Succession to Adna Malik.

Right of reversion.

There are two ways in which the classes of ala maliks and adna maliks are created in a village. First, where the ala maliks so called are mere taluqdars whose ancestors have been farmers of revenue or conquerors who have been content to leave all the management, etc., of the lands to the conquered peasantry and to take quit-rents. Secondly, where the ala maliks, originally the sole proprietors of he soil of the village have called in outsiders and settled them on some or all of the lands. It is only in cases of the latter class that an ala malik is entitled to the right of reversion (on the death of the adna malik without heirs) and in no other case; 129 P. L. R. 1912; 1923, 80 Ind. Cas. 264; 1926, 97 Ind. Cas. 369. In villages where the adna maliks are the real proprietors, the ala malik being a talikdar receiving a certain percentage on the revenue, the latter does not succeed to the adna malkiyat when the line of he adna malik has become extinct; 1924, 5 Lah. 382; Cf. 1923, 80 Ind. Cas. 264, 1926, 97 Ind. Cas. 369.

Ala maliks, when real proprietors as distinguished from mere taluqdars.

In othe words an adna malik who is merely a taluqdar receiving certain percentage of he land revenue is not entitled to claim reversion of an estate belonging to an adna malik on his dying without heirs, 1934, 151 Ind. Cas. 533. (But the adna malkiyat tenure varies greatly in different parts of the Punjab, and the question has to be decided on the facts of each case; see 1955, 16 Lah. 533, (F. B.).

As pointed out by Din Muhammad, J., the words “ala malik” literally mean “superior proprietor”, and the word “taluqdar” conveys the idea of a land-holder or an overlord. A taluqdar may be an an ala maliks but it is not necessary that he should be so. The status of ala maliks carries with it certain privileges which a mere taluqdar does not enjoy, and hence the important distinction between these two different kinds of tenures must be borne in mind. An ala malik may (inter alla) be entitled to all the unculturable land in the village; he may possess a right of reversion, or, in other words, the right of succession to all lands whose owners (i.e., the adna maliks-K. J. R.) die without an heir; he is entitled by the law of pre-emption (see Section 15, Punjab Pre-emption Act, 1913- K. J. R.) to exercise a preferential right of purchase on the sale of inferior proprietorship (i.e. adna malkiyats), and he may claim a share of a sale money himself if the inferior proprietorships are sold. But a taluqdar is not entitled to an such prifileges; 1935, 165 Ind. Cas. 626. See lso 1935, 156 Ind. Cas. 61, where Skemp, J. (Tek Chand, J. concurring) observed that the true position about ala malkiyat rights is that they have little present economic value but a considerable social value and a potential value by reason of conferring rights of pre-emption and escheat.

Locus standi of ala malik to challenge alienation b adna malik’s widow.

The Raja of Goler in the Dehra Tahsil of Kangra District is an ala malik in the sense of a real proprietor and not a mere taluqdar. Consequently, in the Goler jagir, the Raja or the ala malik is entitled to succeed a sonless adna malik dying without heirs, near or remote. Widows and collaterals (of the deceased adna malik), however, succeed before him (the ala malik). But he has not right to challenge or control an alienation b a male adna malik who has no sons, heirs or collaterals. An alienation by a widow, however, stands on a different footing, and the ala malik is entitled, in order to protect his interests, to challenge an alienation made by the widow of an adna malik, as she only holds a limited estate, and he fact that she has not heirs in the proper sense of the word does not in any way enlarge her powers over her limited estate; 1928, 110 Ind. Cas. 861 per Addison, J., (case-law collected an examined), relied on in 1935, 16 Lah. 533, F. B., which was also a case arising in the jagir territory of the Raja of Goler.

Daughter of adna malik, a preferential heir.

Under the custom of the Kangra District, on the death of an adna malik without male issue and leaving no widow, the daughter (of the adna malik) is an heir to the adna makliyat in preference to the ala malik, 1931, 132 Ind. Cas. 513; (in this case it does not appear whether the ala malik was in the position of a mere taluqdar), affirmed on Letters Patent appeal in 1934, 16 Lah. 149. See also 1932, 138 Ind. Cas. 683, (a Kangra case, which is substantially to the same effect).

