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Regular First Appeal No. 25 of 1980, decided on 8th August, 1982.

‑‑ Ss. 18 & 30‑Scope of sections.

The object of the references under section 18 and section 30 of the Land Acquisition Act, 1894 is quite distinct and separate. Reference under section Iii relates to the area or the quantum of the compensation or to the apportionment of the compensation amongst the persons interested, whereas the reference under section 30 relates to the dispute as to the method of the apportionment of compensation or the persons to whom the same or any part thereof is payable. The dispute which relates to the title in the property would certainly come within the purview of section 30 of the Land .acquisition Act and is not covered by the provision of section 18 thereof.

‑ S. 30‑Reference‑Limitation‑No period of limitation, held, pres cribed for making reference under S. 30, Land Acquisition Act, 1894. [Limitation].

‑‑ O. XLI, r. 23‑Remand (civil)‑Question of inheritance of occupancy rights though not specifically pleaded in written statement but sufficient evidence existing on record to enable court to resolve question in controversy‑Prayer of respondents counsel for remand of case for fresh decision by trial Court, in circumstances, held, not calculated to serve cause of justice.

Municipal Committee of Shehdadpur v. Jummo Khan and others P L D 1972 Kar. 507 ; Yousaf v. Hasham Bhoy & Co. P L D 1966 (W. P.) Kar. 456 ; Amin Yousaf Nizami v. Rashid Rayon Mills Karachi, P L D 1971 Kar. 505 ; Ghulam Mostafa v. Haji Mian Muhammad and others P L D 1969 Pesh. 241 ; Siri Man Matha Nath Kuri v. Molvi Muhammad Mokhlesur Rehman and others PLD1969SC565ref.

‑‑ S. 59 [unamended]‑Inheritance‑Occupancy tenant dying, right to tenancy, according to old unamended S. 59‑To devolve on his male lineal descendant and failing him on widow of deceased‑Ancestor of parties dying in 1928 when old S. 59 held field and occupancy of rights devolving upon appellant as absolute vested estate under custom- Question of limited estate of widow and its termination on her death or remarriage after amendment of S. 59 by Punjab Tenancy Act or after enforcement of N.‑W. F. P. Muslim Personal Law (Shariat) Application Act, 1935, held, not relevant for decision of question involved‑Sub sequent change in law, held further, would not effect right which vested in appellant under old section.‑[Inheritance].

Mst. Jane v. Ali Zamen and others A I R 1943 Pesh. 9 and Aslam and another v. Kamalzai and others P L D 1974 S C 207 ref.

---S. 30‑Compensation, award of‑Limitation‑Possession of one co‑sharer‑Possession on behalf of all co‑sharers unless other co‑sharer ousted‑Appellant inheriting occupancy tenancy as absolute owner and not in possession of property as co‑heir‑Principal of possession of one co‑sharer being possession on behalf of other co‑sharers, held, not applicable to case so as to cross over law of limitation.‑[Limitation].

Wazir Begum v. Noor Jehan Begum P L D 1961 (W. P.) Kar. 165 ; P L D 1974 S C 207 and Mst. Sahib Jan Bibi and others v. Wali Dad P L D 1961 Pesh. 9 ref.

‑‑ S. 30 and Punjab Tenancy Act (XVI of 1887), S. 59 [unamended] Compensation, award of‑Ancestor of parties dying in 1929, his occu pancy tenancy exclusively devolving upon his son (appellant) under old S. 59 of Tenancy Act, 1894, and respondent (daughter) not entitled to any share in occupancy rights award of one‑third share of compensa tion to respondent, held, contrary to law and not sustainable.‑[Com pensation].

Haider Zaman Khan for Appellant.

Taj Muhammad Khan for Respondent.

Dates of hearing : 5th and 9th June, 1982.

On a reference made under section 30 of the Land Acquisition Act, 1894, the Collector Land Acquisition the Additional District Judge, Haripur, passed the impugned decree on 14‑1‑1980 declaring respondent No. 1 Mst. Resham Jan (hereinafter to be called as respondent) as entitled to 1/3 share of the compensation of the land in dispute bearing khasra number 224, 726/ Sid, 663/90 and 512 measuring 15 kanals, 19 marlas, and house No. 59 situated in village Thapla' Tehsil flaripur District Abbottabad. The entire estate of village Thapla including the property in dispute, was acquired for Tarbela Dam Project (Reservoir Area) and in the Award bearing No. 29 dated 26‑10‑1970, the entire compensation of the property in dispute was assessed in the name of the appellant Khadi Khan, on the basis of the entries in the revenue record.

