MUHAMMAD NAEEM ANW AR, J.----This petition is directed against the judgment and decree of the learned Additional District Judge-VIII, Peshawar dated 30.01.2012, by which, his appeal, filed against the judgment and decree of the learned Civil Judge-V , Peshawar dated 04.09.2010, was dismissed.
2. Requisite facts for the decision of the instant petition are that the predecessor-in-interest of the petitioners, have filed two suits bearing Nos.563/1 and 569/1, before the civil Court, wherein in the former , the declaration was sought to the effect that he is the owner in possession of the property bearing Survey No.1646/419-420 and 435 measuring 02- Kanals 14-Marlas and 0-K 9 Marlas respectively of the estate of Village Kokar , Tehsil and District, Peshawar , being the occupancy tenant and that respondents Nos.1 to 4, in the light of the decision of the august Supreme Court of Pakistan, reported in PLD 1991 Supreme Court 760 are bound to transfer the suit land in his name, without any payment, within the meaning of section 4-A of KP Tenancy Act, 1950, whereas, respondent No.4 has got no concern whatsoever with it, as such, the entries in the revenue papers are wrong and ineffective upon his right. Likewise, the entries in revenue papers is "ghair dakhilkar (URDU TEXT)" in column of cultivation are also illegal against the fact and liable to be corrected. With an added prayer , it was requested that the auction of disputed property in the name of any one else, would be ineffective upon his rights . Decree for perpetual injunction was also sought to the effect that respo ndents may not alienate the suit property through any mean including auction. Likewise, the other suit was filed by the predecessor-in-interest of the petitioners against respondent No.6, by seeking therein, the declaration to the effect that he is owner in possession of the property bearing Khasra No.1646/419-20 and defendant / respondent No.6 with the connivance of others, is intending to dispossess him without due course of law. During pendency of the suit, he has amended the plain t with the addition of prayer for recovery of possession, on the ground that he has been dispossessed by respondent No.6.
3. When put on notice, the respondents have contested the suit by filing their written statement on various legal and factual objections. After recording of evidence, the learned Trial Court through its consolidated judgment and decree dated 04.09.2010, dismissed the suit, against which, the petitioners had filed appeal and respondent No.6 had filed Cross Objection, however , the learned appellate Court vide its consolidated judgment and decree dated 30.01.2012 has dismissed the appeal as well as cross objection of respondent No.6, hence, the instant petition.
4. Having heard the arguments, it appears that the petitioners are claiming themselves to be the occupancy tenant and by making reliance on case titled "Muhammad Yousaf v. Hakoomat-e-Pa kistan" reported in (PLD 1991 SC 760), that they are entitled to be declared as owners of the suit property in accordance with the provisions of sections 4 and 4-A of KP Tenancy Act, 1950.
5. Record also depicts that neither they nor their predecessor was recorded as occupancy tenant in the revenue paper , for which, they have' also prayed that entries in revenue paper as "ghair dakhilkar " is ineffective upon their rights. By enacting KP Tenancy Act, 1950, the Legislature has intended that the occupancy tenants, who are in possession of the property would be declared as owners in accordance with the provisions of sections 4 and 4-A of the Act ibid, which are reproduced as under: - "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.
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 such and pays rent both in the 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].
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".
Section 4-A. Determination of occupancy tenancies in cases where rent in kind is paid.
Any occupancy tenant who at the commencement of this Ad, occupies land as such and pays rent by division of the produce shall become full owner of the portion of the land in proportion to his share of the produce, which he retains for himself, without payment of any compensation to the landlord.
(2) Any occupancy tenant acquiring land in accordance with the provision of subsection (1) shall acquire if free from any encumbrance created in respect of that land by the landlord.
(3) Subject to the provisions of subsections (1) and (2) the landlord shall take possession of the remaining portion of the land at the expiry of the current agricultural year, free from any encumbranc e or lease created by the tenant and occupancy rights therein shall be extinguished.
(4) Notwithstanding anything contained in the preceding sub-section, the occupa ncy tenant shall continue to the landlord the produce of the land in acco rdance with the terms of his existing tenancy until the partition of the holding between the landlord and tenant is ef fected".
6. It is also pertinent to mention that a person who was not recorded as occupancy tenant in the revenue paper but intends to be declared as such, for redres ssal of his grievance, section 83 of the ibid Act, would come to help him, which reads as under: - "Section 83. Limitation for declaration of occupancy rights. Notwithstanding the repeal of the Punjab Tenancy Act, 1887, as applicable to the North-W est Frontier by the North-W est Frontier Province Law and Justice Regulation, 1901 and Hazara Tenancy Regulation, 1881, Hazara Tenancy (Amendment) Regulation, 1904, any person, who but for this Act would have been entitled to be declared an occupan cy tenant within the meaning of Section 5 of the Punjab Tenancy Act of 1887 as applicable to North-W est Frontier by the North-W est Frontier Law and Justice Regulation, 1901, or Section 5 of Hazara Tenancy Regulation, 1887, shall within three years after the commencement of this Act apply for such declaration and on such declaration being granted, he shall be entitled to the benefit of Section 4 of this Act".