Ala maliks and Adna maliks-Doggar Aulakh village land in Bhakhar Tahsil in Mianwali District, reclaimed by Ala Khud Adna Maliks during 1902 to 1929-Suit for ejectment by Ala Maliks-Rights of parties.

The lands were cultivated by Ala khud Adna Maliks during the period of 1902 to 1929, when the s\Sind-Saar Doab Colonization Act, 1902, was in force, The plaintiffs Alamaliks of the village contended that according to the wajib-ul-arz, no rights could be acquired by the defendants during the period 1902 to 1929, or after 1929 and further, according to the Wajib-ul-arz, no rights could be acquired by the defendants during the period 1902 to 1929, or after 1929 and further, according to the wajib-ul-arz persons who reclaimed land out of shamilat without permission of the ala maliks were to be regarded as tenants-at-will, that the defendants fell in this category, that two months before the suit the defendants had denied the status of the ala maliks as their proprietors and landlords, and consequently the plaintiffs claimed the right to eject them. The wajib-ul-arz on which the plaintiffs relied for the claim provided that the ala khud when they took possession of barani land without the permission of the alas became tenants-at-will under he latter. Held: (I) That this was a contravention of the special provisions relating to ala khud adnas contained in the same wajib-ul-arz that they could reclaim land without the permission of the alas and without payent of any malikyana dues, which made it sufficiently clear that the plaintiffs contention that the ala khud adnas were tenants-at-will under them in respect of the suit lands was entirely baseless; (2) that the plaintiffs claimed to elect the defendants b right of superior title and the burden was clearly on them to sow that they possessed such title which enabled them to eject the ala khud adnas from the land in suit at will; (3) that the only point of superiority in favour of the ala maliks was that in excess of any right possessed by ala khud adnas, the ala maliks had the power of controlling extensions of cultivation ad consequent development of title over portions of the shamilat by any person excepting the ala khud adna maliks, the method of control being by he requirements of nazrana and permission, the superiority being enforced for all time by the levy of malikana dues. But the ala khud adna maliks were entirely free of control by the ala maliks in these respects and in all other respects they were on a level with the ala maliks and consequently the latter were not entitled to dispossess the Iala khud adnas from the lands reclaimed by the latter between the years 1902 and 1929; (4) that there was nothing to be derived from the evideice or the circumstances in the case to justify the plaintiff’s claim to eject the defendants. The mere fact that the latter had not acquired proprietary rights in the suit land by reason of the standing agreement under the Sind-Sagar Act (I of 1902) as stated in the wajib-ul-arz of 1902 did not make them liable to ejectment at the suit of the plaintiffs or any one else. Their status in respect of the reclamation of shamilat was in no way inferior to that of the plaintiffs, to whom they owed no duty or obligation of any kind; (5) that the situation brought about by the continued existence of the aforesaid agreement was anomalous and from many points of view unsatisfactory; since it appeared that large areas out of he shamilat have in fact been brought under cultivation under circumstances which, in the pre-agreement period, would have led to the development of proprietary rights and it was evidently desirable that the unfortunate state of affairs should be remedied at the earliest possible stage. That, however, was a matter for the executive authorities.

[(1949) Pak. L. R. Lah. 393; A. I. R. 1941 P.C. 34 relied on].

Adna maliks-right of-village Noon nasheb, District Mianwali.

The meaning of the wajib-ul-arz of the village Noon-Nasheb, District mianwali, is that the adna maliks, whose land has been completely submerged, have a special right to get from existing banjar shamilat or from other land, which has emerged, areas equal to their submerged areas. Such land can be taken by the adna maliks immediately after it reappeared and though jhuri must be paid by the adna maliks to the ala maliks he payment thereof is not a condition precedent to the adna maliks taking possession of the land to which they are entitled. They are entitled to take possession as soon as they can and settle about the jhuri thereafter (A. I. R., 1939 Lah. 361; 41 P. L. R. 835; 184 I. C. 773).

