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P L D 1960 W. P. (Rev.) 1

Before M. Z. Khan, Member Board of Revenue,

West Pakistan

Mian FAZLI ILLAHI and others‑Petitioners

versus

SHAHZAD MIR and others‑Respondents

Revision Side No. 32 of 1957‑58, decided on 28th January 1959, District Peshawar.

Punjab Tenancy Act (XVI of 1887), S. S (1) (c)‑Onus on tenants to prove that they satisfy requirements of S. S (1) (c).

Kh. Abdur Rahim for Petitioners.

Khan Abdul Wahab for Respondents.

ORDER

Shahzad Mir, Shah Mir and Said Mir plaintiffs‑respondents, brought a suit in the Court of the Assistant Collector, 1st Grade, Mardan, under section 83 of the N.‑W. F. P. Tenancy Act, 1950, against Mian Fazal Elahi and others defendants‑petitioners, for establishing occupancy rights under section 5 (1) (c) of the Tenancy Act of 1887 in Khasra Nos. 470 and 468, measuring 57 kanals and 7 marlas, in village Manga, Tehsil and district Mardan. The petitioners‑landlords resisted the suit and denied that the respon dents were occupancy tenants. The Assistant Collector, 1st Grade, after recording the evidence of the parties granted a decree in favour of plaintiffs‑respondents for occupancy rights. An appeal was filed before the Collector who set aside the order of the Assistant Collector, 1st Grade and dismissed the suit. The respondents then filed an appeal before the Commissioner who restored the order of the Assistant Collector.

For establishing occupancy rights under section 5 (1) (c) of the Tenancy Act, 1887, the tenant has to prove that:‑

(a) His predecessor‑in‑interest settled along with or was settled by the founder of the village as a cultivator;

(b) His predecessor‑in‑interest occupied land ‑on the 21st day of October 1868 ; and

(c) Since the 21st day of October 1868, the land has been in continuous possession of the tenant or his predecessor‑interest.

The respondents claimed the land according to the following pedigree table :‑

SAHIB DIN ______________________ ___________________ Kamal Din Nawab _______________ ______________________ ___________________ Masam Mansoor Ghulam Shujuddin Hussain (died issueless) ________________________ __________________ ______________________ Musalli Rehmat Shah Wahab Shah (died issueless). _________________ _______________________ ______________________ Shahad Mir Shah Zareen. Said Mir

Sahib Din is recorded as occupier of Qabula in 1852. Sahib Din is also recorded as the occupier of the land in 1870. This Sahib Din is shown as an Awan. The Jamabandis of 1502‑1903, 1906‑7, 1898‑99 and 1895‑96 show Rehmat Shah as an Afghan. The Jamabandi of 1914‑15 aslo shows him as an Afghan. Wahab Shah is also shown as Afghan in the Jamabandi of 1918‑19. There is no reason why so many Jamabandi entries should be presumed to be incorrect while a few entries should be presumed to be correct.

After the name of Nawab deceased, Rehmat's name comes in but not that of Musali which would have been the case if Musali was also the son of Nawab. The property of Kamal Din whose line according to the respondents has been exhausted should have devolved on Musali, but that is not so.

1n another case the respondents claimed similar right in respect of some other property. Their contention in that case was that the name of the grand‑father of the respondents was Noore. In the present case they claimed that their grand‑father's name illas Nawab. The suggestion that Noore is a clerical error for Nawab is as difficult to swallow as the suggestion of the respondents that Afghan is a clerical error for Awan. It is for the respondents to prove that they satisfy the requirements of section 5 (1) (c) of the Punjab Tenancy Act, 1887. Their case cannot be accepted on the plea that so many entries, which go against them, should be presumed to be wrong while those which are in their favour should be presumed to be true. The Jamabandi of 1910‑11 shows that Khasra No. 470 was in the possession of Said Muhammad son of Muhammad, Julaha. The actual Khasra Nos. given are 699 and 700 which correspond to 468 and 470 of the Settlement of 1925‑26.

In the Jamabandi of 1891‑92 joint possession of the sons of Kamal Din is shown along with that of Rehmat Shah son of Halim Shah caste Afghan and not Rehmat Shah son of Nawab.

It was vehemently argued on behalf of the respondents that the original cultivators were not expected to leave the possession of the land in favour of Mian Fazal Elahi themselves. If this contention is accepted without the production of evidence, Nawab could claim that he had descended from the original cultivators. In the present case according to the respondents themselves certain lines of the original cultivators have exhausted and there is nothing to prevent a person to lay a false claim by claiming that he was the descendant of the original cultivator.

As has been stated earlier the onus was on the respondents to prove that they satisfy the requirements of section 5 (1) (c) of the Punjab Tenancy Act, 1887, as adapted by the N.‑W. F. P. This they have failed to do.

The result is that the petition is allowed and the order of the Collector is restored.

K.M.A Petition allowed.

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