1. MUHAMMAD AFZAL ZULLAH, J,--Leave to appeal has been sough) from judgment dated 25th November, 1984 of the Peshawar High Court, whereby a Civil Revision arising out of a land tenancy matter, was dismissed.
2. The petitioner failed in obtaining a declaration to the effect that he and his ancestors were occupancy tenants of the suit-land and had thus become owners thereof by operation of law and that the entries to the contrary in the revenue record in favour of the landlords showing them as the owners and the petitioner as tenant-at-will were, on account of collusion, fraud and misrepresentation, void. The picture emerging from the revenue record as it appears from the High Court judgment is 'that in the year 1872 five Khasra numbers in an area of about 35 Kanals was held by one Dina son of Faqir in his possession as occupancy tenant on payment of rent in kind to the extent of )the and cash at the rate of Rs.2 per annum under section 5 of the Tenancy. Act. The area was later on allotted Khasra Nos. 328 and 405 in the settlement of 1904-05 and sons of Dina in the names of Jumma and Mitha were recorded as occupancy tenants on the same terms. There has not been filed revenue record relating to Khasra No.405. Khasra No.328 has been however found recorded in possession of Jumma as occupancy tenant in the year 1915-16 and Dhoda the occupancy tenant in the year 1932-33 and 1940-41 on payment of old rent in kind and cash. In the settlement of 1946-47 Khasra No. 328 in an area of 31 Kanals 18 Marlas was allotted Khasra No.1645 which has been recorded in possession of one Khani Zaman as a tenant-at-will under the land- owners on payment of fixed rent in kind and cash different from the old rent. In Jamabandi 1954- 55, the entry as such continued but in the following Jamabandis of 1958-59 and 1962-63 one Mandar son of Ghirya was recorded in possession as tenant-at-will under the land owners on payment of rent in kind and cash but different from the tenancy of Khani Zaman the ex-tenant-at- will and also different from Dhoda etc. The occupancy tenants. In Jamabandi 1965-66 Said Gul the plaintiff-petitioner has been recorded in possession of Khasra No.1645 as a tenant-at-will on payment of fixed rent in kind and cash altogether different from the previous tenancies. He continued as tenant in occupation when he allegedly defaulted in payment of rent and his ejectment was sought by suit No.55/Mal of 1967, decided on 4-6-1973 by the Court of Assistant Collector Grade-I, Mansehra. In the proceedings he had denied the existence of relationship of landlord and tenant between the parties but the revenue Court had ultimately decided the case against him with resort to Order XVII, rule 3, C.P.C. He filed an application for setting aside of the ex parte decree but the same was also dismissed on 30-1-1975. He went in appeal before the Additional Deputy Commissioner (G)/Collector Abbottabad where he also failed in his attempt. He ultimately instituted a Civil suit No.522/1 of 1975 seeking a declaration that he was the owner in possession of the suit land situated in Khasra Nos. 1851 and 1645 having acquired the ownership on account of occupancy tenancy and that the decrees of the revenue Courts obtained by the defendant respondent vis-a-vis his ejectment and produce were void and in operative qua his interests.
3. The petitioner failed to obtain relief from either of the learned three Courts below. Leave to appeal is, therefore, being sought through this petition.
4. Learned counsel for the petitioner has raised to-fold contention regarding the finding of fact that the petitioner's possession at all relevant times was of a tenant-at-will and not occupancy tenant: One, that it having been accepted and established through record of rights that the petitioner's ancestors were once occupancy tenants, no finding could be rendered nor there was any evidence in favour of the respondents-landlords, to the effect that the said position was giver. Up, surrendered or abandoned and/or that the petitioner or his ancestors ever accepted any other position; and to, that even if it were so no such change could take place without proper mutation.
5. Learned counsel took us through the relevant record. After hearing him at some length in support of the first point, we are unable to agree with him that the respondents had failed to establish the discontinuance of the occupancy tenancy since 1946-47. There is overwhelming documentary evidence in the form of record-of-rights up to 1965-66. Not only this, in properly conducted proceedings of ejectment before revenue forum it was held that the petitioner was a tenant-at-will and that he was liable to pay rent in that capacity. The deposition of one of the respondents defendants wherein the claim of occupancy was A denied, has also been supported and corroborated by documentary evidence. It is not possible to set aside the findings of fact recorded against the petitioner on matter of the discontinuance of occupancy, tenancy since 1946/47.
6. On the second point, although the learned counsel to start with asserted that there are instructions showing that a mutation should be entered as and when abandonment or discontinuance in any manner of occupancy tenancy takes place, he did not cite any. H- also tried to cite case-law showing that such a change should, amongst others, be evidenced by either a mutation or any other revenue proceedings of the like nature. He ultimately conceded that the change would not be illegal or without lawful authority, if no such proceedings are conducted. In this case however, if there was any need for such proceedings the B same was fulfilled by the ejectment proceedings conducted against the petitioner on the basis of non-payment of rent wherein he was held to be a tenant-at-will.
7. There is no force in this petition, the same is accordingly dismissed.