The judgment and decree dated 9-4-1995 passed by the learned District Judge Nowshera dismissing the appeal of the petitioners against the judgment and decree dated 6-2-1995 passed by the learned Civil Judge, Nowshera has been called in question through the, instant civil revision petition.
2. The breviate of the matter is that the petitioners filed a suit for a declaration to the effect that they are owners in possession of the suit property measuring 873, Kanals, 10 Marlas situated in the area of village Kutarpan, Tehsil and District Nowshera. The suit land was acquired by the Government for the construction of Locomotive Factory neat Risalpur and the Land Acquisition Collector without notice to the petitioners acquired the suit land but the petitioners are entitled to receive the compensation as against the respondents. The suit was brought for the relief that the petitioners were entitled to the amount of compensation. The trial Court after recording the evidence dismissed the suit on 6-2-1995 and the appeal filed there against by the petitioners also failed.
3. This case was fixed on 9-9-2002 on which date his Lordship Mr. Justice Tallat Qayum Qureshi passed the following order:-- "After hearing the learned counsel for the parties at length it transpired that the petitioners were allowed to place on record documents mentioned in C.M. No.254 of 1999. Accordingly, the petitioners placed attested copies of the Revenue Record on file. Since the said documents did not form part of the record, therefore, in order to bring the same on record with mutual consent of the learned counsel for the parties, the case is sent to the learned Senior Civil Judge Nowshera only for recording the statement of the Patwari Halqa. He is directed to record the statement of the Patwari Halqa and provide full opportunity to the respondents to cross-examine him. The statement so recorded and the documents placed on record/exhibited shall be remitted to this Court within a period of one month. In order to avoid further delay, the office is directed to send the original case file as well as attested copies of the documents placed on the record of this Court in pursuanc6 of the order dated 23-10-2000 to SCJ, Nowshera. The parties are directed to appear before the learned Senior Civil Judge, Nowshera on 17-9-2002. The office shall ensure that the original case file along with attested copies of the Revenue Record is sent to the learned Senior Civil Judge, Nowshera before the aforesaid date. "
4. In compliance with the above order, the learned -Senior Civil Judge, Nowshera recorded the statement of Mian Jamal Shah Patwari in whose statement the Jamabandi pertaining to 1928-29 till 1980-81 of the disputed and omitted Khasra numbers were produced as Exh.APW.1/1 to Exh.APW.1/11 alongwith Mutation No.3263 dated 10-6-1979 Exh.APW.1/12 and submitted the record to this Court.
5. Mr. Muhammad Alam Khan, Advocate learned counsel for the petitioners while arguing his case made reference to the Jamabandis brought on the record as mentioned above and pointed out certain Khasra numbers wherein some of the petitioners have been recorded as occupancy tenants. On the basis of such entry the learned counsel claimed that the petitioners who are recorded as occupancy tenants are to be considered as owners-of the disputed land in terms of clause (a) of section 4 of the N.-W.F.P. Tenancy Act, 1950. Section 4 which is determinative of the fate of the instant case being essential is reproduced as below:-- Compensation to be paid to the landlord.---Any occupancy tenant who at the commencement of this Act---
(a) occupies any land as such paying no rent thereof beyond the amount or the land revenue thereof and the rates and cesses for the time being chargeable thereon, shall become full owner of such land without payment of any compensation;
(b) occupies any land as on payment of the rent in cash, shall become full owner thereof on payment of the compensation to the landlord ,at such rates and within such period may be prescribed by the Provincial Government under this action;
(c) occupies such land and pays rent both in the case as well as in kind shall become full owner thereof on payment of compensation to the landlord at such rates and within such period as may be prescribed by the Board of Revenue under this section: Provided that if a tenant failed to pay the compensation determined in accordance with the provisions of clauses (b) and (c) of this subsection, the rights of occupancy on payment of compensation by the landlord to be determined by the Board of Revenue in this behalf shall be, extinguished and shall vest in the landlord and shall be entitled to possession thereof free from any incumbrance of lease created by the tenant in respect of that land."
6. The learned counsel has endeavoured to get the benefit of clause (a) of section 4 stated above.
This provision of law postulates that if the occupancy tenant does not pay the rent except that is mentioned in the said clause, he shall become full owner of land without payment of any compensation. The leaned counsel has not pressed into service clauses (b) and (c) of section 4 ibid and has exclusively based his claim on the strength of clause (a) referred above. The 'Jamabandis' Exh.APW.1/1 to Exh.APW.1/11 have been found not sufficient to determine whether the petitioners would fall within the domain of clause (a) referred above because the column of Lagan' in almost all the documents are blank and do not portray the true position. Since these documents have been brought on the record by the order of this Court and have got relevancy to determine the controversy between the parties, therefore, the significance of these documents cannot be ignored notwithstanding that presently the controversy cannot be resolved. Although the learned counsel for the petitioners has stated that the petitioners have never paid any rent to the landlords which bring the case of the petitioners within domain of clause (a) of section 4 but the mere oral submission of the learned counsel is not sufficient to determine the controversy. In the instant situation it becomes an issue "whether the petitioners have become the owners of the suit land in terms of clause (a) of section 4 of the N.-W.F.P. Tenancy Act, 1950 and are entitled to the compensation of the disputed land". As the existing data emerging after the order of this Court referred above is not sufficient to give any definite finding on the aforementioned issue therefore, it requires the remand of this case.
7. The learned counsel for the respondents has opposed the remanding of this case by arguing that no mutation has been attested in favour of the petitioners, therefore, they cannot claim any ownership on the basis of the entries available in Exh.APW.1/1 to Exh.APW.1/11.
After hearing the learned counsel for the parties and examining the record and the relevant law on the controversy I feel and hold that this is a case which inescapably requires to be sent back to the trial Court for determining the above mentioned issue. Consequently I allow this revision petition, set aside the impugned judgments and decrees of the two Courts below and remit the case to the learned trial Court with the direction that additional evidence on the aforementioned issue be recorded with opportunity to both the parties for producing their evidence. Since the evidence to be recorded is confined only to the issue given above, therefore, the learned trial Court is required to decide the case within three months. Parties are directed to appear before the learned, trial Judge on 10-3-2003.