Asghar Ali etc. vs Muhammad Hussain etc.

Stereo.HCJDA 38.

Judgment Sheet

IN THE LAHORE HIGH COURT,

RAWALPINDI BENCH, RAWALPINDI

JUDICIAL DEPARTMENT

Civil Revision No.451-D of 2012.

Asghar Ali, etc.

Versus

Muhammad Hussain, etc.

J U D G M E N T.

Date of hearing: 17.05.2022.

Petitioners by: Abrar Qaisar Malik, Advocate LRs of respondents No.2 by: Sardar Muhammad Yousaf Khan, Advocate.

Respondents No.13 to 15 by: Ch. Shams Tabraiz, A.A.G. Zulfiqar Ali Naib Tehsildar Sohawa.

AHMAD NADEEM ARSHAD, J. Facts in brevity are that petitioners instituted a suit for declaration alongwith permanent and perpetual injunction and sought declaration that they alongwith defendant No.16 are owners in possession of the suit property measuring 03 Kanals & 10 Marlas bearing Khata No.40, Khatuni No.774, 775 consisting of Khasra No.57/2 measuring 15 Marlas and 57/2 measuring 02 Kanals & 15 Marlas situated at Moza Nathot Tehsil Sohawa, District Jhelum, according to record of rights for the years 1994-95, and defendants No.1 to 12 or their predecessor never remained their tenants at will, permanent or Moroosi ) (لقتسم ای ریغ لقتسمunder section 6 of the Punjab Tenancy Act, 1887, (hereinafter referred to as the Act, 1887) and the entries with regard to Ghair Mustakil Awwal ( )ریغ لقتسم اولand Mustakil ( )لقتسمu/s 6 of the Act, 1887, in the revenue record are the result of connivance with the revenue authorities, against law & facts, forged, fictitious and based upon fraud and liable to be cancelled having no effect upon the right

Asghar Ali, etc. Vs. Muhammad Hussain, etc.

of plaintiffs and on the basis of said wrong entries mutation No.1205 dated 25.05.1991 regarding issuance of proprietary rights ()رقتر تیکلم and mutation No.1206 dated 25.05.1991 with regard to exclusion of “Mustaqal” ) (ارخاج لقتسمin favour of defendants No.1 to 12 are against facts and law and liable to be cancelled. Petitioners sought direction to the effect that respondents/defendants No.13 to 15 be directed to cancel both the mutations and as a consequential relief claimed that respondents/defendants be restrained from alienation of the suit property on the basis of said mutations and also be refrained from interfering in their possession and ownership over the suit property. They pleaded that suit property is part of Khasra No.57 measuring 07 Kanals 13 Marlas which was under possession of Khuda Baksh, Imam Baksh, Fazal Illahi, Yousaf and Muhammad Sarwar as owners/co-sharers according to settlement record of rights for the years 1939-40 and plaintiffs being legal heirs are owners in possession of the suit property; that defendants No.1 to 12 or their predecessor never remained their tenant at will, Ghair Mustaqil or Mustaqil ( )ریغ لقتسم ای لقتسمunder section 6 of the Act, 1887 but defendants and their predecessor with connivance of revenue officials got incorporated their possession as Bana Shikini ()ہنب ینکش after bifurcating the Khasras into two parts as 57 Min measuring 6 Kanals 13 Marelas and 57 Min measuring 01 Kanal & 10 Marlas and showed their possession upon Khasra No.57 measuring 01 Kanal 10 Marlas as “Bana Shakni” which according to law presumed to be illegal occupant and cannot be named as tenants, but they incorporated themselves as “Ghair Mustaqil Muzara”(ریغ لقتسم )زمارعwhich is equivalent to tenant at will; that thereafter, in the Jambandi for the years 1971-72, Patwari without any order of the competent officer further bifurcated Khasra No.57 into four parts in the revenue record i.e., 57 min measuring 15 Marlas, 57 min measuring 02 Kanals & 15 Marlas, 57 min measuring 02 Kanals & 13 Marlas and 57 measuring 01 Kanal & 10 Marlas and after

Asghar Ali, etc. Vs. Muhammad Hussain, etc.

deleting their names in the Khasra measuring 01 Kanal & 10 Marlas incorporated in 57 min measuring 15 Marlas and 57 min measuring 02 Kanals & 15 Marlas, however, kept intact entry of “Bila Lagan” ( )الباگلنdue to “Bana Shakni” ) (ہنب ینکشand then in the year 1987-88 again without any order of competent authority, Patwari entered their names in the revenue record as “Mustaqil” ) (لقتسمunder section 6 of the Act, 1887, and the defendants with the connivance of concerned Patwari and Tehsildar succeeded to get sanctioned mutation No.1205 dated 25.05.1991 with regard to proprietary rights ) (رقتر تیکلمand mutation No.1206 dated 25.05.1991 qua “Ikhraj Mustaqil” )(ارخاج لقتسم without their knowledge, neither any opportunity of hearing was granted to them nor it were sanctioned in the open assembly in accordance with law. Defendants No.1 to 12 and defendants No.13 to 15 filed their separate contesting written statements. The defendants No.1 to 12 by raising certain legal as well as factual preliminary objections maintained that the impugned mutations were rightly sanctioned and the answering defendants on the direction of defendant No.15 deposited price of the land and as a result of it suit mutations were sanctioned in their favour. They also pleaded that they are occupants of the suit property since their forefathers and have got rights under Punjab Tenancy Act, 1887. After refuting all the facts pleaded in the plaint, they prayed for dismissal of the suit. Defendant No.2 and Ghulam Rasool also instituted a suit for declaration alongwith permanent and mandatory injunction by claiming that they are owners as co-sharer in the suit property measuring 03 Kanals & 10 Marlas, bearing Khasra Nos. 57/2 and 57/2; that defendants No.1 to 08 (plaintiffs of earlier suit) have no connection with the suit property and plaintiffs as well as defendants No.9 to 18 are owners of suit land in the light of mutation No.1206, sought permanent injunction that defendants be restrained from interfering in their possessed land and prayed for decree of their suit. Said suit was contested by the petitioners by filing their written statement. Learned Trial Court consolidated both the suits, framed

Asghar Ali, etc. Vs. Muhammad Hussain, etc.

necessary consolidated issues out of divergent pleadings of the parties, recorded pro & contra, oral as well as documentary evidence from both sides and vide consolidated judgment & decree dated 03.02.2010 dismissed the suit of the petitioners, however, suit of defendant No.2 and Ghulam Rasool was decreed. Being aggrieved, petitioners preferred two separate appeals which were dismissed by the learned appellate Court vide consolidated judgment/decree dated 25.02.2012. Hence, this Revision Petition.

