Shams-ul-Haq vs. Provincial Government through Secretary, Board of Revenue, Peshawar and others

IN THE PESHAWAR HIGH COURT, PESHAWAR

[JUDICIAL DEPARTMENT]

C.R No. 1292-P/2019

Shams-ul-Haq... .................. ..............Petitioner Vs

Provincial Government through Secretary, Board of Revenue, Peshawar and others.............Respondents Present: Mr. Rahmanullah, Advocate, for the petitioner.

Mr. Taimur Haider, AAG, for the Provincial Government.

Dr. Shakeel Azam Awan, Advocate, for the respondents.

Date of hearing: 29.06.2026

JU D G M EN T

MUHAMMAD IJAZ KHAN, J.- Through this single judgment, this Court shall decide the instant as well as the following connected petitions, particulars whereof are as under:-

i. CR No. 1293-P/2019 titled “Shams-ul-Haq .vs. Provincial Government through Secretary, Board of Revenue, Peshawar and others.

ii. CR No. 1294-P/2019 titled “Shams-ul-Haq .vs. Provincial Government through Secretary, Board of Revenue, Peshawar and others.

iii. CR No. 1295-P/2019 titled “Shams-ul-Haq .vs. Provincial Government through Secretary, Board of Revenue, Peshawar and others.

iv. CR No. 1296-P/2019 titled “Shams-ul-Haq .vs. Provincial Government through Secretary, Board of Revenue, Peshawar and others.

v. CR No. 1297-P/2019 titled “Muhammad Afzal Shah .vs. Provincial Government through Secretary, Board of Revenue, Peshawar and others.

as all of them have arisen out of a common consolidated judgment and decree of the learned District Judge, Hangu dated 27.09.2019, vide which six

(06)appeals filed by the respondents / defendants (Provincial Government) were allowed and thereby set- aside the judgments and decree of the learned trial court dated 30.06.2004 and 30.11.2004, who vide the same had decreed six (06) suits of the petitioners / plaintiffs.

2.Precisely, the facts leading to the filing of this and connected petitions are that petitioners / plaintiffs namely, Shams-ul-Haq instituted five (05) suits, whereas one by his son namely, Muhammad Afzal Shah for seeking a declaration from the Court to the effect that they are in possession of the respective suit properties with distinct areas and bearing separate khasra numbers situated in Mouza Hangu as “occupancy tenants” ()دخيلکار. It was further pleaded

that incorrect entries had been made in the revenue record, whereby they were recorded as “tenants-at- will”()غير دخيلکار instead of “occupancy tenants” ( )دخيلکارand in this regard, they sought a direction to the effect that the revenue record be corrected to reflect his status as “occupancy tenants” ( )دخيلکارand they have further prayed for the transfer of ownership rights in their favour in the revenue record, as according to them, the notification issued by the Provincial Government in the year, 1964/1966 regarding the conversion of occupancy rights was not applicable to their case and, therefore, was ineffective against their vested rights. They also sought a decree for mandatory- cum-permanent injunction directing the revenue authorities to correct entries in the record of rights and to permanently restrain the defendants from recording their status as “tenants-at-will” ()غير دخيلکار. In their suits, the petitioners/plaintiffs did not dispute that the suit properties were owned by the Provincial Government, however, they asserted that they had remained in possession thereof as dakhilkars (occupancy tenants) for the last more than fifty (50) years. They further claimed to have spent a huge amount on the improvement of the suit land and to have

raised constructions thereon. They maintained that they had never paid any rent, lagan, or share of produce to any person, which, according to them, was indicative of their status as “occupancy tenants” ()دخيلکار. They further pleaded that, due to the negligence of the revenue officials, their names had wrongly been entered in the revenue record as “tenants-at-will” ()غير دخيلکار and that such entries were illegal, baseless, and the result of fraud and collusion. It was further pleaded that, in the record of rights for the year 1903-04 till 1965-66, the persons in possession of the suit land namely Mirza Mehdi and others, from whom the petitioners/plaintiffs had subsequently purchased their respective interests, were recorded as “occupancy tenants”() دخيلکار, however, the subordinate staff of defendants No. 1 to 4 / respondents had subsequently altered those entries by recording them as ghair dakhilkars ()غير دخيلکار. In some of the suits, the petitioners/plaintiffs claimed to have purchased the suit properties from the persons then in possession through agreements, and such persons were accordingly impleaded as parties to the suits. In those cases, they also sought deletion of the names of their vendors from the revenue record and inclusion of their names. The

petitioners/plaintiffs have further pleaded that they are willing to deposit compensation @ Rs. 50/- per kanal in accordance with the relevant notification governing the conversion of occupancy tenancy into ownership. They, therefore, prayed that, upon receipt of the prescribed compensation, the revenue record be corrected, ownership rights be entered in their favour, and the suit properties be transferred to their names.

