' MUHAMMAD AFZAL LONE, J.-- The petitioners brought a suit before the Assistant Collector Grade-1, Sialkot for declaration, against the respondents to whom the land in dispute had been allotted by the Settlement Authorities, that they held occupancy tenancy rights therein. Since the suit involved determination of the rights of the evacuees, the Assistant Collector remitted the case to the learned Deputy Custodian for its adjudication. The latter by means of his detailed order, dated 25- 4-1974, after appraisal of the evidence on, the record, did not accept the petitioners' claim and answered the . The petitioners challenged this order, through a revision which was dismissed by the learned Custodian on 21-2-1984. The validity of this order, is under challenged in this writ petition.
2. The learned Custodian held that the petitioners' status was that of tenants-at-will and no occupancy rights vested in them. In this connection he found that one Said Ullah Khan was in cultivating possession of the land uptil the year 1964-65. Thereafter, Abdul Ghani petitioner No. 3 and Abdul Hamid petitioner No. 6 cultivated the same under the respondents, on payment of half share of the produce as 'Batai'. The learned Custodian also made reference to lease-deed, dated 30-6-1971 (Exh. R. 2) executed by Abdul Hamid petitioner in favour of the respondents. He further observed that Lal Din, was tenant "Tabeh Marzi". It is to be noticed that the said Lal Din is the predecessor-in interest of petitioners Nos. 6, 7, 10 and 11.
3. The fact that the petitioners neither produced the pedigree-table to connect them with the persons in occupation of the land at the time of the Settlement of the village nor they brought on the file, "Wajah Tasmia" to show the history of the village and to establish the terms and conditions on which such occupants were inducted into the land by the original settlers of the village, also weighed with the learned Custodian. In his opinion the entry figuring in the revenue record to the effect that the petitioners paid rent at the rate of 124% of each crop, was, demonstrative of the fact that it was not a case, in which payment of rent was fixed, but it varied with the variation in the price of each crop. This opinion was expressed by the learned Custodian, presumably to negate the petitioners claim that payment made by them or for that matter their predecessor-in--interest to the landlords was, fixed in character and signifie.d the occupancy tenancy rights, allegedly enjoyed by them.
4. The learned Custodian also maintained that the petitioners were aware of the allotment of the land in the name of the respondents predecessor-in-interest but they never moved the Custodian for declaration of their rights. The petitioners' contention that the property was not treated as evacuee property, was also turned down by the learned Custodian. During the hearing of the revision they relied upon an unreported decision of this Court in W.P. No. 730 of 1960 but the learned Custodian was not persuaded thereby as in his view it was qualified by the facts of that case.
5. We have heard the learned counsel at some length and examined the available record. He submitted that the land in dispute is Shamlat Deh and further argued that the petitioners and prior to them, their predecessor-in-interest occupied it for the last about 100 years and throughout this period, in the revenue record, in the Lagan column an entry existed to the effect "Basharah Malkana Beiwazana" at 124%. In his submission this payment was in the nature of cess and not a rent and it being fixed and only nominal was suggestive of their right in the land in dispute as occupancy tenancy rights. He contended that the rights held by the petitioners fully satisfied the requirements of section 5 (i)(a)(b) of the Punjab Tenancy Act and that such rights could well be categorized as occupancy tenancy rights. As regards the petitioners failure in approaching the learned Custodian, under the Administration of Evacuee Property Act, for redress of their grievances, the learned counsel referred to the order, dated 14-9-1973 (Annexure 'F') passed by the Additional Commissioner (Cons.) and urged that the respondents during consolidation proceedings illegally managed to get the entry aforesaid deleted in the revenue record and it was under this order, passed on their appeal that the original entry was restored. According to the learned counsel, the cause of action arose, to the petitioners when the entry was altered and soon thereafter they initiated the proceedings under section 77 of the Tenancy Act, culminating in the impugned order of the Custodian.
6. We have not been persuaded by these submissions. The entry in the "Lagan column" is to be read alongwith the entry in the column relating to ownership and possession. The description of the land in the revenue record as "Shamlat Deh" would not make any difference, for, the material on the filed amply shows that the entire estate in question belonged to the non-Muslims and the Muslims did not own any holding. Obviously, the land wholly vested in the non-Muslim proprietors of the village. It is noteworthy that in the column relating to possession, the petitioners and their predecessor-in-interest have been recorded as tenants-at-will. It is, therefore, difficult to accept that the entry in the Lagan column is evidence of conferment of occupancy tenancy rights on the petitioners. Cess is a levy payable by the landowners and, therefore, payment made by the petitioners to the landowners can by no means be labelled as cess.
7. We are also unable to treat the payment figuring in the Lagan column as nominal or as fixed one.
In this behalf we entirely agree with the learned Custodian that such payment was regulated by the variety of the crops carrying different sale price.
8. It has sufficiently been proved that the petitioners Nos. 3 and 6 occupied the land as tenants-at- will under the respondents on payment of Batai at the rate of 50-50, and attorned to them.
Petitioner No. 6 also executed a lease-deed in favour of the petitioners. When confronted with this situation, the learned counsel endeavoured to take shelter under the technicalities of law and submitted that petitioner No. 6 was never. confronted with this document in accordance with the provision of section 145 of the Evidence Act, it, therefore could not be read in evidence and used against him. But this argument has hardly any merit. The reason being that the admissibility in evidence of an inadmissible piece of evidence, is not a jurisdictional defect, to justify judicial review of the orders passed by the Tribunal below. Reference in this connection may be made to Badar- ul-Haq v. The Election Tribunal PLD 1963 SC 704 and the judgment by Monloy, C.J. in Tex v. Muphy (1921) 2 I.R.
190. Furthermore, no such objection was raised by the petitioners before the learned Custodian or the Deputy Custodian. In any case the petitioners conduct would disentitled them to the relief under the writ jurisdiction, which is essentially discretionary.
9. Reverting now to section 5 of the Tenancy Act, we may observe that the findings recorded by the Custodian are sufficient to dislodge the petitioners claim founded on this provision of law. They did not produce the pedigree-table and Waja Tasmia to establish that they are the descendants of the original tiller of the land and occupied it for more than two generations without paying any rent and that their predecessor-in-interest was settled on the land alongwith or by the founder of the village as a cultivator on 21st October, 1868. Indeed the mention of their status, in the revenue record as tenant-at-will completely demolishes the whole edifice of the learned counsel's this argument.
10. The land belonged to the evacuees. The petitioners, therefore, should have moved the learned Custodian for declaration of their rights under section 18 of the Administration of Evacuee Property Ordinance, 1949 or for that matter under section 22 of Act XII of 1957.
11. Before the Deputy Custodian the petitioners' stand was that they challenged the allotment of the respondents predecessor-in-interest, namely, Muhammad Khan but their appeal was dismissed.
Even if it is so, they did not agitate their claim before the higher forum and rather attorned to the respondents. The view taken by the learned Tribunals below that the action commenced by the petitioners had become barred by time is not open to any exception. There is no merit in the submissions that the alteration of the entry in the Lagan column lent a cause of action to the petitioners. They cannot be permitted to circumvent the law of limitation by filing a suit under section 77 of the Tenancy Act at a belated stage.
12. We have no reason to differ with the learned Custodian and finding no merit in this writ petition, proceed to dismiss it in limine.
Writ refused.