PLJ 2010 SC 867
[Appellate Jurisdiction]
Present: M. Javed Buttar & Ijaz-ul-Hassan, JJ.
MUHAMMAD ILYAS and others--Appellants
versus
Mst. AMRAIZAN and another--Respondents
Civil Appeal No. 2237 of 2001, decided on 16.12.2008.
(On appeal against the judgment dated 26.2.1999 passed by the Peshawar High Court, Abbottabad Bench in Civil Revision
No. 114 of 1993).
Bila Legan-Ba-Tasawr-e-Malkeat-e-Khud--
----Suit for possession of land--Incorrect entries Bila-laghan-Ba-Tasawr-e-Malkeat-e-Khud in Revenue Record--Suit was decreed--Concurrent findings of fact--Assailed--Record of Rights contain the entries of the appellants in Column No. 3 as Ghair Dakheel Karan (Tenants at will) and in Column No. 6 the entries read as Bila laghan-Bawaje-Khidmat--Entries in Column No. 6 merely show that the appellants predecessors were not paying any rent to the landlords because of service, which means that their Service was equal to the rent of the land in their possession--It is not disclosed as to how the previous entries of Bila-laghan-Bawaje-Khidmat were changed in the last mentioned record of rights. [Pp. 871 & 872] A, B & C
Benami Mortgagees--
----Since the appellant's predecessors were benami mortgages--Suit is maintainable and respondents can be directed to file a suit for possession through redemption of mortgage before the competent forum, has also no force--Held: Appellants' predecessors were not mortgagees and the findings were whimsical and without record and they are "Tenants at Will"--Concurrent findings of fact recorded by all the Courts below do not suffer from any mis-reading or non-reading of evidence to warrant interference by Court--Appeal dismissed.
[P. 873] D
Mr. Abdul Rashid Awan, ASC and Ch. Akhtar Ali, AOR a/w Muhammad Ilyas, Advocate for Appellant No. 1.
Haji Ghulam Basit, ASC and Mr. Arshad Ali Ch. AOR a/w Muhammad Umar S/o Dost Muhammad, Special Attorney for Respondents.
Date of hearing: 16.12.2008.
Judgment
M. Javed Buttar, J.--This appeal, by leave, is directed against the judgment dated 26.2.1999, passed by an Hon'ble Judge in Chambers of the Peshawar High Court, Abbottabad Bench, whereby Civil Revision No. 114 of 1993, instituted by the appellants' predecessors was dismissed and the judgments and decrees passed by the Courts below were upheld.
2. On 27.6.1966, respondents' predecessors-in-interest instituted a suit against the appellants predecessors since deceased (now represented by the appellants) for the grant of a decree for possession of land measuring 11 Kanals and 8 Marlas, detailed in the plaint situated in village Khanda Khoo ( ), Tehsil Abbottabad, alleging that the defendants had forcibly taken possession of the suit land and had got entered incorrect entries of Bila-Laghan-Ba-Tasawr-e-Malkeat-e-Khud ( ) in the Revenue Record with the collusion of the Revenue Department. The suit was contested. It was claimed by the defendants that they were in possession of the suit land by virtue of purchase and their title had also matured through prescription. The Hon'ble Senior Civil Judge Hazara, after framing the issues and recording the evidence of the parties, vide judgment and decree dated 30.4.1969, decreed the respondents' predecessors-in-interest's suit. The Hon'ble Addl. District Judge Hazara, vide judgment and decree dated 26.5.1971, accepted the appeal filed by the appellants' predecessors and remanded the case to the trial Court for fresh decision in accordance with law after recording further evidence especially in regard to the Revenue Record. On remand, the Hon'ble Senior Civil Judge Hazara, vide his judgment and decree dated 12.3.1975, strangely enough, instead of finally deciding the suit one way or the other, merely disposed of the suit with the observation that the plaintiffs may approach the competent forum for possession through redemption of mortgage, as it was held that the defendants were mortgagees. The appellants, predecessors assailed the above judgment through an appeal and the respondents, predecessors-in-interest, through a Revision Petition. Hon'ble District Judge Hazara, vide his judgment dated 30.5.1975, dismissed respondents, predecessors-in-interest's Revision Petition and the Hon'ble District Judge Abbottabad, vide his judgment dated 20.1.1979, dismissed the appeal of the appellants' predecessors. Civil Revision No. 37 of 1979, instituted by the appellants predecessors against the judgment