MUHAMMAD FAHEEM WALL J.- Petitioners are aggrieved of the Judgment & decree dated 19.04.2017, rendered by learned Additional District Judge-I, D.I.Khan, whereby the learned appellate Court, while dismissing the appeal of petitioners, upheld the Judgment & Decree dated 05.04.2015 of the learned Civil Judge-II D.I.Khan, and thereby the decree passed in favour of respondents No.1 to 7 was maintained.
2. Factual canvas of the case, per narration of the plaint, is that respondents No.1 to 7 sought declaration of the Court to the effect that they being occupancy tenants of the land, as detailed in the head-note, had become owners and revenue record is liable for correction to their extent; and accordingly, mutations No.689, 690, 691, 704, 763, 904, 1244 and all other subsequent transactions are liable to be cancelled/corrected to the extent of their ownership. In the body of plaint, respondents No.1 to 7 claimed to be the occupancy tenants under Section 8 of the Punjab Tenancy Act, 1887, and therefore, in view of the provision of Section 4 of K.P. Tenancy Act, 1950, their status has been changed into ownership.
3. The suit, obviously, was contested by the petitioners (then defendants) by filing written statement while asserting that the transposition of occupancy tenancy into ownership has been declared un-Islamic by the worthy Supreme Court and, after the target date, occupancy tenancy cannot be converted into ownership.
4. The learned Trial Court faced with divergent pleadings of the parties settled issues enabling them to lead evidence in pros & cons and as a result of its appreciation, the suit was decreed by learned Trial Court vide Judgment dated 04.05.2015. The appeal by petitioners against the said decree was dismissed by the learned Additional District Judge-I, D.I.Khan, vide Judgment & Decree dated 19.04.2017. Now, aggrieved of findings of both the learned courts below, petitioners (defendants in the suit) have preferred the instant civil revision.
5. Arguments of the learned counsel for parties heard and record gone through with their valuable assistance but for the sake of brevity, without reproducing the arguments of the counsels, same will be adequately dealt with at appropriate stages in this judgment.
6. In order to decide the controversy between parties, a resume to the provisions of tenancy laws in view of the verdict of Apex Court is necessary.
7. The Punjab Tenancy Act, 1887, was promulgated in Punjab on 23rd September, 1887. The Chapter- II of the Act-1887 recognized the rights of occupancy in the manner as described in its Sections 5 to 8 and 11. The application of Punjab Tenancy Act, 1887, was extended to the Province Khyber Pakhtunkhwa (erstwhile North-West Frontier Province) by the North-West Frontier Law and Justice Regulation, 1901; and to the extent of the areas now comprising Hazara Division, a regulation by the name of Hazara Tenancy Regulation, 1887, was in force. However, after the enactment of 'Khyber Pakhtunkhwa Tenancy Act, 1950, the aforesaid enactments of 1887 were repealed through Section 85, and a fresh mechanism under Section 83 of the Act-1950 was provided for occupancy tenants, who were in possession of the property, to be declared as owners in accordance with the provisions of section 4:
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 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 clause (b) and (c) of this sub-section, 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.
8. From above extracted provision of law, three types of occupancy tenants were bestowed with right to get themselves converted into owners of the land. Those were the tenants who were:
1. occupying the land and paying no rent;
2. occupying the land and paying rent in cash;
3. occupying the land and paying rent in both cash and kind.
9. However, the class of occupancy tenants who were occupying the land and paying rent in kind only, were not mentioned in the Section 4 of the Act 1950. In order to encompass the tenants, who were occupying the land and paying rent in kind by division of produce, an amendment was effected in the K.P. Tenancy Act, and Section 4-A, to include the said fourth category of occupancy tenants, was inserted in the Act of 1950, by dint of K.P. Act No.VI of 1952, which is reproduced hereunder: 4-A. Determination of occupancy tenancies in cases where rent in kind is paid. (1) Any occupancy tenant who at the commencement of this Act, 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 sub-sections (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 encumbrance or lease created by the tenant and occupancy rights therein shall be extinguished.