7. Admittedly , and undisputedly , no such declaration within the meaning of section 83 was ever sought by the predecessor in interest of the petitioners, within the period of three (03) years, as provided in section 83.
8. Of course, a person who was not recorded and has not got declaration from the Court of competent jurisdiction whereby , he would have been declared as occupancy tenant could not lay his claim with respect to the disputed property for his entitlement, under section s 4 and 4-A. This Court in case titled "Muhammad Aslam and others v.
Muhammad Aslam and others" reported in (PLD 2004 Peshawar 95 ), has held : "8. According to section 83 of the N.W.F.P. Tenancy Act, 1950, period of limitation has been laid down which is 3 years commencing from the date of promulgation of the said Act. In this view of the matter , therefore, the respondents-plaintif fs were essentially required to have applied to the competent forum within 3 years seeking declaration of I their occupancy rights over suit Khasra No-252 but they did not opt to comply with this mandatory provision of law hence it is held that the suit of the respondents plaintif fs was hopelessly time barred. Reliance in this regard is placed on the view taken by this Court in the case of Akram and others v. Zakaria Khan and others (PLD 1962 Peshawar page 7).
Similar view was taken by this Court in the case of Sher Ali Khan v. Nawab and others (PLD 1962 Peshawar page-1 10) and the said view was approved by the Hon'ble Supreme Court in the case of Mada son of Fateh Ali v.
Muhammad Sharif and 39 others (1997 SCMR 338 )".
9. In another case titled "Zaheer Iqbal and 11 others v. Saed Iqbal Khan and 36 others" reported in (2006 CLC 184), this Court has held that: - "8. It is an uncontroverted feature of the case that at the time of coming into force of the N.-W .F.P. Tenancy Act, 1950 the petitioners were not recorded as occupancy tenants. It is also an admitted position that the petitioners have not obtained any declaration of their occupancy rights in terms of section 83 of N.-W .F.P. Tenancy Act, 1950.
Thus, the petitioners or for that matter their forefathers cannot be deemed to have become owners by operation of law. In other words the claim of C ownership of land on the ground of occupancy tenancy is dependent upon the declaration envisaged by section 83 referred above. Thus, the instant suit though declaratory in its nature but in essence it is an endeavour to achieve the rights which emanate from section 83 quoted above. A similar situation was dealt with in case of Akram and others v. Zakiria Khan and others reported as PLD 1962 (W.P.) Pesh. P.7.
The segment of the said judgment crucially relevant to the instant case is reproduced below:-- "7. It will be seen that sections 4 and 4-A of the North-W est Frontier Province Tenancy Act of 1950 will come into play only if a person is an occupancy tenant at the commencement of the Act, and satisfied the other conditions laid down in the sections. If he is not recorded as an occupancy tenant, at the commencement of the Act, his case clearly seems to be governed by section 83 of the Act, and in order to avail himself of the benefits conferred by sections 4 and 4-A of the Act, such a person shall have to obtain, in the first instance, a declaration of his occupancy rights and until such time as such a declaration has been obtained, he cannot be deemed to have become the owner by the operation of sections 4 and 4-A of the Act. In the present case, it is an admitted position that, the petitioner plaintiffs were not recorded as occupancy tenants in the Revenue Records at the relevant time, and accordingly they cannot be deemed to have become owners by the operation of sections 4 and 4-A of the Act.
Therefore, the relief claimed by them in the present suit is in fact a declaration of their occupancy rights in the land, and only when that declaration granted, can they claim a declaration of ownership. It seems to me, therefore, that this is not a suit for declaration of title which would be within the competence of a Court of general jurisdiction, but on the other hand, it is a suit the subject -matter of which is specifically dealt with in section 83 of the North-W est Frontier Province T enancy Act read with the proviso to section 85 of the same Act".
10. Reliance is also placed on (1991 MLD 1651 ) titled "Noor Muhammad versus Habibulah" and (PLD 1962 Peshawar 7 ) titled " Akram and others v . Zakaria Khan and others".
11. Petitioners could claim the benefit of sections 4 and 4-A if any decree from the court of competent jurisdiction was passed in their favour .
