Lawyers Directory Listing
Chat with us free on WhatsApp — tell us your city and legal matter and our team connects you with the right lawyer. No form, no fee.
Revision Side No. 21 to 28 of 1952‑53, decided on 26th August, 1954. District Attock.
S. 84‑‑Revision‑‑ Scope‑‑Adequate opportunity to produce secondary evidence when primary evidence was not available‑Necessary point not raised and decided‑Question of compensation not considered‑Case remanded.
The plaintiff: landlords sued for ejectment of defendants and got a decree which was upheld by the Collector and Commis sioner. A point raised was whether the defendants had proved that they were occupancy tenants under section 6 Tenancy Act, for which it was necessary to show that they were recorded as such in record of rights sanctioned by the Provincial Government before 21st October, 1868.
It also appeared that the petitioners were not given adequate opportunity to throw light on this question and produce secondary evidence if primary evidence was not available. Nor was it clear whether under the instructions then in force a specific sanction of the Punjab Government was necessary, or the acceptance of the Settlement or Assessment by the Government of India only was sufficient.
On the question of continuous possession, no finding had been given by the Courts below, and a claim for occupancy tenancy under section 8 was not put forward by the petitioners. A decision on these two points, however, was necessary with a view to finalise proceedings between the parties.
Moreover the Courts below did not consider the question of compensation under section 70 of the Punjab Tenancy Act. A finding on this point was also called for.
Case was therefore remanded in revision to Collector for fresh decision on these points.
Kh. Abdur Rahim, for Petitioners.
Mahmool Ali Kasuri, for Respondents.
‑(After setting out the Nos. and titles of the petitions the Order proceeded). These eight revisions have been filed against an order dated 30th August 1952, passed by the Commissioner, Rawalpindi Division, whereby he had disposed of 27 revision petitions against an order of the Collector, Attock, dated 31st March 1950, where under he disposed of 31 appeals preferred against an order of ejectment, against the petitioners, passed by the Assistant Collector I Grade, Pindigheb. Out of the 27 revision petitions disposed of by the Commissioner, Rawalpindi, only 8 revisions mentioned above have been filed in this Court.
The facts of the case are that on 12th July 1948, the respondents (landlords) brought suits of ejectment against the petitioners alleging them to be non‑occupancy tenants. The petitioners contested the suits of ejectment on the ground that they were, in fact, occupancy tenants under section 6 of the Punjab Tenancy Act and were, therefore, not liable to ejectment.
The Assistant Collector, I Grade, came to the following conclusion.
In R. C. R. No. 21.‑The petitioners could not be held occupancy tenants because they had not been shown to be the descendants and successors of Hakim, Arab; and others who were the original occupancy tenants.
In R. C. R. No. 22.‑The petitioners were the descendants of Ahmad, one of the original occupancy tenants, but failed to prove that the first settlement of 1864 was duly sanctioned by Government.
R. C. R. No. 23, 24, 25, 26, 27 and 28.‑In these revisions also the petitioners were held to have failed to establish that the settlement of 1864 was duly sanctioned by Government.
The Assistant Collector, therefore, ordered the ejectment of the petitioners, but awarded compensation‑ for disturbance in varying amounts.
The petitioners went in appeal to the Collector, but their appeals were rejected because the Collector also held that there was nothing to show on record that the first settlement of 1864 was sanctioned by the Provincial Govern ment. He rejected the appeals, but ordered an increase of compensation from five times the land revenue to five times the rent.
The petitioners went in revision to the Commissioner, but these were rejected. Second revisions have been filed before me, but only in eight cases.
I have heard the learned counsel for the parties at great length. The learned counsel for the petitioners tried to show that the settlement of 1864 was duly sanctioned. In this connection he referred me to the following documents:‑
(a) Appendix III, pages XXVIII & XXIX of the Settle ment sanctioned in 1859‑60.
(b) The District Gazetteer of 1907, page 209, where it is mentioned that the Government of India sanctioned the assessment on 31st October 1866.
