1. FAKHRUDDIN G. EBRAHIM, J.-According to the office objection this petition is barred by 31 days, but we find that the office calculated the period of limitation from 17-12-1974 when the second appeal was heard by the High Court, but the relevant date is the day the judgment was delivered, i.e. 11-2- 1975, and from that date the petition would be in time.
2. On merits, the facts giving rise to this petition are that the appellants filed a suit on 5-7-1965 in the civil Court of Gujar Khan for possession of land measuring 37 kanals and 2 marlas, on the allegation that the land was in occupation of respondent No. 2, a Khanqah, as its occupancy tenant, which right in the land stood extinguished in accordance with the provisions contained in section 114 of the Punjab Tenancy Act, 1887, as amended by the Punjab Tenancy (Amendment) Act, VII of 1952, read with the rules made thereunder. It was further alleged that the respondent Khanqah as occupancy tenant failed to deposit any compensation within time for the acquisition of the proprietary right in the land thereby forfeited all the rights in the land. Which had vested absolutely and free of encumbrances in the landlord. One Pinnu Khan (respondent No. 3 herein) was also arrayed as defendant in the suit, on the allegation that he was in unauthorized occupation of the suit land under the Khanqah. The learned trial Court decreed the suit on 17th November, 1967, on the finding that the shrine was an occupancy tenant of the suit land and had failed to deposit the compensa--tion due from it in favour of the landlord within time, in accordance with the provisions of section 114 (2) (b) of the Tenancy Act read with the Rules and had, thereby, forfeited its rights in the land, which had absolutely vested in the landlord free from all encumbrances. In appeal, the District Judge, Rawalpindi, set aside the decree on the ground that the trial Court had failed to frame an issue as to the Waqf nature of the property, and without going into the merits of the case, he framed an additional issue to that effect and sent back the case to the trial Court. While the suit was pending after the remand, the Management of the Khanqah and its property were taken over by the Chief Administrator of Auqaf under section 6 of the West Pakistan Waqf Properties Ordinance, 1961. The Chief Administrator of Auqaf was, therefore, impleaded as defendant in the suit by the trial Court. A further development that took place while the suit was pending was that the Punjab Tenancy (Validation and Extension of Period for Payment of Compensation) Ordinance came into force with effect from 31-10-1969, and by virtue of section 3, the period for the deposit of compensation due to the landlord under section 114 of the Punjab Tenancy Act was further extended for ore year ending 21st October, 1970, in pursuance of which defendant Pinnu Khan deposited a sum of Rs. 222.80 in the name of the land owners as compensation due to them for the compulsory acquisition of the proprietary, rights by the occupancy tenant of the suit land. In pursuance of this deposit mutation No. 58 was sanctioned by the Assistant Collector on the 20ti April, 1970, for the extinction of the proprietary rights in the land in favour o the Khanqah. This deposit by defendant Pinnu Khan was sought to be challenged by the plaintiffs by a miscellaneous application, on the ground that h had no lawful authority to make the sender on behalf of the Khanqah. The learned trial Court decreed the suit on the ground that there was no valid ten& of the compensation due to the land owners made by the occupancy tenant, who was the Chief Administrator of Auqaf and thus he forfeited his tenancy rights in the land which had vested absolutely, free of encumbrance, in the land owners with the extinction of the occupancy tenancy by operation of section 114 of the Tenancy Act and the land had thus ceased to be Waqf property.
3. In an appeal, the learned Additional District Judge Rawalpindi. Vide his judgment dated 28th April, 1972, reversed the decree and dismissed the suit. In his opinion, section 114 was enacted for the benefit of the occupancy tenants who were conferred proprietary rights in the land by extinguishments of the tenancy. According to the learned Additional District Judge, in the instant case, Pinnu Khan did not deposit the amount in his own name, but in the name of the shrine for its benefit and, as such, it was considered to be a valid payment of the compensation deposited in the name of the shrine. Payable to the land owners for the acquisition of the proprietary rights, The appellate Court was also of the view that the jurisdiction of the civil Court was barred under section 17 of the West Pakistan Waqf Properties Ordinance, .1961.