3.In the aforesaid suit, the respondents / defendants were summoned, out of whom, defendants No.2, 3 & 4 submitted their written statement, whereas rest of the defendants were proceeded against exparte, and as such keeping in view the divergent pleadings of the parties, issues were framed, both the parties recorded their respective evidence and ultimately the said suits were decreed by the learned trial court vide judgments and decree dated 30.06.2004 and 30.11.2004. The aforesaid judgments and decree were then challenged by both the parties before the learned appellate Court by filing separate appeals. The learned Appeal Court after hearing the learned counsel for the parties allowed the appeals filed by Government while that of petitioners namely, Shamsul Haq and Muhammad Afzal Shah, were dismissed vide judgment and decree dated

28.04.2006. Being aggrieved of the same, both the parties i.e. petitioner namely, Shamsul Haq, filed CR Nos. 789-P/2006, No. 790/2006, No. 791/2006, No.

793/2006, 794/2006, whereas Provincial Government filed CR No. 1031/2006, CR No.1032, CR No.1033/2006, CR No.1035/2006, CR No.1036- P/2006, CR No.1038/2006, while petitioner namely, Muhammad Afzal Shah also filed CR No.792/2006.

This Court, after hearing the learned counsel for the parties, allowed all those civil revision petitions in the following terms:-

13.The learned appellate Court has not brought under consideration the provisions contained in section 4 of the Khyber Pakhtunkhwa Tenancy Act 1950, not in light of direction/findings rendered in Review Petition ibid, therefore, all these civil revision petitions are allowed and the impugned judgments of learned appellate Court are set aside. The cases are remanded to learned appellate Court for reconsideration of law in its true perspective and petitioners/respondents would be at liberty to lead additional evidence in regard to their contentions raised in their pleadings if they so advised.

4.In the post remand proceedings, the learned Appeal Court after hearing the arguments of learned counsel for the parties, allowed the appeals filed by the Provincial Government and thereby set-aside the judgments and decree of the learned trial court dated 30.06.2004 and 30.11.2004 vide impugned

consolidated judgment and decree dated 27.09.2019, hence the instant and connected petitions.

5.Arguments heard and record perused.

6.It is the case of petitioners / plaintiffs as pleaded by them in their plaint as well as in the evidence produced by them to the effect that they are in possession of the suit properties as an occupancy tenant ( )دخيلکارhaving purchased the possessory rights therein from Mirza Mehdi and Habib Sher etc, and that the revenue authorities have wrongly recorded their status in the revenue record as that of a ghair dakhilkar ()غير دخيلکار. Similarly, they have also prayed that the notification of 1966 issued by the Provincial Government is ineffective upon their rights, on the basis of which the status of their vendors namely, Mirza Mehdi and Habib Shah have been changed from occupancy tenants ( )دخيلکارto that of “tenants-at-will” ( )غير دخيلکارwhereas the stance of the respondents / defendants is that since the suit property is the ownership of Provincial Government and as neither the petitioners nor their vendor have obtained any declaration from the competent authority as required under the provisions of The Tenancy Act, 1950, for changing their status from occupancy tenants as to that

of owner, and that since the petitioners / plaintiffs are recorded as ghair dakhilkars ( )غير دخيلکارafter the issuance of the aforesaid notification, therefore, the revenue record is correct and could not be altered.

Keeping in view the aforesaid stance of both the parties, now this Court would proceed to evaluate and analyze the legal as well as factual aspects of this case, so as to effectively determine and adjudicate upon the instant controversy between the parties.

7.As far as the factual aspect of this case is concerned, the Patwari Halqa namely Munawar Khan has appeared in the witness box as PW-1, whereas Ikramullah, ADK Kohat has also appeared as PW-2, who have produced the jamabandis of the suit properties for the year, 1953-54 till 1971-72 (Ex.PW 2/1 to Ex.PW 2/5) and in all these jamabandis, the Provincial Government has been shown and recorded as owner of the suit properties, whereas one Mirza Mehdi and others (the vendors of the present petitioners) have been shown and recorded as dakhilkars ( )دخيلکارin the jamabandis from 1953-54 till 1966-67, however, in the subsequent Jamabandi, from 1971-72 and 1976-77 (Ex.PW 1/1 and Ex.PW 1/2) they (Mirza Mehdi and others) have been shown as ghair

dakhilkars ()غير دخل کار, whereas in the Jamabandi for the year, 1980-81 till 1996-97 (Ex.PW 1/3 to Ex.PW 1/7) they (Mirza Mehdi and others) and the present petitioners have been shown as ( غير دخيلکارtenants-at- will”). It is the case of petitioners / plaintiffs that their vendors namely, Mirza Mehdi and others had been recorded as “occupancy tenant” since 1903-04, however, it was in the year, 1966-67 when the status of their vendors was changed from “occupancy tenant” ( )دخيلکارto that of “tenant-at-will” ( )غير دخيلکارwhich action on the part of revenue officials is illegal and liable to correction. It is also the case of petitioners / plaintiffs and as has also been pleaded by them in the plaint that the suit properties are in their possession as dakhilkars (occupant tenants) for the last more than fifty (50) years. It is also the case of petitioners / plaintiffs that their vendor was recorded as dakhilkars from 1903-04 till 1966-67, therefore, they being vendee would step into the shoes of their vendors and as such in this regard, the revenue authorities are bound to make necessary correction. In view of the above divergent pleas of the parties, now this Court would proceed further to dilate upon that as to whether at this point of time the revenue record could be corrected in

favour of the petitioners / plaintiffs to show them as dakhilkars ()دخيلکار instead of ghair dakhilkars ()غير دخيلکار.

