1. Mst. Sardaran, petitioner herein, was owner of land measuring 96 Kanals and 2 Marlas, situated in Khewat No,7, Khatuni No,84, Khasras Nos.2377, 2378, 2376, 2375, 2371,/1, 2374, 2358, 2347, 2372, 2379, 2353, 2359/2, Qita No,12 in Mauza Marh Bashi, Tehsil Hafizabad. The said land was mortgaged with Allah Ditta and Muhammad Nazir sons of Ali Muhammad. The sarre was got redeemed by the petitioner from the Court of Collector, Hafizabad on 8-10-1970, the appeal filed by the respondents there against was dismissed. The respondents were able to get themselves inserted as occupancy tenant in the Revenue Record. The petitioner filed an appeal before the Collector, Hafizabad, who vide order, dated 8-2-1981 remanded the case, but in violation of the order the respondents got themselves inserted as occupancy tenant by getting the mutation (Fard Badr No, 7) entered in the Revenue Record. This mutation (Fard Badr dated 9-7-1985) was challenged by Mst. Sardaran in the Court of Civil Judge by way of a suit for declaration to the effect that the mutation is illegal and that entry in the Revenue Record regarding the occupancy tenancy of defendants as be declared as unlawful. Further the petitioner prayed for joint possession in the suit property. The suit was resisted liy the respondents Allah Ditta and Muhammad Nazir by filing written statement.
2. Preliminary objections were raised that the petitioner had no cause of action, she was estopped by her act and conduct to file the suit, the Court had no jurisdiction to try the suit and that the suit was barred by time. On merits, it was stated that the respondents have become owner of the suit property and that they are in possession of the same as owners.
2. From the divergent pleadings of the parties, following issues were framea by the learned Civil Judge, 'Ind Class, Hafizabad:--
(1) Whether the plaintiff is owner of the suit land mentioned in para. One of the plaint as co-sharer?
3. OPP.
(2) Whether the impugned Mutation No,7 dated 9-7-1985 is illegal and void? OPP.
(3) Whether the plaintiff is estopped by her act and conduct to tile this suit? OPD.
(4) Whether this Court lacks of jurisdiction? OPD.
(5) Whether the suit is time-barred? OPD.
(6) Whether the suit is not properly valued': If so, what is the correct valuation? OPD
(7) Relief.
3. The parties produced the following documentary evidence:--
(1) Copy of mutation No,287 dated 13-3-1971 Exh.P.l.
(2) Copy of mutation No, 7 dated 9-7-1985 Exh.P.2.
(3) Copy of record of rights for the year 1986-87 Exh.P.3.
(4) Copy of record rights for year 198384 Exh.P.4.
(5) Copy of record of rights for the year 1970-71 Exh.P.5.
(6) Copy of reply in redemption proceedings Exh.P.5(a).
(7) Copy of order of Collector Exh.P.6.
(8) Copy of order dated 17-2-1971 of the Additional Commissioner Exh . P.7.
(9) Copy of record of rights for the year 1927-28 Exh.D.I.
(10) Copy of record of rightl for the year 1932-33 Exh.D.2.
(11) Copy of record of rights for the year 1940-41 Exh. D .3 .
(12) Copy of record of rights for the year 1950-51 Exh.D .4 .
(13) Copy of record of rights for the year 1950-60 Exh.D.5.
(14) Copy of Farad Badar dated 14-1-1974 Exh.P.6.
(15) Copy of record of rights for the year 1973-74 Exh.D.7.
4. 4.The learned Civil Judge recorded a finding on all the issues against the respondents and decreed the suit in favour of the plaintiff-petitioner vide judgment dated 18-4-1989. While deciding Issues Nos.1 and 5, the learnt-d Civil Judge held that respondents were simply tenants. An appeal was filed by the respondents-defendants, which was accepted by the learned Additional District Judge, Gujaranwala on 12-5-1990 by reversing the findings on Issues Nos.3 and 6, and consequently he proceeded to decree the suit against the petitioner-plaintiff.
