1. ' Saidan Gul Shah and Zaman Shah sons of Tahir Shah were occupancy-tenants, in respect of one- half of the land measuring 69 Kanals, 13 Marlas, comprised in Field No,453, situated in Revenue Estate of Langer, in Tehsil Fateh Jang of which Sardar Iqbal ahmad Khan and others were owners.
2. Occupancy-tenants paid a half share of produce rent to the owners. Upon enforcement of act VII of 1952 on 4-2-1952 relating to extinguishment of occupancy tenancies and conferment of ownership rights, the land falling in occupancy-tenancy of two brothers was distributed to them in proportion of the share of produce rent paid by them through a sanctioned Mutation No,319.
3. ' On 2-1-1963, Saidan Gul Shah instituted a civil suit for claiming, alongwith his other brother, full ownership rights in the land measuring 34 Kanals 16 Marlas, which was a half share of total land comprised in Khasra No,453. It was averred in the plaint that occupancy-tenants paid rent, partly in kind and partly in cash, that is, in addition to a half share of produce rent, some amount of money in form of land-revenue as cash-rent was also paid. Particulars of rent paid in kind as well as in cash were sufficiently detailed in para. 2 of the plaint of the suit. As the original owners of the land had sold out their rights in it to Sardar Mumtaz Ali Khan, Sardar Asad Ali Khan and Mst. Qaiser Sultana, they were impleaded as defendants Nos.1 to 3 in the suit. However, original owners of the land, under whom the plaintiff and his brother held occupancy-tenancy were not impleaded as parties to the suit. Zaman Shah, real brother of the plaintiff and also a co-tenant with him was joined as defendant No,4, in the suit.
4. ' Defendants Nos.1 to 3 submitted a joint written statement and controverted the averments in the plaint. It was pleaded that the land in dispute was correctly distributed amongst the occupancy- tenants and its owners in accordance with half share of produce rent; Civil Court had no jurisdiction to try and disturb this distribution of land and the suit filed by the plaintiff suffered from bar of limitation. It was further averred, in the alternative that since "full compensation" for consolidated rent was not paid in time, therefore, the suit did not lie.
5. ' Issues for decision arising from pleadings were settled in vernacular. Trial Court rendered them in English and put them in its judgment as given below:-
(1) Whether the rent was not payable in kind?
(2) Whether the rent was payable in cash and to what extent?
(3) Whether the suit is time-barred?
(4) Whether the Civil Court has no jurisdiction to try the suit?
(5) Relief.
6. ' P.W.1 Altaf Hussain Office Qanungo, gave evidence about an application dated 28-6-1960 submitted by Saidan Gul Shah and Zaman Shah marked Exh. P.W.1/1 and deposed that a sum of Rs,45 was deposited by them as compensation for acquisition of ownership rights in the land. P.W.2 Sultan Shah gave evidence as special attorney for the plaintiff. He testified that the land in dispute was owned by one Sardar Iqbal ahmad Khan and Muhammad akbar Khan. It was comprised in the occupancy-tenancy of the plaintiff and his brother Zaman Shah, who paid half share of produce rent, plus cash-rent in sum of Rs,7--12 annas, and a rupee more to their landlords. Further, copies of Jamabandi for the year 1944-45 Exh.P.1, current Jamabandi marked Exh.P.2, were tendered and evidence for the plaintiff was closed. Later, a certified copy of Mutation No,665 attested on 13-12- 1961 was also put in evidence and marked Exh.P.3. Thereupon, suit was adjourned for defendants' evidence, but they gave no defence and even did not produce a copy of village Wajib-ul-arz, for which repeated adjournments were sought by them from the Court. Eventually, trial Court closed their evidence, and, upon hearing arguments from the parties, decreed the suit to the plaintiff, on 4-6-1965. Under issues No,1 and 2, it was held by the trial Court that "rent was payable in kind as well as in cash and that the amount of rent payable in cash was Rs,7/12 and rupee 1 referred to above while the rent in kind was half of the total produce." On issue No,3, it was found that the suit was filed within limitation. As for issue No,4, jurisdiction_ of the Civil Court was found to exist. In result of the above findings, suit was decreed.