2.I have heard learned counsel for the parties at full length and perused the record with their able assistance.

3.It evinces from the available record that petitioners claimed their ownership on the basis of permanent occupancy/tenancy with regard to Khasra No.57/2, 57/2 total measuring 03 Kanals & 10 Marlas and agitated that defendants No.1 to 12 never remained their tenant either permanent or temporary and the mutation No.1205 and 1206 were wrongly attested by the Revenue Authorities in favour of defendants No.1 to 12, whereas, the defendants No.1 to 12 asserted that they possessed occupancy tenancy, being occupants as tenant over the suit property since their forefathers to their extent and respondent (Province of Punjab) rightly transferred ownership rights in their favour through impugned mutations.

4.In order to resolve the controversy, it is better to understand the terminology of tenant, Jagirdar, Muqarraridar, occupancy tenancy, permanent and temporary ( )لقتسم و ریغ لقتسمas both parties are claiming themselves tenant on the basis of said terminologies. “Tenant”, “Jagairdar”, “Muqarraridar”, are defined in section 4, sub-section 5, 15 and 20 of the Act, 1887, in the following manner:

(5)“tenant” means a person who holds land under another person, and is or but for a special contract would be, liable to pay rent for that land to that other person: but it does not include–

(a)(Sub clause (a) omitted by Punjab Tenancy (Amendment Ordinance, 2001).

(b)An inferior landowner, or

(c)A person to whom a holding has been transferred, or an estate or holding has been let in farm, under the Punjab Land Revenue Act, 1967, for the recovery of an arrear of land revenue or of a sum recoverable as such an arrear, or

(d)a person who takes from the Government a lease holds unoccupied land for the purpose of sub-letting it:

Asghar Ali, etc. Vs. Muhammad Hussain, etc.

(15)“Jagirdar” includes any person, other than a village servant, to whom the land revenue of any land has been assigned in whole or in part by the Government.

(20)“Muqarraridar” means any person who holds land in the [Attock and Rawalpindi District] and who, on the date of the commencement of the Punjab Tenancy (Amendment) Act, 1952, was recorded in the revenue records as muqarraridar in respect of such land or who, after the said date, was so recorded with his consent and the consent of the proprietor of such land and includes the successors-in-interest of a muqarraridar.

The following classes of tenants have been called occupancy tenants:

1)Occupancy tenants under section 5(1)(a)

2)Occupancy tenants under section 5(1)(b)

3)Occupancy tenants under section 5(1)(c)

4)Occupancy tenants under section 5(1)(d) Section 5 5) Occupancy tenants under section 6

6)Occupancy tenants under section 8.

Tenants having right of occupancy is defined under Section 5 of the Act, 1887, as under:

Tenants having right of occupancy.– (1) A tenant–

(a)who at the commencement of this Act has, for more than two generations in the male line of descent through a grandfather or grand uncle and for a period of not less than twenty years, been occupying land paying no rent therefore beyond the amount of the land revenue thereof and the rates and cesses for the time being chargeable thereon, or

(b)who having owned land, and having ceased to be land-owner thereof otherwise than by forfeiture to the Government or than by any voluntary act, has, since he ceased to be land-owner, continuously occupied the land, or

(c)who, in a village or estate in which he settled alongwith, or was settled by, the founder thereof as a cultivator therein, occupied land on the twenty-first day of October, 1868, and has continuously occupied the land since that date, or

(d)who, being jagirdar of the estate or any part of the estate in which the land occupied by him is situate, has continuously occupied the land for not less than twenty years, or having been such jagirdar, occupied the land while he was jagirdar and has continuously occupied it for not less than twenty years, has a right of occupancy in the land so occupied, unless, in the case of a tenant belonging to the class specified in clause (c), the land-lord proves that the tenant was settled on land previously cleared and brought under cultivation by, or at the expense of, the founder.

Asghar Ali, etc. Vs. Muhammad Hussain, etc.

(2)If a tenant proves that he has continuously occupied land for thirty years and paid no rent therefor beyond the amount of the land revenue thereof and the rates and cesses for the time being chargeable thereon, it may be presumed that he has fulfilled the conditions of clause (a) of sub-section (1).

(3)The words in that clause denoting natural relationship denote also relationship by adoption, including therein the customary appointment of an heir and relationship, by the usage of a religious community.

Conditions essential for setting up a right of occupancy by a tenant under Clause (1) (a) of Section 5 following three things are to be proved:-

1)At the commencement of the Act (1st November, 1887) the tenant occupied that land paying no rent therefore, beyond the amount of the land revenue thereof and the rates and cesses for the time being chargeable thereon.

2)Two preceding generations in the male line of descent through grand father or grand uncle must have occupied the same on the same terms specific in (1) above.

3)The period of such occupation must not be less than twenty years before 1st November, 1887.

Essential conditions for claiming rights of occupancy under clause (b) the tenant is to prove:

1)that he once owner of that land.

2)that he ceased to be land-owner neither by forfeiture to Government or by his own voluntary act, and

3)that he has continuously occupied the land since the day he ceased to be land-owner.

Three things are required to be proved in establishing the right of occupancy under clause (c), viz.

1)That he settled alongwith or was settled by the founder thereof, as a cultivator in the village or estate in which the land situate.

2)That he held on 21st day of October, 1868, in that village or estate in which he so settled or was settled by the founder and

3)That he has continuously occupied the land since the date.

Asghar Ali, etc. Vs. Muhammad Hussain, etc.

If, however, the land landlord proves that the tenant was settled on land previously cleared and brought under cultivation by or at the expenses of the founder that tenant is not entitled to right of occupancy under the clause.

These clauses also includes the predecessors and successors- in-interest of a tenant.

Whereas, right of occupancy of other tenants recorded as having the right before passing of the Act, 1867 is defined in the section 6 of the Act, 1887, in the following manner: “Right of occupancy of other tenants recorded as having the right before passing of Punjab Tenancy Act, 1868.– A tenant recorded in a record-of-rights sanctioned by the [Provincial Government], before the twenty-first day of October, 1868, as a tenant having a right of occupancy in land which he has continuously occupied from the time of the preparation of that record, shall be deemed to have a right of occupancy in that land unless the contrary has been established by a decree of a competent Court in a suit instituted before the passing of this Act.”

The tenant claiming right of occupancy under this section may prove.

1)that he was recorded as a tenant having right of occupancy is land in a record-of-rights sanctioned by the Provincial Government before the twenty first day of October, 1868;

2)that he has continuously occupied that land from the time of the preparation of that record.

