------------------------
PLJ 2006
Present: Shahzad Akbar Khan, J.
ZAHEER IQBAL & 11 others--Petitioners
versus
SAEED IQBAL KHAN & 36
others--Respondents
C.R. Nos. 195 & 605 of 2003, decided
on 15.11.2005.
N.W.F.P. Tenancy Act of 1950 (XXV of 1950)--
----S. 28--Civil Procedure Code (V of
1908), S. 115--O. VII, R. 11--Suit for declaration on based of occupancy right
of tenancy--Rejection of plaint and first appeal
dismissed--Assailed--Uncontroverted feature--At the time of coming into force
of N.W.F.P. Tenancy Act, 1950 the petitioners were not recorded as occupancy
tenants--Petitioners did not obtain any declaration of occupancy rights in
terms of S. 83 of NWFP Tenancy Act--Petitioners or their forefathers cannot be
deemed to have become owners by operation of law--Claim of ownership of land on
ground of occupancy tenancy is dependent upon declaration envisaged by S.
83--Declaratory suit was not competent because as per law of limitation the
declaratory suit is also required to be instituted within 6 years but entry in
revenue record in names of the predecessors of the petitioners had disappeared
since 1905--No infirmity or jurisdictional defect in concurrent findings of
Courts below--Revision dismissed. [Pp.
73, 74 & 75] A, B, C & D
PLD 1962 (W.P).
Haji Ghulam Basit, Advocate for
Petitioners.
Mr. Masood-ur-Rehman Awan, Advocate for
Respondents.
Date of hearing : 15.11.2005.
Judgment
Zaheer Iqbal and 11 others have filed
this civil revision petition calling in question the judgments and decrees
dated 1.7.2003 and 15.2.2002 respectively passed by the learned Additional
District Judge-I, Haripur and the learned Civil Judge, Ghazi. The rejection of
the plaint under Order 7, Rule 11 C.P.C. handed down by the learned Civil Judge
Ghazi was upheld by the learned Additional District Judge-I, Haripur.
2.
The facts relevant to the disposal of this civil revision are that
petitioners filed a civil suit for a declaration that on the ground of
occupancy tenancy they have become full owners of the land detail fully
incorporated in the heading of the plaint and that the entry in the revenue
record in the names of respondents-defendants was illegal and ineffective upon
the rights of the petitioners as the same was the result of collusion of
respondents and illiteracy of the predecessors of the petitioners. Addedly
permanent injunction and substitutedly possession was also sought.
3.
As per averments of the plaint the forefathers of the petitioners were
in possession of the suit land on the ground of occupancy tenancy and were
considering themselves as the owners of the land. In such capacity the entry in
the revenue record was recorded till the year 1904-05 in favor of the
predecessors of the petitioners but subsequently the entry in the revenue
record was changed to their disadvantage.
4.
The suit was resisted by the respondents and written statement was
filed. It appears that during the pendency of the suit respondents filed
application for the rejection of the plaint being barred by the law of
limitation in terms of clause (d) of Order 7, Rule 11 C.P.C. After hearing the
arguments of the learned counsel for the parties the learned trial Judge
formulated an opinion that the suit of the petitioners is not maintainable. The
petitioners preferred an appeal against the judgment and decree of the learned
trial Court. The appeal was heard by the learned Additional District Judge-I,
Haripur but the same also could not earn any success and was dismissed on
1.7.2003.
5.
The learned counsel appearing on behalf of the petitioners has raised
and argued the contention that for sufficiently long time the forefathers of
the petitioners remained in occupation of the suit land in capacity of the
occupancy tenants and they were recorded so till the year 1904-05. He urged
that subsequent to that the respondents entered into collusion with the revenue
staff and made changes in the revenue papers. He contended that the petitioners
have inherited the ownership of the suit land from their predecessors as they
had earned the ownership of suit land in accordance with Section 83 of the NWFP
Tenancy Act, 1950. He further contended that as the petitioners had filed the
suit for declaration and permanent injunction, therefore, it was within the
jurisdiction of the
6.
On the other hand the learned counsel appearing on behalf of the
respondents has vehemently opposed the instant revision petition and while
controverting the arguments of the learned counsel for petitioners he raised a
contention that in order to avail the benefit of Section 83 referred above the
claimant party shall within three years after the commencement of the NWFP
Tenancy Act, 1950 apply for a declaration and only when such declaration is granted
such party shall be entitled to the benefit of Section 4 of the Act. He
contended that admittedly declaration in terms of Section 83 of the NWFP
Tenancy Act has not been obtained by the petitioners. Owing to its relevancy
Section 83 of the NWFP Tenancy Act, 1950 is reproduced below:--
"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 the North West Frontier Province
Law and Justice Regulations, 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."
7.
I have heard the arguments of the learned counsel for the parties and
have extensively gone through the record.
8.
It is an uncontroverted feature of the case that at the time of coming
into force of the NWFP 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 NWFP 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 but in essence it is an
endeavour to achieve the rights which emanate
from Section 83 quoted above. A
similar situation was dealt with in case of Akram and others petitioners vs.
Zakiria Khan and others respondents reported as PLD 1962 (W.P)
"7.
It will be seen that Section 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 Section 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 Section 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 Section 4 and
4-A of the Act. Therefore, the relief claimed by them in the present suit is in
effect a 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".
9.
The judgment in Akram's case was also quoted with approval by the
Honourable Supreme Court in case of Misri vs. Muhammad Sharif PLD 1997 S.C.
459. It may be observed that the case of Misri was decided by this Court following the judgment rendered in the case
of Akram. The judgment of this Court was reported in 1996 MLD 362 which was
challenged before the Honourable Supreme Court and the Honourable Supreme Court
dismissed the petition. The arguments of the learned counsel for the
petitioners that the instant suit was for obtaining a declaration and permanent
injunction was within the jurisdiction of a civil Court is also not tenable.
Even a declaratory suit was not competent because as per law of limitation the
declaratory suit is also required to be instituted within 6 years but the entry
in the revenue record in the names of the predecessors of the petitioners had
disappeared since 1905. Thus on such a dimension too the suit of the
petitioners was not maintainable.
10.
Proceeding on the above statements of facts and law I see no infirmity
or any jurisdictional defect in the concurrent findings of the two Courts
below. Both the judgments of the lower Courts are based on sound reasons and
correct appreciation of law. Resultantly, this revision petition is dismissed
with no orders as to costs.
(M.A.R.) Revision dismissed