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Second Appeal No. 260 of 1951, decided on 27^th November, 1952, from the decree of the Court of Khan Bashir-ud-Din Ahmad, District Judge, Jhelum, dated the 23^rd April 1951, affirming that of Khan Muhammad Afzal Khan, Civil Judge 1^st Class, Chakwal, dated the 5^th December 1950.

S. 59 [as it stood before passing of Punjab Tenancy (Amendment) Act (IV of 1951)] proviso "Occupied"‑--Meaning‑--Occupation till death, followed by sons without break.

The intention of the proviso to section 59 of the Tenancy Act seems to be that the common ancestor should have occu pied the land continuously until his death. n other words, his sons should have succeeded him by their father's right.

Used by itself, the word "occupied" should convey the sense that the common ancestor's occupation was follow ed without break by that of his successors, that where the one ended the other began.

Sheikh Muhammad Shafi for Appellants.

Sheikh Chiragh Din for Respondents.

--The following pedigree‑table will be useful in understanding the facts of this case:‑‑

The suit relates to 70 kanals and 11 marlas of land which was held by Mst. Mahro, widow of Nadir, in Dhok Ghakkar in Lhakwal Tehsil, as an occupancy tenant. Upon her death without issue, it was mutated in favour of the landlords who are the defendants in this case. The coltaterals of Mst. Mehro's husband, Nadir, thereupon brought a suit for a declaration that they were entitled thereto as their common ancestor Mughal "occupied" it within the meaning of the proviso to section of the Tenancy Act. The only question between the parties was whether Mughal had occupied the land. The trial Court found that at one time Mughal had occupied it, but had abandoned it; why or for how long it was not clear. Subse quently, three of his seven sons, Muhammad, Shah Alam and Pira had returned and re‑occupied it, so that it could be held that the previous occupation of Mughal was continued. It was not necessary, in the opinion of the trial Court, to show that Mugal's occupation continued till his death; for the word "occupied" was "unqualified in character; equally it is unqualified as to time of occupation and there is no warrant to read occupied' as occupied at the time of his death'." The suit having been dismissed, the landlords went in appeal to the District Judge, who "accepted the finding of the lower Court" and dismissed the appeal. The finding of the District Judge, however, was based on the following observations:‑

"If he (Mughal) left on account of famine, the temporary absence does not amount to abandonment. The sons returned to their father's holding and the landlords accepted them as such. Vide Exh. D. 6 they continued in undisturbed posses sion for 20 years. There is no evidence that the landlords granted an independent tenancy. There is no variation whatsoever in the land, in the tenants, or in the conditions of the tenure. All that emphasises the continuity of the old tenancy. It is, therefore, amply clear to me that Mughal, the common ancestor, occupied the suit land."

Again, "Karam Dad and Sarfraz, ancestors of the defendant -landlords admitted in Exh. P. 3 and Exh. D. 6 that the land had been occupied by Mughal and this fact by itself is sufficient to hold the plaintiffs as heirs of Nadir * * * Once it is established that Mughal occupied the land, it is immaterial whether he occupied it as a mauroosi or in any other character".

The landlords have therefore, come in second appeal.

An examination of the documents will show that not all the conclusions at which the learned District Judge has arrived are correct, and as the soundness of conclusions drawn from the findings of fact are matters of law I L R 20 Cal. 93, it is open to me to hear this second appeal. But, apart from this fact, the findings of both the Courts below are based on the inter pretation of the word "occupied" in section 59 of the Tenancy Act and for that reason it is necessary to examine the case afresh.

Firstly, reliance was placed for the plaintiffs on Exh. P. 7, which is styled as naqsha‑e‑mudakhilat relating to the year 1857‑58. Here, a statement has been made by Murad, Pir Bakhsh and Imam Bakhsh in respect of Khata No. 54 (which is different from the present lard) that their ancestor, Karam Ullah, had settled here with the permission of the landlords and reclaimed the land, that after Karam Ullah his descendants had continued in possession but that during the big famine they all left the village and went to Dadu Potri. When the rains came, they returned and resettled in the old kothas, taking back the land which they had formerly cultivated. Thereafter, they had not been ejected.

Now, Murad, Pir Bakhsh and Imam Bakhsh, who made this statement, were great‑grandsons of Razzaq, as the pedigree table in this document shows, while Mughal was a grandson of Razzaq in a different line. What Murad and others, there fore, stated would relate to Khata No: 54 and not to the present land. It will be presently seen that some of Mughal's sons who came back, did not resettle in the old abodes and made their own dhoks a circumstance, which will contradict the statement in Exh. P. 7, if it applies to the sons of Mughal, and for that reason alone it should be assumed that it does not relate to the sons of Mughal.

Next, there is Exh. D. 6, which is styled as naqsha‑e mudakhilat‑i‑muzar‑i‑an relating to 1858 in respect of what is admitted to be the present land. It relates to Khatas Nos. 64, 65, 66 and 67. It shows that Pira son of Mughal made the following statement to the settlement authorities:‑

"Twenty years ago I came from the village Kharali to this village and made my own dhok. I have never been ejected and have continued in possession.