2. The respondent, in her application to the Collector Land Acquisition, seeking reference under section 30 of the Act, claimed that the property in dispute originally belonged to Ali Khan her father, on whose death, the property devolved on her and her brother the appellant, to the extent of 1/3 and 2/3 share respectively, that the appellant Khadi Khan, in collusion with the revenue officials managed to obtain the entire compensation of the property, and thus she was deprived of her lawful 1/3 share ; that the respondent being a pardanashin lady' was kept unaware of the entire procee dings taken before the Land Acquisition Collector.

3. The Civil Court, after recording the evidence of the parties, came to the conclusion, that the Respondent being the real sister of the appellant Khadi Khan, was entitled to 1/3 share of the compensation as a Muslim Law heir of her father, Ali Khan. Thus the question which falls for determination is whether the appellant and the respondent inherited the property in dispute as Muslim Law heirs on the death of their father Ali Khan, which took place in 1928.

4. The learned counsel for the appellant Khadi Khan, urged that Ali Khan the father of the contesting parties, was an occupancy tenant and on his death in the year 1928, the occupancy rights exclusively devolved upon the appellant under the un‑amended provision of section 59 of the Punjab Tenancy Act, 1887, who being the only lineal descendant of Ali Khan was entitled thereto, to the exclusion of all others including the respondent Mst. Resham Jan the daughter of Ali Khan. It is also urged that the reference made by the Land Acquisition Collector under section 30 was time‑barred and the reference was also incompetent having been made on the application of the respondent Mst. Resham Jan and not suo motu by the Collector. He also argued that the respondent should have applied for a reference under section 18 of the Land Acquisition Act within the prescribed period of limitation and having not done so she could not invoke the provisions of section 30 of the Act.

5. Regarding the argument that the respondent should have applied for a reference under section 18 of the Land Acquisition Act, it may be mentioned that the object of the references under section 18 and section 30 of the Act is quite distinct and separate. Reference under section 18 relates to the area or the quantum of the compensation or to the apportionment of the compensation amongst the persons interested, whereas the reference under section 30 relates to the dispute as to the method of the apportionment of compensation or the persons to whom the same or any part thereof is payable. The dispute which relates to the title in the property would certainly come within the purview of section 30 of the Land Acquisition Act and is not covered by the provision of section 18 thereof. The present dispute has raised the question of title of the respondent Mst. Resham Jan and, therefore, the reference made by the Land Acquisition Collector under section 30 of the Act was quite valid in law, and the mere fact that the reference was mad by the Collector on the application of the respondent would not alter the position that in fact the reference was made by the Collector himself under section 30 of the Land Acquisition Act, which he was legally competent to do. Regarding the arguments about the bar of limitation, it may however, be observed that no period of limitation is prescribed for making a reference under section 30 of the Land Acquisition Act and hence the reference wail not bad on this score.

6. The learned counsel for the other hand, argued that the question relating to the occupancy rights having devolved upon the appellant Khadi Khan, was never raised in the trial court, nor the same was specifically pleaded in the written statement filed by the appellant, therefore, he is not to be permitted to raise this question for the first time in the appeal. The factus of the purchase of khasra number 512 corresponding to old khasra number 468, also having not been raised in the written statement, could not be agitated in the High Court. Reliance is placed in this regard on Municipal Committee of Shehdad Pur v. Jummo Khan and others (P L D 1972 Kar. 507), Yousaf v. Hasham Bhoy & Co. (P L D 1966 Kar. 456), Amin Yousaf Nizami v. Rashid Rayon Mills, Karachi (P L D 1971 Kar. 505) and Ghulam Mustafa v. Haji Mian Muhammad and others (P L D 1969 Pesh. 241) in support of the contention that it was obligatory for the defendant‑appellant to have particularized all these points in his defence in the trial court and that a new point cannot be raised and considered unless fresh opportunity is given to the respondent to meet it by placing on record sufficient material relevant to the decision of such point .

It is also contended that the appellant cannot be permitted to prove a case different from what has been pleaded by him in the trial court. However, it may be noted that in the written statement filed in the trial court, the appellant specifically claimed the ownership of property in dispute to the exclusion of the respondent Mst. Resham Jan, and the case thus set up by him, also finds support from the entries of the revenue record right from 1.903‑04 up to the date of the award and subsequent filing of the‑ reference in question.

