' This is a plaintiffs' second appeal before this Court having lost before both the Courts below.
2. On 31st of July 1964, a suit was instituted by the plaintiffs against the present respondents (65 in number) claiming a declaration that the respondents have left the suit land, therefore, they have lost their rights as occupancy tenants and further prayed for an injunction restraining the defendant-respondents from interfering with the possession of the plaintiffs, or any other relief that may be deemed just and proper may also be given to the appellants. In the plaint, it was claimed that though the defendants were occupancy tenants of the suit land (described in the plaint) but more than 20 years ago they have abandoned the land as well as their rights therein, and had handed over the possession to the plaintiffs and since then the plaintiffs are continuously In possession and that after enforcement of the recent law, the defendants are forcibly trying to take possession of the land, which they have no right to do so ; that entries in the revenue record were in error, void and ineffective against the rights of the plaintiffs and that the defendants were asked to have the revenue records corrected but they have refused to do so, as such, the necessity for filing the suit arose.
3. In their written statement the defendants controverted these facts and claimed to be continuously in possession and by virtue of amendment in the Tenancy Act, 1952, they bmame the owners of 3/ 41 share of the suit land, and also claimed that all the entries in the revenue records were in order and in accordance with law.
4. On the basis of pleadings of the patties four issues were framed by the learned Civil Judge.
Issues Nos. 1 and 2 were of formal nature and were decided in favour of the plaintiffs. On issue No, 3 it was held that by operation of Punjab Tenancy (Amendment) Act, 1952, the defendants had become owners of 2/3rd share of the land and on issue No, 4 it was held that the defendants had never severed their connection with the land. On the basis of the above findings, the suit of the plaintiffs was dismissed on 20th of October 1965, by the Civil Judge, Chiniot.
' In appeal before the Senior Civil Judge, the plaintiffs contested the findings of the trial Court only on issue No, 4 which is to the following effect :- "Whether the defendants had abandoned the suit land and failed to cultivate it without sufficient cause for a period of more than one year and also failed to arrange for the payment of its rent to the plaintiffs ?"
' Following evidence was examined on this issue. Fateh Muhammad (P. W. 1) and Nawab (P. W. 2) deposed that they were cultivating the suit land and were paying rents etc to the plaintiffs. The trial Court rejected their testimony on the ground that their names did not find mention in the revenue record as tenants-at-will, and Pateh Muhammad (P. W. 1) in another similar case is the plaintiff against these very defendants. The third witness is Karam Husain (P. W. 3) who is one of the plaintiffs.
' The plaintiffs produced four documents. Exh. P. 1 is Khasra Girdawri from Rabi 1952 to Rabi 1960. The defendants have been shown therein as occupany tenants. Exhibits P. 2 and P. 4 are Jamabandis for the years 1959-60 and in Column No, 4 thereof the defendants are mentioned as occupancy tenants, though some other non-occupancy tenants have been shown as tenants-at-will. In Exh. P.
4 the plaintiffs are shown to be in cultivation of two out of four Khasra numbers. The other two Khasra numbers are under tenants-at-will. Exh. P. 3 is Khasra Girdawari from Khari' 1950 to Kharif 1951. In Column No, 4, the defendants are shown as occupancy tenants. In Column No, 8 it is shown that the defendants pay 1/3rd of the produce without "Bhoosit' and 'Tanda'.
' The defendants produced Jhanda (D. W. 1) and Shahamand (D. W. 2) both defendants, and relied upon Exh. D. 1, a copy of Jamabandi for the year 1945 45. Therein, again, in the ownership column the names of the plaintiffs are mentioned as owners and Maulu etc. Respondents are mentioned as occupancy tenants. In column No, 8, it is mentioned that the respondents pay 1/3rd share without 'Bhoosa' and 'Tanda'.
5. From the discussion of the above evidence, both the Courts below found that the plaintiffs have not been able to establish abandonment of the suit land on the part of the defendants. Both the Courts below have decided issue No, 4 against the plaintiffs. Before this Court the appellants- plaintiffs have challenged the finding on issue No, 4.