dated 20.1.1979, was allowed by the Peshawar High Court, Circuit Bench Abbottabad, on 19.10.1985, and the case was remanded to the trial Court for fresh decision. Hon'ble Senior Civil Judge Abbottabad, vide his judgment and decree dated 30.6.1988, decreed the suit. Hon'ble District Judge Abbottabad, vide his judgment and decree dated 28.10.1989, allowed the appellants' predecessors appeal and remanded the case to the trial Court for fresh decision. Hon'ble Civil Judge Abbottabad, vide his judgment and decree dated 10.12.1989, again decreed the suit in favour of the respondents' predecessor-in-interest. Hon'ble District Judge Abbottabad vide his judgment and decree dated 15.6.1993, dismissed appellants appeal. Civil Revision No. 114 of 1993, instituted by the appellants' predecessors was dismissed by the Peshawar High Court, Abbottabad Bench, vide impugned judgment dated 26.2.1999, hence this appeal.
3. We have heard the learned counsel for the parties at length and have also seen the available record with their able assistance. To complete the narration of the dispute between the parties it may be mentioned here, that on 4.1.1954, respondent's predecessors-in-interest Muhammad Zaman etc, instituted a suit for ejectment under the NWFP Tenancy Act 1950, before E.A.C (Revenue) Abbottabad, against the appellants predecessors. The suit was decreed on 23.2.1955, and the ejectment was ordered. The Collector, District Hazara, dismissed the appeal of the appellants' predecessors on 17.11.1955. The Addl: Commissioner (Revenue), Peshawar and D.I. Khan Divisions vide his judgment dated 22.1.1957 (Exb.D.3), accepted the Revision Petition of the appellants' predecessors by holding that they were not tenants and according to him they might have been mortgagees of the suit land. It seems that thereafter the suit land was transferred to respondents' predecessors-in-interest who, as mentioned above, instituted the present suit for possession of the suit land on 27.6.1966.
4. Since the above mentioned judgment dated 22.1.1957, passed by the Additional Commissioner (Revenue), Peshawar and D.I. Khan Divisions, has attained finality, learned counsel for the appellants' predecessors has made a number of submissions on the basis of said judgment, therefore, we find it convenient to reproduce the relevant paragraphs of the said judgment which are as under:
"The only point for determination in this case is whether Rehmatullah, Kala, Dossa and Hayatullah are in fact holding the land as tenants at will under the respondents Mohd Zaman and others and are liable to ejectment as such, under the Tenancy Act. The possession of these persons as recorded in the revenue papers started from the year 39-40. They are described as Ghair Dakhilkar Paying no rent on account of mortgage. These entries continue in their favour upto the present day. It is now to be ascertained whether these entries in the revenue papers give them the status of tenant at will. A tenant as defined in the Tenancy Act 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) An inferior land owner or,
(b) A mortgagee of the rights of land owners, or,
(c) A person to whom a holding has been transferred under the Land Revenue Act, or,
(d) A person who takes from Government a lease of unoccupied land for the purposes of subletting it.
The two essentials for a person to classify as a tenant, therefore, are (a) that he must be holding land under another person and (b) that he either pays rent or is liable to pay rent to that other person. The above two conditions cannot be separated from each other i.e. a person who is liable to pay rent for certain land is holding that land under the person to whom he pays rent and the person who is holding the land under another person is liable under the law to pay rent to the latter. In this case neither of these two conditions have been fulfilled. As the petitioner is not liable to pay the rent to the respondents he is not holding the land under them and vice versa. In the revenue papers these persons are recorded as barbers (hujams) and their possession started at that time when the provisions of the Alienation of Land Act regarding the transfer by an agriculturists in favour of a non-agriculturist were in force in the District and no mortgage for a period of more than 20 years could be effected in such cases except with the permission of the Deputy Commissioner.