7. No doubt the question of inheritance of the occupancy rights had not been specifically pleaded in the written statement but there is sufficient evidence on the file to enable this Court to resolve the question in controversy between the parties, and thus in the circumstances, the prayer of the learned counsel for the respondent for the remand of the case for fresh decision by the trial court, in my view, would not serve the cause of justice. Regarding defective nature of the pleadings put in the trial court the case of the Siri Man Matha Nath Kuri v. Molvi Muhammad Mokhlesur Rehman and others (P L D 1969 S C 565) I may be referred to with advantage wherein it was observed that :‑

"The plaint, which has been drafted by a Mofassil lawyer, is no doubt, very. pinartistically worded and it does not set out the cause of action with any degree of precision. But reading the plaint as a whole liberally‑, according to the accepted principle of construction of Mofassil pleadings, there can be no manner of doubt that the cause of action pleaded was in substance for damages under the Fatal Accidents Act, even though the draftsman had erroneously included therein averments of general damages by way of solatium for the grief and suffering caused to the parents by the loss of their.cbild and other irrelevant matters."

8. Muhammad Sarwar Khan, Sadar Kanugo (OW‑3) had‑produced goshwara' from the Settlement record of 1904‑05 up to the Settlement of 1947‑48 (O. W. 3/1). He stated that the land in dispute excepting old khasra number 468 (corresponding to khasra number 512 in dispute) originally was the occupancy tenancy of one Kalu Khan son of Noor Ali and after his death it devolved upon Ali Khan his son and to this effect mutation No. 331 5 was also attested on 15‑5‑1917. He further stated that on the death of Ali Khan, the occupancy rights devolved upon Khadi Khan, the appellant and in this respect also the inheritance mutation No. 591, was attested on 26‑5‑1928. Since then, the appellant had been shown in possession of the occupancy tenancy upon 1947‑48. He also stated that the name of the respon dent Mst. Resham Jan does not find any mention in the revenue record. Abdul Raziq Patwari halqa Thapla appeared as OW‑1 and produced O. W. 1 /1 to O. W. 1 /5 copies of the Jamabandies from 1947‑48 up to 1968‑69. He deposed that the land in dispute is shown in the revenue record, produced by him, as the ownership of the appellant.

9. From the perusal of the goshwara' (Exh. O. W. 3/1) and the copies of the jamabandies' O. W. 1/1 to O. W. 1/5, it is abundantly clear that the land in dispute, excepting khasra number 512, was the occupancy tenancy of one Kalu Khan since the Settlement of 1904‑05. On his death the occupancy rights devolved on his son Ali Khan vide inheritance mutation No. 3315 attested on 15‑5‑1917 and later on when Ali Khan died, the occupancy rights were inherited by Khadi Khan, the appellant, and to this effect mutation No. 591 was also attested in his favour on 26‑5‑1928. It may be mentioned here that Khasra number 512, corresponding to the old Khasra No. 468, which was in possession of Khadi Khan appellant as tenant at will, was purchascd by from Mst. Fazal etc. vide mutation No. 938 attested on 17‑1‑1940.

10. Subsequently on the enforcement of N.‑W. F. P. Tenancy Act (Act XXV of 1950), the occupancy tenancy of Khadi Khan stood terminated by operation of law and he became fall owner of the portion of the land in proportion to the share of the produce which he retained for himself, without payment of any compensation to the landlord. Thus .by virtue of the aforesaid change in law, Khadi Khan appellant became the full‑fledged owner of Khasra Nos. 224, 663/90 and 726/513. However, he continued to remain owner of Khasra No. 512, already purchased by him. The entries in the jamabandi' of 1953‑54 duly reflect his ownership of the Khasra numbers in dispute and these entries have been repeated in the subsequent jamabandies' of 1953‑59 and 1964‑65. Thus it is obvious that at the time of the acquisition of the land, these entries in the revenue record were duly taken into consideration by the Land Acquisition Collector and the compen sation awarded accordingly:

11. In reply, to the arguments of the learned counsel for the appellant about the occupancy rights having been devolved exclusively on the appellant under the unamended provisions of section 54 of the Punjab Tenancy Act, 1887 (Act XVI of 1887), the learned counsel for the respondent urged that section 59 of the Punjab Tenancy Act a9 amended by the Punjab Tenancy (N.‑W. F. P. Amendment) Act, 1939, would be applicable to the case where under on the death of an occupancy tenant the right was to devolve on his heirs in accordance with the Personal Law of the deceased tenant. The relevant portion of the old section 59 of the Punjab Tenancy Act of 1887 reads as under :‑

"(1) When a tenant having a right occupancy in any land dies, the right shall devolve‑

(a) on his male lineal descendants if ally‑ in the male line of descent, and

(b) failing such descendants, on his widow, if any, until she dies or remarries or abandons the land or is under the provision of this Act ejected therefrom, and

(c) failing such descendant and widow, or, if the deceased tenant left a widow, then when her interest terminates under clause (b) of this subsection, on his male collateral relatives in the line of descent from the common ancestor of the deceased tenant and those relatives."

