The facts of the case giving rise to this regular pond appeal are that Samanda, who was occupancy tenant over the land in dispute measuring 35 kanals, 5 marlas, situated in village Babarawala, Tehsil and District Sialkot died 35 years before the suit was brought by his collaterals.
Inheritance mutation of Samanda was attested whereby the whole of the land was mutated in the name of Mst. Karim bibi, his widow as limited owner, under section 59 of the Tenancy Act. Mst.
Karim Bibi died on 19-11-48. On her death, the mutation was sanctioned in favour of two daughters of Samanda, namely, Rehmat Bibi and Fateh Bibi before 1951. On the appeal of the appellants who claimed to be the callaterals of Samanda, the mutation was set aside. Thereupon the daughter of Samanda brought a suit challenging the setting aside of the mutation which was dismissed. The decree was not challenged. On 19-7,1955, the landlord obtained an order from the Revenue Officer that the occupancy tenancy rights had terminated on the death of Mst. Karim Bibi. The land was made to revert to the landlords. The collaterals of Samanda challenged the order of the Revenue Officer in the suit from which this appeal arises. The suit was decreed but it was dismissed on first appeal.
2. The plea of the appellants is two-fold. Firstly they contended that Amira held the land as occupancy tenant and as the appellants are his collaterals, it cannot be said that his line extinguished. Secondly since Sahibu brother of Samanda held land as occupancy tenant in 1865 and as appellants are his successors-in-interest, it cannot be skid that on the death of Mst. Karim Bibi widow of Samanda, the line of Sumanda extinguished terminating the tenancy rights.
3. Learned counsel for the appellant has argued that since in 1865 Sahibu was mentioned as occupancy tenant, it would be presumed that he had inherited the tenancy rights from his father.
He further says that the fact that in the second settlement of 1891-92 all the three brothers, namely, Samanda, Sahibu and Bulanda, are mentioned as occupancy tenants, shows that in 1865 by mistake the name of Sahibu only was mentioned clearly whereas all the three brothers inherited the occupancy tenancy rights from their father, namely, Amira. The ground for drawing such a presumption given by the learned counsel is that in the beginning in maintaining record mistake was committed, therefore it is possible that while preparing the record of settlement of 1865, instead of the names of all the three brothers, the name of only one brother, namely, Sahibu was mentioned. This argument of the learned counsel is not acceptable. In 1865 Sahibu is mentioned as holding 'panahi' tenancy rights on the basis of being sisteWs son. The actual word written is 'harnshirzada'. It shows that the panahi tenancy rights were given to Sahibu by someone who may be landlord or one of the landlords as a matter of favour since he (Sahibu) was the sister's son of that the said person/persons. The word 'hamshirzada', therefore excludes the possibility that Sahibu got occupancy tenancy rights from his father. No doubt the record of first settlement of 1852 is not traceable yet evidence could be produced to show that Amira, father of Sahibu, Samanda and Bulanda had actually held land as occupancy tenant. Since it does not appear that Sahibu inherited occupancy, tenancy rights from his father, the only inference, from the subsequent entries of the settlement where all the three brothers are mentioned as occupancy tenants holding equal shares, is and rightly held by the learned District Judge that Sahibu may have transferred one share each of the tenancy rights to his two brothers by sale, gift or otherwise. Mutations are mentioned in the excerpt pertaining to the settlement of 1891-92 but full details are not given. The copies of those mutations must be available but were not produced in evidence. During argument learned counsel for the appellants stated that he had brought some copies of those mutations but no application under Order XLI, rule 27 was brought nor those mutations were placed on the file with the request to be admitted as additional evidence. Moreover since there are not the copies of all the mutations mentioned in the settlement record of 1891-92, they are not sufficient to resolve the matter whether Amira father of Sahibu ever held the property in dispute and that Sahibu, Samanda, Bulanda inherited it from him. Learned counsel has said that the learned District Judge erred in remarking that the authorities cited by him were not helpful inasmuch as the three brothers attained occupancy tenancy rights under section 6 whereas tenancy rights based on section 5 of the Tenancy Act were involved in those authorities. Admittedly Samanda held occupancy tenancy rights under section 6 and the authorities cited by the learned counsel could not show that the tenancy rights involved in those cases were based on section. 6 of the Tenancy Act. The authority cited by the learned counsel is Ganda Singh and others v. Jawand Singh and another (AIR 1939 Lah. 171). No doubt it has been observed in it "In the case of occupancy rights there is a strong presumption that the land held by a tenant at the time of regular settlement of which he is recorded a maurusi was inherited by him from his father who must be presumed to have occupied the land for the purposes of section 59."
But in the present case the entries about Sahibu in 1865 are such that they exclude the presumption that he inherited the maurusi right from, his father. As discussed above Sahibu got 'protected tenancy' rights being sister's son of the persons who bestowed that right upon him. It is apparent from this entry that Sahibu did not inherit such a right from his father but got it from some other person. The presumption drawn in the authority can be made when there is nothing to the contrary in the record. In the present case since there is an entry in the record-of-rights which excludes the possibility that Sahibu inherited the right from his father, no presumption arises in favour of the fact that Amira was occupancy tenant at one time.