There are instances in which benami transactions were effected and in such cases non-agriculturists mortgagees were not recorded as such in the revenue papers but a note in the rent column was usually given that no rent was payable on account of mortgage. The case in question is one in which such a transaction appears to have been effected. Although it is beyond the power of the revenue Court to hold whether a certain person is in possession as a mortgage or otherwise yet for purposes of determination whether that person is a tenant or not such matters can be discussed by him. As benami mortgagees the petitioner Rehmatullah and his brothers were neither holding the land under the respondents nor were liable to pay rent to the recorded landlord. A suit for ejectment in the revenue Court can be brought against a tenant only but in this case the relationship of landlord and a tenant has been disproved. It therefore follows that in such cases the revenue Courts have no jurisdiction to order the eviction of the person recorded as in possession of the land. The result is that the two Courts below exercised a jurisdiction non vested in them under the law and therefore interference on the revisional side has become necessary.
For the reasons given above I accept the revision petition, set aside the order dated 17.11.1955 of the Collector Hazara and the order dated 23.2.1955 of the Assistant Collector 1st Grade Hazara and dismiss the respondent's suit. Parties shall bear their own costs."
5. It is submitted by the learned counsel for the appellants that the appellants predecessors are owners in possession of the suit land since 1993, by virtue of sale in their favour but due to the then prevalent law "Punjab Alienation of Land Act, 1900." the names of appellants' predecessors could not be entered as owners in the revenue record because they were non-agriculturalists being ( ) (Barbers) by caste, that the impugned judgment is sketchy, it suffers from non-reading as well as mis-reading of record, the main documents Exb.D-1 to D-5 have not been read by the learned Judge of the High Court and the documents which have not been examined by the High Court ought to be examined by the High Court itself and for this reason the interests of justice require the remand of the case to the High Court.
6. It has further been argued that the above said judgment dated 22.1.1957, passed by the Addl: Commissioner (Revenue), Peshawar and D.I. Khan Divisions (Exb. D-3), was not assailed any further by the respondents or their predecessors-in-interest and the same attained finality in which it was conclusively determined that the appellants predecessors were not tenants of the respondents predecessor-in-interest and rather they were Benami Mortgagees
( ) and for this reason the suit in the present form was not maintainable and, for this reason also, the same is liable to be dismissed and the respondents, if so desired, may approach the concerned Court for redemption of mortgaged land.
7. The contentions have been opposed and the judgments and decrees of the Courts below have been supported by the learned counsel for the respondents.
8. We have given our anxious consideration to the entire facts and circumstances of the case which has a chequered history and also to the respective contentions of the learned counsel for the parties. We have seen the evidence oral as well as documentary. Exb.D-1 is alleged to be a sale receipt dated 22.4.1935, and the Hon'ble Judge of the High Court has lawfully and correctly discarded it. It stands established that the executant of this document executed the same when his father, the original owner, was still alive and it seems to be some kind of a promise for future which did not amount to sale or transfer. Exb.D-2 to D-4, (Record of Rights) for the years 1953-54, 1958-1959 and 1961-1964 contain the entries of the appellants in column No. 3 as Ghair Dakheel Karan ( ) (Tenants at Will) and in column No. 6 the entries read as Bila Laghan-Bawaje-Khidmat ( ).
9. Learned counsel for the appellants on the basis of above entries in column No. 6 has vehemently argued that these entries show that the appellants' predecessors were not tenants and similar interpretation was made by the Addl. Commissioner (Revenue), Peshawar and D.I. Khan Divisions, vide judgment dated 22.1.1957 (Exh.D-3). We do not agree with the interpretation. In Column No. 3 the appellants' predecessors were entered as Ghair Dakheel Karan ( ) which is "Tenants at Will" and the same was never changed or assailed and it remained intact throughout. The above entries in Column No. 6 of Bila Laghan-Bawaje-Khidmat ( ) merely show that the appellants' predecessors were not paying any rent to the landlords because of (Service), which means that their (Service) was equal to the rent of the land in their possession. Therefore, nothing turns in favour of the appellants because of the said entries. Exb.D-5 (Record of Rights) for the year 1965-66, again contains the entries in Column No. 3 in regard to the appellants as Ghair Dakheel Karan ( ) and in Column No. 6 it was entered for the first time as Bila Laghan-Ba-Tasawar-e-Malkeate Khud ( ). Learned ASC on the basis of the above entry in Column No. 6 has vehemently argued that this entry removes any doubt as to the status of the appellants' predecessors as owners.