6. The plaintiffs' case is that the defendants and their predecessors-ininterest were occupancy tenants of the land, but they had abandoned it for more than 20 years, the burden of proof of this issue rightly lay on appellants. The learned Civil Judge held that Act VII of 1952 came into force in 1952, and the plaintiffs had to bring their case within section 38 of the Tenancy Act and the revenue records from 1945 to 1951 show that Khushi Muhammad and Wali Muhammad had been in possession of the land as tenants-at-will. It was not clear from the revenue records whether they were cultivating under the plaintiffs or the defendants. To determine this point, Exh. D. 1 (Jamabandi for the year 1945 46) was of some assistance which laid down that occupancy tenants would pay 1/3rd share of produce without "Bhoosa" and "Tanda" ; implication being that this share had to be paid to the owners and that the non-occupancy tenants would pay 1/3rd of the produce including "Bhoosa" and "Tanda" apparently to the occupancy tenants. The above entries showed that whereas the occupancy tenants obtained from the tenants-at-will 1/3rd shares with "Bhoosa" and "Tanda", but to the land owners they paid 1/3rd share without "Bhoosa" and "Tanda", thereby keeping "Bhoosa" and "Tanda" for themselves as their share of the produce.
' From the above circumstances, the learned Civil Judge arrived at the conclusion that the tenants- at-will paid the occupancy tenants (defendants) at least from 1945 to Kharif 1951. It was further established according to the learned Civil Judge from the evidence that Jhanda and Ahmad (defendants) reside in the village where the land is situated, meaning thereby that they are living in the village making arrangement for the cultivation of the land and were paying shares to the plaintiffs, and the tenants-at-will were working under them and not under the plaintiffs. It was further held that the plaintiffs had failed to prove that the defendants hid abandoned the land or failed to provide for its cultivation and arranging for the share (in produce) of the plaintiffs. It was further held that section 38 of the Punjab Tenancy Act rather than the ganeral principle of abandonment governed the case, A I. R 1934 Lah. 13, 170 P R 1919 and 44 P R 1970 were not helpful.
Reliance was placed on Andr Bakhsh v. Khuda Yar (1), to show
(1) PLD 1960 Lab. 256 that the names of the occupancy tenants can be deleted from the record only by a mutation under order of the Collector, and the continuation of defendants' names in the revenue record supports the view that they had not abandoned their land. No mutation of extinction of tenancy was got attested by the plaintiffs nor they ever brought any suit to recover the arrears of produce.
Reliance was placed on Sher All Khan v. Nawab and others CO and Muhammad Akram Khan v.
Qaim Din (2), to arrive at the conclusion that in the present case there is no abandonment.
8. The first Appellate Court in detail discussed this issue (of abandonment) and took the view that the plaintiffs were required to prove abandonment before 4th of February 1952, Le. The date of enforcement of section 114 of the Punjab Tenancy Act, 1887. Jamabandi of the year 1945.46 (Erh. D.
1) place) on record by the defendants shows that Khushi Muhammad, Wali Muhammad and Muhammad Ghaus cultivated the land as tenants-at-will, and that occupancy tenants had been paying 'Batai' to the landlords. Tenants-at-will's mention had not been examined. Jamabandi of the year 1959-60 showed that this entry persisted in column No, 3, viz., that the defendants were paying 'Batai' to the plaintiffs. By Khasra Girdawari of the year 1950-51, the plaintiffs tried to prove possession of a part of the land and it was held that the possession of the part of the land by the landlords does not constitute abandonment. Column No, 4 mentions defendants as occupancy tenants. Reliance was placed on PLD 1963 Pesh. 49 to show that if the landlords were being paid rent then no abandonment takes place. In PLD 1962 Pesh. 110 it was laid down that a landlord should get a mutation regarding extinction of the tenancy attested in his favour or should bring a suit to recover arrears of produce and he has to satisfy all the ingredients of abandonment mentioned in section 38 of the Punjab Tenancy Act. None of those ingredients were present in this case, therefore, there was no abandonment.
9. Both the Courts below have given a finding that there has not been any abandonment. In fact there in hardly any material on the record to show that in fact there was any such abandonment.
Moreover, whether there was any abandonment or not, is primarily a question of fact. The two Courts below have given elaborate discussion and have held that there was no abandonment.
