Judgment Sheet

IN THE PESHAWAR HIGH COURT,

PESHAWAR
(Judicial Department)

Civil Revision No.521-P/2012

Zahoor Ali Shah & others
Versus
Board of Revenue, Peshawar & others

Date of hearing. 12.10.2020

Petitioners by: Mr. Muhammad Rustam Khan,

advcoate

Respondents by: Placed exparte.

******
JUDGMENT

MUHAMMAD NAEEM ANWAR, J. This petition

is directed against the judgment and decree of

the learned Additional District Judge-VIII,

Peshawar dated 30.01.2012, by which, his

appeal, filed against the judgment and decree of

the learned Civil Judge-V, Peshawar dated

04.09.2010, was dismissed.

2. Requisite facts for the decision of the

instant petition are that the predecessor-in-

interest of the petitioners, have filed two suits

bearing No.563/1 and 569/1, before the civil

Court, wherein in the former, the declaration was

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sought to the effect that he is the owner in

possession of the property bearing Survey

No.1646/419-420 and 435 measuring 02-Kanals

14-Marlas and 0-K 9 Marlas respectively of the

estate of Village Kokar, Tehsil and District,

Peshawar, being the occupancy tenant and that

respondents No.1 to 4, in the light of the decision

of the august Supreme Court of Pakistan,

reported in PLD 1991 Supreme Court 760 are

bound to transfer the suit land in his name,

without any payment, within the meaning of

section 4-A of KP Tenancy Act, 1950, whereas,

respondent No.4 has got no concern whatsoever

with it, as such, the entries in the revenue papers

are wrong and ineffective upon his right.

Likewise, the entries in revenue papers is “ghair

dakhilkar (‫ ”)غير داخل کار‬in column of cultivation

are also illegal against the fact and liable to be

corrected. With an added prayer, it was

requested that the auction of disputed property in

the name of any one else, would be ineffective

upon his rights. Decree for perpetual injunction

was also sought to the effect that respondents

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may not alienate the suit property through any

mean including auction. Likewise, the other suit

was filed by the predecessor-in-interest of the

petitioners against respondent No.6, by seeking

therein, the declaration to the effect that he is

owner in possession of the property bearing

Khasra No.1646/419-20 and defendant /

respondent No.6 with the connivance of others, is

intending to dispossess him without due course

of law. During pendency of the suit, he has

amended the plaint with the addition of prayer for

recovery of possession, on the ground that he

has been dispossessed by respondent No.6.

3. When put on notice, the respondents have

contested the suit by filing their written statement

on various legal and factual objections. After

recording of evidence, the learned Trial Court

through its consolidated judgment and decree

dated 04.09.2010, dismissed the suit, against

which, the petitioners had filed appeal and

respondent No.6 had filed Cross Objection,

however, the learned appellate Court vide its

consolidated judgment and decree dated

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30.01.2012 has dismissed the appeal as well as

cross objection of respondent No.6, hence, the

instant petition.

4. Having heard the arguments, it appears

that the petitioners are claiming themselves to be

the occupancy tenant and by making reliance on

case titled “Muhammad Yousaf versus

Hakoomat-e-Pakistan” reported in (PLD 1991 SC

760), that they are entitled to be declared as

owners of the suit property in accordance with

the provisions of section 4 and 4-A of KP

Tenancy Act, 1950.

5. Record also depicts that neither they nor

their predecessor was recorded as occupancy

tenant in the revenue paper, for which, they have

also prayed that entries in revenue paper as

“ghair dakhilkar” is ineffective upon their rights.

By enacting KP Tenancy Act, 1950, the

Legislature has intended that the occupancy

tenants, who are in possession of the property

would be declared as owners in accordance with

the provisions of section 4 and 4-A of the Act

ibid, which are reproduced as under: -

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“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 clause (b) and (c) of
this sub-section, 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”.

Section 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 landlord.
(2) Any occupancy tenant acquiring land in
accordance with the provision of sub-
section (1) shall acquire if free from any
encumbrance created in respect of that
land by the landlord.
(3) Subject to the provisions of sub-sections (1)
and (2) the landlord shall take possession
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of the remaining portion of the land at the

expiry of the current agricultural year, free
from any encumbrance or lease created by
the tenant and occupancy rights therein
shall be extinguished.
(4) Notwithstanding anything contained in the
preceding sub-section, the occupancy
tenant shall continue to the landlord the
produce of the land in accordance with the
terms of his existing tenancy until the
partition of the holding between the landlord
and tenant is effected”.

6. It is also pertinent to mention that a

person who was not recorded as occupancy

tenant in the revenue paper but intends to be

declared as such, for redresssal of his grievance,

section 83 of the ibid Act, would come to help

him, which reads as under: -

“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”.
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7. Admittedly, and undisputedly, no such

declaration within the meaning of section 83 was

ever sought by the predecessor in interest of the

petitioners, within the period of three (03) years,

as provided in section 83.

8. Of course, a person who was not

recorded and has not got declaration from the

Court of competent jurisdiction whereby, he

would have been declared as occupancy tenant

could not lay his claim with respect to the

disputed property for his entitlement, under

section 4 and 4-A. This Court in case titled

“Muhammad Aslam & others versus Muhammad

Aslam and others” reported in (PLD 2004

Peshawar 95), has held :

“8. According to section 83 of the N.W.F.P.