5. 5.Ch. Aamar Rehman, Advocate, learned counsel for the petitioner has argued that admittedly the land in dispute was mortgaged by the petitioner in favour of the respondents and therefore, the relationship of mortgagor and mortgagee exists between the two parties in respect of the land and a new relationship arises as regards the identical subject-matter i,e,, occupancy tenancy and the mortgagee of the same land cannot coexist as being inconsistent and incompatible. Precise arguments of the learned counsel is that if the latter can come into effect only on termination of the earlier that -would be deemed to have been terminated in order to enable the latter to operate. To substantiate his arguments the learned counsel has placed reliance on (AIR 1953 TRA- Co. 584 'Vol. 40, C.N. 231) Velu v. Lekshmi and others and Godasankara Valia Raja v. Tharappan Vareed (AIR 1961 Kgrala 293). Further contends that the respondents were not occupancy tenants under section 10 of the Punjab Tenancy Act (XVI of 1887). Further contends that the Civil Court, had the jurisdiction to proceed with the case as the matter of title was involved between the parties and that to determine that the respondents are Maurusi or not, The entry in the column of "Lagaan' would show that the respondents were not occupancy tenant and the Revenue Record placed on the record has been misread by the First Appellate Court.
6. On the other hand, the learned counsel for the respondents has argued that the respondents were occupancy tenants. The Revenue Record has been correctly read by the First Appellate Court and that the suit of the petitioner has been decreed in favour of the respondents by the First Appellate Court by a well-reasoned judgment.
7. The controversy in this case is regarding the status of the respondents. The respondents claim themselves to be the occupancy tenant of the land in dispute. Under section 5 of the Punjab Tenancy Act, 1887 tenants have been given the right of occupancy. The petitioner has been mentioned in possession of .The suit land and there is an entry ( NOtii, oc46- in Exh.P.3. The petitioner is shown in possession. But in Exh.P.5 the father of the respondents has been shown in possession of the suit land as tenant at Will. In Mutation No, 7 dated 9-7-1985 the respondents were declared as owner whereas the petitioner was shown in possession of the suit land. The leaned Civil Judge has given cogent reasons for declaring mutation No,7 Exh.P.2 as illegal. According to him, the petitioner was not given any chance of hearing before sanction of the mutation and that there is no report of Roznamcha Waqiati, which is very necessary before making mutation which is in accordance with the spirit of section 42 of the Land Revenue Act and that in the impugned mutation it is stated that (ads) but this entry was cancelled and in column No,13 it is mention (r61- Arli'..edja7:1i-l*ADc (0,-) it is important to mentioned here that correction of clerical mistakes can be made in the Register Haqdaran Zameen by Fard Badar. Under the provisions of 7.44-F(2) of Chapter 7 of the Land Records Manual, there is Form No,XV in Appendix-A to the West Pakistan Land Revenue Rules, 1968 and complete procedure as mentioned in 7.44-F(3), 7.44-F(4) (i) to (vi) and 7.44-F(6), (7) and (8) has to be followed. It seems the above stated legal procedure has not been completed. Any mutation attested in violation of mandatory provisions of Land Record Manual cannot sustain and is liable to be set aside.
6. ' In case reported as Gullu v. Ramzan and 6 others (2000 CLC 1468) occupancy tenant has been defined and held that the occupancy tenant under the Tenancy Act is shown in the Jamabandi in the following three manners:-- "(a) Where a tenant having right to occupancy legally exists, he is recorded as Muzaria Mauroosi, Buzgar Dalchilkar, Muqarraridar or Mauroosi Hari etc. According to the local usage along with the relevant provisions of the Tenancy Act.
(b) Where the section of the tenancy Act applicable has been omitted, the deficiency is not supplied without a mutation.
7. (c)' The entries of this column show:-
(i) Whether the land is cultivated by the occupancy tenant himself;
(ii) Whether the land is cultivated by a Muzaria or Hari of the occupancy tenant;
(iii) Whether the land has been leased out to a tenant and is cultivated by that tenant or by a Muzaria or Hari of the tenant."
8. ' Further under clause (c) of the above mentioned definition, it is shown whether the land is cultivated by the occupant tenant himself or whether the land is cultivated by Muzaria or Hari of the occupancy tenant.
9. ' On the touchstone of the above definition it is found that in Jamabandi for the year 1986-87 Exh.P.3 in the column of cultivation Allah Ditta and Nazir Ahmad sons of Ali Muhammad, respondents, are entered in possession whereas in the Colum of 'Lagan' the entry is ( ;461, Aot ) Mst. Sardaran petitioner hasbeen shown in column of ownership. But in the Jamabandi for the year 1983-84, Exh.P.4, the respondents Allah Ditta and Nazir Ahmad are entered in the column of ownership and column of cultivation they have been shown in self-cultivation and possession and no entry has been made in column No,8. In Jamabandi Exh.P.5 petitioner Mst. Sardaran has been shown in column of ownership, whereas one Ali Muhammad son of Muhammad Bakhsh has been shown as tenant at Will under Mst. Sardran, and no such an entry, .As stated, is existing in column No,8. In this view of the matter, the entry (j-doii(J.4.?;,16611:%:,et. /1".../et;') cannot be termed as occupancy tenant and the Revenue Record mentioned above also does not prove the contention of the respondent. The entry of Lagaan has to be corroborated by evidence and cannot taken precedence over the column of cultivation. The party relying on the 'Lagaan' column as against cultivation would have to produce evidence in support of its plea. In the present case the respondents rely on the 'Lagaan' column entry tc the effect that they are tenant as 0,),). This stands contradicted by the cultivation column where they are mentioned as tenant. In case reported as Shad Muhammad v. Khan Poor (PLD 1986 SC 91), it has been ruled that 'Lagaan' column does not show payment for any Lagaan. Therefore, mentioning of a person as tenant in cultivation column was not 'tenant' as defined in the relevant law and it was ruled that entry in the Lagaan column which is contradicted by the cultivation column and non-payment of rent, as shown in the Lagaan column, by itself would not change the character as tenant.