140 Muqarraridar.

Inferior in degree to a malik-makbuza is a muqarraridar, who is regarded as having and inheritable estate in the land he occupies, from which he cannot be ousted so long as he pays the fixed quit-rent to the proprietors.

Authorities.

Status of mukarridar, desciption of.

No. 5 P. R. 1873; No. 67 P. R. 1890; No. 10 P. R. 1896, Revenue and no. 16 p.P., 1905. Compare para. 134, Barkley’s Directions to Settlement Officers, and No. 3 P. R. 1884, Revenue, A mukarraridar of the Attock District is a tenant and not an inferior proprietor, 1922, 71 Ind. Cas. 811. The status of a mukarridar in the Rawalpindi division is described in 10 P. R. 1896 (Rev.). A mukarridar can alienate without consulting his landlord, and the right is not extinguished at his death, but can be inherited by a collateral irrespective of whether the common ancestor occupied the land, 85 P. R. 1910. “The nature of a mukarridari right has never been completely and clearly defined. That a mukarridar is not an owner but a tenant was decided in 71 Ind. Cas. 811. But though there is little doubt that a mukarridar could, if he wished, prove that he had a right of occupancy under Section 8 of the Punjab Tenancy Act, his tenancy is not, until he hs done so, governed by the provisions of the Act relating to occupancy tenants. Thus it has been held that the tenancy is alienable, and succession to it is not restricted to a collateral tracing his descent from the common ancestor of the last tenant and himself. A mukarridar has been described as a tenant with a right of occupancy of a peculiarly exalted kind, the question of succession being governed by custom”; per Coldstream, J.; 1926, 99 Ind. Cas. 962, (cases discussed).

By the Punjab Tenancy (Amendment) Act, 1925, (Punjab Act No. 11 of 1925), a mukarridar is deemed to be a tenant having a right of occupancy for the purposes of (inter alia) Sections 24, 38, 39 of the Punjab Tenancy Ac. See also the new Section 27-A, (inserted by the same amending Act) as regards mukarridari tenants in the Attock District.

141. Lathband.

A lathband, or one who has raised bunds or dams on lands adjoining water-courses and tributary streams and brought the land under cultivation occupies a similar position. This tenure is found in districts bordering on the Indus.

Authority.

No. 24 P. R. 1871. See also No. 2 p. R. 1874, Revenue Judgements, and cf. No. 40 P. R. 1901.

142. Chakdar.

A chakdar (otherwise known as a sillandar or kasurkhwar) is one who occupies an intermediate position between the proprietor and cultivator, possessing an inheritable and transferable property in wells constructed by him, and cultivating the land attached thereto either himself or by his own cultivators. He is usually responsible for the revenue, and the proprietor is only einttled to a fixed cash allowance, locally called a lich or huq kasur, generally a sixteenth or seventeenth, and he alone is entitled to repair the well or to replace it by a new well.

Authorities.

No. 34 P. R. 1868; No. 44 P. R. 1870. See also Punjab Administration Report for 1872-73, para. 38.

143. Himalayan tenures.

The principal tenures in the Himalayan districts are-

(a) The warisi or hereditary ownership in the land, subject to the payment of the Government revenue. It is not considered to be saleable.

(b) The adh-salidari, by which a person is admitted for a money or other consideration to a joint eight of ownership. The share is variable, but is generally a fourth.

Authorities.

Barnes’ Kangra Settlement Report, paras. 125, 128, 131; Mr. Lyall’s Settlement Report, para. 58; No. 1043 fo 1875.

Remark.

It is worthy of note that the term varis in Hazara is used to designate the last conqueror, who by force, and not by descent, had acquired proprietary right. Vide Settlement Report, page 109, para 3, and Powell’s Land System of British India, Vol. 1, pp. 222, 223 and note (30 at p. 232.

