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Civil Petition for Special Leave to Appeal No. 215 of 1967, decided on 3rd October 1967.

(On appeal from the judgment and order of the High Court of West Pakistan, Lahore, dated the 26th January 1967, in R. S. A. No. 190 of 1958).

, S. 38‑Occupancy tenancy‑Abandonment‑ Tenancy cannot be extinguished in part

Fact that some of co‑sharers occupancy tenants minors‑"Sufficient cause" within meaning of section‑Entry in revenue records showing persons as occupancy tenants never challenged by landlords‑Mere fact that landlords themselves paying taxes and cesses, not sufficient to lead to inference of abandonment.

S. 100‑Finding of fact‑Finding vitiated by non‑consideration of material evidence could be interfered with.

Khalilur Rehman Khan, Advocate Supreme Court instructed by Abdul Karim, Attorney for Petitioners.

Nemo for Respondents

Date of hearing : 3rd October 1967.

This is a petition for special leave to appeal from a judgment of a learned Single Judge of the High Court of West Pakistan, Lahore, in a second appeal.

The appeal arose out of a suit filed for a declaration that the respondents, who were tenants of the property in dispute, had abandoned their occupancy rights therein and were not eligible to acquire any ownership rights under section 114 of the Punjab Tenancy Act as amended in 1952. The suit also challenged the correctness of the mutation entered on the 21st of February 1956, giving such ownership rights to the respondents.

The trial Court found that the respondents who were the defendants in the suit, had failed to cultivate the land for more than one year as also failed to arrange for payment of rent, but since some of them were minors that was a sufficient cause for such failure. The suit was, therefore, dismissed on the ground that the plaintiff‑landlords held failed to prove that there was no sufficient cause for non‑cultivation of the land within the meaning of section 38 of the Punjab Tenancy Act. Section 38 (1) is in these terms :‑

"38(1) If a tenant having a right. of occupancy fails for more than one year without sufficient cause to cultivate his tenancy, either by himself or some other person, and to arrange for ' payment of the rent hereof as it falls due, the right of occupancy shall be extinguished from the end of that year."

It appears from this that the failure must be without sufficient cause in order to constitute abandonment.

The learned District Judge, Rawalpindi, however, on appeal took the view that the burden of proving the sufficiency of the cause was on the tenant and not on the landlord and since the tenants had not pleaded any such cause the suit must succeed upon the findings of the trial Court with regard to failure. On second appeal, however, the High Court took the view that the entry in the revenue records showing cultivation by the landlords was not by itself sufficient to infer abandonment particularly, since they never made any attempt to have their name mutated on the extinction of the tenancy: The High Court also took the view that a tenancy cannot be extinguished in part. Hence the very fact that some, of the co‑sharer tenants were minors was by , itself a sufficient cause within the meaning of this section: The judg ment of the learned District Judge was, accordingly, reversed and. that of, the first Court restored. Leave .to appeal under the Letters Patent was also refused.

The petitioners now seek special leave to appeal. Learned counsel appearing in support of the petition has sought to challenge the High Court's view but we are unable to accept his contention, for, upon examining the pleadings we find that the landlords never challenged the correctness of the revenue records, which consistently showed the defendants as occupancy tenants. In the circumstances, they cannot now be allowed to say that the entries therein were wrong.

It is next contended that the High Court should not have disturbed the concurrent findings of fact by both the Courts below in second appeal, for both the Courts below were agreed on the question that there was failure. The only difference was on the question as to whether such failure was without sufficient cause.

Learned counsel also ‑argued that the High Court had failed to take into account the fact that when the abandonment became effective none of the tenants was a minor.

It is true that in a second appeal a finding of fact cannot be reversed unless that finding is vitiated by a misreading of evidence or non‑consideration of material evidence. In the present case important material evidence had been ignored. The Courts below: the High Court had failed to take into account the entries in the revenue records which consistently showed the respondents as tenants and even mutated the names of the heirs of a tenant upon his death. The landlords never objected to these entries nor made attempt to have their possession recorded as adverse to those of the tenants. In the circumstances, the mere fact that the landlords were themselves paying the taxes and cesses or not giving any share of the produce to the recorded tenants was not sufficient to lead to the inference of abandonment. No exception can, therefore, be taken to the High Court's finding that the case of abandonment had not been established.

Learned counsel has not also been able to assail the view of the High Court that a tenancy cannot be extinguished in part or that minority of co‑sharer tenant may in certain circumstances be a sufficient cause.

For these reasons we are of the view that there is no substance in this petition which is, accordingly, dismissed.

Leave refused.

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