre. All these facts put together would show that the petitioner never lost his status of tenant and therefore, there was no question of his accepting a change in the entries against his interest on account of a threat to his tenancy. It is also important to notice that the respondent never took up the plea before the Collector or the Commissioner where the respondent appeared as a party that the change of entry in the Khasra Girdawari was made with the consent of the petitioner. I am therefore, quite clear in my mind that the entries made in the Kharif 1975, and Rabi, 1976, by the Patwari changing the Lagan from cash rent to Batai were made without the consent of the tenant petitioner. Such change will be, therefore, in violation of section 13 of the Tenancy Act. The entries, therefore, are illegal and the Patwari had no authority to make such entries.
5. The learned counsel for the respondent has questioned the maintainability of the writ petition on the ground that the order of the Collector did not suffer from want of jurisdiction. I am unable to agree with the learned counsel for the reason that the very action of the Patwari of changing the entries was without lawful authority. The Collector should have been able to correct the error and hold that the Patwari had no authority but his failure to do so, even though he had the jurisdiction will not clothe the initial action of change in entries with any lawful authority. Since the initial act was without lawful authority the writ will be appropriate relief in such a Case.
6. In view of the above consideration this writ petition is allowed and the entries made by the Patwari in Kharif 1975, and Rabi, 1976, in respect of the land in question are declared to be without lawful authority and of no legal effect. The petitioner also entitled to the costs of the writ petition.
Writ .