7. ' On appeal preferred by defendants Nos.1 to 3, decision of the trial Court was reversed on 5-11-1966, by learned additional District Judge, Campbellpur. It was found by the learned appellate Court that there was no evidence that the occupancy-tenants paid cash-rent after the amending act of 1950, nor there was any receipt by them to justify such payment. It was further held that solitary statement of the special attorney could not prove the case of the plaintiff regarding payment of cash-rent after 1950, when it was declared as not part of the rent. It was also held that consolidated cash-rent plus produce rent in terms of clause (d) of subsection (2) of section 114 was not paid within time. Learned additional District Judge observed that though the time-limit wrs extended from time to time, but the rule did not mention that the time-limit could be extended and as such, if there was any extension of time by any authority below the Provincial Government, the same was not legal. Proceeding on these premises, plaintiff's suit was found barred by time.
8. Finding on issue No,4 was however not disturbed. This time, it was the plaintiff's turn to appeal to this Court. Appeal filed by him was admitted to hearing on 13-3-1967, on the authority reported in PLD 1954 Lah. 356, to consider, whether the payment of land-revenue was to be considered as rent in cash.
9. ' Principal point for consideration and decision in the second, appeal was, whether the occupancy- tenants paid rent partly in kind and partly in cash. To be more precise, the'point for decision would be, whether the sum of land-revenue was part of agreed rent payable by the occupancy tenants to their landlords. Nature and kind of rent payable by the occupancy-tenants in respect of Khasra No,453 is described in Lagan column of the Jamabandi for the year 1940-41 as:- {{URDU TEXT}}"
10. ' Similar entry is repeated in the Jamabandi for the year 1944-45. Jamabandi prepared for the year 1951-52 contained an entry regarding Lagan as:- {{URDU TEXT}}"
11. ' Full and annotated entry of Lagan given in Khata No,1 reads as:- {{URDU TEXT}}WIC ' Detailed entry regarding Lagan also found mention in Column No,7 of the Jamabandi for the year 1944-45 marked Exh.P.1 on case-file. It is seen from Exh.P.3 that an occupancy-tenant on the strength of a similar Lagan entry was allowed full ownership rights in the total land. Term "rent" is defined in section 4(3) of Punjab Tenancy act. It did not exclude from its ambit, rents consisting of land-revenue with or without Batai or cash-rents. Sections 27 and 27-A of Punjab Tenancy act dealing with adjustment of rents also visualized the rent of a tenancy in kind with the whole or a share of land-revenue. Therefore, there was nothing illegal in the form of rent payable in kind with whole or share of land-revenue payable by an occupancy-tenant to his landlord. Punjab Tenancy (amendment) act 1950 (act XVII of 1950) abolished recoveries of all kinds of cesses, other contributions, dues or any free personal service, in addition to the rent payable for the land by the tenau to his landlord. It also amended the definition of "rent" given in section 4(3) of the Punjab Tenancy act by exclusing from its purview "any cess, village cess or other contribution or due or any free personal service". Thereafter, followed Punjab Tenancy (amendment) act,1952 (act VII of 1952), on 4-2-1952, dealing with extinction of occupancy-tenancies and conferment of ownership rights in their place. Rules known as Punjab Tenancy (amendment) Rules, 1953, came in force on 17th March, 1953. Amongst others, rules covered compensation under clause (c) and clause (d) of subsection (2) of section 114 of the above act. Section 114 of the Punjab Tenancy act and Rules framed under it, in year 1953 dealt with acquisition of ownership rights by erstwhile occupancy- tenants. The case of an occupancy-tenant paying no rent beyond the amount of land-revenue fell in clause (a) of subsection (2), and, that of only paying produce rent fell within clause (b) of subsection (2). Tenant paying cash-rent was covered in clause (c), and, that paying rent, partly in cash and partly in kind, was dealt with in clause,(d) of aforenoticed section of law. In the case under consideration, Reven'tie Officer had distributed the land between the occur ncy-tenants and the owners in terms of clause (h) of subsection (2) of section 114 of