In section 8 of the Act, 1887, establishment of right of occupancy on grounds other than those expressly stated in the Act are described as under:

Establishment of right of occupancy on grounds other than those expressly stated in Act.– Nothing in the foregoing sections of this Chapter shall preclude any person from establishing a right of occupancy on any ground other than the grounds specified in those sections.

5.The Punjab Tenancy (Amendment) Act, 1952 [VII of 1952], received the assent of the Governor on 29.01.1952 and published in the Gazzette on 04.02.1952, declared that no person shall after the coming into force of the Act acquire or have occupancy rights in any

Asghar Ali, etc. Vs. Muhammad Hussain, etc.

land under any enactment or contract or any decree or order of any Court or other authority and the existing occupancy right in respect of all lands other than 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 Act, be extinguished and the land shall vest in the tenant according to the procedure laid down in section 114 of the Act, 1887. The person being occupancy tenant became owner of the land after said amendment by operation of law. Section 114 introduced through said amendment, reads as under:

114.Extinction of occupancy tenancies.– (1) Notwithstanding anything contained in any law for the time being in force, including this Act, no person shall, after the coming into force 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 lands 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.

(2)An occupancy tenant, who at the time of the coming into force of the aforesaid Amendment Act occupies any land as such shall become owner as under:-

(a)of the entire land comprised in his tenancy without payment of any compensation where he pays no rent therefor beyond the amount of the land revenue, and rates and cesses for the time being chargeable therefor;

(b)of such portion of the land comprised in his tenancy without payment of any compensation as corresponds to his share of the produce where he pays rent in the form of a share of the produce;

(c)of the entire land comprised in his tenancy on payment of compensation to the land-lord in cash at such rates and within such periods as may be prescribed by the Government by rules framed for the purpose, where he pays rent only in cash;

(d)of the whole or a portion of the land comprised in his tenancy on payment of such compensation in such form and within such time to the land-lord as may be determined by Government by rules framed under this Act, where he pays rent partly in cash and partly in the form of a share of the produce.

(3)So long as Government does not frame rules for purposes of clauses (c) and (d) of sub-section (2), an occupancy tenancy falling under any of these clauses shall, notwithstanding the provision made in sub-section (1), continue to subsist, and the land-lord and the occupancy tenant shall continue to enjoy the same rights, and be subject to the same liabilities, as before.

(4)In a case falling under clause (b) of sub-section (2) the land- lord shall, without payment of any compensation, be entitled to the possession of the rest of the land comprised in the tenancy.

Asghar Ali, etc. Vs. Muhammad Hussain, etc.

(5)An occupancy tenant acquiring land in accordance with the provisions of sub-section (2) shall acquire it free from all encumbrances created in respect of that land by the land-lord and if any encumbrance be created by the tenant, the share of the land received by the land-lord shall be free from it and notwithstanding any provision of any law for the time being in force to the contrary each such encumbrance shall become the exclusive liability of the land-lord or the occupancy tenant, as the case may be.

(6)Where compensation is to be paid by a tenant in cash under clause (c) of sub-section (2) Government may, with a view to enabling an occupancy tenant to acquire land in accordance with the provisions of this section, advance a loan which shall be recoverable as arrears of land revenue with interest at such rates and in such installments as the Government may fix generally or in particular cases.

(7)Government shall frame rules to give effect to the provisions of this section, and while framing rules it may classify lands into different categories and prescribe different principles for assessment of compensation].

Thereafter, through “Punjab Tenancy Removal of Doubts (Amendment) Ordinance, 1974, extinguished the Muqarridari rights. For ready reference section 114-A and 114-B of the Act, 1887 are reproduced hereinunder:

114-A. Extinction of Muqarraridari rights.– (1) Notwithstanding anything contained in any law for the time being in force, including this Act, no person shall, after the coming into force of the Punjab Tenancy (removal of Doubts and Amendment) Ordinance, 1974, hereinafter referred to as the said Ordinance acquire or have Muqarraridari right in any land under any enactment or contract or other authority, and the existing Muqarraridari rights in respect of all lands other than the lands owned by or vesting in Government or by any person who, under the law for the time being in force is an evacuee, shall, on coming into force of the said Ordinance, be extinguished and the land in respect of which Muqarraridari rights are to be extinguished, hereinafter referred to as the said land, shall vest as hereinafter provided.

(2)A Muqarraridar who, at the time of coming into force of the said Ordinance, occupies the said land as such shall become owner as under:-

(a)of the said land in its entirety without payment of any compensation where he pays no rent therefor beyond the amount of the land revenue and rates and cesses for the time being chargeable therefor;

(b)of such portion of the said land without payment of any compensation as corresponds to his share of the produce where he pays rent in the form of a share of the produce;

(c)of the said land in its entirety on payment of compensation to the proprietor in cash at such rates and within such periods as may be prescribed by the Government by rules framed for the purpose, where he pays rent only in cash; and

Asghar Ali, etc. Vs. Muhammad Hussain, etc.

(d)of the whole or a portion of the said land on payment of such compensation in such form and within such time to the proprietor as may be determined by Government by rules framed under this section, where he pays rent partly in cash and partly in the form of share of the produce.

(3)So long as Government does not frame rules, for purposes of clauses (c) and (d) of sub-section (2), Muqarraridari rights falling under any of those clauses shall, notwithstanding the provision made in sub-section (1) continue to subsist and the proprietor and the Muqarraridar shall continue to enjoy the same rights, and be subject to the same liabilities, as before.

(4)In a case falling under clause (b) of sub-section (2) the proprietor shall, without payment of any compensation, be entitled to the possession of the rest of the said land.

(5)A Muqarraridar acquiring land in accordance with the provisions of sub-section (1) shall acquire it free from all encumbrances created in respect of that land by the proprietor and if any encumbrance be created by the Muqarraridar the share of the land received by the proprietor shall be free from it and notwithstanding any provision of any law for the time being in force to the contrary, each such encumbrance shall become the exclusive liability of the proprietor or the Muqarraridar as the case may be.

(6)Where compensation is to be paid by a Muqarraridar in cash under clause (c) of sub-section (2) Government may, with a view to enabling a Muqarraridar to acquire land in accordance with the provisions of this section, advance a loan which shall be recoverable as arrears of land revenue with interest at such rates and in such installments as the Government may fix generally or in particular cases.

(7)Government shall frame rules to have effect to the provisions of this section, and while framing the rules it may classify land into different categories and prescribe different principles of assessment of compensation.

114-B. Removal of doubts.– Notwithstanding anything contained in this Act or any other law for the time being in force or any decree, judgment, or order of any Court or any other authority, an occupancy tenant under a Muqarraridar shall be deemed and be deemed always to have, on the extinction of his occupancy rights under section 114, become the owner of the rights possessed by the Muqarraridar in the entire or, as the case may be, in a part of the land comprised in his tenancy and in respect of such land section 114-A shall have effect accordingly.