Tenancy Act, 1950, period of limitation has
been laid down which is 3 years
commencing from the date of promulgation
of the said Act. In this view of the matter,
therefore, the respondents-plaintiffs were
essentially required to have applied to the
competent forum within 3 years seeking
declaration of I their occupancy rights over
suit Khasra No-252 but they did not opt to
comply with this mandatory provision of law
hence it is held that the suit of the
respondents plaintiffs was hopelessly time
barred. Reliance in this regard is placed on
the view taken by this Court in the case of
Akram and others v. Zakaria Khan and
others (PLD 1962 Peshawar page 7).
 8

Similar view was taken by this Court in the

case of Sher Ali Khan v. Nawab and others
(PLD 1962 Peshawar page-110) and the
said view was approved by the Hon'ble
Supreme Court in the case of Mada son of
Fateh Ali v. Muhammad Sharif and 39
others (1997 SCMR 338)”.

9. In another case titled “Zaheer Iqbal and

11 others versus Saed Iqbal Khan and 36 others”

reported in (2006 CLC 184), this Court has held

that: -

“8. 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 C
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 v. Zakiria
Khan and others reported as PLD 1962
(W.P.) Pesh. P.7. The segment of the said
judgment crucially relevant to the instant
case is reproduced below:--

"7. 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
 9

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 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".

10. Reliance is also placed on (1991 MLD

1651) titled “Noor Muhammad versus Habibullah”

and (PLD 1962 Peshawar 7) titled “Akram &

others versus Zakaria Khan & others”.

11. Petitioners could claim the benefit of

section 4 and 4-A if any decree from the court of

competent jurisdiction was passed in their favour.

12. Apart from the above, certain specific time

was provided to the occupancy tenant for the

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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 section 4 and 4-A being not in field, could not

help anyone, because after the ceiling date, no

one could claim the benefit of Section 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 section 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 the

fixed term, though entered in the revenue paper,

in column of cultivation and were enjoying the

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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”.

13. It is manifest from the above quoted law /

amendment in the statute that rights of the tenant

would not be regarded as inheritable to the

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successor. On the analogy of the principle

discussed above, now, neither the petitioners /

plaintiffs were occupancy tenant, nor tenants at

will, succeeding their tenancy rights from their

forefather, however, their possession, if any,

would be dealt in consonance with the existing

law.

14. Significantly, during the course of

arguments, learned counsel has stated at the bar

that the petitioners have confined themselves to

the extent of suit against respondent No.6,

where, they were dispossessed without due

course of law. The contents of the very suit would

reveal that the same too is based upon the

petitioners’ entitlement as that of occupancy

tenant and in possession of the property,

therefore, the case of the petitioners could not be

considered within the format of section 9 of the

Specific Relief Act, 1877. There are three modes,

by which, a wrong doer who have dispossessed

a person, without due course of law would be

treated (i) complaint under section 145 of Cr.P.C

(ii) complaint under sections 3 & 7 of Illegal

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Dispossession Act, 2005 and (iii) suit under

section 9 of the Specific Relief Act.

15. Petitioners’ case does not fall within the

ambit of the above quoted law, however, the

learned counsel for the petitioners contended

that as the petitioners were wrongly and without

due course of law, were dispossessed from the

property, therefore, the Court while exercising its

inherit power, under the Code of Civil Procedure,

1908 may convert and mould the relief. There is

no denial that the Court has got ample power to

convert and to mould the relief in order to provide

proper redresssal to an aggrieved person but

with certain exceptions.

16. For conversion of declaration to the suit

filed under section 9 of the Specific Relief Act,

the contents of the plaint of suit would be of

worth perusal wherein, not only a specific date

for dispossession is to be given but the same

also required to be proved. If seen from another

angle, decision of a suit filed under section 9 of

the Specific Relief Act, 1877, was not appealable

in such scenario too, the locus-standi of the

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petitioners, under section 115 of CPC, 1908

would be a question-mark. Even otherwise, the

contents of the plaint made it clear that the same

could not be moulded / converted to a suit under

section 9.

17. In my humble view, the petitioners have

not been able to prove their contentions through

convincing, reliable and direct evidence for the

purpose of getting a decree in their favour as

neither they are owners nor tenant of the

disputed property. There are concurrent findings

of the learned Courts below, which cannot be set

at naught except when there is misreading and

non-reading of evidence, gross illegality or any

jurisdictional defect, but in the instant case,

petitioners could not point out any such infirmity.

The scope of revisional jurisdiction of this Court,

under Section 115 CPC, 1908, has been dealt by

the august Supreme Court of Pakistan in Mst.

Zaitoon Begum’s case, reported in (2014 SCMR

1469), wherein, it was held that:

“Such findings were not open to

interference in limited revisional jurisdiction
of the High Court, albeit, it may be, to some
 15

extent, erroneous on both points of fact and

law”.

18. For the reasons stated above, the instant

petition stands dismissed with no order as to

cost.

Announced:
12.10.2020.

JUDGE

Himayat, CS