10. I have gone through the entire record and heard the elaborate arguments of the learned counsel for the appellants. The learned counsel has argued that there has not been any pfoper trial as the issues had not been properly framed and the plaintiffs did not know as to what they had to prove, and for this reason they were not able to properly prove the question of abandonment. Per issue No, 4, the plaintiffs were required to prove abandonment and they hive failed to do so. This is the concurrent finding of the two Courts below. It was further argued that Exb. D. 1 (Jamabandi for the year 1945-46) has been misread. I have read all the contents of the Jamabandi with the assistance of the learned counsel, and have not been able to find any misreading thereof on the part of the Courts below. According to the learned counsel, at the time when the suit was filed, the only dispute was "who was the owner of the land", and therefore, the pleadings should have been filed accordingly, but the plaint was poorly drafted and did not disclose a proper cause of action (therefore, the plaintiffs
(1) PLD 1962 Pesh. 110 (2) PLD 1963 Pesh. 49 must suffer and not the defendants). It was then argued that the most important words in subsection (2) of section 114 of the Punjab Tenancy Act are "occupy any land as such' meaning thereby that before the enforcement of the Act of 1952 the respondents should have been occupancy tenants on that date and should have occupied the land as such in their capacity as occupancy tenants. Reliance was placed on Mirza and others v. Raja Muhammad Zaman Khan and others (1). This ruling is against the appellants. It is held therein that there can be an extinction of occupancy rights only if the three requirements laid down in section 38 are satisfied 3 viz. (I) the failure to cultivate for more than one year; (ii) failure to pay rent, and (iii) absence of sufficient cause. All the three elements must exist in order that the occupancy rights may extinguish. In the present case, there is no such proof on the record. On the other hand, it appears that the plaintiffs have been regularly getting their share of produce and the land has been cultivated and it is not a sine qua non of the existence of the rights of occupancy tenants that they must cultivate land themselves.
' The learned counsel has further argued that there is not a single document to show that the defendants %ere in actual physical possession of any portion of the land. Nor that they are in possession through a tenantat-will, and there were many entries showing that the owners were in possession of the land. As mentioned earlier, it is not an essential condition of the existence of occupancy tenancy that they must cultivate the land themselves. In one of the documents, the names of the plaintiffs have been mentioned as cultivators of a part of the land. These are questions of fact and this Court will not enter into it since these have already been finally determined concurrently by the two Courts below. There is nothing on the record to suggest that the defendants never took their shares of the produce.
' The learned counsel further argued that the names of the defendants have not been struck off on the ground that no mutation had so far been recorded deleting their names and since deletion of names of occupancy tenants requires an elaborate proce Sure. This argument, therefore, works against him. This will suggest that there had been no abandonment. The argument of the learned counsel that the abandonment is a mixed question of law and facts is of no avail to him.
' The learned counsel further tried to argue that it is not necessary that his suit must come within the ambit of section 38 of the Tenancy Act. He can rely on general doctrine of abandonment, and that the defendants can take advantage of section 114(2) if they are themselves in actual physical possession. No law has been shown to me to substantiate this contention of the learned counsel. In Allah Ditta v. Bagh All (2), it was held that where a person is shown as an occupancy tenant in the revenue record, such right continues and subsists unless it has been proved to the contrary.
11. On the basis of the above discussion, I hold that no good ground has been made before me to interfere in the decisions of the Courts below.
12. During the pendency of this appeal before this Court, Pehlwan respondent No, 17 died on 19.1- 1968, Noor respondent No, 9 died on 28-12-1966, Ghulam respondent No, 18 died on 12.1-1970, and Khan respondent No, 14 died on 10-12-1970. These facts have been supplied to me at the
(1) PLD 1977 Lah. 242 (2) PLD 1975 Lab. 49 time of hearing by the learned counsel for the appellants (other tw respondents Yara No, 53 and Lal No, 37 died on 16-1-1976 and 21-1-1975 respectively). The learned counsel argues that since the case of the defendants fell within the ambit of clause (b), subsection (2) of section 114 of the Punjab Tenancy Act, therefore, on its enforcement the defendants had become the owners of their respective portions and no longer remained occupancy tenants, as such, there was only a partial abatement in this case no application has been filed before this Court to bring the legal representatives of the deceased respondents on the record).
