1. ' Faqira son of Ahmad, Awan by caste, of Mauza Malpur in Tehsil and District Attock was occupancy tenant of the land measuring 21 Kanals, 17 Marlas, comprised in Khasra Nos. 440, 441, 448, 449, 674/442, 675/442, situate in revenue estate of Malpur, Tehsil and District Attock, and, paid 1/2 share of produce as rent to his owners-landlords. Faqira died on 24-7-1944. On his death, he was survived by a widow, three daughters, and, a son namely Bashir Ahmad. Bashir Ahmad was born on 5-2- 1940. By inheritance Mutation No, 578, referred to in Column No,9 of the Jamabandi for the year 1942-43, occupancy tenancy held by deceased Faqira was mutated in the name of his minor surviving son in Revenue Records. Jamabandi prepared for the year 1946-47 maintained name of Bashir Ahmad as occupancy-tenant of above land upon payment of 1/2 share Batai rent. Upon the death of Faqira, Muhammad Din and Akbar Khan were stated to have entered upon the land comprised in occupancy tenancy for its cultivation and payment of rent. Bashir Ahmad attained majority on 5-2-1958. On 17-3-1959, he brought a civil suit against recorded owners of the above land for his share in it, measuring 10 kanals, 19 marlas. It was stated that he was entitled to it, in terms of subsection (2) (b) of Section 114 of Punjab Tenancy (Amendment) Act, 1952 (Act VII of 1952) in accordance with the share of Batai rent payable in respect of occupancy tenancy. On the basis of title, he claimed decree for possession of his share of land.
2. ' Defendants submitted their written statement. It was averred by them that the plaintiff's father in his lifetime had abandoned his occupany tenancy for failing to cultivate the land comprised in it and arranging for payment of its rent. Therefore, the plaintiff was not entitled to any share in the land-indispute.On 18-5-1959, the trial Court settled issues in vernacular which upon translation in English read as follows:-
(i) Had the plaintiff's father abandoned his occupancy rights and had his occupancy rights extinguished? OPD.
(2) If issue No,1 is decided in favour of the defendants, then was the plaintiff minor at the time of the death of his father and was he physically incapable? When did he attain majority and what is its effect? OPP.
(3) Relief.
3. Consequent upon framing of issues, case was posted for a further hearing on 27-10-1959. Before the date fixed on 20-10-1959, a petition for compromise was filed in Court. It was adjourned to 28- 10-1959 for considering its validity. On this date of hearing, it was found that Bashir Ahmad plaintiff appeared to be of unsound mind, and therefore, plaint required to be amended for his proper representation. Thereafter, an amended plaint was soon put in Court, wherein one Akbar son of Mir Zaman acted as next-friend for the plaintiff Bashir Ahmad. It was averred that Akbar was maternal-uncle of the plaintiff. Without an application for permission, in terms of Order XXXII, Rule 7, Civil P.C. The trial Court after taking down the statement of next-friend, finding terms of compromise favourable to the plaintiff, dismissed his suit on 30-10-1959. It may be observed that the suit was dismissed in return for a cash consideration of Rs,2,000 from the defendants. On 5-11- 1959, Bashir Ahmad plaintiff without the aid of a next-friend applied to the trial Court for revival of his suit by stating that fraud was committed on him and the Court for having his suit dismissed in compromise. It was stated that neither he suffered from mental imbecility, nor was Akbar, his maternal-uncle. Plaintiff totally dissociated from compromise. On 1-5-1961, the trial Court upon reviewing its decision dated 3010-1959, restored the suit for trial, on 'Merits. Defepdants preferred an appeal to District Judge. In its course, Bashir Ahmad died. His legal representatives, i,e. Mother and three sisters were substituted on record, and, allowed to pursue the matter on his behalf. Appeal wag dismissed on'20-2-1962 by District Judge. However, in dismissing the appeal, the, Court made some observations which favoured a later application by the defendants on 5-3-1962 for a prayer for recording of the earlier compromise as cortemplated by Order XXIII, Rule 3, Civil P.C. Legal representatives of deceased-plaintiff denied compromise and resisted the application. For the trial of the above said application, the trial Court framed following two issues:-
(1) Whether any lawful compromise was effected between the parties on 20-10-1959? If so, what is its effect?
