KARAM ELAREE CHAUHAN, J.-Khadim Hussain, alienor was an occupancy-tenant. Of agricultural land in dispute having obtained the same by means of inheritance. The occupancy-tenancy it is agreed before us was, ancestral in his land. He executed a lease deed on 4-1-1943, whereby he gave the aforesaid land on lease to Sakhawat Shah, petitioner for a period of 99 years at a rent of Rs. 52'50 per annum. On 19-5-1960 Asghar Ali alias Zulfiqar Ali, son of the alienor filed a suit for a declaration to the effect that the aforesaid alienation was against custom without consideration and legal necessity and would not be binding on him after the demise of his father. However, he also claimed possession of the aforesaid property. The learned Civil Judge on 30-9-1961 decreed the. Suit to the extent of granting the relevant declaration about the nature of the alienation to the plaintiff but dismissed the suit qua the prayer for possession.
2. The alienee/lessee/petitioner filed an appeal but without any success as it was dismissed by the learned District Judge on 23-7-1962.
3. The alienee/lessee/petitioner then filed a second appeal being R. S. A. No. 618/62 which also met the same fate and was dismissed by the High Court on 25-6-1974. The petitioner/ lessee has come up in a petition for special leave to appeal against the same to this Court.
4. The first point argued by the learned counsel for the petitioner was that under section 114 of the Punjab Tenancy Act, XVI of 1887, a amended by Punjab Tenancy (Amendment) Act, VII of 1951, the "occupancy rights" were extinguished and the occupancy-tenants were made the proprietors of land (under their occupancy) with the result that the suit seeking declaration regarding alienation of any pre-existing "occupancy rights" could not have been filed by the plaintiff. The contention has no merit, and if accepted would rather go against the lessee inasmuch as if the "occupancy tenancy" got extinguished then this alone being the subject-" matter which was transferred to the lessee it would bring an end of his lease also. We asked the learned counsel that in the face of the legal position above-mentioned (based on his own argument)-what would be the basis for his client to remain in possession of any "occupancy tenancy". The learned counsel had no answer and did not press his point any further nor made any projection from any other angle.
5. It was then argued that with the merger of "occupancy rights" with the "proprietary rights" the property under the law ceased to be ancestral and hence the plaintiff could not have filed a suit for any declaration about it. The contention has no merit. The suit being confined to a declaration about the alienation of the land which earlier was subject to both occupancy as well as proprietary rights, the mere fact that the occupancy rights were extinguished, would not detract from the ancestral character of the land qua those rights as it had far earlier devolved upon the alienor by inheritance under custom which devolution had clothed the concerned descendants and collaterals with a right to control its alienation. If the occupancy tenant became also the proprietor by operation of law, later on it was on this ground as also for the reason that he was its occupancy-tenant. The land as such in his occupancy would remain ancestral to the aforesaid extent though its course of devolution was not changed or his rights therein in certain respects were enlarged. Learned counsel wanted to refer to Allah Rakha v. Sardar and another (PLD 1975 Lah. 145), but we must say that it has no application to the facts and the circumstances of the present case because it is not clear from the aforesaid precedent as to whom was the sale deed made when the suit was filed. Again that was a case of sale whereas the present is a case of a lease incidents whereof are quite different.
6. The last point argued was that section 59 of the Punjab Tenancy Act was amended by the Punjab Tenancy (Amendment) Act IV of 1953, whereby it was provided that in case of death of a Muslim tenant his succession was to be governed by Muslim law heirs. The plaintiff in this case being a Muslim law heir, it was argued that he had no right to challenge B the impugned alienation which according to him could be challenged only by customary law heirs. The contention has no merit. It was laid down in Said v. Fazal Hussain and others (PLD 1959 SC (Pak.) 359), that Muslim law heirs could also challenge such alienations.
7. No other point was argued before us.
8. The result is that this petition has no merit and is dismissed.