Court Decisions on Pakistani Evacuee and Tenancy Laws

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 General Decisions

Property in question had not been treated as evacuee property in terms of S. 3, West Pakistan (Administration of Evacuee Property) Act, 1957-Land in question, was never allotted to displaced persons-Plaintiffs being in possession on basis of their possessory title, entries in Lamabandi for the year 1930 31 recorded their possession as tenant and such entry was sufficient to prove that they were in possession without any payment of rent to owners-Trial Court ignoring documents of more than thirty years old had wrongly treated land in question to be evacuee even though it had not been so treated by the Rehabilitation and Settlement Department-Plaintiffs suit for establishment of occupancy rights was also pending adjudication-Dismissal of plaintiffs’ snit on the ground that property in question, was evacuee was not warranted in circumstances. 1995 C L C 1823

Relevant authorities sanctioned mutation by mutating ownership rights in occupancy tenants in the part of the land assuming as if rent was payable in kind only. Appellant’s suit claiming ownership was decreed by Trial Court. Appellate Court and High Court, however, in appeal and revision respectively dismissed appellant’s suit on the ground that civil Court lacked Jurisdiction on and that the matter in question was within inclusive Jurisdiction of Rev. Authorities. Validity. Both Appellate Court and the High Court had lost sight of the fact that under S. 114 (3) of Punjab Tenancy Act, 1887 as amended by Punjab Tenancy (Amendment) Act, 1952, relationship between parties as landlord and tenant was constituted till framing of rules by Government. Such rules were framed by the Government in 1953, therefore, on the date when impugned mutation was sanctioned by Rev. Authorities in the year 1960 and on date of filing of suit relationship of landlord and tenant between parties had ceased to exist, thus, bar of Jurisdiction of Civil Court to entertain any suit in respect of any dispute between landlord and tenant was no more available. Appellant’s suit was, thus, triable by Civil Court. Judgments of High Court in revision and that of Appellate Court were set aside. Case was remanded to Appellate Court for decision afresh on merits in accordance with law.  P.L.J. 2001SC49.

Gift of property by occupancy tenant-Deceased was occupancy tenant of the suit land who died issueless and after his death the occupancy rights were sanctioned by the Revenue Authorities in favour of his sister-Sister of the deceased during her holding gifted the suit land-proprietors/plaintiffs assailed the transaction being based on collusion and fraud-Defendants contended that the sister of the occupancy tenant had deposited the compensation under Punjab Tenancy Act, 1887,  which was duty received by the plaintiffs, therefore, the gift made in favour of the defendants was legal-Trial court found sister of the occupancy tenant as limited owner and suit was decreed in favour of the plaintiffs-First Appellate Court reversed the findings of Trial Court, allowed the appeal and set aside the judgment and decree passed by the Trial Court-Plea raised by the proprietors/plaintiffs was that the provisions of Ss. 8 & 114 of Punjab Tenancy Act, 1887, were mis-interpreted and misconstrued by the First Appellate Court-Validity-None of the legal heirs had come forward and challenged the alienation of entire holding through gift while it was challenged by the proprietors of the disputed property-Right of the proprietors/plaintiffs became extinct at the time when the mutation of last occupancy tenant was sanctioned in favour of the sister of the deceased occupancy tenant-Under S. 114 of Punjab Tenancy Act, 1887, the proprietary rights devolved upon the occupancy tenants and she had deposited the entire price-Owners of the disputed property were challenging the mutation of occupancy tenancy in favour of the sister through civil suit and then consenting in appeal about her right as ‘limited owner’ till lifetime but the owners did not challenge the conferment of the proprietary rights upon the sister under S. 114 of Punjab Tenancy Act, 1887, First Appellate Court had rightly found that the sister had become absolute owner after the extinction of rights of proprietors and could alienate her entire holding in absence of any legal heir challenging the same-High court declined to interfere with the judgment and decree passed by the First Appellate Court. PLD 2003 Lah. 180