(4) Notwithstanding anything contained in the preceding sub-section, the occupancy tenant shall continue to the landlord the produce of the land in accordance with the terms of his existing tenancy until the partition of the holding between the landlord and tenant is effected.
10. It is pertinent to mention that section 4 of the K.P. Tenancy Act, 1950, was impugned before the learned Federal Shariat Court in a petition under Article 203-D of the Constitution of Pakistan; however, the said petition was rejected vide order dated 27.03.1984. Aggrieved of the said order, a Shariat Appeal was preferred before the Shariat Appellate Bench of worthy Supreme Court of Pakistan. The appeal was allowed by the worthy Apex Court vide Judgment dated 10.08.1989[1], and Section 4 of the K.P. Tenancy Act, 1950, was declared to be un-Islamic and having ceased to have effect from 23.03.1990. However, the worthy Apex Court while deciding a petition for the review of said judgment, was pleased to hand-down certain clarifications in the judgment dated 07.05.1991[2]. The salient features of the Judgment dated 07.05.1991, relevant to the merits of this case, read as under: i. A tenant cannot be declared as owner of certain property without the express consent of actual owner. ii. The proceedings based on Section 4 of the K.P. Tenancy Act, 1950, if completed prior to 23.03.1990, shall be final; and occupancy tenants, if declared as owners prior to the said date, shall not be affected due to the decision. iii. Occupancy tenants, who were actually owners but were deprived of the right of ownership during British era and transformed as tenants are having all the rights to regain their previous status, as, conversion of the status of owner to be a tenant is also un-Islamic in the same sense under which a tenant cannot be declared as owner. iv. Moreover, the occupancy tenants as defined under Section 5(1)(c) of the Tenancy Act, 1887, or those who have been recorded as occupancy tenants but they were actually the owners, would always have a right to seek their remedy and thereby establish such a right to be declared as owners without any compensation.
11. The worthy apex Court was further pleased to hold:
12. The worthy apex Court while discussing the scope of Section 5(1)(c) of the Punjab Tenancy Act, 1887, was pleased to note that:
13. It was further held in the supra background:
14. As for the scope of Section 8 of the Punjab Tenancy Act, 1887, and its applicability over K.P.
Tenancy Act, 1950, is concerned the following guidance can be derived from the ibid case of Sardar Muhammad Yousuf etc:
15. From above, it has become crystal clear that all the tenants, except those who fall within the meaning of Section 5(1)(c) of the Punjab Tenancy Act- 1887 or alike, have been declared to be un- Islamic and would have absolutely no right to get their status converted from tenancy to ownership after 23.03.1990. Accordingly, Section 4 of the K.P. Tenancy Act, 1950, was amended[3] which is reproduced hereunder:
4. Rights of ownership of certain persons.-- Any occupancy tenant, who had the right of occupancy in the land so occupied by him under section 5 (1)(c) of the Punjab Tenancy Act, 1887, or who may prove by a reliable, clear and un-ambiguous evidence, before a court of competent jurisdiction, that he is the real owner, according to Sharjah, of the land under his tenancy, and who occupies any land as such, shall become full owner of such land without payment of any compensation to the landlord and shall acquire it free from any encumbrance created in respect of that land by the landlord.
16. As is evident from the foregoing provisions of amended Section 4 of the Tenancy Act, 1950, as well as judgment of worthy Apex Court in Sardar Muhammad Yousuf case, the provisions of Section 5(1)(c) of the Punjab Tenancy Act, 1887, are sin-qua-none for conversion of occupancy tenancy into ownership. Section 5(1)(c) of the Punjab Tenancy Act, 1887, reads as under:
5. Tenants having right of occupancy.- (1) A tenant-
(a) .....
(b) .....
(c) who, in a village or estate in which he settled alongwith, 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
(d) ...... 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 land-lord proves that the tenant was settled on land previously cleared and brought under cultivation by, or at the expense of, the founder.