(2) Whether defendants' application is barred by principle of res judicata?
4. ' On 6-3-1963, the trial Court found in favour of compromise, and, upon recording it, acted in accordance with its terms. Substituted legal representatives of original plaintiff preferred an appeal to District Judge, who by his order on 27-6-1963, set aside the order of the trial Court and remanded the suit for disposal in accordance with law. Aggrieved of remand order, defendants preferred a second appeal to the High Court (R.S.A. No, 109/63), which was dismissed on 6-12-1965 by Faiz Ullah Khan, J.
5. ' Upon remand, an application for amending the written statement was filed in the trial Court. It was allowed on 17-6-1966 subject to payment of Rs,25 as cost. Upon amended pleadings, additional issue numbered as 2-A was framed by the trial Court on 9-7-1966. It reads:- (2-A) Whether Jalal son of Jaffer was the lawful heir of Bashir deceased? If so, what is its effect on the present case? OPD.
6. Thereafter, parties gave evidence, oral as well as documentary on their divergent versions. Upon its review, the trial Court decreed the suit in favour of the plaintiff on 22-12-1966. It was held that the defendants had failed to establish that Faqira had abandoned his occupancy tenancy and his rights in it were extinguished. Issue No,2-A was answered in negative for want of any evidence in its support. An appeal filed in the lower Court against decree of the trial Court failed on 18-9-1967 resulting in second appeal to this Court. It was admitted to hearing on 12-1-1968.
7. ' On behalf of the appellants, it was submitted by Malik Muhammad Jaffer, their learned counsel that in absence of allegation for arrangement of the land in occupancy tenancy for its cultivation and payment of rent, occupancy tenancy shall be found to have been abandoned by its claimants in favour of the owners. Learned counsel referred to section 38 of Punjab Tenancy Act, 1887 and submitted that from the time of death of Faqira to the enforcement of Act VII of 1952, the land comprised in erstwhile occupancy tenancy was in actual cultivation of some of the owners, which demonstrably establsihed lack of possession by the original plaintiff for a period exceeding one year within contemplation of aforenoticed section of Punjab Tenancy Act. It was also submitted that Jaffer was also an heir to 1/6th share in the estate left by Bashir Ahmad, and, therefore, the successors of the original plaintiff were not entitled to 1/2 share in the land-in-dispute.
8. ' On behalf of respondents, Muhammad Munir Peracha, learned counsel for the respondents vehemently argued that factum of minority of Bashir Ahmad arrested act of abandonment and extinction of occupancy rights in the land and taking possession of it by two or more from the entire body of the owners for cultivation and appropriation of its usufruct shall be taken in their fiduciary capacity and enure for the benefit of the minor occupancy tenant, who was unable to act and make the necessary arrangements. In support of his this statement, he referred to the case of Lakha v. Thakar Dial and others, decided by Hon'ble C.L. Tupper, Financial Commissioner, reported as 56 Punjab Law Reporter 1901, and, a case of Jiwan and another. v. Diwan Singh and another, by a Division Bench of Punjab Chief Court reported as 157 Punjab Law Reporter 1910. Learned counsel also invited reference to number of other cases on abandonment and extinction of occupancy rights within the meaning of section 38 of Punjab Tenancy Act, 1887. Muhammad Munir Peracha also argued that there was no reliable evidence for holding the heirship cif Jalal proved, and, in any case, substitution of legal representatives of the deceased-plaintiff was intended merely to carry on the lis in his name and behalf and was not a final decision on the right of Jalal to inherit, and, so far as the plaintiffs as successors of the original plaintiff were concerned, they were entitled to succeed to a share in the land claimed by their predecessorin-interest.