Punjab Tenany act, on the ground that the occupancy-tenants paid a share of produce rent at half Batai rate. The case of occupancy-tenants was that they fell to be governed by clause (d) of subsection (2) because they paid rent, partly in cash and partly in kind, in the form of a share of produce. There was no dispute whatsoever on share of produce-rent paid by the occupancy-tenants. Real dispute centered around the entry regarding payment of land-revenue as rent by 4he occupancy-tenants. As said above, it was neither unsusual nor uncommon in some parts of territory of Punjab for the occupancy-tenants to pay rent in kind and share payment of land-revenue, also as part of rental liability. Tenancy relationship is either contractual or statutory. In case of former kind of tenancy, rent payable for it is also fixed by mutual agreement. Again reverting to the crucial problem of the kind of rent payable by the occupancy-tenants, payment of land-revenue subject to its proof, in my opinion, was not "other contribution of due" within the contemplation of section 113 of the Punjab Tenancy act, 1887. In case, it is found that the occupancy-tenants paid land-revenue also as part of rent, with produce rent at half the rate of Batai, their case for acquisition of proprietary rights shall squarely fall in clause (d) of subsection (2) of section 114 of Punjab Tenancy Act, 1887, as amended. In case of Ghulam Mehdi and 4 others v. Sultan Mahmood Khan and 2 others 1988 CLC 1498 (Lahore), I had an occasion to comment on section 114 of the Punjab Tenancy act and the Rules framed thereunder, and, had pointed out a defect in rule 4 of the Punjab Tenancy (amendment) Rules, 1953: Since then, the Punjab Government framed new Rules known as Punjab Conferment of Ownership Rights to the Occupancy Tenants Rules, 1989, and omitted, Rules 3 to 5 of the Punjab Tenancy (amendment) Rules, 1953, from the Statute Book. Meanwhile, extension in time for deposit of compensation by the occupancy-tenants was allowed either by amendment to the Rules or amendment by Ordinance or act. Lately, act IV of 1987, known as Punjab Tenancy (Validation and Extension of Period for Payment of. Compensation) (amendment) act, 1987, was passed by the Provincial Legislature for extending the period for deposit of compensation. However, for an effectual, complete and satisfactory determination of the pivotal issue regarding kind and quantity of rent payable by the occupancy-tenants at the time of enforcement of act (VII of 1952) for determining their true entitlement for acquiring ownership rights in the land, sufficient material on file was lacking. More was required for coming to a proper decision. Saddar Qanoongo, District attock, was summoned with Jamabandis pertaining to the land in dispute from the year 1940-41 onward. Detail of rent and its break up given in Khata No,1 was taken from learned counsel for the appellant. Certified copy of the Jamabandi for the year 1940-41 taken from the learned counsel for the appellant for better understanding of the point at issue is placed on file of this Court. As deficiency of proper material prevented a fair decision of the controversial points, a remand of the case for its re-consideration upon proper material was considered necessary. I must not feel apologetic for directing a remand even after quarter of a century with a clear object in forefront for reaching a just and a fair decision on the rights of the parties. Delay on the part of the Court must not be allowed to defeat cause of justice.
12. ' Having regard to the aforesaid, appeal is allowed; impugned judgment and decree of the learned lower Appellate Court are set aside and the case is remitted to learned District Judge, Attock, for framing a following additional issue; "Whether land-revenue was part of payable rent by the occupancy-tenants to their owners and if so, its effect upon the rights of the occupancy-tenants to acquire ownership rights in the land in dispute? OPP" and taking additional material from the parties on the added issue and deciding of the appeal afresh in accordance with law. Costs to be borne as incurred.
13. ' Parties shall appear before the Court below on 20-6-1992. As the matter is fairly old and has already suffered enormous delay, learned District Judge shall expedite it for a final decision by the end of October. 1992, and preferabley earlier. Records be returned quickly.