12. Apart from the above, certain specific time was provided to the occupancy tenant for the conversion of their status from occupancy tenant to the owners, which was extended from time to time but it was ended in the year, 1992. If an occupancy tenant has got declared him as owner of the property , then ultimately , his status could be considered as such, otherwise, the provisions of sections 4 and 4-A being not in field, could not help anyone, because after the ceiling date, no one could claim the benefit of sections 4 and 4-A and could be declared as owner , therefore, after the ceiling date, the status of occupancy tenant, if any would be that of tenant at will, subject to the permission and consent of the owner. Admittedly , the predecessor in intere st and for that matter , his father , was the occupancy tenant but neither he, nor his successor had ever claimed or got declared or obtained the benefit of sections 4 and 4-A, therefore, they have nothing more than that of tenant at will, whose possession would be subject to the permission of the owners of the disputed land. The tenant at will, or tenant for the fixed term, though entered in the revenue paper , in column of cultivation and were enjoying the possession of the properties for decades and for their eviction from the disputed property , a lengthy process was provided in the statute.
However , by the recent amendment in the KP Tenancy Act, 1950 with title "Khyber Pakhtunkhwa Tenancy (Amendment) Act, 2014", under section 3A of which reads as under:- ""3A. Prohibition of succession to non-occupancy tenancies:- (1) Notwithstanding anything contained in this Act or in any other law for the time being in force, on commencement of the Khyber Pakhtunkhwa Tenancy (Amendment)
Act, 2014, right to succession of tenancy to the predecessor or successor in interest of a tenant shall cease.
(2) The existing tenants, enjoying tenanc y rights before the commencement of the Khyber Pakhtunkhwa Tenancy (Amendment) Act, 2014, shall continue their right of tenancy till their eviction through due process of law: Provided that any improvement made by an existing tenant on the tenancy , in accordance with the provisions of this Act. shall be entitled to compensation by the landlord.
Explanation. The words "existing tenant" for the purpose of this section means the tenant, his predecessor and successor in interest".
13. It is manifest from the above quoted law / amendment in the statute that rights of the tenant would not be regarded as inheritable to the successor . On the analogy of the principle discussed above, now, neither the petitioners / plaintif fs were occupancy tenant, nor tenants at will, succeeding their tenancy rights from their forefather , however , their possession, if any , would be dealt in consonance with the existing law .
14. Significantly , during the course of arguments, learned counsel has stated at the bar that the petitioners have confined themselves to the extent of suit against respondent No.6, where, they were dispossessed without due course of law. The contents of the very suit would reveal that the same too is based upon the petitioners' entitlement as that of occupancy tenant and in possession of the property , therefore, the case of the petitioners could not be considered within the format of section 9 of the Specific Relief Act, 1877. There are three modes, by which, a wrong doer who have dispossessed a person, without due course of law would be treated (i) complaint under section 145 of Cr.P..0 (ii) complaint under sections 3 and 7 of Illegal 'Dispossession Act, 2005 and (iii) suit under section 9 of the Specific Relief Act.
15. Petitioners' case does not fall within the ambit of the above quoted law, however , the learned counsel for the petitioners contended that as the petitioners were wrongly and without due course of law, were dispossessed from the property , therefore, the Court while exercising its inherit power , under the Code of Civil Procedure, 1908 may convert and mould the relief. There is no denial that the Court has got ample power to convert and to mould the relief in order to provide proper redresssal to an aggrieved person but with certain exceptions.
16. For conversion of declaration to the suit filed under section 9 of the Specific Relief Act, the contents of the plaint of suit would be of worth perusal wherein, not only a specific date for dispossession is to be given but the same also required to be proved. If seen from another angle, decision of a suit filed under section 9 of the Specific Relief Act, 1877, was not appealable in such scenario too, the locus standi of the petitioners, under section 115 of CPC, 1908 would be a question-mark. Even otherwise, the contents of the plaint made it clear that the same could not be moulded / converted to a suit under section 9.
17. In my humble view, the petitioners have not been able to prove their contenti ons through convincing, reliable and direct evidence for the purpose of getting a decree in their favour as neither they are owners nor tenant of the disputed property . There are concurrent findings of the learned Courts below , which cannot be set at naught except when there is misreading and non-reading of evidence, gross illegality or any jurisdictional defect, but in the instant case, petitioners could not point out any such infirmity . The scope of revisional jurisdiction of this Court, under Section 115 C.P.C., 1908, has been dealt by the august Supreme Court of Pakistan in Mst. Zaitoon Begum's case , reported in (2014 SCMR 1469 ), wherein, it was held that: "Such findings were not open to interference in limited revisional jurisdiction of the High Court, albeit, it may be, to some extent, erroneous on both points of fact and law".
18. For the reasons stated above, the instant petition stands dismissed with no order as to cost.