This section was deleted by Punjab Tenancy (N.-W. F. P. Amendment) Act, 1939. and the following section was substituted therefor :-

"When a tenant having a right of occupancy in any land dies, the right shall devolve on his heirs in accordance with the personal law of the deceased tenants :

Provided that if the deceased has left no such person as can inherit the right in accordance with this section the right shall be extinguished :

Provided further that notwithstanding anything in any law, custom or entries in the revenue papers a female occupancy tenant shall not be liable to do begar or render any service or pay any village cess to her landlord."

A plain reading of the old section 59, makes it clear that when an occupancy tenant died the right was to devolve on his male lineal descendant and failing such descendant, the widow was held entitled. There is no mention of the (laughter inheriting the occupancy rights held by her father. It is not disputed that section 59 of the Punjab Tenancy Act, 1887, is a piece of substantive law and in the absence of any express provision or necessary intendment, it would have no retrospective application. The learned counsel for the respondent also pressed into service the provisions of the N-.W. F. P. Muslim Personal Law Shariat) Application Act (Act VI of 1935) and contended that the question of succession to the estate of a Muslim dying before the 6th of December, 1935, was to be decided according to the rules of Muslim Personal Law. In this respect reliance in placed on Miskeen and another v. Mst. Hassan and others (P L D 1968 Pesh. 94) but this case is of no help to the learned counsel, for, it was a cage in which a widow had acquired the occupancy rights as a limited owner, and it was held that she should not arrogate to herself the status of full-fledged owner free from the trammels of the rules of Customary law. The right of proprietor-ship acquired by her by virture of N.-W. F. P. Tenancy Act (Act XXV) of 1950 section 4 (a) was an accretion to the limited estate inherited by her and enured for the benefit of all persons, who under the law claimed the heritage left by the last holder. Similarly the case of Mst. Sarwar Jan v. Gul Muhammad and others (P L D 1952 Pesh. 40) cited by the learned counsel for the respondent does not support his argument as this case also involved the question of the occupancy rights having devolved upon a widow as a limited owner and thus it was held that no doubt the widow was to occupy the property until she died or remarried, and was also not entitled to transfer it by sale, gift or mortgage, or sublet the same but then it does not mean that simply because certain restrictions and limitations were placed on her rights, the property did not devolve on her, or she could not be termed as an occupancy tenant of the property. In spite of these limitations and restrictions she was to all intents and purposes an occupancy tenant. It was further held that the widow's death having taken place after the coming into force of the new section 59, of the Punjab Tenancy Act, 1887, occupancy rights would devolve on the Muslim Law heirs of the last holder. But in the case in hand Ali Khan died in the year 1928 when the old section 59 of the Punjab Tenancy Act was in the field and the occupancy right devolved upon the appellant who inherited an absolute vested estate under Custom. The question of limited estate of a widow and its termination on her death or re-marriage after the amendment of section 59 of the Punjab Tenancy Act or for that matter after the enforcement of N.-W. F. P. Muslim Personal Law (Shariat) Application Act, 1935 are matters not relevant for the decision of the question involved in the present case. It is abundantly clear that Ali Khan having died before section 59 of the Punjab Tenancy Act, 1887 was amended, the occupancy rights held by him stood vested in the appellant, who was the only male lineal descendant, to the exclusion of all other including the respondent his sister. Any subsequent change in law would not affect the right which had vested in the appellant under the old section. In this view of the matter the learned counsel for the respondent is not right to press into service the provisions of the amended section 59 of the Punjab Tenancy Act, 1.887 as also the N.-W. F. P. Muslim Personal Law (Shariat) Application Act, 1935. In Mst. Jane v. Ali Zaman and others (A I R 1934 Pesh. 9) it was held that :-

"The word "devolve" in section 59 as it originally stood conclusively shows that it was a piece of substantive law and not adjective law. The amendment of section 59 does not divest rights which had vested under the old section 59 because those rights are protected by section 6 (c), N.-W. F. P. General Clauses Act, Consequently; a Mahomedan widow who had acquired occupancy rights of her husband under the old section 59 is entitled to hold those rights till death or remarriage."

