' IKRAMULLAH KHAN, J.---Through the instant, civil revision, the impugned judgment dated 19-3- 2009, passed by the learned Additional District Judge-III, Charsadda has been challenged by the petitioners whereby the appeal against the judgment pissed by Civil Judge, Charsadda at Shabqadar dated 31-5-2008 was dismissed.
2. Briefly stated facts of the case are that petitioners instituted a declaratory suit against the respondents, in respect of .The suit-land, duly described therein the heading of the plaint on the ground, that petitioners are original owners of the suit property, while respondents are their tenants. Also prayed therein for possession of the disputed property.
3. The respondents- seriously contested the suit filed against them and all most all the respondents took the plea of ownership of the suit property, being acquired such proprietary right on account of implication of law of tenancy enunciated through the Punjab Tenancy Act, 1887.
4. The learned trial Court on conclusion of the trial dismissed the suit filed by the petitioners.
5. The petitioners preferred thereof an appeal before the learned Court of District Judge, which was also dismissed by the learned Additional District Judge vide its impugned judgment.
6. The learned counsel for the petitioners vehemently contended that the impugned judgment has been rendered against the petitioners by the learned Appellate Court, on assumption of misconception of the relevant law on the subject.
7. Further contended that as, the respondents had never paid, the required amount fixed by the government, in regard to the suit-land, could not be termed as owners, thereafter the promulgation of N.-W.F.P. Tenancy Act, 1950. Also stressed but with great vehemence, that no one could acquire proprietary rights in any land, thereafter the pronouncement of the Apex Court, rendered therein the case of Qazalbash Waqf v. Chief Land Commissioner, Lahore [(1989 SCMR 2012 (2)] whereas 23-3-1990 was fixed as a target date.
8. As, respondents were not declared as occupancy tenants by virtue of the Punjab Tenancy Act, 1887, and thereafter on the basis of the N.-W.F.P. Tenancy Act, 1950, they could not be declared owners thereafter the target date 23-3-1990 as determined by the Apex Court.
9. On the other hand, the learned counsel for the respondents, argued that predecessor in interest of the respondents were occupancy tenants on the suit-land and on the promulgation of the N.- W.F.P. Tenancy Act, 1950, they were declared as Dalchilkar and have never paid any share in the produce or any kind of rent prevailing in the area, and have acquired, the statics of full owners before the judicial pronouncement of the . Apex Court. Supported the impugned judgment, particularly. On the paint of limitation.
10. Prior to resolve the controversy seriously remained under contest amongst the parties, it would be not out of context to refer hereto the various provisions of Punjab and N.-W.F.P. Tenancy Acts, which has direct nexus with the matter in issue between the parties.
' Section 5 of the Punjab Tenancy Act, 1887 is reproduced hereunder as;--- Tenants having right occupancy.
(1) -A Tenant;--
(a) Who at the commancernent or this Act has been more than two generations in the male line of descent through a grandfather or granduncle and for a period of not less than twenty years been occupying land paying no rent therefore beyond the amount of the land revenue thereof and the rates and cesses for the time being chargeable thereon, or
(b) Who having owned land, and having ceased to be landowner thereof otherwise than by forfeiture to the Government or than by any voluntary act, has, since been ceased to be land- owner, continuously occupied the land or
(c) Who, in a village or estate in which he settled along with or was settled by the founder thereof as a cultivator therein, occupied land on the twenty first day of October, 1868, and has continuously occupied the land since that date, or Who, being ijagirdar of the estate or any part of the estate in which the land occupied by him is situated, have continuously occupied the land for not less than twenty years, or having been such jagirdar, occupied the land while he wasp jagirdar and has continuously occupied it for not less than twenty years has a right of occupancy in the land so occupied, unless, in the case of a tenant belonging to the class specified in clause (c), the landlord proves that the tenant was settled on land previously cleared and brought under cultivation by, or at the expense of, the founder.
(2) If a tenant proves that he has continuously occupied land for thirty years and paid no rent therefor beyond the amount of the land revenue thereof and the rates and cesses for the time being chargeable thereon, it may be presumed that he has fulfilled the conditions of clause (a) of subsection (1).
(3) The words in that clause denoting natural relationship denote also relationship by adoption, including therein the customary appointment of an heir, and relationship by the usage of religious community.
11. From the bare reading of section 5 of the Punjab Tenancy Act, 1887, it transpires that some right of occupancy was conferred upon tenants, who had qualified the condition, enumerated thereunder section 5 of the Act.
12. The predecessors of the respondents were well-mentioned thereunder the revenue papers, duly prepared in course of due process of law by the concerned Revenue official since 1927/1928, as {{URDU TEXT}}
13. The above words clearly be construed that the predecessor in interest of the respondents had acquired the status of the occupancy tenants by implication of the prevailing law.
