' This judgment shall dispose of Writ Petition No, 7 of 1983 and Writ Petition No, 8 of 1983, involving identical questions of law and facts, in respect of the claim of the petitioners as occupancy tenants - in the disputed land.
2. The case of the petitioners is that they were occupancy tenants under Muhammad Hussain son of Shah Muhammad, in respect of the disputed land and were paying 1/4th share of the produce to the owner and, therefore, on the proclamation of the Punjab Tenancy (Amendment) Act, 1952, became owners of the same by virtue of clause (b) of subsection (2) of section 114 of the Punjab Tenancy Act, 1887, as amended (hereinafter called the Act), to the extent of 3/4th share of the land comprised in their tenancy while Muhammad Hussain, the landlord became owner to the extent of 1/4th. Notwithstanding this, it is submitted that Muhammad Hussain sold the entire land including the 3/4th share, the ownership of which vested in the petitioners by operation of law, to respondents Nos. 4 and 5 in the year 1977. The petitioners, therefore, filed a declaratory suit in the trial Court challenging the said sale to the extent of their ownership. The trial Court granted temporary injunction in favour of the petitioners by order, dated 7th March, 1979. Later the matter was referred to the arbitration but no decision was taken.
3. Respondents Nos. 4 and 5 applied to the Collector, Kasur, on 20th December, 1980, for the extinguishment of the entries of the alleged occupancy rights in favour of the petitioners. These proceedings were dropped by order, dated 13th December, 1981 by the Collector on the ground that the Board of Revenue has already passed status quo order in the matter. Thereafter, the previous order was reviewed by the Collector, by order, dated 21st December, 1981, wherein it was directed that the occupancy rights with regard to the land except in respect of which stay order has been issued by the Board of Revenue shall stand extinguished. The appeal filed against this order was dismissed by the learned Additional Commissioner (Revenue) by order, dated 17th November, 1982, on the ground that although the petitioners were occupancy tenants of the land, in dispute, they failed to take benefit of the law within time. The relevant portion reads thus :- "It is an admitted fact that the appellants were occupancy tenants of the land in dispute and have been paying batai share in kind. Such a category of occupancy tenants were entitled to have ownership rights of 3/4th of the land, but that right existed only up to the year 1954. The appellants have failed to take benefit of the law in time and did not try to get the land transferred in their name."
' The revision petition before the Member (Colonies), Board of Revenue, Punjab, Lahore, was also dismissed by order, dated 14th December, 1982, on the ground that the petitioners failed to initiate action before the appropriate Revenue Officer and therefore, they were not entitled to the protection envisaged under section 114 of the Act.
4. Learned counsel for the petitioners submits that by virtue of clause (b) of subsection (2) of section 114 of the Act, the petitioners became owners of the disputed land by operation of law to the extent of 3/4th share and there was no necessity whatsoever for making any formal application to the Revenue Authorities. Learned counsel for the respondents submitted that the petitioners were not entitled to the benefit envisaged under section 114 of the Act, inasmuch as, there is nothing on record to prove that they were occupancy tenants at the time of coming into force of the Punjab Tenancy (Amendment) Act, 1952, or they occupied the land, in dispute, as such.
It is further submitted that the petitioners failed to take any step for the enforcement of their alleged rights from 1952 to 1981 and therefore, they are estopped by their conduct to challenge the entries made in favour of the contesting respondents as owners through mutation. It is next contended that the ownership rights of the contesting respondents are protected by section 41 of the Transfer of Property Act (IV of 1882); inasmuch as, they were bona fide transferees for value from the original right holder. In this connection reliance was placed on Officer on Special Duty, Central Record Office v. Abdul Haq (1).
4. I have given my anxious consideration to the submissions of the learned counsel for the parties and perused the documents on record with their assistance.