10. ' There is another aspect of the matter. The lease is determined under section 111(0 of the Transfer of Property Act. The defence of the petitioner was that the lease did not terminate with but survived the mortgage whose redemption would have the effect of only freeing the property from the encumbrances thereunder leaving the lease in possession thereof as such. Admittedly the land was mortgaged with the respondent by the petitioner which was redeemed by the order of the Collector dated 6-10-1970. The question that arose for consideration, therefore is as regards the effect of the mortgage transaction upon the pre-existing lease. A lease of immovable property is determined under section 111(f) of the Transfer of Property Act by implied. Surrender.' Therefore, whenever certain relationship exists between the two parties in respect of a subject-matter and a new relationship arises as regards the identical subject-matter, if the two sets of relationships cannot co-exist as being inconsistent and incompatible, that is to say, if the latter can come into effect only on termination of the earlier, that would be deemed to have been terminated in order to enable the latter to operate.
11. ' In case Velu v. Lekshmi and others (AIR 1953 TRA-Co. 584) it has been ruled that "the lease that preceded the mortgage was incompatible, and could not co-exist even in a' dormant state as is suggested on behalf of the respondent with the possessory mortgage. If the lease could not survive the mortgage it must have been necessarily surrendered and terminated. There is, therefore, an implied surrensler of the lease, with the execution and acceptance of the possessory mortgage, and as the lease terminates by implied surrender and did not survive the mortgage the possession of property thereafter by Rehman and by his representatives who are the defendants, was and could have been only as mortgagee. " In case reported as Godasankara Valia Raja v. Tharappan Vareed (AIR 1961 Kerala 293) while interpreting sections 111(f) and 58(d) of the Transter of Property Act. 1a82, usuffructuary mortgage of same property in favour of same person, it was held that" terms of mortgage incompatible with those of earlier lease, and that there was implied surrender of lease". In this view of the matter, I am constrained to hold that even if the respondents were the tenant under the petitioner prior to the mortgage, even then according to the Jamabandi for the year 1922-23 on the creation of the mortgage vide Mutation No,40 dated 28-3-1931 the status of the respondents as tenant ceased to exist.
12. Since the respondents were not occupancy tenant, therefore, there is no question of extinction of occupancy tenancy as contemplated under section 114 of the Punjab Tenancy Act (XVI of 1887) and the denials of the ownership and asserting a right of ownership on the basis of impugned mutation deed give rise to a cause of action to the petitioner to file the suit for declaration in the civil Court.
13. The learned Additional District Judge fell in error while setting aside the judgment and decree dated 18-4-1989. In case of Ahmad Rakhsh and 3 others v. Muhammad Nasir and 12 others (1997 SCM R 1409) in which a suit for the declaration that the plaintiffs were in occupation of the land in question as owners and the defendants had abandoned their occupancy rights and the entries in the Revenue Record to the contrary were liable to be corrected was decreed by the Trial Court, but the First Appellate' Court came to the conclusion that the suit was not competent before the Civil Court, but the High Court held that the decree of the trial Court was correct and restored the same.
14. The Hon'ble Supreme Court declined to interfere with the findings of the High Court that suit was cognizable by Civil Court.
15. Following the above referred case of Ahmad Baldish etc., I am inclined Co hold that the Civil Court had the jurisdiction to I proceed with the case and has granted the decree for declaration correctly in favour of the petitioner, which has been illegally set-aside by the First Appellate Court.
16. For what has been discussed above, this civil revision petition is accepted, the impugned judgment and decree of the learned Additional District Judge, Gujranwala, dated 12-5-1990 is set aside and the judgment and decree dated 18-4-1989 of the Civil Judge, Hafizabad, is restored with costs.