In the light of section 114 of the Act, 1887, for the conformant of proprietary rights on occupancy tenants section 3 of the Punjab Conformant of Proprietary Rights applied, which reads as under: Conferment of Proprietary rights in land on non-proprietors.– Notwithstanding anything to the contrary contained in any law for the time being in force or in any agreement, instrument, custom or usage or in any decree or order of any court or other authority, all rights, title and interest whatever, in the land which is situated within the Abadi Deh and which is under a house owned by a non- proprietor, shall on the commencement of this Act, vest in the non-

Asghar Ali, etc. Vs. Muhammad Hussain, etc.

proprietor under whose house it is situate, free of charge, and no compensation shall be claimed by or paid to any person or Government affected by the vesture of proprietary rights in a non- proprietor under this section.”

6.To fulfill the requirements of sections 114 & 115 of the Act, 1887, the Punjab Tenancy (Amendment) Rules, 1953 framed, wherein prescribed a period of two years from the date of issue of said rules, within which occupancy tenants were entitled to pay compensation for acquiring proprietary rights in their tenancies and said period was extended from time to time through amendments. To validate the amendments, to remove doubts and to further extend the time “The Punjab Tenancy (Validation and Extension of Period for the Payment of Compensation) Ordinance, 1969, was introduced which was later on substituted by the Punjab Tenancy (Validation and Extension of Period for Payment of Compensation) (Amendment) Act, 1992, and lastly, the period for deposit of compensation was extended till 31.12.1996.

7.By perusing the scheme of Tenancy Laws it appears, occupancy tenancy can only be created or established under section 5, 6 and 8 of the Act, 1887 and such tenants are presumed “Mustaqal Tenant” (though these words not used in the Act, 1887). Although, terminologies “Ghair Mustaqil Tenant”, “Ghair Mustaqal Awal” and “Ghair Mustiqal Doem” are not defined in the Act, 1887, but it means that those tenants who does not possess the status of occupancy tenancy and are not “Mustiqal Tenant” but their services are acquired for cultivation of the land by the occupancy tenant for some compensation and said temporary cultivators are called “Ghair Mustaqal Tenant”. To keep the tenancy intact, it is necessary to cultivate the land but if for some reasons he is unable to make cultivation himself then he either acquire services of others or lease out to someone else the land for a fixed term not exceeding seven years. The person who acquired such land from occupancy tenant calls as “Ghair Mustaqal” and in case of further sub-leasing the first lessee be called as “Ghair Mustaqal Awal” and the subsequent one be called as “Ghair Mustiqal Doem”. They all are tenants at will of

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the occupancy tenant and cannot get the status of “Mustaqal” or occupancy tenants.

8.Status of owner/cultivator/tenant/occupant is bound to be incorporated in Jamabandi. Jamabandi/Register Haqdaran Zamin is one of the most important document of the record of rights as well as periodical record as prescribed by section 39(2) of the West Pakistan Land Revenue Act, 1967 [XVII of 1967] (hereinafter referred to as the Act, 1967), and Rule 72(i) of the Punjab Land Revenue Rules, 1968. It is Form No.XXXIV, compiled by the Patwari, checked by Kanugo, Naib Tehsildar, Tehsildar and supervised by Collector, consisting of 10 columns and is called Jamabandi/Register Haqdaran Zamin. Land Record Manual in it’s Chapter No.7 includes provisions, special instructions relating to Register Haqdaran Zamin. Prescribed form of Jamabandi/Register of Record of Rights is as follows:

Remarks including:

by Rajbah, classification of

cultivatorname

P

and Malik Area and soil

etc. rate each number No. and name Name of cultivator No. Khatauni

of Khatauni irrigation

Lambardar (if and total

and demand

revenue and No. Khewat

Demand with Name of owner

Survey/Khasra description

description

cultivator, Cultivator

Source

including

r details of khewat

Revenue Name of of well, (if any)

Rate of cesses Malik

Land with

with

any)

o Rent paid

Provisions describing columns of Jambandi enumerated in Land Record Manual as follows:

7.41 (2): Column No.1: (No. Khewat Malik):

The words “Khewat” and “Khata” are the vernacular of term “holding” defined in clause (10) of section 4 of the Act, 1967, as a share or portion of an estate held by one land owner or jointly by two or more land owners. The number Khewat Malik (Khatedar) is the number given to an owners’ holding.

7.41 (3): Column No.2: (No. Khatauni cultivator):

Asghar Ali, etc. Vs. Muhammad Hussain, etc.

i)The number Khatauni cultivator (Kashtikhar) is the number of holding of the tenant or of the person responsible for the cultivation.

ii)The Khatauni holdings within each Khewat is arranged in the following order:

First: The holding, if any, cultivated by the landowner himself (Khud Kasht), Next: The holding, if any, cultivated by the landowner through tenant-at-will, Third: The holding of occupancy tenant, if any, cultivated by the occupancy tenant himself (emphasis supplied), Last: The holdings, if any, cultivated by the occupancy tenant through tenant-at-will.

iii)If a tenant holds land under one owner part in occupancy right and part as a tenant-at-will, the whole is entered as a single holdings, the fields held under each tenure, and; if necessary, their rent is separately detailed.

iv)Where there are several tenancy holdings under one proprietor the tenants in their several tenancy holdings under one proprietor the tenants in their several classes are entered in alphabetical order.

7.41(4): Column No.3: (Name of owner with description): The term “land owner” has been defined in clause (13) of section 4 of the Act, 1967.

7.41(5): Column No.4 : Name of Cultivator with description: This Provision deals with cultivators of following kinds:

(1)Cultivating Owners;

(2)Occupancy tenants under the Tenancy Act; (emphasis supplied)

(3)Tenants under the Colonization of Government Lands Act;

(4)Tenants for a fixed term exceeding one year;

(5)Tenants-at-will;

(6)Other cultivators;

(7)Partners in cultivation;

(8)Field workers.

Asghar Ali, etc. Vs. Muhammad Hussain, etc.

I. CULTIVATING OWNERS:

(a). If the land is cultivated by the sole owner or owners jointly, the entry is made as self-cultivation (Khud Kasht/Khud Abad).

(b). If one of the owners alone is in cultivation, the entry is made Kasht Flan Hissadar.

(c). If the land is uncultivated and is in the possession of an owner or owners, the words Maqbooza Malik/Maqbooza Malikan or Maqbooza Flan Hissadar is entered.

(d). If some land is cultivated by the owner or owners and some' uncultivated is also in his or their possession, separate Khatuni for cultivated and uncultivated area is not formed and an entry of Khud Kasht as Maqbooza Malik/Malikan is made.