8.At the first instance, it would be relevant to advert to the legislative history, after the end of British era and establishment of Pakistan, governing and regulating the claim of occupant tenant and in this regard, initially an Act No. XXV of 1950 namely, The Khyber Pakhtunkhwa Tenancy Act, 1950 (hereinafter to be referred as “The Act of 1950”) was enacted with the clear intentions of the legislature that the occupancy tenants, who are in possession of the property would be declared as full owner of property under their possession as per the provision of Section 4 and Section 4-A of The Act of 1950. The said Act of 1950 was published in official gazette on 20.06.1950 and under Section 83 of The ibid Act of 1950, a limitation period has been fixed by the legislature that any person who seeks the benefit of section 4 of The Act of 1950 shall apply for such declaration and after obtaining the prescribed declaration, he would be entitled for the benefit of Section 4 of The Act 1950. Sections 4 and 83 being relevant are reproduced below:-

"Section 4. " 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 Section.

(c)Occupies land such and pays rent both in the cash 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]. Provided that if a tenant fails to pay the compensation determined in accordance with the provision 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 encumbrance of lease created by the tenant in respect of that land".

4-A. Determination of occupancy tenancies in cases where rent in kind is paid:(1) Any occupancy tenant who at the commencement of this Act, occupies land as such and pays rent by division of the produce shall become full owner of the portion of the land in proportion to his share of the produce, which he retains for himself, without payment of any compensation to the land lord,

(2)Any occupancy tenant acquiring land in accordance with the provisions of sub-section (I) shall acquire it free from any incumbrance created in respect of that land by the landlord.

(3)Subject to the provisions of sub-sections (I) and (2), the landlord shall take possession of the remaining portion of the land at the expiry of the current agricultural year, free from any

incumbrance or lease created by the tenant and occupancy rights therein shall be extinguished.

Section 83. Limitation for declaration of occupancy rights. Notwithstanding the repeal of the Punjab Tenancy Act, 1887, as applicable to the North-West Frontier by the North-West Frontier Province Law and Justice Regulation, 1901 and Hazara Tenancy Regulation, 1881, Hazara Tenancy (Amendment) Regulation, 1904, any person, who but for this Act would have been entitled to be declared an occupancy tenant within the meaning of Section 5 of the Punjab Tenancy Act of 1887 as applicable to North-West Frontier by the North-West Frontier Law and Justice Regulation, 1901, or Section 5 of Hazara Tenancy Regulation, 1887, shall within three years after the commencement of this Act apply for such declaration and on such declaration being granted, he shall be entitled to the benefit of Section 4 of this Act".

The plain reading of Section 4 would show that it speaks about three categories of tenant firstly any occupancy tenant who on the commencement of The Act of 1950 occupies any such land on paying no rent, secondly those who are occupying such land on payment of the rent in cash and thirdly those who occupies such land and pays rent both in cash as well as in kind, shall become full owner of such land, which he is holding in any capacity as find mentioned in sub- section (a) or (b) or (c) as the case may be, whereas Section 4-A of the Act of 1950 would show that any occupancy tenant who had right of occupancy in a land so occupied by him shall prove by reliable, clear and

unambiguous evidence before a court of competent jurisdiction that he has not been paying any rent or that he has been occupying the land on payment of rent in cash to the landlord or that he occupies such land on payment of rent or in kind and thereafter he shall become a full owner without payment of compensation to the landlord, whereas Section 83 of The Act 1950 provides that such occupant tenant shall within three years after commencement of this Act (from 20.06.1950) shall apply for such declaration, however, in the present case, the position is altogether different as it is an admitted fact that though before and in relevant period (from 20.06.1950 till 20.06.1953) the vendors of the present petitioner were recorded as occupant tenants, therefore, they were required to have proved the payment or non-payment of rent to their landlord (Provincial Government) and to have applied for seeking such declaration within three years of the gazette notification of the said Act i.e. upto 20.06.1953 but admittedly they have not applied for any such declaration. Similarly, if the petitioners / plaintiffs had purchased the possessory rights prior to 1950 from their vendors (as pleaded by them in their plaint) then they were required to have applied for such declaration,

however, as stated hereinabove that they too have not applied for the prescribed declaration within the prescribed period of three years as set by Section 83 of The Act of 1950 and now lately in the year, 1999, they have filed the instant suits, therefore, the desired correction in revenue record or for that matter alteration in the revenue record qua change of their status from ghair dakhilkars ( )غير دخيلکارto dakhilkars ( )دخيلکارcould not be granted.

