' Section 114 was added to the Punjab Tenancy Act, 1887 to provide for extinction of occupancy tenancies and distribution of ownership of the same among the existing occupancy tenants and landlords, by the Punjab Tenancy (Amendment) Act VII of 1952. It provided in its subsection (i) that "no person shall, after the enforcement of the Punjab Tenancy (Amendment) Act, 1952, acquire or have occupancy rights in any land under any enactment or contract or any decree or order of any Court or other authority, and the existing occupancy rights in respect of all lends other than lands owned by Government or by any person who under the law for the time being in force is an evacuee, shall on the coming into force of the aforesaid Act, be extinguished, and the land comprised in a tenancy so extinguished shall vest as hereinafter provided". Subsection (2) provided for the demarcation of ownership rights on the land occupied by an occupancy tenant among the tenant and the landlord. In its clause (a) it made provisions for vesting the entire area under the tenancy in the occupancy tenant without payment of any compensation where he paid no rent therefore beyond the amount of the land revenue and rates and ceases for the time being chargeable therefor. Clause (c) similarly conferred the ownership rights on the tenant of the entire land comprised in the tenancy subject to payment of cash compensation, as provided by the Rules, to the landlord in cases where the tenant paid rent only in cash. Clause (d) provided for conferment of ownership rights on the tenant about the whole or portion of the land comprised in tenancy on payment of compensation where he paid rent partly in cash and partly in the form of a share of the produce. The clause which is relevant to the present case is clause (h) which provides that an occupancy tenancy shall become owner of- "such portion of the land comprised in his tenancy without payment of any compensation as corresponds to his share of the produce, where ho pays rent in the form of a share of the produce ;"
' Subsection (4) provides that- "In a ease falling under clause (h) of subsection (2) the landlord shall, without payment of any compensation, be entitled to the possession of the rest of the land comprised in the tenancy."
' Subsection (5) provides that the land so vested in the landlord or the tenant would be free from all encumbrances created by the tenant or the landlord and such encumbrances shall be the exclusive liability of the landlord or the tenant creating it.
2. The petitioners in the present case are the landlords while respondent No, 2 is the tenant of the disputed area in village Jhakharpur, Tehsil and District Multan. Mutation No, 588, under the provisions of section 114 of the Punjab Tenancy Act was entered by the Patwari on the 12th of April 1964, for determination of the rights of respondent No, 2 in accordance with clause (b) of subsection (2) of that section. According to the revenue record after deducting the expenses referred to therein, the landlords are entitled to 1/6th of the produce. Out of the balance 5/6th, 1/6th is payable for clearing of the silt of the watercourse, to the occupancy tenant or whoever performs that job, 1/6th of the produce is payable to the occupant' tenant and 3/6th to the actual cultivator.
The revenue officer finding that the specific share of the occupancy tenant is the produce was only 1/6th, attested mutation of ownership to that extent in favour of respondent No, 2 and awarded 5/6th to the petitioners landlords ride mutation Annexure P/1 dated the 13th July 1964.
3. Some other mutations in regard to similar entries in the revenue record were also attested against the occupancy tenants. Four appeal including an appeal by respondent No, 2 were filed before the Collector which were dismissed by him by his order dated the 15th of December 1964 (Annexure P/2). He based his order on a judgment of the Additional Commissioner given by him in some other case of similar nature, a copy of which has been filed with this petition as Annexure P/3.
4. The revision petitions of inter alia respondent No, 2 were partly allowed by Mr. A. H. Khan Niazi, Additional Commissioner (Revenue) Multan Division, by his order dated the 8th June 1966 (Annexure P/4). He held that the occupancy tenants would become owners of 2/6th share of the land without payment of any compensation where the land was being cultivated by tenants-at- will and they would become owners to the extent of 5/6th share where the area was under their cultivation on the date of enforcement of Amendment Act VII of 1952. This order gave rise to a review petition (Annexure P/5) which was filed by the landlords petitioners. The same was accepted by the Additional Commissioner (Revenue) who recalled his order Annexure P/4 and maintained the orders of the Revenue Officer and the Collector regarding the demarcation of shares of the landlord and tenants. (Copy of this order dated the 7th September 1966, is Annexure P/6). The Board of Revenue set aside this order in revision (Annexure P/7) of respondent No, 2, on a ending that for all practical purposes the landlord's share was only 1/6th to which he was entitled.