Deceased was occupancy tenant of the suit land who died issueless and after his death the occupancy rights were sanctioned by the Revenue Authorities in favour of his sister-Sister of the deceased during her holding gifted the suit land-proprietors/plaintiffs assailed the transaction being based on collusion and fraud-Defendants contended that the sister of the occupancy tenant had deposited the compensation under Punjab Tenancy Act, 1887,  which was duty received by the plaintiffs, therefore, the gift made in favour of the defendants was legal-Trial court found sister of the occupancy tenant as limited owner and suit was decreed in favour of the plaintiffs-First Appellate Court reversed the findings of Trial Court, allowed the appeal and set aside the judgment and decree passed by the Trial Court-Plea raised by the proprietors/plaintiffs was that the provisions of Ss. 8 & 114 of Punjab Tenancy Act, 1887, were mis-interpreted and misconstrued by the First Appellate Court-Validity-None of the legal heirs had come forward and challenged the alienation of entire holding through gift while it was challenged by the proprietors of the disputed property-Right of the proprietors/plaintiffs became extinct at the time when the mutation of last occupancy tenant was sanctioned in favour of the sister of the deceased occupancy tenant-Under S. 114 of Punjab Tenancy Act, 1887, the proprietary rights devolved upon the occupancy tenants and she had deposited the entire price-Owners of the disputed property were challenging the mutation fo occupancy tenancy in favour of the sister through civil suit and then consenting in appeal about her right as ‘limited owner’ till lifetime but the owners did not challenge the conferment of the proprietary rights upon the sister under S. 114 of Punjab Tenancy Act, 1887, First Appellate Court had rightly found that the sister had become absolute owner after the extinction of rights of proprietors and could alienate her entire holding in absence of any legal heir challenging the same-High court declined to interfere with the judgment and decree passed by the First Appellate Court. PLD 2003 Lah. 180

Section I5 A(2) of Tenancy Act does not extend to charges and levies not falling within definition of “Government dues” and hence not attracted to special charges levied under Ss. 33 to 35 of Act VIII of 1873. P L D 1971 Lah.979 

Ejectment of tenant:– Right of a person holding decree for ejectment is independent of his other right under decree for arrears or rent:– Person cannot be ejected if there is only a decree for arrears of rent or if be has neither a right of occupancy a fixed term etc. P L J 1980 Lahore 591

Petitioner who had been dispossessed through the agency of the police at direction of Deputy Commissioner, could not resort to the filing of civil suit under S. 9 of Specific Relief Act, or under S, 50 of the Punjab Tenancy Act, 1887 as his personal and individual right stood infringed and he had rightly resorted to the filing of Constitutional petition. Provisions of Art. 199 of Constitution of 1973 confer very wide powers on High Court for enforcement of Fundamental and legal rights.  P.L.J.1999 Lah. 140 = 1998 MLD 1977 = NLR 1998 Civil 714.Occupancy tenant died on 21.12.1950 while S. 59 was amended in 1951. Who was to succeed M Bibi widow of S (occupancy tenant), who died issueless. Parties in this behalf relied on S. 59. M Bibi died on 21.12.1950 while S. 59 was amended by Act IV of 1951, therefore, case would be governed by provision as it stood originally. Collaterals in order to succeed were to prove, (i) Common ancestor; and (ii) common ancestor was in possession. Onus to prove both ingredients was on plaintiffs. In pedigree table plaintiffs have common , ancestor but this was not sufficient. They were also to prove that land was occupied by ancestor.  P.L.J.1998 Lah. 1620 = NLR 1998 Rev. 37.