(c) The letter from Major, J. E. Cracroft to the Commis sioner, Rawalpindi, No. 1677, dated the 8th October 1864, where under report of the Rawalpindi Settlement was for warded to the Commissioner. The land in dispute was included in the Pindigheb Tahsil which formed part of the Rawalpindi district at that time, although it is now in the Attock District.
(d) The Commissioner's Letter No. 4, dated 4th January 1865, to the Financial Commissioner, whereby this report was forwarded by the Commissioner to the Financial Commissioners.
(e) The Financial Commissioners submitted this report to H. E. the Governor on 2nd February 1865, vide his Letter No. 65‑413, dated 2nd February 1865.
(f) Government of India's Letter No. 390‑R‑31‑Ex‑10, dated the 31st October 1866, from the Secretary to the Government of India, Foreign Department, to the Secretary to the Government of Punjab where under the assessment proposed by Major Cracroft, of the Rawalpindi district, was sanctioned with some modifications.
On the basis of these documents, the learned counsel for the petitioners contended that although there were no final orders by the Governor, the case must have been forwarded to the Government of India only after the Punjab Government had accepted the assessment proposed by Major Cracroft. In the alternative, he argued that if this was not taken to be a sufficient material in his favour, the case might be remanded for enabling the petitioner to produce secondary evidence about the sanction of the record of rights by the Punjab Government as primary evidence was not available.
On the other hand, the learned counsel for the respon dents argued that the sanction of the record of rights was different from the sanction of the settlement or assessment. He, therefore, contended that no presumption could be raised in favour of the petitioner on the basis of the documents referred to by the learned counsel for the petitioners After a careful consideration of the arguments put forward before me, I am of the view that although there is evidence to show that the Financial Commissioners submitted the case to the Governor and the Government of India finally accepted the assessment, there is nothing on record to throw much light on the intermediary stages through which the Assessment Report of Major Cracroft must have passed after its sub mission by the Financial Commissioners to His Excellency the Governor. It is true that there is a note by H. E. the Governor dated January 10, 1865, wherein it was stated that the settlement had H. E's. entire approval, but no formal orders by the Punjab Government are traceable. It also appears that the petitioners were not given adequate opportunity to throw light on this question and produce secondary evidence if primary evidence was not available. Nor is it clear whether under the instructions then in force a specific sanction of the Punjab Government was necessary, or the acceptance of the Settlement or Assessment by the Government of India only was sufficient. In these circums tances, I hold that the request of the petitioners for a remand of the case is justified.
It has also been urged by the learned counsel for the petitioners that if the case was going to be remanded, opportunity might also be given to the parties to prove the following :‑
(a) continuous possession ;
(b) whether the petitioners could claim to be occupancy tenants under section 8 ; and
(c) whether the petitioners were entitled to any com pensation under section 70 of the Punjab Tenancy Act.
On continuous possession, no finding had been given by the Courts below, and a claim for occupancy tenancy under section 8 was not put forward by the petitioners. A decision on these two points, however, is necessary with a view finalise proceedings between the parties.
I also notice that the Courts below did not consider the question of compensation under section 70 of the Punjab Tenancy Act. A finding on this point is also called for.
Taking these facts into consideration, I accept all the eight revisions and remand the case to the Collector, with the direction that he should give a decision on merits in all these eight cases after the parties have been given adequate opportunity to produce evidence on the following points :‑
(a) Whether the Punjab Government sanctioned the settlement of Major Cracroft and the record of rights relating to the villages where the land in dispute relating to the various revisions are situated.
If primary evidence is not available, secondary evidence should be produced.
(b) It should also be ascertained whether at that time the rules required the sanctioning of the settlement by the Punjab Government, or a sanction of a settlement by the Government of India was considered to be sufficient.
(c) Whether the petitioners have been in continuous possession of the land in dispute.
(d) Whether they could claim occupancy tenancies under section 8, read with section 111 of the Punjab Tenancy Act.
(e) Whether any compensation was due to the petitioners under section 70 of the Punjab Tenancy Act.'
A. H. Case remanded.
Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.
🔍 Find a Lawyer