ZAFFAR HUSSAIN MIRZA, J.--The dispute in this case relates to piece of evacuee agricultural land measuring 84 Kanals, 18 Marlas, situated in Patti Janam Asthan, Nankana Sahib, District Sheikhupura, which vests in the Evacuee Trust Property Board, constituted under the Evacuee Trust Properties (Management and Disposal) Act, 1975. This land was leased out to one Muhammad Din, who died issueless during the subsistence of the lease on 10th March, 1976. Upon the demise of lessee Muhammad Din, respondent No. 5 Muhammad son of Lakhan, applied for grant of lease on the plea that he was actual cultivator of the land as sub-lessee under the deceased lessee. Soon thereafter Sudha (who died during the proceedings and has been succeeded by his legal representatives who are appellants herein) also applied for grant of lease on the ground that he was the sole surviving heir of the deceased and that he had been cultivating the land alongwith the deceased.
2. The Deputy Administrator, Evacuee Trust Property, by his order dated 24th July, 1976, granted lease of the disputed land to Sudha for five years, with effect from Kharif 1976 to Rabi 1981. The application of respondent No. 1, was, therefore, rejected. However, the Administrator, accepted the appeal of respondent No. 5 and directed the lease to be given to him vide order, dated 7th April, 1977. Having unsuccessfully challenged the said order in second appeal and a revision under the Evacuee Trust Properties (Management and Disposal) Act, 1975, Sudha challenged the adverse orders passed against him in a constitutional petition before the Lahore High Court at Lahore.
During the pendency of the constitutional petition Sudha died and the present appellants were brought on record as legal representatives.
3. The contention of the appellants before the High Court was that Sudha was entitled to the grant of lease as he was in cultivating possession of the land alongwith the deceased lessee Muhammad Din who was his brother and therefore, Sudha was entitled to the grant of lease also as the sole surviving heir of the deceased lessee. On the other hand the argument of respondent No. 5 was that he was the actual tiller of the land in dispute as reflected in the Khasra Girdawari pertaining to Rabi 1976. His case was that deceased Muhammad Din used to reside in village Pendoke and the respondent No. 1 was cultivating the land as his sub-lessee. The High Court referring to the death certificate of Sudha observed that he died in village Pendoke, Lahore District, and found the case of respondent No. 5 to be based on sound factual basis that the land was being cultivated by him as sub-lessee under Muhammad Din deceased. Sudha also resided in a village away from the land. On examining the record the learned Judge in the High Court recorded his conclusions as under: "I have heard the learned counsel for the parties and perused the relevant record produced by the Patwari. It is established that it was respondent No. 5 who had cultivated the land in dispute in Rabi 1976 when possession of the land was taken over by the petitioner in pursuance of the order passed by the Deputy Administrator, Evacuee Trust Property, Sheikhupura. The lease was not heritable so as to confer any right of its renewal on the surviving heirs of Muhammad Din deceased. The spirit of the Scheme for the lease of evacuee trust agricultural land contemplated encouragement of the actual tillers of the soil than the absentee lessee on the relevant date."
According to the above line of reasoning the learned Judge found the impugned orders before him to be in consonance with the law and dismissed the constitutional petition by his judgment, dated 4th February, 1980.
4. Leave was granted on the petition of the appellants by this Court to consider the contention that in view of the admitted fact that respondent No. 5 claimed possession only from 1976 and Muhammad Din having been found to be cultivator of the land on the target date, the claim of Sudha was fully justified under rule 18 of the Scheme for the Lease of Evacuee Trust Agricultural Land, 1975.
5. The leases of evacuee trust agricultural land are governed by a scheme known as Scheme for the Lease of Evacuee Trust Agricultural Land, 1975, issued under section 30 of Evacuee Trust Properties (Management and Disposal) Act, 1975. According to para. 3 of the Scheme the lease of land in rural area is to be given to the Cultivator and to refugee allottees of Jammu and Kashmir.
Except urban agricultural land Banjar land and the land covered by orchards, in respect of other land the lease period prescribed under para. 6 of the Scheme is five years. Learned counsel of the appellants referred to the definition of the cultivator in para. 2(f) of the Scheme which is as under:- "Cultivator" means a person who has been shown in actual cultivating possession in the revenue record for Kharif, 1974 and Rabi, 1975. Provided that where there is any dispute about the actual possession of a person, it will be decided by the Deputy Administrator/Assistant Administrator concerned on the recommendations of the Committee."
He contended that respondent No. 5 having come forward to claim the lease from 1976, he was apparently not entitled to grant of lease. He submitted that Sudha being a legal heir of Muhammad Din, the original lessee who died during the subsistence of the lease period was entitled to the lease-hold rights under para. 18 of the Scheme. There is no force in the last mentioned contention of the learned counsel for the appellants. Para. 18 clearly lays down that the lease hold rights of the deceased would devolve upon his legal heirs "for the unexpired period" of the lease. The order of the Deputy Administrator, Evacuee Trust Property, Sheikhupura, dated 24th, July, 1976, on the other hand shows that the land was granted to Sudha as a fresh lease for the period of five years from Kharif 1976 to Rabi 1981. This order was set aside by the Administrator, Evacuee Trust Property, Northern Zone, Lahore, on the ground that there with no such provision in the Scheme, "whereby the lease of trust land could be given to any person afresh being legal heir on the death of previous lessee". Apparently para. 18, which hash been invoked by the appellants gave no right to Sudha for a fresh lease, but only for transfer of the existing lease in his favour for the unexpired period. The independent right to lease, as explained by the Administrator in his order, could be claimed by Sudha in terms of para. 3 of the Scheme, on the ground that he was cultivating the land alongwith his brother, but no such factual basis was found by the Administrator on the materials placed on record, which revealed that Muhammad Din alone was the cultivator.
6. As against this the findings of the Administrator in his order were to the effect that respondent No. 5 was proved to be the actual tiller of the land paying Batai to deceased Muhammad Din, in support of which agreement in writing, dated 10th September, 1973, was produced, besides oral testimony of witnesses. These findings were rightly held by the High Court to be sustainable on the record and not liable to be upset in the constitutional jurisdiction.
7.Be that as it may, we find that the period of lease granted in favour of Muhammad Din has expired by afflux of the and no right of renewal has been made out on the facts of the case. As discussed above Sudha was not found entitled to the grant of fresh lease and the order on which reliance is placed by the appellants was not tin order covered by para. 18 of the Scheme. It is, therefore, not necessary, to decide the point of law noticed in the leave granting order, as no right has been made out in favour of Sudha and through him by his legal representatives the present appellants.
8.The appeal is accordingly dismissed with no order as to costs.