5. A finding of fact has been recorded by the Additional Commissioner (Revenue) which has been concurred by the Member (Colonies), Board of Revenue, that admittedly the petitioners were occupancy tenants of the land, in dispute, and had been paying batai share in kind. I am, therefore, A not prepared to hold any enquiry in these proceedings to re-discover whether or not the petitioners were occupancy tanants and paying rent in the form of share of the produce at the relevant time. Clause (b) of subsection (2) of section 144 of the Act provides that an occupancy tenant, who at the time of coming into force of the aforesaid Amendment Act occupies any land as such shall become owner of such portion of the land comprised in his tenancy without payment of any compensation as corresponds to his share of the produce where he pays rent in the form of a share of the produce. Subsection (4) provides that in a case falling under clause (b) of subsection
(2) the landlord, shall, without payment of any compensation, be entitled to the possession of the rest of the land comprised in the tenancy. According to subsection (7), Government shall frame rules to give effect to the provisions of this section and while framing rules it may classify land into different categories and prescribe different principles for assessment of compensation. The Government has not framed any rules for implementation of the provisions of clause (b) of subsection (2) ibid. The petitioners have, therefore, become owners of the disputed land by operation of law to the extent of 3/4th share, in view of the concurrent finding of fact recorded by the Revenue Authorities as to their status and the mere fact that no formal application was made to the Revenue Authorities would not in any way affect the entitlement of the petitioners. The observation of the learned Additional Commissioner (Revenue) that the right existed only up to the year 1954 is wholly unwarranted and clearly violative of the statutory provisions of law contemplated by clause (b) of subsection (2) of section 114 of the Act read with subsection (4) thereof, which does not impose any such limitation. Likewise the learned Member (Colonies), Board of Revenue has erred in law in holding that the petitioners were not entitled to claim the benefit of section 114 of the Act as they failed to initiate action before the appropriate Revenue Officer. On this score alone the impugned orders are liable to be quashed.
(1) 1977 SCM R 208
6. The equitable doctrine envisaged under section 41 of the Transfer of Property Act, 1882, is not attracted unless a party claiming benefit thereo has fulfilled four conditions precedent : (I) the transferor is the ostensible owner, (2) he is so by consent, express or implied, of the real owner, (3) the ,B transfer is for consideration, (4) the transferee has acted in good faith,' taking reasonable care to ascertain that the transferor had power to transfer. If a transferee fails to establish that he acted in good faith and took reasonable care to ascertain that the transferor had power to make the transfer, the transferee is not entitled to the benefit. Here as per Jamabandi for the year 1974- 75, which has been placed on record as R/1 by the contesting respondents themselves, the petitioners were entered as occupancy tenants. This was a sufficient notice. The contesting respondents having failed to take reasonable care in ascertaining the title of the transferor. In the presence of section 114 of the Act which confers proprietary rights on the occupancy tenants by operation of law, the vendor has no right, title or interest in the demised property. The contesting respondents, therefore, cannot seek protection under section 41 of the Transfer of Property Act, 1882. The authority cited at the bar is distinguishable. There the purchaser was a bona fide, here he was not.
7. The objection that the petitioners took up no steps from 1952 to 1981 for the enforcement of their alleged rights and therefore, their claim is barred by acquiescence or waiver and for that account they are not entitled to any indulgence in the discretionary constitutional jurisdiction of this Court has no force. The sale-deed was executed in favour of the contesting respondents in October, 1977.
The petitioners immediately filed a civil suit challenging the said alienation. Furthermore, no action was taken against the petitioners by the Revenue Authorities till 1981 and, therefore, their right to seek relief against the contesting respondents accrued only at that time.
In view of the above, the impugned orders, dated 13th December, 1981 and 21st December, 1981 passed by respondent No, 3, order, dated 17th November, 1982 passed by respondent No, 2, and order, dated 14th December, 1982 are hereby declared as without lawful authority and of no legal effect and any proceedings taken in pursuance thereof are also without lawful authority and of no legal effect. The writ petition is accepted but there shall be no order as to costs.