The Board of Revenue held respondent No, 2 to be entitled to 5/6th share of the area in dispute.
(Vide copy of the order dated the 29th of July 1969, Annexure P/8).
5. Hence this writ petition.
6. I have heard the arguments of Mr. Pervaiz Akhtar and Ch. Amjad Khan, Advocates, on behalf of the petitioners and Mr. M. Z. Khan Burki and Mr. Manzoor Hussain Sial, Advocates, on behalf of the tenant.
7. The learned counsel for the petitioners urged that under section 1 i4 the Revenue Officer has to find out the share of the produce which is reserved for the occupancy tenant and after deducting this share the balance of the area is to vest in the landlords. The entitlement of other persons to a share of the produce materially affects the share of the occupancy tenant. They also argued that the occupancy tenant gets in that capacity only 1/6th share of the produce. He gets width as labourer on account of his liability to clear the silt from the watercourse. The rest 3/6th is reserved for a person actually cultivating the area. In case of self-cultivation by the occupancy tenant he would be entitled to 3/6th share in addition to his share but this share will go to him in his capacity as cultivator and not as occupancy tenant. Similarly his entitlement to 1/6th the share of the produce is in his capacity of a labourer charged with the duty of clearing the water course of silt.
Reliance was placed for this interpretation upon Annexure P/3. Mr. Pervaiz Akhtar in addition relied upon some other documents to which reference will be made in due course.
8. The learned counsel for the respondents on the other hand argued that the share of the landlord being 1/6th he is entitled only to that much share in the ownership of the land comprised in the tenancy; the balance 5/6th share is that of the occupancy tenant. They agreed with the principle that the share in the produce assigned to actual cultivator and the person clearing the silt was irrelevant for demarcating the share of the tenant and the landlord in the ownership of the area under tenancy. They however argued that arrangement of cultivation and clearing of the watercourse being the responsibility of the tenant, he has a corresponding right to be benefited by the share liable to be disbursed to the cultivator and the labourer clearing the watercourse. They urged that it being the duty of the tenant to make arrangement for proper cultivation of the area either by himself or through some other person as required by section 38 of the Tenancy Act, the mere fact that the share of persons who actually cultivate has been described does not mean that it is a share of any other person. If the occupancy tenant clears the silt himself and also cultivates the area be would be entitled to 5/6th share. Any payment made to the labourer or to any sub- tenant is, therefore, out of this 5/6th share of the tenant. The entry in the revenue record, in this manner, practically gives 5/6th share to the tenant and 1/6th only to the landlords, and this is the ratio in which the property comprised in the tenancy is to vest in the two parties. They urged that in the present case no difficulty arises since the area in dispute was cultivated by respondent No, 2 when the Act of 1952 was enforced and the share of the actual cultivator was appropriated by him.
Similarly the other 1/6th share was also appropriated by him. The learned counsel also disputed the correctness of the interpretation that the landlords' interest is not limited only to his specific share but would extend to the balance half after deducting the occupancy tenant's specific share.
' Section 114 recognizes the distribution of share of the produce between only two parties i,e, the landlord and the occupancy tenant. Clause (b) of subsection (2) read with subsection (4) of this section provides that where the tenant pays rent in the form of a share of the produce the tenant shall become owner of such portion of the land comprised in the tenancy as corresponds to his share of the produce and the landlord shall be entitled to the possession of the land. Subsection
(4) does not deal with the shares of produce enjoyed by the parties. This has been dealt with only by clause (b), which envisages cases where produce is shared by the landlord and tenant in specific shares. The only reasonable interpretation of clause (b) of subsection (2) and subsection
(4) would be that each of the two parties (the landlord and the tenant) would be entitled to the area comprised in tenancy corresponding to his share of the produce. There is no warrant for holding that despite the specification of share of the landlord he would be entitled to any area exceeding that share or the area corresponding to something which is not his share of the produce. This interpretation has the support of Mirza and others v. Raja Muhammad Zaman Khan and others (1), in which the landlord's share in the land proportionate to the share of the produce received by him was first worked out and the balance was held to belong to the tenant. (See me 249 of the Report). I, therefore, do not agree with the basic argument of the learned counsel for the petitioners about the interpretation of these provisions. I agree with the order of the Board of Revenue that the share of the landlords in the produce being 1/6th they are entitled to an area corresponding to that share only.