9. ' First question requiring decision in appeal would be, whether the occupancy tenancy rights, which upon death of Faqira had devolved upon Bashir Ahmad, were extinguished by abandonment and reverted to the owners-landlords, for failing to arrange for cultivation and payment of rent in respect of the land comprised in occupancy tenancy. Evidence did not favour abandonment of rights and their extinction in favour of landlords. Faqira held the land as occupancy-tenant upon payment of Batai rent to its owners. In Jamabandi for land prepared for the year 1942-43 Ext.D4, he was recorded as occupancy-tenant upon payment of half Batai rent. In his life time, no effort was made to have his rights declared extinguished. Neither mutation for abandonment and extinction of occupancy rights was attested nor a suit filed against him to have it declared so. Revenue record maintained his name as occupancy-tenant of the land till his decease. He died on 24-7- 1944. By a mutation of inheritance sanctioned, occupancy tenancy held by him devolved upon his successor son. Mutation of inheritance was not questioned either. Instead, his son was allowed to be brought on Revenue Record, as an occupancy-tenant upon the same terms as to payment of rent. Bashir Ahmad was hardly 41/2 years old, when his father died. He was unable to act for himself. In the Jamabandi for the year 1946-47 Ext.D3, though Bashir Ahmad was recorded as occupancy-tenant of the land-in-dispute, but Khasra Nos.440, 441, 449 came to be recorded in actual possession of Fateh Khan co-owner as his non-occupancy-tenant; Khasra Nos.674/442, 675/442 in possession of Akbar co-owner, as his non-occupany-tenant and Khasra No,448 in possession of Jalal son of Jaffer as non-occupancy-tenant on behalf of all the owners. Above persons, who were recorded in possession were shown liable to pay rent to the owners at the same rent which the occupancy-tenant was bound to pay. As for the occupancy-tenant, he received no share of produce. In Jamabandi for the year 1950-51 Ext. D1, three Khasra numbers were recorded in possession of Muhammad Din as `Hissadar Malik' and other three in possession of Akbar Khan `Hissadar Malik'. Bashir Ahmad was still recorded as occupancy-tenant of the land. Succeeding Jamabandi for the year 1954-55 Ext.D2 reiterated this position regarding possession of Muhammad Din and Akbar Khan. On 20-1-1956, Mutation No,811 for extinction of occupancy rights by way of abandonment was entered and finally decided in favour of the owners on 21-1-1956. Act VII of 1952, causing extinction of occupancy rights for substitution of ownership rights in their place was enforced on 4-2-1952. As the rent payable by the occupancy-tenant was share of produce, acquisition of ownership rights proportionate to the share of produce payable as rent was automatic. In the above context, failing to cultivate the land comprised in occupancy tenancy or to arrange for its cultivation and payment of rent, without sufficient cause for more than one year resulting in extinguishment of the tenancy must precede the date of enforcement. Of Act VII of 1952.
10. From the date of death of Faqira to the enforcement of the above Act, and to a time much later, the owners did not complain or assert for abandonment and extinction of occupancy tenancy by Bashir Ahmad. Attestation of Mutation No,811 on 21-1-1956 was, therefore, inconsequential. In Jumna and 2 others. v. Ahmad Ali Khan 156 Punjab Records 1884, Punjab Chief Court observed that; ' When an occupancy holding devolves on a minor, the minor's rights will be absolutely destroyed, even while he is still a minor, unless a de jure or de facto guardian comes forward and cultivates for him or arranges for the cultivation."
11. In 56 Punjab Law Reporter 1901, the Financial Commissioner did not follow the above view. When construing section 38 of Punjab Tenancy Act, 1887 for determining the question of abandonment by a minor occupancy-tenant after reference to the earlier decision, the Financial Commissioner said; ' I have referred to the former decisions as noted at foot but they are all inapplicable becaue they are all prior to the passing of the present Tenancy Act in 1887. Section 38 of the present Act was new and the case before me must be decided with regard to the language and intention of the provisions of that section.
12. ' The decisions of the Courts below appear to me to be erroneous under the law as it now stands and inequitable, in as much as they open a door to landlords to take advantage of the minority of a tenant to destroy his occupancy right, that is, to do him a wrong when his circumstances specially call for their lenient consideration.
13. ' To constitute abandonment carrying with it extinction of the right of occupancy under section 38, three things are necessary and all three must exist in combination with each other. These are: (1) that the tenant fails for more than one year to cultivate his tenancy either by himself or some other person; (2) that he so fails without sufficient cause; and (3) that he fails to arrange for the payment of the rent of the tenancy as it falls due.
14. ' If a tenant has sufficient cause for his failure to cultivate there is no abandonment, so also if he fails to cultivate but arranges for the payment of the rent as it falls due, abandonment does not occur.
