This judgment shall decide Regular Second Appeal No.29 of 1982, Regular Second Appeal No.43 of 1982 and Writ Petition No.21545 of 1998 as they involved common points.
2. Somewhere before the year 1890 the suit land measuring about 400 acres stood leased out to one Sardar Bakhsh. He was found entitled to the conferment of proprietary rights but it was found that he had committed a violation of the stated conditions of the lease inasmuch as he had mortgaged the land. He was called upon to redeem the land but before he could do the needful he died in the year 1890. The land was then mutated in favour of his widow Jalal Bibi. On the death of Jalal Bibi in the year 1911 dispute arose as to the inheritance of estate. This was settled by all the heirs. 680 Kanals of land was given to Fateh Sher while the balance was to be retained by the other heirs of the said Sardar Bakhsh. Fateh Sher died in the year 1929. His daughter Alam Khatoon claimed exclusive title in her father's estate on the basis of a will. This time, however, an Assistant Collector refused to attest the mutation of inheritance. Ultimately, the land was resumed vide orders, dated 4-4-1968 and 26-4-1969. The appeals and then the revisions filed by the appellants as also the private, respondents failed to bear any fruit. Consequently, the present suit was filed on 3-5-1969 to the effect that the appellants and the private respondents are the grantees of the suit land and the said orders resuming the land are illegal and void. In the plaint it was specifically stated that the land had been got redeemed while the Malikana at the stipulated rate was being paid. Even this plea was taken in the plaint that the appellants and their predecessors have been in possession claiming to be owners since the last more than 60 years and had acquired title by prescription against the respondent-Government. The suit was contested by the respondents- Government with the plea that it was barred under section 36 of the Colonization of Government Lands (Punjab) Act, 1912. It was asserted that the occupancy rights were not conferred upon the appellants and their possession on the land is that of a trespasser. Following issues were framed:--
(1) Whether the plaintiffs' suit is barred by section 36 of the Punjab Colonization of Government Lands Act, 1912?
(2) Whether the suit is bad for misjoinder and non-joinder of parties, if so, with what effect?
(3) Whether the plaintiffs have no locus standi to institute the present suit?
(4) Whether the pedigree-table given in para. 1 of the plaint is correct?
(5) Whether the land in suit was validly resumed by the Government in 1933-34? If so, with what effect?
(6) Whether plaintiffs and defendants 4 to 15 are in possession of the land as grantees from the Government?
(7) If Issue No.6 fails whether plaintiffs and defendants Nos.4 to 15 have been in adverse possession of the land in suit for more than 60 years, prior to the institution of the suit?
(8) Whether the plaintiffs were lawfully granted the rights of occupancy by the Financial Commissioner, in the land in suit, if so, when and with what effect?
(9) Whether the defendant No. l is estopped from denying the rights of the plaintiffs in the land?
(10) Whether the orders of resumption, dated 4-4-1968 and 26-4-1969 are illegal, arbitrary wanton, perverse, capricious and ineffective as against the rights of the plaintiffs and defendants Nos.4 to 15 for the reasons detailed in paras 12 to 14 of the plaint?
11. Relief.
Evidence of the parties was recorded. The suit was dismissed vide judgment and decree, dated 3- 3-1979. A first appeal was filed. The learned District Judge dealt with only Issue No. l and finding the suit to be barred under section 36 of the said Act, proceeded to dismiss the appeal on 27-9-1979: The appellants as well as the private respondents filed R.S.A. No.826 of 1979 and R.S.A. No.23 of 1980.
Both these R.S.As. Were allowed on 24-6-1980 and the appeals were remanded back for fresh decision. The findings on the said Issue No. l were set aside and the learned District Judge, Sargodha was directed to give his findings on the remaining issues and to decide the appeals afresh. The appeals were then taken up by a learned Additional District Judge, Sargodha who heard the same and dismissed the same on 3-2-1982.
3. Ch. Khurshid Ahmad, learned counsel for the appellants contends that the learned Courts below have failed to read evidence on record. Argues that the entitlement of the appellants and the private respondents to the conferment of proprietary/occupancy rights had not been denied. Still the learned Courts below proceeded to non-suit the appellants by observing that since the respondent-Government had not conferred the proprietary rights the. Courts below would follow the suit. According to the learned counsel this was not a proper and a fair approach. Learned A.A.- G., on the other hand, supports the impugned judgments and decrees. Mr. Muhammad Farooq Qureshi Chishti states that he holds the brief for his clients in the applications under Order I, Rule 10 and the petitioners in Writ Petition No.21545 of 1998 only to this extent that in case the appellants are not found entitled to relief in the regular second appeals then his clients will take a chance for conferment of such rights as are available under the law. Khawaja Muhammad Akram, Advocate representing the appellants in R.S.A. No.43 of 1982 adopts the arguments of Ch. Kharshid Ahmad, Advocate.