9.It is also very relevant to mention here that as per Fard Jamabandi for the year, 1984-85 (Ex.PW 1/4), the present petitioner/plaintiff has been recorded for the first time in revenue record as ghair dakhilkars (tenant- at-will) and there is no reference of his status being as dakhilkars (occupancy tenants), therefore, in such eventuality, even the applicability of The Act of 1950 would not arise in the case of petitioner / plaintiff for changing his status in the revenue record from ghair dakhilkars (tenant-at-will) to that of dakhilkars (occupancy tenants) as the benefit of various provisions of The Act of 1950 specially of Section 4 & 4-A, 5-A etc. of The Act of 1950 could be availed by those persons who are recorded as dakhilkars (occupants tenant) as under the law “occupancy tenant” ()دخيلکار

and “tenant-at-will” ( )غير دخيلکارare totally two distinct phenomena as defined under Section 2(v)(viii) and (xix) of The Act of 1950. The same being relevant is reproduced below:-

(v)"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:— 1[(a) the predecessors and successors in interest of a tenant; or] 2 [(aa)] an inferior land-owner, or (b) a mortgagee of the rights of a 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, 1887 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 of unoccupied land for the purpose of subletting it;

(viii)"tenancy " means a parcel of land held by a tenant of a landlord under one lease or one set of conditions;

(xix)"occupancy tenant" means a tenant who has the right of occupancy under Section 5 or is deemed to have such right under Section 6 or is taken to have such right under Section 7 or has acquired such right under Section 8 or continues to have such right under Section 11 of the Punjab Tenancy Act, 1887, or is deemed to have such right under Section-5 of the Hazara Tenancy Regulation, 1887 and shall include the heirs and successors of such occupancy tenant;

The comparative perusal of both these definitions of “occupancy tenants” and “tenant-at-will” would show their following contrast feature/nature:-

COMPARISON TABLE

Sr No. Aspect Occupancy Tenant Tenant-at-Will 1 Temporary, Permanent, stable, precarious, and Nature of Right and heritable right of non-heritable right occupancy.

of possession.

2 Mutual agreement Statutory law (e.g., (express or Tenancy Acts) and Source of Right implied) between official land/tenancy the landlord and records.

tenant.

3 Perpetual / indefinite No fixed duration; (continues until continues as long Duration lawfully terminated as both parties by court order). agree.

4 Can be terminated by the landlord Can only be evicted serving a notice to through a formal court quit; generally Eviction / Termination decree (e.g., for non- does not require a payment of rent or court decree for statutory violation). eviction (though procedural notice is mandatory).

5 Generally has the Typically has no right to sublet or right to sublet, Right to Transfer / transfer occupancy assign, or transfer Sublet rights (unless the property to a expressly barred by third party.

agreement or law).

6 No inheritance Fully inheritable by Inheritance / rights; tenancy legal heirs (succession Succession ends upon the rights are recognized).

death of the tenant.

7 Rent is strictly regulated/protected by Rent is negotiable law; cannot be and more flexible, Rent Control arbitrarily increased determined by without agreement or mutual agreement. court order.

8 Enjoys the weakest form of legal Enjoys a quasi- protection among ownership status— Legal Status tenancy types; very strong legal highly dependent protection.

on the landlord's will.

therefore, the benefit of The Act of 1950 could only be extended to those persons who have been recorded as “occupancy tenant” ( )دخيلکارand such benefit could not be extended to those who are recorded as “tenant-at- will” ( )غير دخيلکارand as stated herein above that the names of present petitioners / plaintiffs have never been recorded as occupant tenants and their names have appeared in the revenue record for the first time in the year, 1984-85 (Ex.PW 1/4) and that too in the capacity of “tenant-at-will” ()غير دخيلکار.

10.It would also be not out of place to mention here that it is the case of petitioners / plaintiffs that their vendors were recorded as “occupancy tenant” ()دخيلکار in the revenue record from 1903-04 till 1966-67, however, subsequently their status have also been changed from “occupancy tenant” ( )دخيلکارinto that of “tenant-at-will” ()غير دخيلکار, therefore, on one hand as stated hereinabove, it was for their vendors to have obtained a declaration within three years after the promulgation of The Act of 1950 and on the other if the present petitioners / plaintiffs had purchased the possessory rights of their vendors who were statedly recorded as “occupancy tenant” then after the change

of their status in revenue record in year, 1966-67, the present petitioners / plaintiffs should have been approached to the Court within a reasonable and prescribed period of limitation and to get benefit of The Act of 1950, however, they remained mum for 33/34 long years when for the first time, they have filed the instant suits in the year, 1999 and thus on this score alone, the suits were hopelessly time barred. In a case1 this Court has held that it is an uncontroverted feature of the case that at the time of coming into force of the N.-W.F.P. Tenancy Act, 1950 the petitioners were not recorded as “occupancy tenants”. It is also an admitted position that the petitioners have not obtained any declaration of their occupancy rights in terms of section 83 of N.-W.F.P. Tenancy Act, 1950. Thus, the petitioners or for that matter their forefathers cannot be deemed to have become owners by operation of law. In other words the claim of ownership of land on the ground of occupancy tenancy is dependent upon the declaration envisaged by section 83 referred above.