10. We have carefully examined the entire record. In our opinion, this is a bogus entry. It is not disclosed as to how the previous entries of Bila-Laghan-Bawaje-Khidmat ( ) were changed in the last mentioned (Record of Rights). Appellants' predecessors did not bring any evidence either oral or documentary on record to show the acquisition of any rights after the (Record of Rights) of 1961-1964 (Exb.D-4), to justify the above entry in the (Record of Rights) of 1965-66 (Exb.D-5). Hence it was correctly agitated by the plaintiffs that the appellants or their predecessors had got entered incorrect entries in the revenue record with the collusion of the Revenue Department.
11. We have carefully examined the judgment dated 22.1.1957, passed by the Addl: Commissioner (Revenue), Peshawar and D.I.Khan Divisions (Exb.D-3). According to the learned ASC for the appellants the said judgment has become final between the parties and is binding upon them. It is true that it has been held in the said judgment, relevant paragraphs of which have been reproduced above, that the appellants' predecessors were not tenants of the respondents' predecessors-in-interest, because they were not paying any rent to the respondents' predecessors-in-interest and that the appellants' predecessors were Benami Mortgagees ( ).
12. However, after having examined the entire revenue record, relevant part of which has been discussed above, we are clear in our minds, for the reasons mentioned above, that it was wrongly and illegally held by the Addl. Commissioner (Revenue), Peshawar and D.I.Khan Divisions, that the appellants predecessors were not tenants. In our opinion, the Addl. Commissioner (Revenue), Peshawar and D.I.Khan Divisions, mis-read and mis-interpreted the entries in Columns No. 3 and 6 of Exh.D-2 to D-4. The reasons for this conclusion have already been recorded in para 9 above. Similarly, it was not explained that how the entries were changed in Column No. 6 of Exb.D-5. As regards the findings that the appellants' predecessors were Benami Mortgagees ( ), we are of the view, that this finding is just whimsical and not based on any record. The Officer merely presumed certain things which was beyond his jurisdiction.
13. The argument of the learned counsel for the appellants that since the appellants' predecessors were Benami Mortgagees ( ), therefore, the suit is not maintainable and respondents may be directed to file a suit for possession through redemption of mortgage before the competent forum, has also no force because we have already held that the appellants' predecessors were not mortgagees and the said findings were whimsical and without record and they are "Tenants at Will".
14. We are further of the view, that the concurrent findings of fact recorded by all the Courts below do not suffer from any mis-reading or non-reading of evidence to warrant interference by this Court. Therefore, we do not find any merit in this appeal.
15. At this stage, Muhammad Umer S/o Dost Muhammad, present in Court, who is Special Attorney of respondents and is husband of Respondent No. 1 and brother-in-law of Respondent No. 2, has stood up and stated that in the name of Allah he will make efforts for the transfer of 10 Marlas from the suit land from Khasra No. 104 towards the Southern side in which the Appellant No. 1 Muhammad Ilyas has constructed a one room house and such a transfer in his favour will be without any consideration. This offer has been readily accepted by Appellant No. 1 as well as the learned ASC for appellants.
16. We have not treated this offer as some kind of compromise between the parties because the above named Special Attorney of the respondents has no such authority to enter into a compromise with the appellants on behalf of the respondents, but we have recorded his offer because he is confident that he will get his offer matured. In view of the above discussion and findings, we do not find any merit in this appeal which is dismissed leaving the parties to bear their own costs.
(M.S.A.) Appeal dismissed.