4. I have gone through the records of the learned lower Courts. I have already referred to the pleadings of the parties. It stands duly pleaded by the appellants that the land had been redeemed and the Malikana was being paid at the stipulate rates: Learned counsel for the appellants has particularly drawn my attention to documents Exhs.P.2 and P.3. Exh.P.2. Is the copy of an order, dated 11-4-1937 of Mr. J.D. Peeny, Commissioner, Rawalpindi Division, wherein with reference to Sardar Bakhsh's grant it was stated that since he had mortgaged the area without sanction , he should make arrangements to recover possession and subject to all this condition a 5 years' lease be given and meanwhile the conferment of occupancy rights be deferred. It has further been stated in this order that the rights to be granted to Sardar Bakhsh, were to be in the nature of the rights of occupancy established under section 8 of the Punjab Tenancy Act, 1887.
Exh.P.2. Is the order of Mr. M.Q. Rizvi, Commissioner, Sargodha Division. This order has been passed in an- appeal against the order, dated 4-4-1968 of the Colony Assistant, Sargodha. In this order there is a reference to a report by Mr. Leigh, Colony Assistant made in the year 1914:------ "The occupancy rights have not been granted. In the first place this appears to be due to oversight.
In - the second case, orders were deferred due to the existence of a mortgage which has now been redeemed. I propose to grant occupancy rights on the same terms as in the cases dealt with in the proceedings on records on payment of Malikana rate of .8 Annas per rupee which will be imposed with the new demand. "
This report was made to the Financial Commissioner, Punjab who passed orders that the local officers should decide the matter. On the said order the said Mr. Leigh, referred the matter to Sadar Wasil Baqi Nawees to draw up lease of transfer but the orders were not complied with. In fact a deed was not drawn up and no final orders were passed. The Commissioner in the said order Exh.P.2 also accuses the appellants of inaction. Ultimately the appeal was dismissed with an advice to the appellants to file a revision petition which wa4 filed and was dismissed. The Commissioner has, however, towards the later part of his order Exh.P.2 observed that a certified copy of the order, dated 11-10-1937 of Mr. J.D. Peeny, Commissioner, Rawalpindi Division was produced, but the original was not produced. According to this report the occupancy rights had been given to the appellants.
Revenue Records from 1902-3 onwards have been produced and there is no mention of any mortgage therein: This revenue record supports the said report of the Settlement Officer referred to in Exh.P.2 that the mortgage had since been redeemed. Khuda Bakhsh one of the appellants entered the witness-box as PW:5 and stated that they have been continuously in possession of the land since the year 1865; that their father had made his residence there after spending a lot of money and by digging a tubewell there. It has also been stated that the Malikana is being paid.
Nothing to the contrary has been suggested to him in his cross-examination. No evidence of the mortgage or its subsistence is forthcoming on record.
5. The learned A.A.-G. Has also not been able to point out towards anything on record that may derogate from the right of conferment 'of the occupancy rights on the appellants in accordance with the terms applicable. I may here refer to the impugned judgments. The learned Courts below have acted under the erroneous assumption that since a formal document or order of conferment of occupancy rights have not been passed, the said non-passing of the order would be evidence of the fact that the appellants are not entitled to the conferment of proprietary rights. This is a patently erroneous approach. Entitlement to the proprietary rights and the conferment of proprietary rights are two different things. The former may lead to, the latter but the latter would not show that the former does not exist.
6. Learned counsel has drawn my -attention to the case of Ibrahim v. Mst. Rajji and others PLD 1956 Lah. 609 where a Division Bench of this Court had observed that the conditions having been fulfilled a formal document would not be necessary to complete the acquisition of the rights by the tenant under the said Act. I find that the said observation in the report of Mr. Liegh also appears in the order, dated 26-4-1969 which is Exh.D-3. The said order also proceeds on the same lines that as the occupancy rights were in fact not conferred, therefore, the petitioners are not entitled to the same.
7. The overall picture that emerges from the evidence on record is that the dispute started somewhere in the year 1890 and the land throughout remained in possession of the appellants as well as the private respondents. As far back as in the year 1914 the Settlement Officer reported about the lease of Sardar Bakhsh deceased that he is entitled to conferment of proprietary/occupancy rights and that the work is being started on the same. It appears that due to some inaction on the part of the State functionaries and also on the part of the appellants (which is understandable they being in possession and enjoyment of the land) the formalities could not be taken up and completed. It was as late as in the year 1968-69 that the respondent-- Government proceeded to take steps to resume the land and the suit was immediately filed.
Learned counsel states at the Bar that the appellants as also the private respondents are ready to fulfil all the applicable terms and conditions and have always been ready to do so.
8. So far as Writ Petition No.21545.Of 1998 is concerned, suffice it to say that the petitioners therein claim to be tenants in a portion of the suit land. As very fairly stated by their learned counsel they have walked into this old litigation at this stage to observe that in case the appellants failed, then they would take steps to negotiate with the Government for conferment of rights in the suit land.
9. As a result of the above discussion R.S.A. No.29 of 1982 as well as R.S.A. No.43 of 1982 are accepted. The judgments and decrees of both the learned Courts below are set aside. It is hereby declared that the appellants in both the regular second appeals are in possession of the suit land and as per evidence on record have not violated any terms of the lease and as such are entitled to the grant of occupancy/proprietary rights subject to fulfilment of such terms and conditions as the law prescribes and as the respondents impose m accordance with the applicable law.
10. Writ Petition No. 21545 of 1998 is dismissed. Parties are left to bear their owncosts.