(e). If a person cultivates certain survey/Khasra Nos. partly as co-sharer (Hissadar) and also pays due rent of the same land to other co-sharer, the entry is made "A". co-sharer himself (Bazatehi) 1/3rd and on behalf of "B" co-sharer 2/3rd. (Bazatehi 1/3rd and Hissadar 2/3rd).

II. OCCUPANCY TENANTS UNDER TENANCY ACT:

(a). Where a tenant having right to occupancy legally exists, he is recorded as Muzaria Mouroosi, Buzgar Dakhilkar, Muqarraridar or Mouroosi Hari etc. according to the local usage alongwith 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.

(c). The entries of this column show:

• Whether the land is cultivated by the occupancy tenant himself;

• Whether the land is cultivated by a Muzaria or Hari of the occupancy tenant;

Asghar Ali, etc. Vs. Muhammad Hussain, etc.

• 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.

III. TENANTS UNDER THE COLONIZATION OF

GOVERNMENT LANDS:

(a). In case of tenant under the Colonization of the Government Lands (Punjab) Act, 1912, he should be recorded as Grantee, lessee, Muzaria Lathband or Hari Lathband as the case may be according to the local usage.

(b). Where the statements of conditions of tenancies have been issued by the Government under section 10 of the Colonization of Government Land Act, 1912 and published in the Government's notification, the name, parentage, caste, residence and status of the tenant are all mentioned.

IV. TENANTS FOR A FIXED TERM EXCEEDING ONE YEAR:

(a). Tenants holding land for a fixed term under a contract or a decree of a court or an order of competent authority should be described as Pattedar Miadi (b). The entry for fixed term exceeding one year shall be subject to the order passed by the revenue officer on a mutation.

(c). It should be remembered that the status of a lease- holder for a year differs from that of a tenant-at-will.

V. TENANTS AT WILL:

Entry “Ghair Maurusi”, “Ghair Dakhilkar” or Muzaria Ghair Mustaqil” does not necessarily mean, that the person described is a tenant-at-will. The use of above said term for every person who is in possession without any right or title is not correct. Tenant at will should be recorded as “Muzaria Tabe Marzi” or “Hari Tabe Marzi”.

VI. OTHER CULTIVATORS:

A person who is determined to be in adverse possession should not be described as “Ghair Dakhilkar”, “Ghair Maurusi” or “Muzaria Tabe-Marzi”. These words imply a relationship of landlord and tenant which is incompatible with adverse possession. In such cases, the fact of adverse possession by the cultivator is not disputed, the person in possession should be recorded as “QABIZ”. Such entries should not be made without a mutation duly attested by the revenue officer.

There may, however, be cases where while, on the one hand, the owner claims the cultivator to be his tenant, the cultivator, on the

Asghar Ali, etc. Vs. Muhammad Hussain, etc.

other hand, claims his possession independent of the owner and adverse to him. In such cases, the Patwari should enter a mutation of dispute of rights of tenancy/possession (Tenazia Haquq Khasht/Qabza) and put up to the revenue officer, who will decide it on the post in the presence of the parties and the village community as per instructions on the subject of treatment of rights of absentee or out of possession.

Above mentioned provision 7.41 (5) II of Land Record Manual mentions that, where a tenant having right to occupancy legally exists, he is recorded as Muzaria Mouroosi, Buzgar Dakhilkar, Muqarraridar or Mouroosi Hari etc. according to the local usage alongwith the relevant provisions of the Tenancy Act. Provision 7.41 (5) VII of Land Record Manual, whilst elaborating tenant at will, signifies that an entry “Ghair Maurusi”, “Ghair Dakhilkar” or Muzaria Ghair Mustaqil” does not necessarily mean, that the person described is a tenant-at-will. Later mentioned provision suggests that Muzaria Mustaqil falls in category of occupancy tenants alongside Muzaria Mouroosi, Buzgar Dakhilkar, Muqarraridar or Mouroosi Hari.

VII. PARTNERS IN CULTIVATION:

Adhjogias Siris, Lachhains, Halis, Adhalis, Sirriria Hari, Dehqan and such other partners in cultivation are not tenants within the meaning of clause (26) of section 4 of the Act, 1967, and do not possess the right of excluding the landlord from interfering in the cultivation under the law relating to tenancy. The entry regarding them is made as Khud Kasht Flan Hissadar Ba-Shirakat Falan Siri etc.

VIII. Field Workers (Kama):

Whose status is that of mere labourers receiving fixed wages in cash or in kind, should not find a place in the Register Haqdaran Zamin.

7.41 (6): Column No.5: Survey/Khasra No. and name, if any:

Asghar Ali, etc. Vs. Muhammad Hussain, etc.

A portion of land of which the area is separately entered under an indicative number in the record of rights.

7.41 (7): Column No.6: Area and soil classification of each number and total Khatuni cultivator and Khewat Malik: 7.41 (8): Column No.7: Source of irrigation including name of well, Rajbah etc.

7.41 (9): Column No.8: Rent paid by cultivator, rate and demand: (i). As defined in clause 21 of Section 4 of the Act,1967, the term "rent" means whatever is payable to a landlord in money or kind by a tenant on account of use or occupation of land by him. The classification of rent (lagan) which are commonly met with are:

(a). A definite share of the crop (Lagan Batai); (b). A definite share of the crop (Lagan Batai); (c). Cash rent for particular crops which cannot conveniently be divided, at a fixed rate per Kanal or area etc. (Lagan Zabti); (d). Cash rents paid , on land irrespective of the crop grown upon it (Lagan Naqdi);

(e). Lump grain rents or rents consisting of a fixed amount of grain in the spring and a fixed amount of money in the autumn harvest (Lagan Chakota); and (f). A definite share of crops in addition to some cash at certain rate per Kanal or per Acre.

7.41(10): Column No.9: Demand with details of Revenue and cesses:

(i). For the definition of term “Land Revenue” and “Rates and Cesses” see clause (14) and (20) of the Act, 1967. (ii). For the lands exempted from the payment of Land Revenue see sub-section (1) of section 56 of the Act, 1967, (iii). The detail of land revenue i.e. fixed (Mustaqil) or in the form of prescribed rates (Ghair Mustaqil), as the case may be, and rates and cesses or other government dues (i.e. water rate, Historical Mosque Fund Cess, Development Cess, Lambardari

Asghar Ali, etc. Vs. Muhammad Hussain, etc.