4. The other point raised by the learned counsel as has been mentioned above is that even if it be taken that Amira never held the land as occupancy tenant and that his three sons did not inherit that right from him, since Sahibu brother of Samanda admittedly held occupancy tenancy right and his line has not extinguished, his successors-in-interest, namely the appellants can inherit Samanda under section 59 of the Tenancy Act, who died issueless, and thus the tenancy rights did not extinguish. Mst. Karim Bibi died in 1948 whereas section 59 of the Tenancy Act was amended afterwards in 1952. Therefore, unamended section 59 shall have to be looked into for the determination of this point. Proviso to section 59(1) clearly states that "with respect to clause (d) the common ancestor must have occupied the land." This is true that under the ordinary custom the successors-in-interest of Sahibu will succeed to Samanda who admittedly died issueless but in matters of tenancy the ordinary customary law is not applicable and succession is governed by section 59 of the Tenancy Act. Only those collaterals can inherit an issueless tenant, whose common ancestor had held the land as occupancy tenant. Since only Sahibu held the land as occupancy tenant and Samanda being brother of Sahibu cannot be the common ancestor, the heirs of Sahibu cannot inherit the land of Samanda. Amira was the common ancestor and since it has not been proved that he ever held this land as occupancy tenant, the mere fact that Sabibu held the land as occupancy tenant will not be sufficient to enable his heirs to inherit the occupancy right of Samanda. Learned counsel lays that all the three brothers being joint tenants, the successors-in-interest of Sahibu can inherit the occupancy tenancy rights left by Samanda. As remarked above this would be under English Law or ordinary Customary Law but since according to section 59(d) and the proviso only those collaterals can inherit, whose common ancestor had held the tenancy rights, the appellants who are successors-in-interest of Sahibu cannot inherit the occupancy tenancy right left by Samanda for Amira common ancestor does not stand proved to have ever occupied the land in the capacity of occupancy tenant.
5. Learned counsel for the respondent has raised a legal point which is that the suit was not triable by the civil Court and is triable by a revenue Court. He says that under section 77(3) of the Tenancy Act a suit to establish occupancy tenancy rights is triable by the revenue Court only and since the present suit is of the same nature, the jurisdiction of the civil Court is barred. He relies upon Umardin and others v. Faqir Muhammad and others (PLD 1973 Lah. 31) and Wali Muhammad etc. v.
Muhammad Sharif (PLD 1976 Lah. 346). So far as the second ruling is concerned, it is distinguishable from the facts of the present case inasmuch as the tenancy was admitted and the suit was to set aside a transfer made by the admitted occupancy tenants to other persons. The suit was of the landlords who claimed to be the owners of 27 kanals. The occupancy tenants claimed that the entire land had fallen to their share under section 114 of the Tenancy Act. The stand taken by the landlords was that since the tenants had been tilling the land on the condition that they would pay half share of the produce to the appellants/landlords, section 114 vested in the tenants the right to retain only half share and not whole of it. It is apparent from the facts of the case from which the authority arose that the occupancy rights were admitted and the question was to what extent the tenants got proprietary rights under section 114 of the Tenancy Act and the dispute was about the rate of 'batai'. Obviously the suit was covered by clause (i) of the second group. In PLJ 1973 Lah. 31 all the facts were not the same as are in the present case but however, the ultimate question for determination was whether the occupancy tenancy rights were extinguished and had come to an end by the return of the property to the landlords. Anyhow since the facts of the case involved in the said authority are different, the same is not applicable to the present case.
Where there is no dispute about the existence of the occupancy tenancy rights, the dispute is triable by the revenue Court. If the dispute is about the fact whether occupancy tenancy right has come into existence, such dispute would also be within the cognizance of the revenue Court but there is no clause in either of other three groups, according to which the question of extinction of occupancy tenancy may be cognizable by the revenue Court. Clause (d) of second group reads as under : "Suits by a tenant to establish a claim to a right of occupancy, or by a landlord to prove that a tenant has no such a right."
This clause clearly shows that where the question is of the establishment of the right of occupancy the dispute will go to the revenue Court. The phrase "to establish a claim of right of occupancy tenancy" means the right has come into existence. If a tenant sues the landlord to the effect that he has acquired the occupancy tenancy rights, of course such a suit is triable by a revenue Court.
In the present case there is no dispute that occupancy tenancy rights came into existence. Rather the dispute is whether on the death of the widow of Samanda the occupancy tenancy rights extinguished or were inherited by the collaterals of Samanda and did not extinguish. Since the question of the establishment of the tenancy rights is not in dispute clause (d) of second group is not attracted. None of the remaining clauses (e) to (m) of group second covers the present suit.
Likewise none of the three clauses (a), (b) and (c) of the first group embraces the suit of the present nature. The same may be said with regard to the third group. I have not been able to find a direct ruling on the point but it was held in 40 P R 111 : "Suits by collaterals of the last occupancy tenant claiming possession on the ground that they had succeeded to the tenancy, the land having been occupied by the common ancestor and having been wrongfully taken possession of by the landlord arc not barred from the jurisdiction of civil Courts. The Court is required to decide the question whether a deceased tenant had or had not abandoned his right, for such a plea can be tried by a civil Court."
When question of abandonment of right by leaving the land is triable by a civil Court, why a suit in which the question is that tenancy has extinguished due to the extinction of the heirs of the occupancy tenant should not be within the cognizance of the civil Court. This cannot be denied that the present suit is of civil nature, therefore under section 9 civil Court has jurisdiction and its jurisdiction will be barred only to the extent by which section 77 has specifically ousted it. Since there is no clause to the effect that a suit to the effect that the occupancy tenancy rights have come to an end due to the extinction of the right of the occupancy tenant is triable by the revenue Court; such a suit will be cognizable by a civil Court. The revenue Courts have jurisdiction to hear only those suits which are covered by the three groups. Since the present suit is not covered by any group, obviously the civil Court was competent to decide the same. I, therefore, overrule the objection.
6. As a result of the observations made above, I do not find any force in the appeal and dismiss it with costs.