15. ' As to the intention of the section the essential point for consideration is whether the landlord has sustained any injury moving from the tenant which would justify the penalty of extinction of the right. If the landlord has, as in this case sustained no injury whatever, the Courts should require extremely strict proof as to all the three points above noted before proceeding to give the landlord a decree.
16. ' Applying these remarks to the case before me I find that the minority of Lakha was a sufficient cause for his failure to cultivate and that through his uncle Hukmi, who must be presumed to have acted in his interest, he did substantially arrange for the payment of rent as it fell due; inasmuch as he left the cultivation in the hands of the landlords and they thus secured for themselves the full profits of the land.
17. ' When during the minority of an occupancy-tenant his holding comes without consideration into the hands of his landlords, they are exposed to a temptation to defraud him of his rights. It must thereofore be presumed, in the absence of any satisfactory evidence to the contrary, that in such cases the landlords stand in a quasi-fiduciary position towards the tenant and are are bound to restore his holding to his possession when he comes of age."
18. ' This view of the Financial Commissioner on construction of Section 38 was approved by a Division Bench of Punjab Chief Court comprising Hon'ble Mr. Justice Johnstone and Hon'ble Mr. Justice Scott. Smith, in case of Jiwan and another (supra). After extracting a portion from the judgment of the Financial Commissioner, the learned Judges of the Punjab Chief Court expressed themselves as: "We fully agree with this decision of the Financial Commissioner. We are very clearly of opinion that the legislature did not intend that non-cultivation of his land by a minor occupancy-tenant should operate to extinguish his rights under section 38 of the Act.
19. ' Coming to the facts of this particular case we find from the Patwari's statement that the Revenue Records which are the best and only reliable evidence on the point, show that the occupancy- tenants left, or were dispossessed of the land, after the death of Wazira. Wazira died on 23rd Juhe, 1899 and the landlords began to cultivate in Sambat 1958-59 (1901-02 A.D.)."
20. ' It is true that Faqira was survived by a widow, three daughters and a minor son. His widow remarried. About daughters, there was nothing on record. Faqira had also a house in villlage Malpur. Later, it was sold. There was none to look after the interests of Bashir Ahmad in property. He was on a weaker wicket compared to the owners of the land. Soon after death of his father, two of the landlords came to occupy the land and commenced cultivating it. Occupancy-tenant received no share from the produce. Landlords cultivating land in occupancy-tenancy either appropriated the produce or apportioned it between all the co-owners. They had corpus of the land with them and its usufruct also. They were put to no injury. As for Bashir Ahmad, at his age, he was unable to cultivate or arrange for its cultivation and payment of rent. Soon after attaining majority, he asserted his rights in the land. Upon enforcement of Act VII of 1952, plaintiff was a twelve years lad and was still incapable to take upon cultivation of the land. Therefore, there was neither voluntry nor statutory abandonment of occupancy tenancy by the plaintiff. As for voluntary abandonment, plaintiff being minor was incapable and in regard to statutory abandonment contemplated in section 38 of Punjab Tenancy Act, its ingredients were not conjointly fulfilled and established on record.
21. ' As for the contention that 1/2 share in the land could not be decreed to the plaintiffs in presence of Jalal son of Jaffer, who was alleged a near surviving collateral of Bashir Ahmad entitled to 1/6th share in his estate, it had no substance. In the event of a dispute, whether a person is or is not legal representative of a deceased party, the question is determined by the Court before which it is raised for purpose of carrying on proceedings further. This decision did not tantamount to a final determination of the question of heirship between the parties. A separate suit may be filed for assertion of such rights. On present record, there is no reliable evidence to hold that Jalal was a collateral entitled to inherit the deceased-plaintiff. Further, he did not come in appeal for a share in the land. Appellant could not lay hands on the share claimed by him. Decree in suit shall enure for the benefit of the original plaintiff, on whose behalf proceedings were continued by his legal representatives. Qua his estate, defendants/appellants were mere strangers. Therefore, the decree for joint possession given for 1/2 share in the land-indispute was not erroneous.
22. ' Having regard to the aforesaid, the Courts below rightly restored the rights in the land to the plaintiffs. I, would, therefore, dismiss the appeal with costs.