[Appellate Jurisdiction]
Present: M. Javed Buttar & Ijaz-ul-Hassan, JJ.
MUHAMMAD ILYAS and others--Appellants
versus
Mst. AMRAIZAN and another--Respondents
Civil Appeal No. 2237 of 2001, decided on 16.12.2008.
(On appeal against the judgment dated 26.2.1999 passed by the Peshawar High Court, Abbottabad Bench in Civil Revision
No. 114 of 1993).
Bila Legan-Ba-Tasawr-e-Malkeat-e-Khud--
----Suit for possession of land--Incorrect entries Bila-laghan-Ba-Tasawr-e-Malkeat-e-Khud in Revenue Record--Suit was decreed--Concurrent findings of fact--Assailed--Record of Rights contain the entries of the appellants in Column No. 3 as Ghair Dakheel Karan (Tenants at will) and in Column No. 6 the entries read as Bila laghan-Bawaje-Khidmat--Entries in Column No. 6 merely show that the appellants predecessors were not paying any rent to the landlords because of service, which means that their Service was equal to the rent of the land in their possession--It is not disclosed as to how the previous entries of Bila-laghan-Bawaje-Khidmat were changed in the last mentioned record of rights. [Pp. 871 & 872] A, B & C
Benami Mortgagees--
----Since the appellant's predecessors were benami mortgages--Suit is maintainable and respondents can be directed to file a suit for possession through redemption of mortgage before the competent forum, has also no force--Held: Appellants' predecessors were not mortgagees and the findings were whimsical and without record and they are "Tenants at Will"--Concurrent findings of fact recorded by all the Courts below do not suffer from any mis-reading or non-reading of evidence to warrant interference by Court--Appeal dismissed.
[P. 873] D
Mr. Abdul Rashid Awan, ASC and Ch. Akhtar Ali, AOR a/w Muhammad Ilyas, Advocate for Appellant No. 1.
Haji Ghulam Basit, ASC and Mr. Arshad Ali Ch. AOR a/w Muhammad Umar S/o Dost Muhammad, Special Attorney for Respondents.
Date of hearing: 16.12.2008.
Judgment
M. Javed Buttar, J.--This appeal, by leave, is directed against the judgment dated 26.2.1999, passed by an Hon'ble Judge in Chambers of the Peshawar High Court, Abbottabad Bench, whereby Civil Revision No. 114 of 1993, instituted by the appellants' predecessors was dismissed and the judgments and decrees passed by the Courts below were upheld.
2. On 27.6.1966, respondents' predecessors-in-interest instituted a suit against the appellants predecessors since deceased (now represented by the appellants) for the grant of a decree for possession of land measuring 11 Kanals and 8 Marlas, detailed in the plaint situated in village Khanda Khoo ( ), Tehsil Abbottabad, alleging that the defendants had forcibly taken possession of the suit land and had got entered incorrect entries of Bila-Laghan-Ba-Tasawr-e-Malkeat-e-Khud ( ) in the Revenue Record with the collusion of the Revenue Department. The suit was contested. It was claimed by the defendants that they were in possession of the suit land by virtue of purchase and their title had also matured through prescription. The Hon'ble Senior Civil Judge Hazara, after framing the issues and recording the evidence of the parties, vide judgment and decree dated 30.4.1969, decreed the respondents' predecessors-in-interest's suit. The Hon'ble Addl. District Judge Hazara, vide judgment and decree dated 26.5.1971, accepted the appeal filed by the appellants' predecessors and remanded the case to the trial Court for fresh decision in accordance with law after recording further evidence especially in regard to the Revenue Record. On remand, the Hon'ble Senior Civil Judge Hazara, vide his judgment and decree dated 12.3.1975, strangely enough, instead of finally deciding the suit one way or the other, merely disposed of the suit with the observation that the plaintiffs may approach the competent forum for possession through redemption of mortgage, as it was held that the defendants were mortgagees. The appellants, predecessors assailed the above judgment through an appeal and the respondents, predecessors-in-interest, through a Revision Petition. Hon'ble District Judge Hazara, vide his judgment dated 30.5.1975, dismissed respondents, predecessors-in-interest's Revision Petition and the Hon'ble District Judge Abbottabad, vide his judgment dated 20.1.1979, dismissed the appeal of the appellants' predecessors. Civil Revision No. 37 of 1979, instituted by the appellants predecessors against the judgment dated 