Fee, if any, etc), on the basis of total demand of Kharif and Rabi assessment of the year for which the record is prepared should be recorded in this column against each Khata as illustrated in Appendix ‘E’, (iv). Total demand of taraf or patti (if any) and of estate should be recorded in red ink after the last khewat contained therein. For the purpose of Correction of clerical mistakes made in the Register Haqdaran Zamin, procedure for Fard Badar is laid in 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).

9.Mutations according to Land Record Manual are being used to be sanctioned regarding every acquisition of any right or interest as a land-owner or a tenant for a fix term exceeding one year. Provision No.7.1 of Land Record Manual deals with head of mutations reading as follows:

7.1. Entry of mutation:

The mutation register is prescribed in sections 41(3) and 42 of the Act, 1967 providing that the mutation register is maintained for the entry of every acquisition of any right or interest as a land-owner or a tenant for a fix term exceeding one year. For the entry of every acquisition of any right or interest in an estate as a landowner or assignee and under section 42 of the Act, 1967, for disputed acquisition of other rights. The mutation register is not a part of the record of rights and its entries are not attached the presumption of truth. All mutations of rights of ownership including voluntary partitions, shall be entered by the patwari in the register when they are reported to him by the transferee as required by section 42 of the Act 1967, and if not so reported, then as soon as they appear to have been acted upon. When he enters a mutation affecting the Shajra Nasb the patwari shall note in pencil the number of the mutation against the entry affected. If and when the mutation is sanctioned he

C.R. No.451-D of 2012. 19 Asghar Ali, etc. Vs. Muhammad Hussain, etc.

shall amend the Shajra Nasb in red ink in accordance with the mutation order. Form of mutation is as follows:

Entry in the

Nature nad date of Dekhil Kharij with price in case of sale and amount Register New entry which is Haqdaran proposed to Zamin or last be entry in substituted.

Register Dekhil Kharij which is proposed to be corrected.

Signature/Thumb-Impression of witness.

No. of Khewat which will be substituted No. Khewat Register Haqdaran Zamin.

of mortgage debt in case of mortgage.

Survey/Khasra No. with name, if any

Survey/Khasra No. with name, if any in the new Register Haqdaran Zamin.

Land Revenue and Dakhil Kharij fee.

Name of cultivator with description.

Name of cultivator with description.

Name of owner with description.

Name of owner with description.

Area and Kind of soil.

Area and Kind of soil.

Reports and orders.

Serial No.

10.Mutations regarding occupancy rights are also used to be attested in accordance with Land Record Manual. Regarding transfer of rights of occupancy tenancy, provision No.7.20 of Land Record Manual which reads as follows:

7.20: Mutation of occupancy right:

In mutation proceedings relating to alienations of occupancy rights the landlord undoubtedly an interested party, and he should be made a party to the proceedings. The revenue officer’s order should note briefly whether the landlord has been examined by him, and, if so, whether the landlord consented to the alienation, and whether the provisions of section 53 and 56 of the Tenancy Act have been followed or not. This procedure will do much to obviate the difficulty of deciding whether the landlord has acquiesced in the transfer but if, as a matter of fact, the transfer has taken place, the mutation must not be refused simply because the landlord refuses his

Asghar Ali, etc. Vs. Muhammad Hussain, etc.

consent or because the provisions of section 53 and 56 have not been complied with. Landlord for the purpose of this paragraph means any one of the landlords, where are several landlords.

11.Admittedly, according to the settlement record of rights for the year 1937-38 (Exh.P.20), Khewat No.174, Khatuni No.756 consisted of Khasra No.57 measuring 07 Kanals & 13 Marlas, in column of ownership its status “Shamlat-e-Deh” )(اشالمت دہہیis mentioned and in the column of cultivation described that it was in possession of Khuda Baksh 1/4th, Imam Baksh, Sarwar equal in share 1/4th, Fazal Elahi, Muhammad Yousaf equal in share (1/4th x 1/4th) regarding rest of half of remaining share. Also stated that in the previous settlement, the said Khasra number was 45 and in the present settlement it was given fresh Khasra number of 57. Plaintiffs and defendant No.16 are legal heirs of said occupancy tenants. These entries remained intact in the record of rights till 1946-47 (Exh.P.3 & Exh.P.4). Subsequently, in the record of rights for the year 1950-51 (Exh.P.5) said Khasra number was bifurcated into two parts. Khasra No.57 Min measuring 06 Kanals & 03 Marlas and Khasra No.57 Min measuring 01 Kanal & 10 Marlas. In the column of ownership entry of “Shamlat Deh” ( )اشالمت دہہیremained intact whereas in column of cultivation with regard to Khasra No.57 Min bearing Khata No.167, Khatuni No.829, measuring 06 Kanals & 03 Marlas names of Khuda Baksh, Muhammad Baksh, Ejaz, Ajaib, Sarwar, Fazal Elahi were shown, occupant as sharer, whereas, Khasra No.57 Min bearing Khata No.167 Khatuni No.830 measuring 01 Kanal & 10 Marlas in the column of cultivation shares of Khuda Baksh etc. were shown through Jaffer (predecessor of defendants No.1 to 12), Ghulam Rasool and Said Rasool sons of Imam Deen equal in share as “Ghair Mustaqal Awal Bakasht Qaim Deen s/o Ditta” ()ریغ لقتسم اول اکبتش اقمئ دنی and said Qaim Deen was described as “Ghair Mustiqal Doem” ()ریغ لقتسم دومئ. In the column No.8 it was incorporated “Zamghi Ghair Mustiqal Awal Bila Laggan” ) (زیگم ریغ لقتسم اول الب اگلنdue to “Banna

C.R. No.451-D of 2012. 21 Asghar Ali, etc. Vs. Muhammad Hussain, etc.