' On the other band, the learned counsel for the defendants argues that the only question to be determined by this Court is whether or not the defendants have abandoned their rights as occupany tenants and, therefore, they should be treated as occupancy tenants. He has placed reliance on Allah Ditta v. Bagh All, to show that as against a landlord all the occupancy tenants constitute one tenancy. In Faqir Muhammad v. Mohabbat Khan (1), it was held that several co- shares are one tenant for the purposes of abandonment under sections 38 and 59 of the Tenancy Act. Moti La! v. Kartar Singh (2), holds that surviving joint tenants, inherit the share of a deceased joint tenant to the exclusion of the landlord at the extinction of his lineal descendant. Shah Muhammad v. Muhammad Bakhsh (3), holds that where a person jointly occupies a portion of land in dispute, decree in such circumstances is indivisible and each person was a necessary party. The death of one person (without substitution of which) had resulted in total abatement of appeal. The only question before me is regarding issue No, 4 "whether there was abatement on the part of the defendants or not". Abatement has to be in their capacity as occupancy tenants. This is the only status which is relevant for the decision of this issue. I, therefore, hold that this is a case of total abatement.
13. The learned counsel had filed an application under Order XLI, rule 27 read with Order XLI, rule 1, C.
P. C. For presentation of additiona evidence before this Court. He wants to produce before this Court a cop of the order of the revenue officer to show that in the year 1932, one Khuda Bakhsh bad filed an application against the present defendants and the predecessor-in-interest of the plaintiffs to assert that he was not a tenant-at-will under the defendants and that question had been decided in their favour. The grounds mentioned for presentation of additional evidence are that in the interest of justice it was the requirement of justice to find out whether at the relevant time the non-occupancy tenants were in possession at the relevant time under the plaintiffs or the defendants. (The material date is the year 1952 and not 1932 when the decision had been given apparently not between the parties to the present suit and the appeal). The second reason is that the appellants at the trial stage had failed to grasp the exact significance of issue No,
4. I have already held that there was no ambiguity in issue No, 4). Thirdly it is argued that the respondents should not be allowed to escape from the legal effect of the decision that they had accepted since 1932.
' The learned counsel for the respondents vehemently opposes this application. This document was available to the plaintiffs at the time of filing the suit. They do not allege that they did not know its existence at the time of the filing of the suit. It was only before this Court that they have
(1) PLD 1958 Lah. 918 (2) AIR 1930 Lah. 515
(3) PLD 1972 SC 321 felt it necessary to place it on the record. In these circumstances, I see no good ground to allow this prayers
14. At the time of hearing, the learned counsel placed an application for amendment of the plaint.
The learned counsel for the respondents again vehemently opposed the application for amendment. The application for amendment is under Order VI, rule 16 read with Order VI, rule 17 read with section 151, C. P. C. It seeks amendment of paragraphs 5 and 14 of the plaint. In paragraph 5 of the plaint he suggests that before 21-9-1952, the defendants had lost their occupancy rights and on the enforcement of the aforesaid Act, they did not get the proprietary rights and, therefore, now only the plaintiffs are owners in possession of the land in suit. Paragraph 14. Which is the prayer, is sought to be amended to the following effect ; that the plaintiffs seek a declaration that they are owners in possession of the land in dispute and that the defendants have not acquired any right of ownership and for an injunction to restrain the respondents from interfering with the possession of the plaintiffs ; that the costs may be awarded to the plaintiffs or any other appropriate relief.
15 Under rule 16, the amendment can be allowed only if the Court finds that any unnecessary, or scandalous matter may be struck off or anything which tends to prejudice, embarrass or delay the trial may also be struck off. None of the conditions are present in the present application. Rule 17 lays down that the amendments may be allowed that are just and necessary for the purpose of determining real questions of controversy between the parties. In the present case, the only question for determination is whether the defendants had abandoned their occupancy rights or not, and this point has been properly and thoroughly thrashed and determined. Therefore, no purpose will be served by allowing amendment at this stage. It may be noticed that the plaint was filed on 31st of July 1964, the suit was dismissed on 20th of October 1965, and the first appeal was dismissed on 17th of May 1;66. If I were to allow the amendment, the matter will again be reopened to controversy for another ten years.
16. For the foregoing reasons, I dismiss this appeal with costs.