17. According to above extracted provision of section 5(1)(c), an occupancy tenant is a tenant who had occupied land on or before 1st October, 1868, and has continuously held land as such till date, either himself or through their predecessor, and his right to seek conversion of his tenancy rights into ownership is categorically recognized by law and placed under an exception to the general rule, by the Supreme Court in Sardar Muhammad Yousuf case's judgment, in contrast to all kinds of other occupancy tenancies. Therefore, only those occupancy tenants who come within the ambit of Section 5(1)(c) of the Punjab Tenancy Act, 1868, has a right to seek conversion of their occupancy rights into ownership after the cut-off date so provided by the Apex Court through the supra judgment. Furthermore, it has been time and again highlighted in the said Sardar Muhammad Yousuf case that according to Sharia a tenant cannot be declared to be the owner, without the consent of actual owner.
18. Now adverting the legal position in the instant case, notwithstanding the amendment of Section 4 of the K.P. Tenancy Act 1950, the provisions of Section 4-A still exist on the statute book in the same manner/language, and thereby the occupancy tenants who were paying rent by division of produce, stayed in the Act-1950. But, still the provisions of Section 4-A of the Tenancy Act, 1950, cannot be taken in isolation of the Judgment in Sardar Muhammad Yousuf case supra. As occupancy tenancy, subject to above quoted provisions of Section 5(1)(c), has already been declared unIslamic, therefore, occupancy tenants within the meaning of provisions of Section 4-A of the Act-1950, if not declared to be owners before ceiling date of 23.03.1990, cannot agitate their such claim thereafter. In other words, Section 4-A of K.P. Tenancy Act, 1950, is although available in the statute book but practically it has served its purpose till 23.03.1990, and henceforward, the same is no more practicable.
19. Even otherwise, as Section 4-A of the Act-1950 starts with the word 'any occupancy tenant' and after 23.03.1990 only occupancy tenants per Section 5(1)(c) of the Act-1887 survived, and rights of occupancy tenants falling within the purview of Sections, 6, 7, 8 & 11 of Tenancy Act, 1887, can be recognized only when they prove themselves to be actual owners and wrongfully noted as occupancy tenant. Therefore if it is taken for granted that the provisions of Section 4-A are still practicable, then the one who intends to take benefit of Section 4-A of the Act-1950, would have to prove the criteria laid down in Section 5(1)(c) of the Tenancy Act, 1887, that he was settled in a village or estate 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 been occupying the land since that date.
20. As a corollary of above discussion, after the ceiling date i.e. 23.03.1990, in order to get benefit of the provisions of K.P. Tenancy Act, 1950, a tenant would have to prove himself to be a tenant within the purview of of Section 5(1)(c) of the Punjab Tenancy Act, 1887, or that he was actually the owner but his such status was changed to be a tenant either during British era or due to the mistake of revenue authorities.