Shakni” )(وبہج انب ینکش, “ZAMGHI GHAIR MUSTIQAL DOEM BAYYAFTI

GHAIR MUSTAQAL AWAL BHATTAI BAHISA NISAF BASHRAH

ن KHATA NO.7” (7) زیگم ریغ لقتسم دومئ ایبیتف ریغ لقتسم اول اٹبیئ بحصہ صفی رشبح اھکہت ربمن. It means that predecessor of defendants No.1 to 12 namely Jaffer alongwith Ghulam Rasool and Said Rasool got the possession in the said Khasra due to “Banna Shakni” and introduced Qaim Deen as their tenant, and were called as “Ghair Mustaqal Awal” and Ghair Mustiqal Doem”. Said entries were made without adopting any due process of law such as, order of any competent authority or through mutation. These entries remained intact in the record of rights for the year 1954-55 (Exh.P.6). Whereas, in the record of rights for the year 1958-59 (Exh.P.7) in the Khewat No.186, Khatuni No878, Khasra No.57 Min measuring 01 Kanal 10 Marlas in the column of cultivation name of Jaffer (predecessor of defendants No.1 to 12) as “Ghair Mustiqal Awal” )(ریغ لقتسم اولwas deleted, however, other entries remained intact. Same is the situation in the subsequent record of rights for the years 1962-63 (Exh.P.8), for the years 1966- 67 (Exh.P.9). Later on, in the record of rights for years 1970-71 (Exh.P.10), Khata number with regard to Khasra No.57 Min was changed and allocated fresh number as Khata No.196, consisted of Khatuni Nos.907, 908, 909, 910, and Khatuni No.907 which was consisted of Khasra No.57 Min measuring 15 Marlas, petitioners were shown through defendants No.1 to 12 and defendants No.1 to 12 were shown through Lakhi s/o Kalo “Ghair Mustaqal Awal” ( )ریغ لقتسم اول اکبتش یھکل ودل اکولtenant at will ()زمراع اتعب رمیض, Khatuni No.908 consisted of Khasra No.57 Min measuring 02 Kanals & 15 Marlas plaintiffs Nawaish Ali etc. were shown through Ghulam Rasool s/o Imam Deen as “Ghair Mustiqal Awal Bakashat Nawaish Ali” ()ریغ لقتسم اول اکبتش وناسئ یلع, Khatuni No.909 consisted of Khasra No.57 Min measuring 02 Kanals & 13 Marlas, plaintiffs/Nawaish Ali etc. were shown sharer through Said Rasool s/o Imam Deen as “Ghair Mustiqal Awal” ( )ریغ لقتسم اولcultivated by Lakhi ) (بکاشت لکھیtenant at

Asghar Ali, etc. Vs. Muhammad Hussain, etc.

will ) (تابع مرضیunder “Ghair Mustiqal Doem” ( )اتعب رمیض دومئKhatuni No.910 consisted of Khasra No.57 Min measuring 01 Kanal & 10 Marlas plaintiffs/Nawaish Ali etc. were shown sharers through Ghulam Rasool, Said Rasool sons of Imam Deen occupant due to “Banna Shakni”. It means that Khata No.196, Khatuni No.907, Khasra No.57 measuring 15 Marlas was shown under possession of plaintiffs through defendants No.1 to 12 through Lakhi s/o Kaloo. Defendants No.1 to 12 were shown “Ghair Mustiqal Awal”, whereas Lakhi was shown “Ghair Mustiqal Doem”. Lakhi was shown tenant at will of defendants No.1 to 12. Khata No.196, Khatuni No.908, Khasra No.57 min measuring 02 Kanals 15 Marlas was shown under possession of plaintiffs through cultivation of Ghulam Rasool s/o Imam Deen through cultivation of Nawaish Ali one of the plaintiffs tenant at will through share of produce. Khata No. 196, Khatuni No.909, Khasra No.57 min measuring 02 Kanals & 13 Marlas was shown under possession of plaintiffs through Said Rasool s/o Imam Deen “Ghair Mustaqal Awal” in cultivation of Lakhi s/o Kaloo tenant at will through share of produce. Khata No. 196, Khatuni No.910, Khasra No.57 min measuring 01 Kanal 10 Marlas was shown under possession of plaintiffs through Ghulam Rasool, Said Rasool sons of Imam Deen equal in share “Bila Laggan” due to “Banna Shakni”. According to record of rights for the years 1974-75 (Exh.P.11) Khewat No.1, Khatuni No.1 was introduced, wherein Khasra No.57/1 measuring 2 Kanals 14 Marlas was shown in the ownership of Mir Wajid Ali Shah s/o Qurban Hussain Shah and under self-cultivation, said entry was made in the light of order of Assistant Commissioner, Jhelum, dated 07.11.1973 through mutation No.978 (Exh.P.2), incorporated on 05.03.1975 and sanctioned on 29.06.1975, whereby land of “Shamlat Deh” measuring 2 Kanals 14 Marlas bearing Khasra No.57/1 alongwith other land measuring 471 Kanals 15 Marlas were transferred in the name of Mir Wajid Ali Shah, who through mutation No.980 dated 22.08.1977, said Khasra No.57/1 alongwith his other land transferred it to Land Commissioner which was subsequently

Asghar Ali, etc. Vs. Muhammad Hussain, etc.

allotted to Said Rasool s/o Imam Deen through mutation No.1410 dated 19.12.2000. The question arises how said land of “Shamlat Deh” was transferred in the name of Mir Wajid Ali Shah? No satisfactory answer is available on the record. The plaintiffs through another suit titled as “Nawaish Ali etc. Vs. Chairman Federal Land Commissioner etc.” challenged said entries and through judgment of even date passed by this Court in a Civil Revision No.452-D of 2012 titled as “Asghar Ali etc. versus Chairman Land Commissioner etc.” said mutation No.978 dated 29.06.1975, mutation No.980 dated 22.08.1977 were declared null and void to the extent of Khasra No.57/1 measuring 02 Kanals 14 Marlas and subsequent mutation No.1410 dated 19.12.2000 was also set aside.

Perusal of record of rights for the years 1974-75 (Exh.P.11) further reveals that entries with regard to Khata No.194, Khatuni No.935, Khasra No.57/2 measuring 15 Marlas, Khatuni No.936 measuring 02 Kanals 15 Marlas, Khatuni No.937 measuring 01 Kanal 10 Marlas were remained intact as previous shown in the record of rights for the year 1970-71 (Exh.P.10). Said entries remained continue in the subsequent record of rights for the years 1978-79 (Exh.P.12), for the years 1983-84 (Exh.P.13) but in the record of rights for the years 1986-87 (Exh.P.14/Exh.D.3) defendants No.1 to 12 were first time shown as “Mustiqal” ( )لقتسمinstead of “Ghair Mustiqal” ( )ریغ لقتسمwith regard to Khasra No.57/2 min measuring 15 Marlas and Khasra No.57/2 measuring 02 Kanals & 15 Marlas. This entry in the record of rights was made without any mutation or any order of competent Authority. There is no evidence on record to suggest that how said changes were made in the revenue record. Said entry of “Mustiqal” ) (لقتسمremained continue in the subsequent record of rights for the years 1990-91 (Exh.P.15/Exh.D.15).

12.On the strength of said entries wherein defendants No.1 to 12 were shown as “Mustiqal” ()لقتسم, mutation No.1205 regarding

C.R. No.451-D of 2012. 24 Asghar Ali, etc. Vs. Muhammad Hussain, etc.

proprietary rights ()رقتر وقحق تیکلم, on the recommendation of order of Tehsildar Sohawa dated 08.05.1991, Khata No.186, Khatuni No.774, 775, Khasra No.57/2 Min measuring 15 Marlas, Khasra No.57/1 measuring 02 Kanal & 15 Marlas, in favour of Naik Bi etc.