 

Punjab Tenancy (Amendment)Act (VII of 1952) read with Muslim Personal (Shariat) Law-Occupancy tenancy converted into proprietorship-Embargo on the power of Occupant Tenant retarding alienation-Will last till death or succession opens otherwise-Status. of heir will undergo change, when land devolves under the Muslim Personal (Shariat) Law-Mere conversion of occupancy tenancy into proprietorship will not lake off fetter already attached-“Locus standi – Suit challenging alienation does not flow from the Act but from customs-Reversionaries can file suit for getting alienation declared invalid-Plaintiffs have right to challenge invalid gift as well as sue for the possession of their share after death of limited owner. P L J 1981 Supreme Court 888

 Customary law-,Band bust Record shows that land was in possession as occupant tenant -Devolution of whole land on widow-Evidence of fact that it was either by virtue of Custom or S. 59 but not under Muslim Personal (Shariat) Law -Case governed by Custom in the matter of alienation-Life estate  Widow as limited owner-Cannot. alienate property by gift-Such gift, invalid. P L J 1981 Supreme Court 888

Occupancy rights in evacuee land—Displaced Persons (Land Settlement) Rules (1959), R. 7 (c) and Rehabilitation Settlement Scheme (1956) para. 4-A—Compensation pools created under S 5. Displaced Persons (Land Settlement) Act (XLVII of 1958)—Purports to grant compensation to displaced persons whose claims had been verified—Occupancy rights not owned nor possessed by non-Muslim evacuees but left by Muslim as legacy to be devolved upon his own heirs enumerated in S. 59 of the Act (1887)—Allotment of such rights to refugee claimant; in lieu of their verified claims, barred by para. 4-A of the Scheme, (1956)— Disputed rights being owned and possessed by Muslim occupancy tenant were subject -to ordinary jurisdiction of civil Courts-S. 9, Civil P.C. (1908). P L J 1980 Lahore 532

Father having right of tenancy over long, whether daughter entitled to inherit estate of her father according to her personal law–Question of–Last owner Muhammad Shaft was having right of occupancy governed by Punjab Tenancy Act, enforced on March 22, 1948 in place of Tenancy Act of 1980-Bk (Act No. 11 of 1980) through Adaptation of Law Resolutions, 1948 dated 22.3.1948–Succession to occupancy tenancy is not governed by custom applicable to parties or by their personal law except as provided in S. 59 of Punjab Tenancy Act, amended later on in December, 1952 when Shariat Personal Law was held applicable–Held: Plaintiff, though real sister of defendant-appellant is not entitled to inherit estate left by her father having right of occupancy in Land–Appeal accepted. PLJ 1996 AJ&K 58

In view of divergent entries in respect of nature of ownership/ tenancy recorded in Jamabandis for different years, a factual inquiry was necessitated to settle matters in issue, under Section 77 of Punjab Tenancy Act. Factual controversy regarding ownership and tenancy between parties was not settled by Rev./ Officers in accordance with law. Accordingly writ petition is accepted with observation that all orders passed by Rev. Officers i.e. order dated 4.10.1989 passed by Assistant Commissioner, order dated 27.2.1990 setting aside order dated 4.10.1989, order dated 24.7.1990 passed by learned Additional Commissioner (Rev.), Gujranwala and that of learned Member (Judicial-I) Board of Rev., Punjab dated 12.11.1991 being bad in eyes of law are set aside. Any body claiming ownership tenancy in respect of land in question may file a suit under Section 77 of Punjab Tenancy Act, 1887 for settlement of controversy.  P.L.J.1999 Lah. 673 = 1999 MLD 2727

Necessary and proper party, Hon’ble S.C.has laid down in case Muhammad Jamil Asghar vs. Improvement Trust Rawalpindi that person by getting a declaration through court, if likely to gain advantage as regards his rights, cannot be refused declaration on ground of want of locus standi. Held : No prejudice would be caused to petitioner if respondent remains impleaded as defendant, thus learned courts below have exercised their discretion properly with-out any illegality. P.L.J.1998 Lah. 314