20.1.1979, was allowed by the Peshawar High Court, Circuit Bench Abbottabad, on 19.10.1985, and the case was remanded to the trial Court for fresh decision. Hon'ble Senior Civil Judge Abbottabad, vide his judgment and decree dated 30.6.1988, decreed the suit. Hon'ble District Judge Abbottabad, vide his judgment and decree dated 28.10.1989, allowed the appellants' predecessors appeal and remanded the case to the trial Court for fresh decision. Hon'ble Civil Judge Abbottabad, vide his judgment and decree dated 10.12.1989, again decreed the suit in favour of the respondents' predecessor-in-interest. Hon'ble District Judge Abbottabad vide his judgment and decree dated 15.6.1993, dismissed appellants appeal. Civil Revision No. 114 of 1993, instituted by the appellants' predecessors was dismissed by the Peshawar High Court, Abbottabad Bench, vide impugned judgment dated 26.2.1999, hence this appeal.
3. We have heard the learned counsel for the parties at length and have also seen the available record with their able assistance. To complete the narration of the dispute between the parties it may be mentioned here, that on 4.1.1954, respondent's predecessors-in-interest Muhammad Zaman etc, instituted a suit for ejectment under the NWFP Tenancy Act 1950, before E.A.C (Revenue) Abbottabad, against the appellants predecessors. The suit was decreed on 23.2.1955, and the ejectment was ordered. The Collector, District Hazara, dismissed the appeal of the appellants' predecessors on 17.11.1955. The Addl: Commissioner (Revenue), Peshawar and D.I. Khan Divisions vide his judgment dated 22.1.1957 (Exb.D.3), accepted the Revision Petition of the appellants' predecessors by holding that they were not tenants and according to him they might have been mortgagees of the suit land. It seems that thereafter the suit land was transferred to respondents' predecessors-in-interest who, as mentioned above, instituted the present suit for possession of the suit land on 27.6.1966.
4. Since the above mentioned judgment dated 22.1.1957, passed by the Additional Commissioner (Revenue), Peshawar and D.I. Khan Divisions, has attained finality, learned counsel for the appellants' predecessors has made a number of submissions on the basis of said judgment, therefore, we find it convenient to reproduce the relevant paragraphs of the said judgment which are as under:
"The only point for determination in this case is whether Rehmatullah, Kala, Dossa and Hayatullah are in fact holding the land as tenants at will under the respondents Mohd Zaman and others and are liable to ejectment as such, under the Tenancy Act. The possession of these persons as recorded in the revenue papers started from the year 39-40. They are described as Ghair Dakhilkar Paying no rent on account of mortgage. These entries continue in their favour upto the present day. It is now to be ascertained whether these entries in the revenue papers give them the status of tenant at will. A tenant as defined in the Tenancy Act 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) An inferior land owner or,
(b) A mortgagee of the rights of land owners, or,
(c) A person to whom a holding has been transferred under the Land Revenue Act, or,
(d) A person who takes from Government a lease of unoccupied land for the purposes of subletting it.
The two essentials for a person to classify as a tenant, therefore, are (a) that he must be holding land under another person and (b) that he either pays rent or is liable to pay rent to that other person. The above two conditions cannot be separated from each other i.e. a person who is liable to pay rent for certain land is holding that land under the person to whom he pays rent and the person who is holding the land under another person is liable under the law to pay rent to the latter. In this case neither of these two conditions have been fulfilled. As the petitioner is not liable to pay the rent to the respondents he is not holding the land under them and vice versa. In the revenue papers these persons are recorded as barbers (hujams) and their possession started at that time when the provisions of the Alienation of Land Act regarding the transfer by an agriculturists in favour of a non-agriculturist were in force in the District and no mortgage for a period of more than 20 years could be effected in such cases except with the permission of the Deputy Commissioner.