21. As a post scriptum, contention of learned counsel for respondents No.1 to 7 that this Court has already resolved the issue in favour of occupancy tenants like respondents No. 1 to 7 vide judgments rendered in Civil Revision No.264/2009 titled Pir Muhammad Khalid Raza Jan Vs. Mati Ullah & others, decided on 10.02.2014 and Civil Revision No.376-D/ 2012 titled Bashir Ahmad Vs. Haji Raees Khan, decided on 13.07.2015, therefore a contrary view cannot be taken rather in case of contrary view the matter is required to be referred to the larger bench for decision and in this regard he also filed CM No.86-D/2023. However, I am not convinced with the arguments of learned counsel for respondents No.1 to 7, for the reasons that judgments in both the referred cases are distinguishable as: a. In C.R. No.264/2009, mutations were attested in favour of occupancy tenants falling within the definition of Section 8 of Punjab Tenancy Act, 1887, after the cut-off date, on 13.06.1990. Owner filed suit for cancellation of the said mutations which was decreed by the trial court but, on appeal from tenants, appellate court set aside the decree. The owners (plaintiffs) instituted Civil Revision before this Court and this court in view of the peculiar facts of the case, where mutations were attested on the basis of letter No.463-69/SK dated 21.11.1952, which were not attested in contrast to any law but pursuant to an official letter and therefore, their rights were held to be protected under the provisions of Section 4-A of the K.P. Tenancy Act 1950. More importantly, the applicability or otherwise of Section 5(1)(c) of the Act-1887 never came up for discussion in that judgment. b. Similarly, the facts & circumstances of the C.R. No.376-D/2012 are different as in the said case; share of occupancy tenants in the property was physically separated but entries to that effect could not have been made in the record of rights. Moreover, owner had sold out his entire holding, excluding the share of occupancy tenants. The Court declared that the rights of tenants had matured prior to the cut-off date and no one should be made to suffer due to act or omission on the part of revenue officials, if he had acquired vested rights on account of operation of law, and therefore, their rights was held to be protected under the provisions of Section 4-A of the K.P.
Tenancy Act 1950.
22. It is clear from the above that in both the referred cases rights of occupancy tenancy were matured either on the basis of official letter or prior to the cut-off date. Whereas, in the instant case, rights of respondents No.1 to 7 (occupancy tenants) have not been finalized prior to 23.03.1990, and hence-onward conversion of occupancy tenancy into ownership has been declared against the Sharia by the Apex Court. Provisions of Section 4-A of the K.P. Tenancy Act, 1950, and that of sections 6, 7, 8, & 11 of Punjab Tenancy Act, 1887, are beneficial for those tenants who were once owners or tenant under Section 5(1)(c) ibid. No different or contrary view is being taken in the instant petition by this Court, therefore, CMA No.85-0/2023 to refer the matter to the larger Bench, is meritless; hence, dismissed.
23. As, respondents No.1 to 7, in the instant case, sought declaration of ownership on the basis of provisions of Section 8 of the Punjab Tenancy Act, 1887, coupled with the provision of K.P. Tenancy Act, 1950, therefore, after the ceiling date, they were required either to fulfil the requirements of amended Section 4 of the K.P. Tenancy Act, 1950; OR to place their case in line with the provisions of Section 5(1)(c) of the Punjab Tenancy Act, 1887 for the purpose of proof of the fact that they were settled in a village or estate along with, or were settled by, the founder thereof as a cultivator therein, and occupied land on the 21St day of October, 1868, and have continuously been occupying the same since that date; OR that they were actually owners but their such status was changed to that of an occupancy tenant either during British era or due to the mistake of revenue authority.
24. There is absolutely no evidence on the entire case record to establish that the respondents are the tenants within the definition of section 5(I)(c) of the Punjab Tenancy Act, 1887, neither they could prove that they are in continuous possession since 21st days of October 1868, nor that they are the real owners, according to Sharjah, of the land under their tenancy. Respondents have also not brought on record any evidence which may prove them to be the founders of the village or that they cultivated an uninhabited land with the founder on or before 21.10.1868.
25. Considering the facts and circumstances of the case and arguments advanced by the highly competent senior counsels on either side and on perusing the typed-set of papers and the views of this Court as expressed in the above paras, findings of both the Courts below are based on misconception of law and suffer from jurisdictional defects which are legally unwarranted.
Consequently, this Court allows the instant Civil Revision and set aside impugned judgments & decrees, resultantly, the suit filed by respondents No.1 to 7 stands dismissed with no order as to cost. CMA No.142-D/2017, has become infructuous and thus dismissed accordingly.
[1]NLR 1990 SD 90, Sultan Khan Vs. Government of N-W.F.P. etc
2. PLD 1991 Supreme Court 760, Sardar Muhammad Yousuf etc Vs. Government of Pakistan etc. [3]Amended vide North-West Frontier Province Tenancy (Amendment) Act, 1992, and given effect from 23rd day of march, 1992