Form No.

HCJD/C-121
ORDER SHEET
IN THE LAHORE HIGH COURT, LAHORE
JUDICIAL DEPARTMENT

Civil Revision No.59188 of 2024

Abdul Rehman etc.

Versus
Nazir Ahmad etc.

Sr.No. of Date of Order with signatures of Judge and that of parties or

Order/ Order/ counsel, where necessary.
Proceeding Proceeding

30.09.2024 Mr. Nadeem-ud-Din Malik, Advocate for the

petitioners.

Through this civil revision, the petitioners have

challenged the vires of judgment & decree dated

11.09.2024 passed by the learned Addl. District Judge,

Zafarwal who accepted the appeal of the respondents,

set aside the judgment & decree dated 09.02.2022

passed by the learned Civil Judge, Zafarwal and

decreed the suit for declaration filed by the

respondents as prayed for.

2. Brief facts of the case are that respondents No.1

to 31/ plaintiffs filed a suit for declaration against the

petitioners and proforma respondents No.32 to

37/defendants contending therein that Bashir Ahmad,

Muhammad Sharif and Munshi, predecessor-in-

interest of the respondents/plaintiffs were local

residents, they were owners in possession of Khasra

Nos.853/1 and 853/2. That Ghulam Muhammad and

Nazir Ahmad (predecessor-in-interest of the

Civil Revision No.59188 of 2024 2

defendants) were migrated from Jammu & Kashmir in

the year 1947. Predecessor-in-interest of the

respondents/plaintiffs were cultivating the suit

property. That in consolidation (Bandobast) of land,

Khasra Nos.853/1 and 853/2 were changed into Khasra

Nos.1041 and 1042. The petitioners/defendants with

connivance of the revenue official got incorporated

their names in column of cultivation as Dakheelkar in

the record of rights for the years 1976-77, without any

justification and they were not entitled to get

incorporate said entry as their names were not

recorded before 21st day of October 1868. In the year

1980 and 1984 consolidation proceedings were carried

out whereby Khasra Nos.1041 & 1042 were again

changed into Khasra Nos.1774 & 1775. The

petitioners/defendants were also got entered as

Dakheelkar in the column of cultivation in the record

of rights for the years 1981 & 1982. On the basis of

those unwarranted entries, an order was passed by the

Assistant Commissioner, Narowal on 26.05.1996 and

on the basis of said order petitioners got attested

mutation No.2537 dated 26.09.1996 for conferment of

proprietary rights whereas the entire proceedings are

void, illegal and based on fraud.

Petitioners/defendants No.1,2,5 to 17 filed

contesting written statement. Out of divergent

Civil Revision No.59188 of 2024 3

pleadings of the parties, issues were framed and

evidence was recorded. The trial court vide judgment

& decree dated 09.02.2022 dismissed the suit of the

respondents. Respondents, feeling aggrieved with the

aforementioned judgment & decree, preferred an

appeal which was accepted by the appellate court vide

judgment & decree dated 11.09.2024 who after setting

aside the judgment & decree dated 09.02.2022 decreed

the suit for declaration filed by the respondents as

prayed for. Hence, this civil revision.

3. Arguments heard. Record perused.

4. Under Section 6 of the Punjab Tenancy Act,

1887, a person should hold tenancy before 21st day of

October, 1868. For ready reference, Section 6 of the

Act ibid is reproduced as under:

“6. Right of occupancy of other tenants recorded

as having the right before passing of Punjab
Tenancy Act, 1868.– A tenant recorded in a record-
of-rights sanctioned by the Provincial Government,
before the twenty-first day of October, 1868, as a
tenant having a right of occupancy in land which he
has continuously occupied from the time of the
preparation of that record, shall be deemed to have a
right of occupancy in that land unless the contrary
has been established by a decree of a competent
Court in a suit instituted before the passing of this
Act.”
Section 5 of the Punjab Tenancy Act, 1887 requires

that a tenant should have been in possession over the

land at the time of commencement of said Act ibid or

since more than two generations in the male line

descendants for a period not less than 20 years without

Civil Revision No.59188 of 2024 4

paying rent. For ready reference, Section 5 of the Act

ibid is reproduced as under:

“5. Tenants having right of occupancy.– (1) A

tenant–
(a) who at the commencement of this Act
has, for more than two generations in the
male line of descent through a grandfather or
grand uncle and for a period of not less than
twenty years, been occupying land paying no
rent therefor beyond the amount of the land-
revenue thereof and the rates and cesses for
the time being chargeable thereon, or
(b) who having owned land, and having
ceased to be land-owner thereof otherwise
than by forfeiture to the Government or than
by any voluntary act, has, since he ceased to
be land-owner, continuously occupied the
land, or
(c) who, in a village or estate in which he
settled alongwith, or was settled by, the
founder thereof as a cultivator therein,
occupied land on the twenty first day of
October, 1868, and has continuously
occupied the land since that date, or
(d) who, being jagirdar of the estate or any
part of the estate in which the land occupied
by him is situate, has continuously occupied
the land for not less than twenty years, or
having been such jagirdar, occupied the land
while he was jagirdar and has continuously
occupied it for not less than twenty years,
has a right of occupancy in the land so occupied,
unless, in the case of a tenant belonging to the class
specified in clause (c), the landlord proves that the
tenant was settled on land previously cleared and
brought under cultivation by, or at the expense of,
the founder.
(2) If a tenant proves that he has continuously
occupied land for thirty years and paid no rent
therefor beyond the amount of the land-revenue
thereof and the rates and cesses for the time being
chargeable thereon, it may be presumed that he has
fulfilled the conditions of clause (a) of sub-
section (1).
(3) The words in that clause denoting natural
relationship denote also relationship by adoption,
including therein the customary appointment of an
heir and relationship, by the usage of a religious
community.”
Civil Revision No.59188 of 2024 5