There are instances in which benami transactions were effected and in such cases non-agriculturists mortgagees were not recorded as such in the revenue papers but a note in the rent column was usually given that no rent was payable on account of mortgage. The case in question is one in which such a transaction appears to have been effected. Although it is beyond the power of the revenue Court to hold whether a certain person is in possession as a mortgage or otherwise yet for purposes of determination whether that person is a tenant or not such matters can be discussed by him. As benami mortgagees the petitioner Rehmatullah and his brothers were neither holding the land under the respondents nor were liable to pay rent to the recorded landlord. A suit for ejectment in the revenue Court can be brought against a tenant only but in this case the relationship of landlord and a tenant has been disproved. It therefore follows that in such cases the revenue Courts have no jurisdiction to order the eviction of the person recorded as in possession of the land. The result is that the two Courts below exercised a jurisdiction non vested in them under the law and therefore interference on the revisional side has become necessary.
For the reasons given above I accept the revision petition, set aside the order dated 17.11.1955 of the Collector Hazara and the order dated 23.2.1955 of the Assistant Collector 1st Grade Hazara and dismiss the respondent's suit. Parties shall bear their own costs."
5. It is submitted by the learned counsel for the appellants that the appellants predecessors are owners in possession of the suit land since 1993, by virtue of sale in their favour but due to the then prevalent law "Punjab Alienation of Land Act, 1900." the names of appellants' predecessors could not be entered as owners in the revenue record because they were non-agriculturalists being ( ) (Barbers) by caste, that the impugned judgment is sketchy, it suffers from non-reading as well as mis-reading of record, the main documents Exb.D-1 to D-5 have not been read by the learned Judge of the High Court and the documents which have not been examined by the High Court ought to be examined by the High Court itself and for this reason the interests of justice require the remand of the case to the High Court.
6. It has further been argued that the above said judgment dated 22.1.1957, passed by the Addl: Commissioner (Revenue), Peshawar and D.I. Khan Divisions (Exb. D-3), was not assailed any further by the respondents or their predecessors-in-interest and the same attained finality in which it was conclusively determined that the appellants predecessors were not tenants of the respondents predecessor-in-interest and rather they were Benami Mortgagees
( ) and for this reason the suit in the present form was not maintainable and, for this reason also, the same is liable to be dismissed and the respondents, if so desired, may approach the concerned Court for redemption of mortgaged land.
7. The contentions have been opposed and the judgments and decrees of the Courts below have been supported by the learned counsel for the respondents.
8. We have given our anxious consideration to the entire facts and circumstances of the case which has a chequered history and also to the respective contentions of the learned counsel for the parties. We have seen the evidence oral as well as documentary. Exb.D-1 is alleged to be a sale receipt dated 22.4.1935, and the Hon'ble Judge of the High Court has lawfully and correctly discarded it. It stands established that the executant of this document executed the same when his father, the original owner, was still alive and it seems to be some kind of a promise for future which did not amount to sale or transfer. Exb.D-2 to D-4, (Record of Rights) for the years 1953-54, 1958-1959 and 1961-1964 contain the entries of the appellants in column No. 3 as Ghair Dakheel Karan ( ) (Tenants at Will) and in column No. 6 the entries read as Bila Laghan-Bawaje-Khidmat ( ).
9. Learned counsel for the appellants on the basis of above entries in column No. 6 has vehemently argued that these entries show that the appellants' predecessors were not tenants and similar interpretation was made by the Addl. Commissioner (Revenue), Peshawar and D.I. Khan Divisions, vide judgment dated 22.1.1957 (Exh.D-3). We do not agree with the interpretation. In Column No. 3 the appellants' predecessors were entered as Ghair Dakheel Karan ( ) which is "Tenants at Will" and the same was never changed or assailed and it remained intact throughout. The above entries in Column No. 6 of Bila Laghan-Bawaje-Khidmat ( ) merely show that the appellants' predecessors were not paying any rent to the landlords because of (Service), which means that their (Service) was equal to the rent of the land in their possession. Therefore, nothing turns in favour of the appellants because of the said entries. Exb.D-5 (Record of Rights) for the year 1965-66, again contains the entries in Column No. 3 in regard to the appellants as Ghair Dakheel Karan ( ) and in Column No. 6 it was entered for the first time as Bila Laghan-Ba-Tasawar-e-Malkeate Khud ( ). Learned ASC on the basis of the above entry in Column No. 6 has vehemently argued that this entry removes any doubt as to the status of the appellants' predecessors as owners.
