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Civil Petition for Leave to Appeal No. 71/R of 1983, decided, on 26^th October, 1983.

(On appeal from the judgment and order of Lahore High Court, Rawalpindi Bench 1‑2‑1983 in W. P. 17 of 1983).

-------Art. 185 (3)‑Punjab Tenancy Act (XVI of 1887), Ss: 38 & 114(2)‑ West Pakistan Redemption and Restitution of Mortgaged Lands Act (XIX of 1964), S. 1‑Punjab Tenancy (Removal of Doubts and Amend ment) Act (XXXVIII of 1975), S. 3‑Suit for redemption of muqar rardari rights‑Mortgaged‑Decree for abandoned rights of ownership under provisions of S. 11.4‑A(2), Punjab Tenancy Act, 1882‑Attestation of mutation‑Extinction of muqarrardari rights by additions of S. 114‑A by Amending Act, 1974‑Contention that respondents' application to revenue authority for redemption of alleged Muqarrardari right filed on 12‑12‑1974 was not competent, when such rights had already been extinguished by amendment in Punjab Tenancy Act, 1887 by inserting S. 114‑A and no valid decree could be granted for redemption of Muqarrardari rights when such rights were tenancy rights within meaning of S. 38, Punjab Tenancy Act, 1882 and said provision provided that where tenant had abandoned land not paid rent, his right of tenancy would stand extinguished‑Contention co 1sidered but no interference desired with order of revenue Court which had been maintained by revisional authority‑Petitioner however not de barred to establish their right in civil Court if so desired subject to all legal pleas available to other side Petition dismissed.

Ch. Muhammad Farooq, Advocate Supreme Court and Ch. Akhtar All, Advocate‑on‑Record for Petitioners.

Nemo for Respondents.

Date of hearing : 26th October, 1983.

This, petition is directed against the judg ment and order of the Lahore High Court, Rawalpindi Bench, dated 1‑2‑1983 passed in Writ Petition 17/83.

2. Land measuring 10 Kanals and 2 Marlas in Khasras Nos. 1058, 1.059 and 1/4th share in Khasra No. 1039 situate in village Fomali, Tehsil and District Attock was owned by one Muqqarab Khan. One Khawaja Noor Abmad was recorded as Muqarrardar in respect of the said land in the revenue records. In 1932 the successor of Noor Ahmad Muqarrardar mortgaged, with possession, his Muqarrardari rights in favour of Said Akbar the predecessor‑in‑interest of the petitioners and mutation of mortgage bearing Nos. E91 and 692 were attested on 23‑7‑1932 in this behalf. It had been agreed between the parties at the time of creation of the said mortgage that the rent of the said land would be continued to be paid by the said Muqarrardar to the owners.

3. On 15‑8‑1934 Muqarrab Khan the owner of the land in question sold the land in favour of Said Akbar the predecessor‑in‑interest of the petitioners and Mutation No. 864 was attested. Thus, both the mortgage with possession of Muqarrardari Rights as well as title of the said land, according to the petitioners, case to merge in favour of Said Akbar, their predecessor- in‑interest. Later on, a suit was filed, by the owners against Noor Ahmad Muqarrardar for the recovery of rent. The Muqarrardar appeared and took the plea that he had mortgaged the land with possession of Muqarrardari rights in favour of Said Akbar, and, therefore, he was not liable to pay the rent. When the agreement was produced it transpired that the rent was payable by Noor Ahmad Muqarrardar and, accordingly, a decree was passed in favour of the owner which remained unsatisfied till 1934 when the and was purchased by the petitioners' predecesssor.

4. In 1974 the Punjab Tenancy Act, 1887 was amended by Ordinance I of 1974 and section 114‑A was inserted in the said Act which had the effect on extinction of Muqarrardari rights. L. Rs. of Noor Ahmad filed a suit on 12‑12‑1974 under section 1 of West Pakistan Redemption and Restitution of Mortgaged Lands Act, 1964 for the redemption of the so‑called Muqarrardari rights mortgaged by their predecessor in 1932. The suit was contested by the petitioners. Respondents then filed a petition. in the revenue Court for obtaining abandoned rights of ownership under the provisions of subsection (2) of section 114‑A of the Punjab Tenancy (Removal of Doubts) Act, 1975. The Court granted .the relief prayed for and mutation in their behalf was attested on 27‑1‑1977. An appeal was filed against this order which was dismissed by the learned Additional Commissioner, Rawalpindi vide order, dated 16‑7‑1982. A revision was then preferred against the order of the Additional Commissioner which was dismissed by the learned Member, Board of Revenue per order, dated 25‑10‑1982.

4. Learned counsel contended that the respondents' application to the revenue authority for the redemption of the alleged Muqarrardari rights, filed on 12‑12‑1974 was not competent when such rights had already been extinguished by an amendment in the Punjab Tenancy Act by inserting section 114‑A in the said Act by Amending Ordinance X of 1974 and no valid decree can be granted for the redemption of Muqarrardari rights when such Muqarrardari are tenancy rights within the meaning of section 38 of the Punjab Tenancy Act and the said provision provides that where the tenant had abandoned the land and not paid the rent, his right of tenancy would stand extinguished. We have considered the arguments of the learned 'counsel and would not interfere with the order of the revenue Court which has been maintained by the revisional authority. This would; however, not debar the petitioners to establish their rights in the civil Court, if so desired., subject to all the legal pleas available to the other side. Petition dismissed.

M. Z. M. Petition dismissed.

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