4. The High Court, in second appeal, agreed with the lower appellate Court in holding that the amount of compensation deposited by Pinnu Khan in the name of the shrine for payment to the land owners must be held a valid tender for the purposes of section 114 of the Tenancy Act, which was con--sidered to be a voluntary act of charity on the part of Pinnu Khan for the benefit of the institution, which was in fact accepted and treated by the Revenue Officer who sanctioned the mutation for the extinction of the tenancy by vesting of the proprietary rights in the Khanqah. The High Court also found that the suit fell within the purview of item (d) of the second group under 77 of the Punjab Tenancy Act, 1887, and, as such, the suit by the appellants to the effect that the tenant had no such right in the land was cognizable by the Revenue Court and the civil Court had no jurisdiction to entertain it.
5. Raja Muhammad Anwar, learned counsel fox the petitioner, firstly attempted to argue that the finding of the High Court that the suit was not maintainable under section 77 of the Punjab Tenancy Act was contrary to a Full Bench decision reported in Baru v. Niadar (AIR 1942 Lah. 217). We, however, find that this question does not really arise for determination in this petition, for the petitioners have not been non-suited for this reason, but essentially on merits. It was next contended that section 3 of the Punjab Tenancy (Validation and Extension of Period for Payment of Compensation) Ordinance, 1969, had no application to a pending case, and the Khanqah could not take benefit of payment made before the 31st October, 1970 under this amendment. Sec--tion 3 thereof reads as follows :- "3. Extension of period for payment of compensation.-Notwithstand--ing anything contained in section 114 of the Punjab Tenancy Act, 1887 (Act XVI of 1887), and rules 3 and 4 of the Punjab Tenancy (Amendment) Rules, 1953, or any judgment, decree or order of any Court or other authority, it shall be lawful for any person who occupied land as occupancy tenant at the time of the coming into force of the Punjab Tenancy (Amendment) Act, 1952 (Punjab Act VII of 1952), but who failed to pay compensation to the landlord in accordance with the provisions of the said rules 3 and 4, to acquire proprietary rights in the whole or a portion, as the case may be, of the land comprised in his tenancy, on payment of such compensation within a period of one year from the date of publication of this Ordinance in the official Gazette."
6. A plain reading of section 3, however, makes it clear that the intention of the Legislature was to make it lawful for occupancy tenants to acquire proprietary rights in the land on payment of compensation up to the 31st of October, 1970. The Legislature has, in fact, gone further and annulled the judgments and decrees in which the occupancy tenants had lost right to acquire the proprietary rights by non-payment of compensation. Such a right, it may be noticed, cannot much less b.- denied to tenants against whom ejectment proceedings were pending and who were willing to deposit and had deposited the compensation before the target date.
7. Lastly, it was contended that the compensation in the present case was deposited by Pinnu Khan whilst it ought to have been deposited by the occupancy tenant, which was the Chief Administrator of Auqaf. Both the first appellate Court as well as the High Court in second appeal have given cogent reasons for coming to the conclusion that the deposit made by Pinnu Khan which was expressly on behalf of the Khanqah enured for its benefit. This finding is further fortified by reason of the fact that the Punjab Tenancy (Validation and Extension of Period for Payment of Compensation) Ordinance, 1969, is a beneficial piece of legislation and was, therefore, to be given full effect so as to extend the remedy given by the Legislature. The Courts below were, therefore, right in extending the remedy to the Khanqah the real beneficiary the person in possession of land as occupancy tenant-by holding that the compensation deposited by Pinnu Khan, being in the name of the Khanqah, was for the benefit of the Khanqah.
8. The result, therefore, is that there is no merit in this petition and it is accordingly dismissed.