Basis for purposes of suit : petitioners are tenant and cannot be evicted-Suit maintainable in Revenue Court having territorial jurisdiction-High Court rightly held that suit in civil Court was hit by second group of S. 77. P L J 1981 Supreme Court 225

Accounts, rendition of—Petitioners conceding to be in possession of land in dispute as co-sharers/ co-owners in excess of their entitlement—Petitioners, held, not justified to deny their liability for rendition of accounts or refuse to pay amount due—Case of another village where plaintiffs were similarly in joint possession and liable for accounts to defendants, not a relevant ground to impugned orders. P L J 1980 Supreme Court 58

 Acquisition of ownership rights in land under such tenancy. Rev. authorities sanctioned mutation by mutating ownership rights in occupancy tenants in the part of the land assuming as if rent was payable in kind only. Appellant’s suit claiming ownership was decreed by Trial Court. Appellate Court and High Court, however, in appeal and revision respectively dismissed appellant’s suit on the ground that civil Court lacked Jurisdiction on and that the matter in question was within exclusive Jurisdiction of Rev. Authorities. Validity. Both Appellate Court and the High Court had lost sight of the fact that under S. 114 (3) of Punjab Tenancy Act, 1887 as amended by Punjab Tenancy (Amendment) Act, 1952, relationship between parties as landlord and tenant was constituted till framing of rules by Government. Such rules were framed by the Government in 1953, therefore, on the date when impugned mutation was sanctioned by Rev. Authorities in the year 1960 and on date of filing of suit relationship of landlord and tenant between parties had ceased to exist, thus, bar of Jurisdiction of Civil Court to entertain any suit in respect of any dispute between landlord and tenant was no more available. Appellant’s suit was, thus, triable by Civil Court. Judgments of High Court in revision and that of Appellate Court were set aside. Case was remanded to Appellate Court for decision afresh on merits in accordance with law.  P.L.J. 2001SC49.

 Cases on Government Tenants (Punjab) Act, 1893

Inheritance from original tenant–Whether tenancy is to be treated as agricultural land, if so under what law right of succession to tenancy would be governed–Question of–S. 21 of Colonization of Government Lands (Punjab) Act, 1912 clearly provided that while considering question of succession to tenancy of deceased tenant, tenancy is to be considered agricultural land acquired by original tenant–However, when tenant who had succeeded tenancy from original tenant dies, his tenancy is to be treated as agricultural land acquired by original tenant for purpose of determining right of succession of his heirs–Only provision which is applicable after land has been acquired by tenant, is Section 30–Held: Right of succession to tenancy would be governed under general law of inheritance. PLJ 1996 SC 503

Cases on Conditions of Sale deed:-

 Whether condition that plaintiffs would not use their plots for purposes other than residential, is a valid condition–Question of–Object of Act and its sections 2 and 3 was to empower Government to make a grant or transfer of land in favour of any person subject to restrictions, conditions and limitations and to declare that restrictions, conditions or limitations “shall be valid and take effect according to their tenor” notwithstanding any rule of law, statute or enactment to contrary–Held: It follows inevitably that condition in sale deeds that plaintiffs would use property in suit for residential purposes only, was a valid condition. PLJ 1991 Lahore 168

Cases on “Tenant” and “Tenancy”

Statutory notice–Scope–Intention of legislators for enacting such provisions, is to extend protection to tenants to remain in occupation of premises for a specified period and that such tenants who are entitled for a statutory notice should not be evicted prior to period as provided in relevant laws. PLJ 1999 Karachi 817

Ejectment of– Whether Rent Controller could extend time for deposit of arrears– Default under Section 16(2) of Sindh Rented Premises Ordinance, 1979, is of a peculiar nature and cannot be equated with ordinary default under Section 15 of said Ordinance–It is violation of directions of Controller and there is no discretion with Controller to condone delay–He has no jurisdiction to extend time once fixed–Held: Filing of application for extension of time by appellant was an exercise in futile–Appeal dismissed. PLJ 1991 Karachi 501

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