' This is an appeal against the judgment and decree of District Judge, Mirpur, dated 10th of February, 1983, whereby decree, dated 31st of October, 1981, passed by Sub-Judge, Bhimber, was set aside.
2. The brief facts leading to the controversy are that respondent-plaintiff purchased land measuring 5 Kanals and 9 Marlas comprising survey No, 1233 and 1279-min, situate in village Smani Tehsil Bhimber, through a sale-deed, dated 2nd of March, 1970. He, as alleged in the plaint, was ousted about six months prior to the date of the suit i,e, on 18th of April, 1978. Thus, he prayed for grant of a decree for possession.
3. The defendant-appellant resisted the suit on the following grounds, namely :-
(i) That the mutation order No, 752, which witnessed the sale of the suit land in favour of the plaintiff was cancelled, therefore, he has no cause of action ;
(ii) that the sale made in favour of the plaintiff was illegal ;
(iii) that the suit was time-barred ; and
(iv) that the defendant was in adverse possession of the suit land.
4. The learned Sub-Judge settled the issue and recorded the evidence produced by the parties.
After hearing the case, he, through his judgment, dated 31st of October, 1981, dismissed the suit. He held that the sale-deed, dated 2nd of March, 1970, was illegal and the suit was also time-barred. He found that the tenancy left by Said Muhammad, did not relapse and revert to the landlord because Buwa Rani daughter of Said Muhammad was alive and was entitled to inherit.
5. The plaintiff-respondent, feeling aggrieved by the judgment and decree of the Sub-Judge went in appeal, to the Court of District Judge, Mirpur who, through his judgment, dated 10th of February, 1983, accepted the appeal and passed a decree for possession of the suit land in favour of the plaintiff-respondent. He held that Said Muhammad who was an occupancy tenant died before the year 1947 and according to the provisions of section 58 of the Punjab Tenancy Act, the daughter was not entitled to inherit the occupancy tenant. He also found that the suit was within time. He, therefore, vacated the decree passed by the lower Court.
6. The defendant has filed this appeal against the judgment and decree of the District Judge, Mirpur. The learned counsel for the defendant-appellant has challenged the said decree on the following grounds :-
(i) That the suit land did not revert to the landlord as the tenancy did not become extinct ;
(ii) That the mutation Order No, 752, whereby the suit land was mutated in favour of Farzand All had been cancelled as such the sale made by Farzand Ali in favour of Fazal Karim, was of no legal effect.
7. The learned counsel for the plaintiff-respondent on the other hand, argued that Said Muhammad who was an occupancy tenant, died before 1947 and according to the provisions of section 67 of the Tenancy Act of 1980 Bk, as it was applicable at that time, the daughter was not entitled to inherit. He emphasised that the collaterals were only entitled to get the occupancy rights if they proved that the suit land was occupied by the common ancestor, as there is no evidence to show such occupation, therefore, it was rightly held that the land in suit reverted to the landlord.
8. I have closely gone through the record of the case and the relevant law in the light of the points raised by the learned counsel for the parties and my conclusions are as follows :-
(1) Said Muhammad admittedly died before 1947 and the case is to be looked in the light of the provisions of section 67 of the Tenancy Act of 1980 Bk. And not in the light of the provisions of section 59 of the Punjab Tenancy Act of 1887 A. S. Said Muhammad left neither any male lineal descendant nor a widow. Of the land comprising survey number 1233, be was the sole tenant, whereas the land comprising survey No, 1279, was a joint tenancy, wherein he held a share.
Therefore, both of the tenancies have to be looked from different angles ;
(ii) As Said Muhammad was the sole tenant of the land comprising II survey No, 1233, and he, at the time of his death, left no heir o A person as contemplated by section 67 of the Tenancy Act to inherit him, thus, this tenancy will become extinct, the rights., shall be extinguished and it will revert to the landlord ;
(iii) Land comprising survey No, 1279-min is a part of joint tenancy, held by Said Muhammad alongwith Mst. Sahib Noor and others,li therefore, the rule of survivorship is to be applied. As long as any of the tenants is alive, it shall remain in existence and shall not revert to the landlord, as was held in a Full Bench case, reported in AIR 1930 Lah. 515 (relied on in AIR 1938 Lah. 611), therefore, mutation order No, 752, whereby thi land was mutated in favour of the landlord, was illegal, hence, the sale-deed, dated 2nd of March, 1970, executed by Farzand Ali, the landlord, in favour of Fazal Karim, was of no legal consequence ;
(iv) The learned counsel for the respondents raised the points that the surviving tenant will only get the benefit of the rule of survivorship if there is any proof of the fact that tenancy was held by their common ancestor. This point of view is against the very spirit of the rule of survivorship and cannot be accepted. Joint tenants are not obliged to prove occupation of their common ancestor because they already hold joint interest in the C tenancy. This view finds support from an authority reported in AIR 1929 Lah.
74.
' Land comprising survey No, 1233, was the sole tenancy of Said Muhammad who died before the year 1947, leaving behind no lineal descendant in male line, therefore, this tenancy shall be deemed to have been extinguished on his death and reveted to Mir Muhammad Khan, the landlord. Thus, the mutation orderD No, 752 to the extent of this land, was rightly attested in favour of Farzand Ali (son) and Mst. Gulzar Begum daughter of Mir Muhammad Khan because he was dead at the time of the attestation of the mutation.
9. Now the question arises as to whether Farzand Ali alone was justified to transfer a valid title of the land comprising survey No, 1233 to Fazal Karim when he had only two-third share in it. The answer to this question is in negative for the reason that Farzand Ali had only two-third share in this land and he had no authority to alienate one-third E share of Mst. Gulzar Begum. Therefore, the sale-deed to the extent of Mst. Gulzar Begum's one-third share, was illegal, thus, Fazal Karim was entitled to claim only two-third share in the land comprising survey No, 1233,
10. The next point raised by the learned counsel for the appellant, related to the cancellation of mutation Order No, 752. He argued that mutation order which was the base of the respondent's ownership in the suit land, was cancelled, therefore, the plaintiff's suit entails dismissal on this sole ground. This argument does not sound plausible for the following reasons :-
(i) The mutation orders ordinarily do not create any title. In the case in hand, the ownership is claimed on the basis of sale-deed and not on the basis of mutation order. Therefore, its cancellation will not alter the position if the sale deed remains intact ; and
(ii) The Revenue Officer did not follow the law during the course of passing the review order. It was incumbent upon him to issue notice to the respondent and hear him before passing the final order.
Therefore, the order, whereby the mutation order' No, 752, was cancelled without notice to the other party by virtue of a review, was illegal.
11. For the reasons stated above, I hereby accept the appeal, set aside the decree passed by the learned District Judge, Mirpur and grant a decree for joint possession to the extent of two-third share of the land comprising survey No, 1233, situate in village Srnani, Tehsil Bhimber, in favour of plaintiff-respondents. The suit for rest of the land, shall stand dismissed. Keeping in view the complicated questions involved in this case, the parties are left to bear their own costs.