' These five Writ Petitions have been remanded by Mr. Justice Nairn Hasan Shah, Judge of the Lahore High Court, with the direction that the same may be decided by the Board of Revenue in accordance with law and in the light of observations made by him in his order dated 9-10-1974.
2. Briefly, the petitioners are allottees of land in dispute in Chak No, 53/5L, Tehsil and District Sahiwal.
The respondents are members of Criminal Tribes who migrated from village Bir Ihebari, in District Katmai, East Punjab (India) and settled in Chak No, 53/5L, District Sahiwal, on the land in dispute abandoned by the members of non-Muslim Criminal Tribes at the time of Partition. In order to get permanent allotment of the land in dispute the respondents filed claim forms in respect of the land alleged to have been abandoned by them in village Bir Thebari but the Central Record Office found, on scrutiny, that they had not any land in the aforesaid village in India and, therefore, rejected the claim forms filed by them. The respondents then moved the Custodian, Evacuee Property seeking for a declaration that the land in dispute was not evacuee. The Custodian, however, rejected their request. The land held by them was, accordingly allotted to the petitioners against their verified claims. The respondents challenged these allotments in Writ Petitions Nos, 38 and 74 of 1964, which were dismissed on 20-11.1969 by a Division Bench of the Lahore High Court.
Their applications for leave to appeal in the Supreme Court against the judgment of the High Court were also dismissed vide Supreme Court order dated 22-6-1971, in which it was held that the respondents were not entitled to claim any right in the disputed property, but they might be given some other land. The respondents filed review petitions against this order which were also dismissed by the Supreme Court.
3. The respondents then moved the Government for allotment of the land and consequently a meeting was held on 30-6-1972 under the Chairmanship of the then Governor and it was decided that they should be settled on State land either in Dera Ghazi Khan or Jhang District. No positive action was, however, taken on this decision.
4. In the meantime, Consolidation Operations were taken in hand in the Chak and as a result, the land in dispute was adjusted in the names of petitioners in a consolidated form and possession was also delivered to them in terms of section 18 of the West Pakistan Consolidation of Holdings Ordinance, 1960. The respondents desperately resisted the delivery of physical possession which led to a blood-feud culminating into commission of murders and grievous hurts on both sides. The petitioners, however, succeeded in getting the physical possession of the land allotted to them and have continued in possession ever since.
5. Subsequently some other members of Criminal Tribes moved an application to the Chief Minister for restoration of their possession. It was sent to the Senior Member, Board of Revenue and he passed the following orders on it directing the Deputy Commissioner, Sahiwal as under :- "The Board of Revenue desires that the tenancies of the aforesaid tenants may be restored in accordance with the provisions of Punjab Land Commission's Notification No, DSL-71/73/1007-LC (II), dated the 9th March, 1973, under intimation to this Department."
' This order was later replaced by the order dated 30-4-1974 as follows :- "It is necessary that the unpleasantness of the past must be forgotton and that the refugee allottees must settle down on the land in their relationship of tenant and landlord."
6. Feeling aggrieved by these orders the petitioners filed the above-cited Writ Petitions which have been remanded to the Board of Revenue for decision on merits after hearing the parties. The application of Abdul Wahid petitioner for special leave to appeal before the Supreme Court against the remand order of the High Court was dismissed on 26-2-1978.
7. I have heard the parties at length and have also gone through the relevant record. The question of allotment of land in favour of the petitioners has already been decided finally up to the Supreme Court and cannot be re-opened. The only question that now requires to be determined is whether the respondents were holding the land as "tenants" under the petitioners and whether they were entitled to restoration of their "tenancies" in terms of Punjab Land Commission's Notification No, DSL/7/73/1007-LG(II) dated the 9th March, 1973. The word "tenant" as explained in Punjab Land Commission's Notification No, DSL-142-73/1628-LC (II) dated the 23rd April, 1973, shall have the same meaning as assigned to it in clause (26) of section 4 of the Land Revenue Act, 1967.
According to this a tenant means "a person who holds land under another person and is, or but for a special contract would be, liable to pay rent for that land to that other person " The words "holds land under another person" and "liable to pay rent for that land to that other person" imply relation of landlord and tenant which depends upon contract and is created by the landlord consenting, impliedly or expressly, to occupation of his land by the tenant for a consideration termed rent and the tenant agreeing with the landlord to pay the rent. Where this relation created by contract does not exist, a person occupying the land cannot claim to hold that land as "tenant" and will be considered to be a trespasser and thus liable to pay damages for the use and occupation of that land in terms of section 14 of the Punjab Tenancy Act, 1887. In other words a person occupying the land without the consent of landlord and without accepting his liability to pay rent according to the terms and conditions agreed under a contract will not be considered to be a "tenant" within the meaning of clause (26) of section 4 of the Land Revenue Act, 1967. In the present case the respondents have not been able to show that they had held the land as "tenant" under some contract with the petitioners as landlords or had ever discharged their liability to pay the rent. In fact it has never been the case of the respondents that they were tenants of the petitioners. On the contrary they have all along been claiming the land in their own right and denying the existence of any relationship of landlords and tenants between the petitioners and themselves. Thus, in the absence of any relationship of landlords and tenants between the parties, the case cannot be brought, by any stretch of imagination, within the emit of Notification No, DSL-71/73/1007-LCOD, dated the 9th March, 1973, entitling the respondents for restoration of the land from which they had been dispossessed in due process of law. In these circumstances the impugned orders passed by the learned Senior Member directing the Deputy Commissioner to restore the "tenancies" of the respondents are unsustainable and, therefore, withdrawn.
9. During the course of hearing of these petitions, the respondents have expressed their willingness to be settled in Jhang District in accordance with an earlier decision of the Provincial Government, provided they were allotted State land there to the extent of a subsistence unit per family. In order to put an end to the old vendetta, I think it is necessary to settle the respondents on some other land removed away from the land in dispute. I would, there- fore, order that the Deputy Commissioner, Jhang should find out some suitable State land n his District for the settlement of respondents, comprising 64 families in all, and submit a proposal in this regard for the approval of Board of Revenue. Until any allotment is made to the respondents in the Jhang District they shall not he ejected from their present homesteads. All the petitions stand disposed of accordingly.