10. The learned counsel for the petitioners contended that Mirza and others v. Raja Muhammad Zaman Khan and others was not correctly decided and was dissented from by a Division Bench of the High Court of West Pakistan in Umar Saeed and others v. Faiz Muhammad Khan and others (2).
I have gone through this authority. There was no dissent on this point. It was held in the Lahore Bench case that the words "occupies as such" in section 114 were mere superfluity and that if the occupancy right existed it had to be changed into ownership. In the Peshawar case it was held that the occupancy tenant was not entitled to any share since the occupancy tenancy in that me did not exist on the date of enforcement of the Act providing for its extinction. It was on the other hand held that- "We mast not be understood to hold that the words 'occupies land as such' necessarily mean physical occupation, for a tenant may be in constructive possession through a tenant-at-will. In the same way, ho may have been thrown out of possession by some illegal process, but if he has time to avail of a legal process to restore himself to possession, whether actual or constructive, he should be allowed to make use of that remedy. If, however, he has allowed time to run against him, then as we have already observed, the Act of 1950 has not the effect of reviving a claim which has been extinguished."
10. According to the decided cases if there is no extinction of the occupancy tenancy rights under section 38 of the Punjab Tenancy Act, the tenant would be entitled to a share in accordance with inter aka clause (b) of subsection (2) of section 114 in the area comprised in his tenancy whether the landlord be in cultivating possession of the tenancy thus misappropriating the entire produce Umar Saeed and others v. Raja Muhammad Zaman Khan and others and Allah Ditta v. Bagh Ali (3), or whether the sub-tenant of occupancy tenant who is actually cultivating the land colludes with the landlord and pays the rent to him Amir Bakhsh v. Khuda Yar (4) and Muhammad Akram v.
Muhammad Daud than (5).
11. These are cases in which on the date of enforcement of the Amendment Act providing for extinction of the occupancy tenancy either the landlord was himself in possession or he was in receipt of the entire produce after deducting the actual cultivator's share, directly from the non- occupancy tenant or sub-tenant of the occupancy tenant. Yet it is implied in these judgments that the landlord would be entitled only to the possession of that much area which corresponds to his own share of produce of the tenant. These authorities also support the view that I have taken.
(1) PLD 1957 Lah. 242 (2) PLD 1962 Pesh. 110
(3) PLD 1975 Lah. 49 (4) PLD 1960 Lab. 256
(5) PLD 1963 Pesh. 49 12-A It was conceded at the Bar that the respondent-tenant is no longer required to clear the silt since this has been uadertaken by the Canal Department under the Canal and Drainage Act.
Despite this the share of the landlords is not increased and 1/6th of the produce which was reserved for payment to labour has been appropriated by the occupancy tenant without C any objection by or demur from the landlords. It is clear, therefore, that this 1/6th share is treated by the petitioners as a part of the share to which occupancy tenant is entitled. In these circumstances, it would be stretching the language of the entry about the share of produce if it is held that this 1/6th does not form part of the share of the occupancy tenant.
13. It is not disputed that if the occupancy tenant cultivated the area himself he was entitled to 3/5th which was set apart for the actual cultivator. In Annexure P. 3 the Additional Commissioner had held the occupancy tenant in these circumstances to be that type of tenant for the purpose of 1/6th share of the produce and non-occupancy tenant for the purpose of 3/6th of the share. There is no justification in law for this categorization. According to law, if a person who was once a non- occupancy tenant is vested with occupancy rights, his non-occupancy tenancy stands either extinguished or merged with the same consequence in the occupancy tenancy. The personality of an occupancy tenant cannot be split up into occupancy tenant and his own non-occupancy tenant. In these circumstances he remains an occupancy tenant despite cultivating the land himself.