Thus, the instant suit though declaratory in its nature "Zaheer Iqbal and 11 others v. Saed Iqbal Khan and 36 others" reported as(2006

CLC 184

but in essence it is an endeavour to achieve the rights which emanate from section 83 quoted above.

Similarly, this court in another case2 has held that it will be seen that sections 4 and 4-A of the North-West Frontier Province Tenancy Act of 1950 will come into play only if a person is an occupancy tenant at the commencement of the Act, and satisfied the other conditions laid down in the sections. If he is not recorded as an occupancy tenant, at the commencement of the Act, his case clearly seems to be governed by section 83 of the Act, and in order to avail himself of the benefits conferred by sections 4 and 4-A of the Act, such a person shall have to obtain, in the first instance, a declaration of his occupancy rights and until such time as such a declaration has been obtained, he cannot be deemed to have become the owner by the operation of sections 4 and 4-A of the Act. In the present case, it is an admitted position that the petitioner plaintiffs were not recorded as occupancy tenants in the Revenue Records at the relevant time, and accordingly they cannot be deemed to have become owners by the operation of sections 4 and 4-A of the Act. Therefore, the relief claimed by them in the present suit is in fact a Akram and others v. Zakiria Khan and others reported as PLD 1962 (W.P.) Pesh.

declaration of their occupancy rights in the land, and only when that declaration granted, can they claim a declaration of ownership. It seems to me, therefore, that this is not a suit for declaration of title which would be within the competence of a Court of general jurisdiction, but on the other hand, it is a suit the subject-matter of which is specifically dealt with in section 83 of the North-West Frontier Province Tenancy Act read with the proviso to section 85 of the same Act. Even recently, this Court in a similar situation in a case3 has held as under:-

12.Apart from the above, certain specific time was provided to the occupancy tenant for the conversion of their status from occupancy tenant to the owners, which was extended from time to time but it was ended in the year, 1992. If an occupancy tenant has got declared him as owner of the property, then ultimately, his status could be considered as such, otherwise, the provisions of sections 4 and 4- A being not in field, could not help anyone, because after the ceiling date, no one could claim the benefit of sections 4 and 4-A and could be declared as owner, therefore, after the ceiling date, the status of occupancy tenant, if any would be that of tenant at will, subject to the permission and consent of the owner. Admittedly, the predecessor in interest and for that matter, his father, was the occupancy tenant but neither he, nor his successor had ever claimed or got declared or obtained the benefit of sections 4 and 4-A, therefore, they have nothing more than that of tenant at will, whose possession would be subject to the permission of the owners of the disputed land. The tenant at will, or tenant for Zahoor Ali Shah and others .vs. Board of Revenue, Peshawar and others (2021 CLC

the fixed term, though entered in the revenue paper, in column of cultivation and were enjoying the possession of the properties for decades and for their eviction from the disputed property, a lengthy process was provided in the statute. However, by the recent amendment in the KP Tenancy Act, 1950 with title "Khyber Pakhtunkhwa Tenancy (Amendment) Act, 2014", under section 3A of which reads as under:- ""3A. Prohibition of succession to non- occupancy tenancies:- (1) Notwithstanding anything contained in this Act or in any other law for the time being in force, on commencement of the Khyber Pakhtunkhwa Tenancy (Amendment) Act, 2014, right to succession of tenancy to the predecessor or successor in interest of a tenant shall cease.

(2)The existing tenants, enjoying tenancy rights before the commencement of the Khyber Pakhtunkhwa Tenancy (Amendment) Act, 2014, shall continue their right of tenancy till their eviction through due process of law:

Provided that any improvement made by an existing tenant on the tenancy, in accordance with the provisions of this Act. shall be entitled to compensation by the landlord.

Explanation. The words "existing tenant" for the purpose of this section means the tenant, his predecessor and successor in interest".