144. Tenures in D.G. Khan.

In the Dera Ghazi Khan District there are certain peculiar tenures known as-

(a) Patchir, or acquisition by original tribal division.

(b) Adhlapi grant of proprietary right to one who sinks a well in an estate at his own expense. The share is generally a half, but sometimes only a fourth, in the well and lands attached to it.

(c) Poria, a proprietary grant of an eighth or smaller share bestowed in return for jungle clearance.

(d) Ghasab, or forcible acquisition.

Authority.

Settlement Report, p. 75, para. 210. Cf. Tupper’s Customary Law, Vol. II, pp. 279-280, as to adhlapi tenures in the Multan District. The creation of an adhlapi tenure does not amount to a sale liable to be pre-empted; 1921, 2 Lah. 199; 1922, 68 Ind. Cas. 1008.

145. Jagirdar or Mafidar.

An assignee of revenue is called a jagirdar or mafidar, and he either collects his assignment in kind or in cash, but has no right s such to meddle with the management or cultivation of the soil, in which he obtains no proprietary interest by virtue of the grant.

Authorities.

No. 53 P. R. 1870; No. 184 P. R. 1883.

Explanation.

“Rakh” - A grant of “rakh” or grass preserve free of revenue is a jagair withinthe meaning of this section (No. 1 P. R. 1875 P. C.); and so is an istemrari grant (No. 1 P. R. 1876). An istemrardar of the Karnal Mandal family cannot bind the istemrari estate beyond his own life-time (No. 72 P. R. 1889).

Remark 1.

As to the mode of settlement of mafi plots, see No. 17 P. R. 1881, Revenue; No. 1 P. R. 1885, Revenue: No. 10 P. R. 1886, Revenue.

Remark 2.

Although the present law permits assessment in kind, this is only where the Local Government directs, and the Government has never directed that assessment should be in kind, cash assessments being the universal rate at all recent settlements (No. 2 P. R. 1889, Revenue; No. 14 P. R. 1892, Revenue). Cf. No. 10 P. R. 1886, Revenue; No. 4 P. R. 1887, Revenue; and No. 4 P. R. 1888, Revenue.

Jagir and muafi : distinction between.

The difference between a muafi and a jagir is that the former is a remission of land revenue to the owner, whereas the later is an assignment of land revenue which is collected and paid to the jagirdar; 1929, 123 Ind. Cas. 835. A muafidar is not necessarily, though in fact he often is, the owner of land exempted from the payment of revenue; 1932, 14 Lah. 156.

Dohli tenure.

A Dohli tenure is a peculiar kind of tenure to be found in the south-eastern districts of the Punjab. It is a rent-free grant of a small plot or land by the village community for the benefit of a temple, mosque or sharine. So long as the purpose for which the grant is made is carried out it cannot be resumed. A tenure of this kind is inalienable, 1921, 2 Lah. 313. Any alienation by sale or mortgage by the Dohlidar is absolutely void and can be impeached by the Dohlidar’s successor (ibid).

146. Claim to shamilat.

Nor can he claim to share in the shamilat lands proportionate to his holding.

Authority.

No. 44 P. R. 1868.

147. Rules of descent.

The grant may be inheritable or for life; and in the former case he descent shall be governed by any rule that Government may have prescribed in that behalf.

Authority.

Section 8, Act IV of 1872, as amended by Punjab Act IV of 1900.

Remark.

Special rules of descent have been prescribed in regard to jagirs in the Hazara District. Vide Settlement Report, p. 281. Where no special rule has been prescribed, the descent of the grant, if inheritable, would devolve according to the personal law of the grantee.

148. Barring of suits.

No suit relating to any grant of money or land revenue conferred or made by the British or any former Government shall be entertained by any Civil Court excep upon a certificate from an officer authorised by government to gtant it.

Authorities.

Pensions Act.