Similarly in Aslam and another v. Mst. Kamal Zai and others (P L D 1974 S C 207) it was held that :-

"It seems to us that the contention of the learned counsel is correct, because, it does not appear that it could have been the intention of the makers of the Statute to reopen the inheritance, even in cases where the heirs hart taken an absolute vested estates under custom. Only the limited estates taken under custom, which were, in any event, to terminate on the death or remarriage of the female heir, were intended to be distributed according to Muslim Personal law."

Regarding the bar of limitation to the claim of the respondent, her learned counsel relics on Mst. Wazir Begum v. Mst. Noor Jehan Begun (P L D 1961 Kar. 165) and contends that between the co sharers possession of one and non receipt of profits by the others do not set limitation running against the co-sharer, not in possession. That in law the possession of one co-sharer is always considered'' to be the possession on behalf of all the co-sharers unless there is ouster of the other co-sharer in respect of the joint property. It is evident that the appellant Khadi Khan inherited the occupancy tenancy as an absolute owner and he was not in occupation of the property as a co-heir, therefore, the precedent case is of no help to the respondent to cross over the bar of limitation. In P L D 1974 S C 207, it was observed by the Honourable Supreme Court that :-

"The question of limitation also had, in our view, to be answered in favour of the appellants. The estate that they took as customary heirs, they took in their own right as absolute owners to the exclusion of all the others. Mst. Kamalzai cannot say that she was unaware of this fact or that the possession of the appellants was in any way possession as co‑heirs. In the kind of possession that they took the element of ouster was also present, for, their possession was not only open but also hostile in their own right as full owners. Mst. Kamalzai's suit, therefore, for a share in the estate that they had taken was clearly barred by limitation."

In Mst. Sahib Jan Bibi and others v. Wali Dad (P L D 1961 Pesh. 9) it was held that :‑

"The theory of co‑heirs cannot be introduced between the Customary Law heirs who entered into succession upon death occurring before December, 1935, and the Muhammadan Law heirs who have been enabled by the Muslim Personal Law (Shariat) Application Act of 1935 to claim their shares. The latter cannot be ranked as co‑heirs with the former, because the Customary Law heirs entered into possession as full owners in their own right the character of their possession cannot be altered by the change made by the Muslim Personal Law (Shariat) Application Act of 1935. The claim which the heirs of a deceased person have to prefer after the enactment of the Act of 1935 will be entertained only if the law of limitation offers no impediment. If it does, the claims will be rejected if preferred after twelve years of the death of the deceased whose estate is sought to be inherited."

A somewhat similar question. came up for decision before a Division Bench of this court in Mst. Rooh Afza v. Muhammad Umar and others (P L D 1978 Pesh. 1) wherein it was urged that by the amendment of section 59 of the Punjab Tenancy Act, 1887, by section 3 of the Act XX of 1939 (Punjab Tenancy) (N.‑W. F. P. Amendment) Act, 1939 the N.‑W. F. P. Muslim Personal Law (Shariat) Application Act, 1935, became applicable with retrospective effect and there fore, the question of succession in regard to occupancy tenancy was to be resolved under the Muslim Law, but this contention was repelled by the learned Judges holding that :‑

"In view of this clear language employed in Act XX of 1939, we are unable to see as to how it can be successfully argued that the Act is retrospective in application. The word "shall" used in sections 2 and 3 of Act XX of 1939 is significant. It clearly conveys the meaning that with effect from the date of promulgation of Act XX of 1939, occupancy matters shall be governed by the Muslim Personal Law. No inference can be drawn from Act XX of 1939 that it was, by necessary implication, made applicable to the tenancy matters of the past."

Thus in view of the fact that Ali Khan having died in 1928, his occupancy' tenancy exclusively devolved upon his son, the appellant, under the old section 59 of the Punjab Tenancy Act and the respondent was not entitled to any share in the occupancy rights held by her father and she had wrongly been awarded the decree of 1/3 share of the compensation of the land in dispute by the trial court. The decree being contrary to law is not maintainable.

12. In regard to the house No. 59 in dispute it may be mentioned that no doubt the respondent also claimed 1/3 share of its compensation but she failed to substantiate her claim by lading any evidence. There is nothing on the record to show the nature of the interest claimed by her in regard to this house. However, the appellant being in possession, was awarded the compensation thereof. Her claim in regard thereto, on the principle laid down in P L D 1974 S C 207, is also barred by limitation.

13. For the reasons stated above, the appeal is accepted and the impugned judgment and decree of the learned trial court is set aside: The parties to bear their own costs throughout.

S. A. H. Appeal accepted.

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