11.As stated hereinabove that on one hand, neither the present petitioners / plaintiffs nor their vendors have availed the benefit of The Act of 1950 within the prescribed period of limitation as was provided by The Act of 1950 and on the other, though the period for payment of rent was originally fixed and to be made within eighteen (18) months of conferment of

occupancy tenants, however, the aforesaid time limit was extended from time to time and the last extension had expired on 8th September, 1956. It would be relevant to mention here that thereafter the occupancy tenants started agitation against the Government, therefore, the Government of Khyber Pakhtunkhwa (then N.W.F.P) decided to give one more opportunity to the farmers to become full owner on payment of compensation to the landlord, therefore, it promulgated an Ordinance namely Khyber Pakhtunkhwa (Validation & Extension of period for payment of compensation) Ordinance, 1969 (hereinafter to be referred as “The Ordinance of 1969”), whereby the West Pakistan Government allowed one year period to the occupancy tenants to enable them to pay compensation to the landlord to acquire proprietary rights over the land held by them and their predecessor from generation. The petitioners / plaintiffs as well as their vendors have also not availed the benefit of the aforesaid Ordinance of 1969 by making payment to their landlord (The Provincial Government) within one year of its promulgation on 31.10.1969. Yet again the Provincial Government decided to provide another opportunity to the occupant tenants, therefore, it was in

the year 1986, when The Khyber Pakhtunkhwa Tenancy (Amendment) Act of 1986 (Act No XVIII of 1987) (hereinafter to be referred as “The Act of 1986”) was enacted to cater for those lands the ownership of which vested in the Government and is occupied by the tenants, whereby Section-4-B & Section-4-C were inserted, the former being relevant for the present controversy is reproduced below:- 4-B. Determination of occupancy tenancies in Government Land. (l) An occupancy tenant who, at the commencement of the North-West Frontier Province Tenancy (Amendment) Ordinance 1986, occupies, in any rural areas, any land owned or administered by Government, shall, subject to other provisions of this Section, become full owner thereof on payment of the compensation to Government at such rate, within such period and on such terms and conditions as may be prescribed by the Board of Revenue;

Provided that where an occupancy tenant is in occupation of such land in excess of the limit fixed under any law for the time being in force, he shall have the right of ownership only to the extent of limit permissible under the said law and the land in excess of such limit shall vest in Government and shall be taken possession of by it free from any incumbrance or lease created by the tenant in respect of the excess land.

(2)Where a tenant fails to pay the compensation as prescribed under sub-section (1), his right of occupancy shall forthwith extinguished and the land shall vest in, and be taken possession of by, Government free from any incumbrance or lease created by the tenant in respect thereof.

(3)Any occupancy tenant acquiring land under this section shall acquire it free from any incumbrance, if any, created by Government in respect of that land.

EXPLANATION.— In this section—

1.the expression "Government" shall mean the Government of the North-West Frontier Province; and

2.the expression "rural areas" shall have the same meaning as assigned to it in the North-West Frontier Province Local Government Ordinance, 1979 (N.-W.F.P. Ord: IV of 1979).

The plain reading of the aforesaid provisions would show that on the commencement of the Act of 1986, an occupant tenant of the land where the Government is the owner, shall become full owner of the property situated in any rural area shall become full owner on payment of compensation to the Government within such period as may be fixed by the Board of Revenue. It is an admitted fact that the present petitioners/plaintiffs have also not availed the benefit of The Act of 1986 by making payment of any compensation amount to the respondents / Government, nevertheless the Court was informed that the suit properties are not situated in the rural area and the same is situated in the urban area (i.e. Town Committee Hangu).

12.It would also be relevant to mention here that these suits of the petitioners / plaintiffs could not be decreed at this point of time as on one hand, as stated herein above that the Government of Khyber Pakhtunkhwa through various legislations i.e. The Act

of 1950, The Ordinance of 1969 and then The Act of 1986 had provided various opportunities to the occupant tenants for changing their status from occupant tenants into that of a full owner, of course, on fulfillment of certain conditions as mentioned thereunder and on the other a good number of cases were pending before various courts of law and in the process, the vires of The Act of 1950 specially of Section-4 were also challenged before the Shariat Appellate Bench in Shariat Appeal No. 16 of 1984 titled “Sultan Khan v. Government of N.-W.F.P” and the apex court declared the whole section-4 of The Act of 1950 and The Khyber Pakhtunkhwa Tenancy Rules, 1981 as repugnant to the Injunction of Islam.

Later on, a Review Petition No 2-R of 1989 was also filed against the aforesaid judgment of the Apex Court, which case is also reported as PLD 1991 SC 760 where further explanation has been made by the Apex Court and the conclusion as drawn is as under:- نتائج بحث :مذکوره بالا بحث کے نتائج مختصرا ً حسب ذيل ہيں اور4 ء کی دفعہ١٩۵٠ اين ڈبليو ايف پی ٹيننسی ايکٹ.١ اس کے تحت بنائے گئے رولز شريعت اپيليٹ بينچ کے ء سے بے اثر ہوئے١٩٩٠ مارچ٢٣ فيصلے کی رو سے اس تاريخ سے پہلے اس دفعہ اور ان رولز کے تحت، ہيں شريعت اپيليٹ بينچ کے، جو کارروائياں تکميل پا چکی تهيں مارچ٢٣ يعنی، فيصلے سے ان پر کوئی اثر نہيں پڑا