The petitioners failed to produced their pedigree table

and waja tasmia to establish that they were

descendants of original tenant and they occupied the

land for more than two generations without paying any

rent and their predecessor was settled on or before

31.10.1868 whereas their status was mentioned in

revenue record as ‘tenants at will’. Thus, tenancy of

the petitioners has not been established through any

documentary evidence. Reliance is placed on a

judgment titled as Muhammad Shafi and others Vs.

Custodian of Evacuee Property and others (1985 CLC

3005) and Amir Hussain Shah and 5 others Vs. Ranjha

and others (2000 YLR 2188). Under Section 6 the

Punjab Tenancy Act, 1887, Dakheelkar occupancy

tenant is the only tenant who has possession upon the

land about 20 years prior to promulgation of the said

Act. Moreover, DW1 in his cross examination has

admitted that they are evacuee from Azad Jammu &

Kashmir in 1947. DW2 also stated that they migrated

from Jammu & Kashmir at the time of partition of

India. Petitioners/defendants in their written statement

mentioned that their predecessors were in possession

of suit property for the last 40/41 years which proves

that defendants were not in possession of the suit

property since 21st day of October 1868. The record

also shows that prior to the preparation of record of

Civil Revision No.59188 of 2024 6

rights 1976-77 the names of predecessors of

petitioners were not mentioned in the revenue record

as occupancy tenant rather names of predecessors of

the respondents/plaintiffs are mentioned in column of

ownership in the record of rights pertaining to the

years 1956-57 (Exh.D2), 1964-65 (Exh.D4) & Exh.P1

respectively. Further, it is worth mentioning here that

prior to sanctioning of impugned mutation No.2537

dated 26.09.1996, the particulars of the petitioners did

not exist in the revenue record as occupancy tenant

and even no affirmative document is produced by the

petitioners to show their being occupancy tenants

under the Tenancy Act 1887, as such any entry made

by the revenue officer as well as order dated

26.05.1996 passed by the Assistant Commissioner,

Narowal are perverse and patently illegal. The trial

court decided issue No.4 in favour of the respondents

/plaintiffs but the petitioners neither challenged the

findings on said issue nor filed any cross objections

under Order XLI Rule 22 CPC, as such the said issue

had attained the status of finality against the

petitioners/defendants and had become past and closed

transaction. Reliance is placed on Pakistan

International Airlines Corporation Vs. Aziz ur Rehman

Chaudhary and another (2016 SCMR 14).

Civil Revision No.59188 of 2024 7

5. As the trial court has failed to appreciate the

legal and factual aspects of the case and on the basis of

misreading and non-reading of evidence dismissed the

suit of respondents/plaintiffs whereas the appellate

court through a well-reasoned judgment has decreed

the suit and has committed no illegality. It is well

settled law that in the event of conflict of judgments,

findings of appellate Court are to be preferred, unless

it is proved from the record that such findings are not

supported by evidence. Reliance is placed on the cases

titled as Muhammad Hafeez & Another Vs. District

Judge, Karachi East & Another (2008 SCMR 398) and

Rao Abdul Rehman (deceased) through legal heirs Vs.

Muhammad Afzal (deceased) through legal heirs and

others (2023 SCMR 815).

6. In view of the matter, this civil revision is

hereby dismissed in limine being devoid of any merits

with no order as to cost.

7. Before parting with this judgment, it is

important to note that the revenue hierarchy without

following the procedure prescribed in Sections 5 & 6

of the Punjab Tenancy Act, 1887 is granting

proprietary rights to many persons in the province on

the basis of The Punjab Conferment of Proprietary

Rights on Occupancy Tenants and Muqarraridars Act,

Civil Revision No.59188 of 2024 8

2012 and also ignoring the definition of “occupancy

tenant” mentioned in Section 2(b) of the Act, 2012

ibid. The act of the revenue hierarchy is not only

unwarranted but also illegal and unlawful which is

required to be addressed. Thus, a copy of this

judgment be transmitted to the Senior Member, Board

of Revenue, Punjab who shall issue clear directions to

all the concerned quarters to consider the criteria

prescribed in Sections 5 & 6 of the Punjab Tenancy

Act, 1887 before granting proprietary rights under

Section 2(b) of The Punjab Conferment of Proprietary

Rights on Occupancy Tenants and Muqarraridars Act,

2012.

(CH. MUHAMMAD IQBAL)

JUDGE

Approved for reporting.

JUDGE
Shahzad Mahmood /
Abdul Hafeez