Q.‑How did you get the cultivated land

A.‑Originally, my father cultivated it. Then he left. Now, since 20 years I again came and cultivated it. Some of this land is in possession of my brothers."

Similar statements were made by his brothers, Muhammad and Shah Alam.

The landlords stated that the statement of the tenants was correct. Thereupon, the superintendent of the settlement declared the tenants as mustaqil and fixed a cash rent of three annas in the rupee payable to the landlords.

Now Exh. D. 6 shows that Khata No. 64, which is 5 ghumaons 4 kanals and 15 marlas in area, was occupied by Pira, Khata No. 66, which is 12 ghumaons 4 kanals and 17 mnrlas, was occupied by Shah Alam and Khata No. 67, which was 14 goumaons 3 kanals and 16 marlas in area, was occupied by Muhammad. There is another Khata, No. 65, measuring 12 ghumaons 7 kanals and 15 marlas, which was occupied jointly by all the three brothers.

The tenants stated clearly, according to this document, that they had been in occupation for 20 years. They did not claim any continuity of tenancy from their father, nor did the superintendent of the settlement confer any tenancy upon them for that reason, It was in virtue of the length of their own possession that they were declared as mustaqil tenants. It was only in answer to an incidental question as to how they happened to occupy the land which had already been reclaimed that they explained that their father had also been in possession before them.

The intention of the proviso to section 59 of the Tenancy Act seems to be that the common ancestor should have occupied the land continuously until his death. In other words, his sons should have succeeded him by their father's right. If, however, the intention could be fulfilled merely by an temporary occupation, which had been subsequently given up, it would be possible to contemplate a case as falling within the proviso where a common ancestor had sold the tenancy and it had been brought back by one of his sons after his death. Used by itself, the word "occupied" should convey the sense that the common ancestor's occupation was followed without break by that of his successor, that where the one ended the other began; but to hold otherwise would mean altering the proviso so as to require "that the common ancestor occupied the land at any time or for any length to time."

The two cases on which the trial Court had relied‑Allah Din v. Khuda Bakhsh (1) and Mst. Bego v. Basia (2)‑merely state that the word "occupied" does not necessarily mean "occupied as a hereditary tenant", but the further opinion that the word is "equally * * * * unqualified as to the time of occupation" belongs to the trial Court itself, not to the learned Judges in these cases.

The two cases to which the learned District Judge has referred Sobha Singh v. Nand Singh (3) and Sipadar Khan v. Kadheru (4) are not relevant and all that the learned District Judge himself says about them is that they "are important because both deal with section 59". They do, no doubt, but what they say about section 59 is‑in one case‑not that the word "occupied" has been used irrespective of the continuity of possession till death, but that where land had been "owned" jointly by the sons of a father at the time of the summary settlement and occupied as maurusi by one of them at the time of the first settlement, there is a strong presumption that it was inherited from the father (Sobha Singh v. Nand Singh); or‑in the other case‑that where the father of a deceased tenant had been in possession as a hereditary cultivator for fifty years, the presumption was that the father had inherited the tenancy from the grandfather Sipadar Khan v. Kadheru. In the former of these cases it is not clear how "ownership" at the time of the summary settlement had become subsequently reduced to "occupancy", and in one place the judgment would seem to indicate that the presump tion was based only on the fact that the brothers occupied the tenancy jointly at the time of the first settlement. We are familiar with such presumptions relating to the first settlement in cases of "ancestral" land, and in cases of tenancy there is a legal presumption under section 5 (2) of the Tenancy Act that where a tenant proves the continuity of his tenancy for thirty years at the commencement of the Act, he should be held to have occupied the land for more than two generations in the male line of descent, through a grand‑father or grand uncle. These two are thus cases of a legal presumption. In the case before us, it is unnecessary to rely on any sort of presumption, factual or legal, since it is known to us as a fact that Mughal had left the land and had not returned to it himself:

For the plaintiffs, reliance was also placed on Exh: P. 1, which is a record of a mutation of 1887, attested upon the death of Khuda Bakhsh without issue. How Khuda Bakhsh came into this land is not clear, but Illahi Bakhsh, who Mst. Mehro's husband, Nadir, for the first time the occupation of this land as one of the co‑heirs of by mutation Exh. P. 1. The landlords then not object, but ten years, later, when the tenancy was being partitioned between the various occupancy tenants (see Exh. P. A.) they objected that the mutation of the share of Khuda Bakhsh in 1880 in favour of his brothers and nephews was illegal. The Naib Tahsildar, however, told them then that this question had been raised too late in the day and that they should have gone to the Civil Court.

It was argued that the failure of the landlords to question the succession upon the death of Khuda Bakhsh in 1880 gave rise to a presumption that they had accepted Mughal as the ancestor who had occupied the land. This argument, however, loses sight of the objection that was made nine years later.

I hold that Mughal was not in occupation of the land, within the meaning of section 59 of the Tenancy Act and, accepting the appeal, dismiss the suit with costs.

A. H. Appeal accepted.

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