١٩٩٠ء سے پہلے جن افراد کو اس ايکٹ کے تحت اراضی کا مالک قرار ديا گيا تها ،ان کی قانونی ملکيت پر اس فيصلے سے کوئی اثر نہيں پڑے گا ،اور يہ بات غلط ہے کہ اس فيصلے کے نتيجے ميں ايسے لوگوں کی ملکيت قانونی طور پر ختم ہو گئی ہے ۔ ٢٣ .٢مارچ ١٩٩٠ء کے بعد بهی اگر کوئی شخص جس کو کاغذات يا قانون کی رو سے اب تک" ،موروثی کاشتکار" دعوی کرے کہ حقيقی طور پر زمين کا ٰ قرار ديا گيا ہو ،يہ مالک وه ہے ،تو يہ فيصلہ اس کے راستے ميں کوئی رکاوٹ نہيں ہے ۔ ٣۔ شريعت اپيليٹ بينچ کے فيصلے ميں ايکٹ کی دفعہ 4کو قرآن و سنت سے متصادم ہونے کی بنا پر ٢٣مارچ ١٩٩٠ء سے جو بے اثر قرار ديا گيا ہے ،اس کا مطلب يہ مالک زمين نہ ہوں ، ِ ہے کہ جو لوگ واقعہ کاشتکار ہوں ، ان کو مالکوں کی مرضی کے بغير ٢٣مارچ ١٩٩٠ء کے بعد اس دفعہ کے تحت ملکيتی حقوق نہيں ديئے جا سکتے ، اور جو لوگ حقيقتا ً مالک ہوں ،ان کے ملکيتی حقوق کے قانونی اعتراف کے لئے شرعا ً ان پر معاوضے کی ادائيگی لازم نہيں کی جا سکتی ۔ 4۔ جن لوگوں کو پنجاب ٹيننسی ايکٹ ١٨٨٧ء کی دفعہ ۵ )) (١سی( کے تحت قانونی طور پر موروثی کاشتکار قرار ديا گيا تها ،شرعی اعتبار سے وه کاشتکار يا مزارع نہيں ، بلکہ زمين کے مالک تهے ،لہذا وه ٢٣مارچ ١٩٩٠ء کے بعد بهی ايکٹ کی دفعہ 4کے تحت بلا معاوضہ ملکيت کے حقوق حاصل کر سکتے ہيں ۔ ان تشريحات اور وضاحتوں کی حد تک نظر ثانی کی يہ درخواست جزوی طور پر منظور کی جاتی ہے The aforesaid clarification-cum-declaration of the Apex Court would show that Section-4 of The Act of 1950 & the Rules made thereunder shall cease to have any effect after the cut-off date i.e. 23.03.1990 and thus Section 4 of The Act of 1950 as reproduced hereinabove in para-8 was deleted and simultaneously a new Section 4 was inserted through The Khyber Pakhtunkhwa Act No. XI of 1992 which is reproduced below :-

Section 4. Rights of ownership of certain persons. Any occupancy tenant, who had the right of occupancy in the land so occupied by him under section 5(1)(c) of the Punjab Tenancy Act, 1887, or who may prove by a reliable, clear and unambiguous evidence, before a court of competent jurisdiction, that he is the real owner, according to Sharia, of the land under his tenancy, and who occupies any land as such, shall become full owner of such land without payment of any compensation to the landlord and acquire it free from any encumbrance created in respect of that land by the land lord.

Since there is a reference to Section 5(1)(c) of The Punjab Tenancy Act, 1887 (hereinafter to be referred as “The Act of 1887”), therefore, the same being relevant is also reproduced below:- Section 5. Tenants having right of occupancy. (1) A tenant-

(a)................................................................

(b)................................................................

(c)who, in a village or estate in which he settled along with, 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).................................................................

The aforesaid provision of law would show that all the occupant tenants, who had the right of occupancy in the land so occupied by him under Section 5(1)(c) of The Act of 1887 or who may prove by a reliable, clear and unambiguous evidence, before the Court of competent jurisdiction that he/they are the real owner as per Sharia, however, as discussed herein

above that it has never been the case of the petitioners / plaintiffs that they are the real owner rather their case was that since their vendors were recorded as occupant tenants ( )دخيلکارin the revenue record from 1903-04 till 1966-67, therefore the revenue authorities have wrongly changed their status from دخيلکار to غير دخيلکارand that the said entries need to be corrected & then thereafter the names of the petitioners / plaintiffs be entered as occupant tenants ()دخيلکار. It would also be mention here that recently a statutory prohibition has been imposed by the Government qua succession of tenancy to the predecessor or successor- in-interest of a tenant by inserting Section-3-A in The Act of 1950 through Act No IX of 2014. The same being relevant is reproduced below:-

3A. Prohibition of succession to non- occupancy tenancies.---(1) Notwithstanding anything contained in this Act or in any other law for the time being in force, on commencement of the Khyber Pakhtunkhwa Tenancy (Amendment) Act, 2014, right to succession of tenancy to the predecessor or successor in interest of a tenant shall cease. (2) The existing tenants, enjoying tenancy rights before the commencement of the Khyber Pakhtunkhwa Tenancy (Amendment) Act, 2014 shall continue their right of tenancy till their eviction through due process of law: Provided that any improvement made by an existing tenant on the tenancy, in accordance with the provisions of this Act, shall be entitled to compensation by the landlord. Explanation.---The words “existing tenant” for the purpose of this

section means the tenant, his predecessor and successor in interest.