(defendants No.1 to 12) “Mustiqalan” ( )القتسمنwas incorporated on 22.05.1991 and sanctioned on 25.05.1991 (Exh.P.18/Exh.D.19), in the following manner:

لمع رقتر وقحق تیکلم ربوےئ یھٹچ ارگنزیی وبرڈ آف رویوین اجنپب الوہر از درتف لیصحت- "مکح رمہل قحب10 انکل3 رہبق دعتادی3 اجنمب اماکلن دنمرہج اخہن ربمن21-05-91 ومرہخ198ربمنی "وصبرتدجدیوظنمرےہ۔9کینیبوریغہدنمرہجاخہنربمن

Whereas, mutation No.1206 “Ikhraj Mustiqali” ()ارخاج یلقتسم Khata No.186, Khatuni Nos.774, 775, Khasra No.57/1 measuring 03 Kanals & 10 Marlas with regard to Ghulam Rasool s/o Imam Deen was incorporated on 22.05.1991 and sanctioned on 25.05.1991 (Exh.P.19/Exh.D.18) in the following terms:

ےک اماکلن و القتسمن اکی ےس ںیہ۔ اےئلس لمع ارخاج یلقتسم اجنمبن3"ہسلج اعم شیپ وہا۔ اخہن ربمن رمےلوعبض10انکل3)اسملدعتادی2(ہعطق186/774،775ویھکٹ3اقاضبندنمرہجاخہنربمن "اماکلنلمعارخاجلقتسموصبرتدجدیوظنمرےہ۔3قحباماکلندنمرہجاخہنربمن24/-غلبم Said mutations were incorporated in the revenue record which is evident from record of right for the year 1990-91 (Exh.P.15/Exh.D.15). In the said record of rights Khata No.192, Khatuni No.801, Khasra No.57/2 measuring 01 Kanal, 06 Marlas, in the column of owner showed “Shamlat Deh” and in column of cultivation plaintiffs/Nawaish Ali etc. were shown, whereas, Khata No.193/1, Khatuni No.837/1, Khasra No.57/1, measuring 02 Kanals & 15 Marlas and Khasra No.57/2 measuring 15 Marlas were shown under ownership and possession of defendants No.1 to 12. Said entries continued in the record of rights for the years 1994-95 (Exh.P.16/Exh.D.7 & Exh.D.14), for the years 1998-99 (Exh.P.17/Exh.D.9).

Asghar Ali, etc. Vs. Muhammad Hussain, etc.

Although, in the record of rights Naik Bi etc. (defendants No.1 to 12) were initially incorporated as “Ghair Mustiqal” ( )ریغ لقتسمbut later on their names were incorporated as “Mustaqil” ( )لقتسمin the record of right for the year 1986-87 and said entry made basis for sanction of above stated mutations No.1205 & 1206 dated 25.05.1991. The entry in the record of rights for the year 1986-87 with regard to “Ghair Mustiqal” ( )ریغ لقتسمto “Mustaqil” ( )لقتسمwas shown to be made u/s 6 of the Act, 1887. But no evidence was produced by the respondents that how they got status of “Mustiqal” (occupancy tenant) under section 06 of the Act, 1887, without fulfilling the required conditions. Undoubtedly, said entries were made against the facts and law.

13.There is no cavil with the proposition that no tenant shall acquire a right of occupancy mere on lapse of time. Similarly, no one of several joint owners of land shall acquire a right of occupancy in land jointly owned by them except when there is a custom to the contrary. Sections 9 & 10 of the Act, 1887 are relevant in this regard which reads as under:

9.Right of occupancy not to be acquired by mere lapse of time.– No tenant shall acquire a right of occupancy by mere lapse of time.

10.Right of occupancy not to be acquired by joint owner in land held in joint ownership.– In the absence of a custom to the contrary, no one of several joint owners of land shall acquire a right of occupancy under this Chapter in land jointly owned by them.

14.From the above discussion, it is abundantly clear that predecessors of the petitioners were recorded in the column of cultivation as occupancy tenants with regard to land of “Shamlat Deh”, obviously, the land which was wholly vested in the proprietors of the village. Defendants No.1 to 12 or their predecessors were not in the picture at that time and their names were first time introduced in the record of rights for the years 1950-51 under the status of

Asghar Ali, etc. Vs. Muhammad Hussain, etc.

“Bana Shakni” as “Ghair Mustaqil Tenant” and no tenant shall acquire a right of occupancy by mere lapse of time. The status of the defendants No.1 to 12 was trespasser and illegal occupant and cannot be termed as “Ghair Mustiqal Awal” or “Ghair Mustiqal Doem” and to acquire such status, it was necessary for them to be inducted in the land with the consent of occupancy tenants and in that eventuality their status would definitely be tenant at will. As discussed supra, occupancy tenancies having been extinguished by introduction of section 114 [Punjab Tenancy (Amendment) Act, 1952] of the Act, 1887 and no one claimed that he acquired occupancy tenancy after introduction of said amendment, the tenants who have status of occupancy tenant became owner by operation of law after adopting due process. Therefore, the suit land was not available for further allotment and to conform proprietary rights. The mutations under challenge were sanctioned against law, therefore, have no force and are declared null & void. The record of right for the year 1986-87 and the record of rights prepared in the light of said mutations in the year 1990-91 and onward is liable to be corrected. The Courts below failed to consider the evidence available on the record in true perspective. The defendants No.1 to 12 have no right of occupancy u/s 5 or 6 of the Act, 1887, and they were illegally treated as tenant having right of occupancy u/s 6 of the Act, 1887. As the defendants No.1 to 12 failed to establish their right of occupancy tenancy, therefore, they cannot claim benefit of section 114 of the Act, 1887. They have been illegally given proprietary/ownership rights, hence, they cannot claim themselves owners as a sharer in the suit Khasra numbers.

15.In the light of above discussion, this revision petition is allowed. Impugned judgments & decrees of the Courts below dated 03.02.2010 and 25.02.2012 are hereby set aside. Resultantly, suit of the petitioner titled as “Nawaish Ali etc. Vs. Naik Bi etc.” is hereby decreed as prayed for and Revenue Authorities are directed to make necessary correction in the revenue record and suit titled as

Asghar Ali, etc. Vs. Muhammad Hussain, etc.

“Muhammad Hussain etc. Vs. Muhammad Sardar etc.” is hereby dismissed with no order as to cost.

(AHMAD NADEEM ARSHAD)

JUDGE.

APPROVED FOR REPORTING.

JUDGE.

M. Arsalan*