14. A distinction should be drawn between 'entitlement' to 3/6th sham and 'deprivation' of that share. The landlord's share being only 1/6th the entitlement of the occupancy tenant clearly extends to the rest 5/6th. This entitlement is not affected whether he cultivates himself the area comprised in his tenancy or himself clears the silt or whether languishing into torpidity or having no time to clear the silt which is his responsibility or to cultivate the area, he arranges for cultivation through sub-tenant or for clearing of the silt through labour. By doing so he merely deprives himself by his voluntary act of some share of the produce to which otherwise he is entitled. He pays to the sub-tenant or labour, from his own share or earning. It is immaterial if the share payable to sub-tenant or labour is fixed by agreement between the landlord and the occupancy tenant, or even by a statute.
15. Under section 38 of the Punjab Tenancy Act it is the duty of the occupancy tenant, under risk of extinction of his tenancy, either to cultivate the tenancy himself or to make arrangement for cultivation by some other persons. Section 58 authorises an occupancy tenant subject to the provisions of the Act and to the conditions of any written contract between him and his landlord to sublet the land or any part of it for a term not exceeding 7 years. If an arrangement is made by an occupancy tenant for cultivation through some other person, say a sub-tenant, the person so cultivating hold the area under his cultivation under the occupancy tenant. There is no bond between such a cultivator and the landlord except as provided by subsection (2) of section 58. In case the tenancy is sublet by the occupancy tenant, the subtenant will be subject to the same liabilities as the tenant is subject to the landlord. In the instant case such liability would extend only to payment of I /6th share of the produce (the landlord's share) to the land lord. It is, therefore, clear that the arrangement of the actual cultivation is the duty of the occupancy tenant, the actual cultivator gets the share from the occupancy tenant and that such cultivator's liability to the landlord will be only to the extent of the latter's 1/6th share of the produce and no more. In these circumstances, the share given to the cultivator is actually the share of the occupancy tenant himself.
16. Faced with this difficulty Mr. Pervaiz Akhtar relied upon a copy of the Shart Wajib-ul-Arz pertaining to the year 1879 (Annexure P/9). It commences with a statement that there are both types of tenants-occupancy and non-occupancy-in the village and the landlords have the right to eject the non-occupancy tenants. He argued that in case of cultivation of a person other than the occupancy tenant, the relationship of landlord and tenant exists not between the occupancy tenant and the cultivator but between the landlord and the cultivator since the landlord has been vested with the right to eject the said cultivator. This argument is clearly without form The statement proceeds with the concession that there are two types of tenants and it is only a non- occupancy tenant who can be ejected by the landlord. It does not deal with the right of the landlord to eject the sub-tenant of the occupancy tenant. It will be doing immense violence to the language by interpreting the expression 'non-occupancy tenant' as meaning sub-tenant of the occupancy tenancy.
17. Mr. Pervaiz Akhtar also relied upon another condition in the Shirt Wajib-ul-Arz Annexure P/10 which specifically bars the right of a tenant to dig wells, plant gardens and cut trees. It was argued that the occupancy tenancy in the present case was not an occupancy tenancy in the real sense of the term. This argument is contrary to Annezure P/1 which describes respondent No, 2 as a tenant under section 5 of the Punjab Tenancy Act, 1887.
18. The learned counsel also placed reliance upon Annexure P/11, in regard to the share of the tenant but this document does not improve the situation. This is a copy of the order dated the 8th of January 1898, passed by Mr. E. D. Maclagan, Settlement Officer, Multan during the third Settlement operation, in which the same shares of the parties as stated above are given. It is stated that "occupancy tenants are responsibly for dues if the sub-tenants decamp". This sentence only means that non-occupancy tenants are liable to pay to the landlord, his share of the produce.
This principle is in accordance with what has been noticed in subsection (2) of section 58.
19. Lastly, the learned counsel made a reference to Annexure P. 16 which deals with the rights of owners. This document is not at all helpful since it does not deal with the rights of the occupancy tenants nor is helpful in deciding the issue before me.
20. In view of what has been stated above, this petition is without merit. I dismiss it accordingly. In view of the difficulty of the question involved I leave the parties to bear their own costs.