The simple reading of the aforesaid newly inserted section of law would show that it starts with a non-absentia clause which shows its super-imposing effect over any other provision of the Act of 1950 and further that on the commencement of this Amendment Act of 2014, a right of succession of tenancy to the predecessor or successor-in-interest of a tenant shall cease and further that the existing tenant shall continue their right of tenancy till their eviction through due process of law and that they have also been held as entitled for the payment of compensation for improvement, if any, carried out on such land under their possession.

13.During the course of arguments, learned counsel for the petitioners made much emphasis that petitioners / plaintiffs had made huge construction over the suit properties without any objection from the respondents’ side rather with their permission, however, such submission of the learned counsel for the petitioners is irrelevant for the reason that it is an admitted fact that the vendor of the petitioners / plaintiffs was initially recorded as “occupant tenant” and then “tenant-at-

will” and as such when he sold his possessory rights to the petitioners / plaintiffs without any intimation to their landlord i.e. the Provincial Government herein then raising construction over the suit property could not be considered an estoppel or an acquiescence from the respondents / landlord, nevertheless as stated hereinabove that after insertion of Section 3-A of The Act of 1950 through Act No. IX of 2014, at the time of their right of tenancy till their eviction through due process of law, they would be entitled to claim payment of compensation for the improvement which they have made over the land under their possession.

Furthermore, it is also an admitted fact that the respondents / landlord till date have not required the eviction of the petitioners / plaintiffs from the suit property, therefore, the plea of raising construction or for that matter to claim any compensation amount for the same has not yet arose and thus at this stage the same needs not to be adjudicated upon.

14.It is also relevant to mention here that in this case the learned trial court has granted a decree in favour of the petitioners / plaintiffs, whereas the learned appeal court has reversed the same, therefore, in cases where the judgement and decree of the two courts below are at

variance, then this court in its revisional jurisdiction, shall determine and analyze that which judgment of the two is legally sustainable. It is also settled law that in case of inconsistency of the judgment and decree between the appellate Court and the trial Court, the High Court shall see that as findings of which of the Court are based on proper appraisal of evidence as well as proper appreciation of the relevant law and as such in this case after analyzing and evaluating the same, the findings recorded by the appeal court are correct and are the result of proper appreciation of law. In a case4, it was held by the Apex Court that in a case of inconsistency of judgment between the two Courts below the High Court was supposed to give its findings after reappraisal of the entire evidence. It was further held in the aforesaid judgment that the settled law in this regard is that revisional Court in such like situation has to re-appraise the entire evidence just to determine as to findings of which Court were based on proper appraisal of evidence and appreciation of law.

Similarly, in another case5, it was held by the Apex Court that if the finding of fact reached by the first appellate Court is at variance with that of the trial Court “Mst. Azra Gulzar v/s Muhammad Farooq & another” reported as 2022SCMR 1625 Madan Gopal and 4 others v. Maran Bepari and 3 others” reported at PLD 1969 SC 617

and as such the finding being at variance with that of the trial Judge, the two will naturally come in for comparison for their comparative merits in the light of the facts of the case and the reasons on which the two different findings have respectively proceeded. This view is fortified by a long chain of judgments i.e. Alloo v. Sher Khan and others (PLD 1985 SC 382), Abbas Ali Shah and 5 others v. Ghulam Ali and another (2004 SCMR 1342), Abdul Aziz v. Khuda Dad Khan (2004 SCMR 1046), Karim Bakhsh through L.Rs. and others v. Jindwadda Shah and others (2005 SCMR 1518), Muhammad Din and others v. Mst. Naimat Bibi and others (2006 SCMR 586), Muhammad Hassan v. Khawaja. Khalil ur Rehman (2007 SCMR

576)and Q.B.E. Insurance (International) Ltd. v.

Jaffar Flour and Oil Mills Ltd. (2008 SCMR 1037). It was further held in the aforesaid judgment that the settled law in this regard is that revisional Court in such like situation has to re-appraise the entire evidence just to determine as to findings of which Court were based on proper appraisal of evidence and appreciation of law.

15.In view of the above discussion and exposition of law on the subject, it is held that the impugned

consolidated judgment and decree of the learned Appellate Court dated 27.09.2019 is not only in accordance with law but is also well-reasoned, therefore, the same is maintained and upheld, while the instant revision petition as well as connected petitions being devoid of any merits are hereby dismissed.

Announced

Sd/‐

JUDGE

(S.B) Hon’ble Mr. Justice Muhammad Ijaz Khan Noor Shah