14. In the year 1950, the N.-W.F.P. (Now Khyber Pakhtunkhwa) promulgated the N.-W.F.P. Tenancy Act, whereby some proprietary rights/ownership rights were conferred upon tenants who were already declared as occupancy tenants by virtue of Punjab Tenancy Act, 1887. The relevant provision of the N.-W.F.P. Tenancy Act, 1950, would be read as:-- Section 4. Compensation to be paid to the landlord. Any occupancy tenant who at the commencement of this. Act;
(a) occupies any land as such paying no rent thereof beyond the amount or the land revenue thereof and the rates and cesses for the time being chargeable thereon, shall become full owner of such land without payment of any compensation.
(b) Occupies any land as on payment of the rent in cash, shall become full owner thereof, on payment of the compensation to the landlord at such rates and within_such period may be prescribed by the Provincial Government under this section.
(c) Occupies land as such and pays rent both in cash as well as in kind shall become full owner thereof, on payment of compensation to the landlord at such rates and within such period as may be prescribed by the [Board of Revenue] under this 'section: ' Provided that if a tenant fails to pay the compensation determined in accordance with the provision of clauses (b) and (c) of this subsection, the rights of occupancy on payment of compensation by the landlord to be determined by the Board of Revenue in this behalf shall be extinguished and shall vest in the landlord and shall be entitled to possession thereof free from any encumbrance of lease created by the tenant in respect of that land.
[Exception. This section shall not apply to land-owner or administered by the Government (both Central and Provincial)].
15. The provisions of section 4 of the N.-W.F.P. Tenancy Act, 1950 reproduced hereinabove had conferred the right of ownership upon certain occupancy tenants, duly described there under section 4.
16. The Revenue Record produced and duly exhibited by the Revenue official during the course of trial without any objections by either party, fully supported the stance taken by the respondents in regard to acquisition of the proprietary rights in the suit property on the basis of the N.-W.F.P.
Tenancy Act, 1950. The petitioners had not proved that at the time of promulgation of the N.-W.F.P.
Tenancy Act, 1950, respondents or their predecessor were ever paying any rent in cash or in kind in regard to the suit property. Hence have acquired the status of full owners of the suit land without payment of any compensation.
17. As, the respondents were not paying any rent in cash or in kind in lieu of suit property, already occupied by them by virtue of section 5(1)(c) of the Punjab Tenancy Act, 1887, were not bound to pay any amount to the petitioners as compensation for the land occupied by them.
18. This argument of the learned counsel for the petitioners has no force at all.
19. Now adverting to the judgments rendered by the Apex Court in case of "Qazalbash Waqf versus Chief Land Commissioner, Lahore [(1989 SCMR 2012(2) The Shariat Appellate Court of the Supreme Court of Pakistan in its operating part has held that:-- "The operation of the self-executory provisions of the Regulation and the Act, and the provisions ancillary thereto shall not in any manner be affected by this decision till the aforesaid provisions cease to have effect i.e. On 23-3-1990.
' Likewise through the connected judgment passed by the Hon'ble Court in case "Sultan Khan versus Government of N.-W.F.P. Through Secretary" (1989 SCMR 2012)',(1). The Shariat Appellate Court of the Supreme Court of Pakistan in its operating part has held that?
"The operation of section 4 of the N.-W.F.P. Tenancy Act, 1950, the rules framed thereunder and the provisions ancillary thereto which are self executory shall not be in any manner affected by this decision till the aforesaid provisions cease to have effect i.e. 23-3-1990."
20. All kinds of transaction in regard to occupancy tenancy, the rights of ownership, already conferred on occupancy tenants by the implication of N.-W.F.P. Tenancy Act, 1950, prior to the target date, were fully saved and no retrospective operation to the aforesaid judgment has been given.
21. As respondents have acquired the status of full owners, in the suit property much before 23-3- 1990, fixed and determined by the Apex Court in this regard. The title of the respondents are fully protected and petitioners could not claim any benefit on the strength of the judgment of the Apex Court ibid to challenge the proprietary rights of the respondents in the suit property.
22. In present case, petitioners were remained no more owners, thereafter the promulgation of the N.-W.F.P. Tenancy Act, 1950, therefore, could not take any advantage of the rules enunciated thereunder the judgment of the Apex Court delivered there in the case of "Qazalbash Waqf v. Chief Land Commissioner Punjab, Lahore and others" (1989 SCMR 2012(2)).
23. Insofar as rest of the facts of the case are concerned, both the Courts below have given their concurrent finding on facts, which could not be disturbed in revisional jurisdiction by this Court.
Reliance may be placed in this regard on case of "Bhai Khan v. Saifullah Khan" (PLD 2012 Peshawar 51).
24. No illegality or irregularity has been pointed out by the learned counsel for the petitioners in the impugned judgment, so as such; this court has left with no other option but to dismiss the instant civil revision, but no order as to costs.