10. We have carefully examined the entire record. In our opinion, this is a bogus entry. It is not disclosed as to how the previous entries of Bila-Laghan-Bawaje-Khidmat ( ) were changed in the last mentioned (Record of Rights). Appellants' predecessors did not bring any evidence either oral or documentary on record to show the acquisition of any rights after the (Record of Rights) of 1961-1964 (Exb.D-4), to justify the above entry in the (Record of Rights) of 1965-66 (Exb.D-5). Hence it was correctly agitated by the plaintiffs that the appellants or their predecessors had got entered incorrect entries in the revenue record with the collusion of the Revenue Department.
11. We have carefully examined the judgment dated 22.1.1957, passed by the Addl: Commissioner (Revenue), Peshawar and D.I.Khan Divisions (Exb.D-3). According to the learned ASC for the appellants the said judgment has become final between the parties and is binding upon them. It is true that it has been held in the said judgment, relevant paragraphs of which have been reproduced above, that the appellants' predecessors were not tenants of the respondents' predecessors-in-interest, because they were not paying any rent to the respondents' predecessors-in-interest and that the appellants' predecessors were Benami Mortgagees ( ).
12. However, after having examined the entire revenue record, relevant part of which has been discussed above, we are clear in our minds, for the reasons mentioned above, that it was wrongly and illegally held by the Addl. Commissioner (Revenue), Peshawar and D.I.Khan Divisions, that the appellants predecessors were not tenants. In our opinion, the Addl. Commissioner (Revenue), Peshawar and D.I.Khan Divisions, mis-read and mis-interpreted the entries in Columns No. 3 and 6 of Exh.D-2 to D-4. The reasons for this conclusion have already been recorded in para 9 above. Similarly, it was not explained that how the entries were changed in Column No. 6 of Exb.D-5. As regards the findings that the appellants' predecessors were Benami Mortgagees ( ), we are of the view, that this finding is just whimsical and not based on any record. The Officer merely presumed certain things which was beyond his jurisdiction.
13. The argument of the learned counsel for the appellants that since the appellants' predecessors were Benami Mortgagees ( ), therefore, the suit is not maintainable and respondents may be directed to file a suit for possession through redemption of mortgage before the competent forum, has also no force because we have already held that the appellants' predecessors were not mortgagees and the said findings were whimsical and without record and they are "Tenants at Will".
14. We are further of the view, that the concurrent findings of fact recorded by all the Courts below do not suffer from any mis-reading or non-reading of evidence to warrant interference by this Court. Therefore, we do not find any merit in this appeal.
15. At this stage, Muhammad Umer S/o Dost Muhammad, present in Court, who is Special Attorney of respondents and is husband of Respondent No. 1 and brother-in-law of Respondent No. 2, has stood up and stated that in the name of Allah he will make efforts for the transfer of 10 Marlas from the suit land from Khasra No. 104 towards the Southern side in which the Appellant No. 1 Muhammad Ilyas has constructed a one room house and such a transfer in his favour will be without any consideration. This offer has been readily accepted by Appellant No. 1 as well as the learned ASC for appellants.
16. We have not treated this offer as some kind of compromise between the parties because the above named Special Attorney of the respondents has no such authority to enter into a compromise with the appellants on behalf of the respondents, but we have recorded his offer because he is confident that he will get his offer matured. In view of the above discussion and findings, we do not find any merit in this appeal which is dismissed leaving the parties to bear their own costs.
(M.S.A.) Appeal dismissed.
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