Sections 4 and 6 Act XXIII of 1871. See also No. 1 P. R. 1876; No. 17 p. R. 1882 (P.C.); No. 160 P.R. 1884; No. 12 P.R. 1886, Revenue; No. 11 P.R. 1887; No. 25 p.R. 1900. A suit for a declaration that plaintiff is the sole owner of a certain share in a jagir cannot be entertained in the absence of a certificate from the Collector under the Pensions Act. The Court may adjourn the case in order to enable the plaintiff to procure a certificate; 1924, 6 Lah. L.J. 343 (appeal adjourned).

149. Liability to attachment.

A jagir assignment ordinarily is not a “pension” within the meaning of the Pensions Act, 1871, and semble is capable of attachment in execution of degree.

Authority.

No. 27 P.R. 1878. Compare Weekly Notes, 29^th August, 1881, p. 179. But see Section 8 (3) of the Punjab Laws Act, 1872, as amended by Punjab Act IV of 1900; and as to sub-assignments, No. 117 P.R. 1907.

Explanation.

Political pension.

But a political pension may take the form of a jagir, and in that case it cannot be attached under Section 266 (g) of the Civil Procedure Code (No. P.R. 1890).

Remarks.

Before a Court executing a decree makes an order for attachment of jagir income, it should require some evidence as to nature of the jagir, as some jagir income may be liable to attachment, while in other cases it may not (No. 47 P. R. 1893). And the attachment can only be made as prescribed in section 143 of the Punjab Land Revenue Act, 1887 (No. P.R. 1894, Revenue).

See as to a jagirdar’s rights under the Alluvion Law, paragraph 256, Explanation 3, Illustration 3.

150. “Milk” grant.

A millik or milk grant was a form of a grant of revenue made under former Governments to one who was himself in occupation of the land as proprietor.

Authority.

Tagore Law Lecture for 1877, p. 192.

Remarks.

This tenure is met within the Hissar Division (Nos. 1985 and 1989 of 1876; Nos. 15 and 16 of 1877). Compare No. 184 P.R. 1883.

151. Lekha-Mukhi mortgage.

A lekha-mukhi mortgage is one where the land is made over to the mortgagee, and he has to look to its produce for the payment of the mortgage debt, the mortgagor not being personally liable.

Authority.

No. 90 P. R. 1881. In such cases the mortgagee is bound to account for the management of the property, if he fails to do so, the Court must estimate the income at the highest possible figure, and pressure everything against him (No. 99 P.R. 1869).

CHAPTER IX

TENANT-RIGHT

INTRODUCTION

The settlement of the question of tenant-right in the Punjab by express legislation was the outcome of controversy carried on for several years between those oficers, on the one hand, who found no legal authority for conceding special privileges to one class of tenants as compared with those of any other class, and who, therefore, refused to recognize any complete fixity of tenure connected with the mere cultivation of the soil; and those officers, on the other hand, who were unable to exclude from their consideration the immemorial custom which in different parts of the Punjab was found to treat as a favoured class men who had helped to found the village and to clear the waste, or who, in the ups and downs of fortune, had once been full proprietors or revenu-assigness, but now had fallen to an inferior position. Both parties, however, were agreed that mere length of possession had never in the Punjab been held to confer an absoulute right to permanency of occupation. *At length in 1868 the Indian Legislature passed an enactment which largely favoured the second set of views to which reference has just been made, and this first instalment of legislation afforded a timely relief to many thousands of agriculturists who would otherwise have been placed at the mercy of greedy proprietors, who saw in the enhanced value of land possibilities of improving their income, which hey were not slow to avail themselves of by reducing all their tenants to mere tenants-at-will, holding at their arbitrary will and pleasure, and liable to evicion whenever it suited their purposes to exercise their power of ejectment. The lines on which th e new legislation proceeded were to give a fixity of occupation to certain classes of tenants who were entitled to such consideration with reference to the custom of the country and the facts connected with their particular holding. But at the same time provision was made with the object of securing the landlord an enhanced rent under certain equitable conditions and the right of ejectment if the tenant allowed a decree for arrears of rent to remain unsatisfied for a certain period. It was more particularly in the matter of these subsidiary provisions that Act XXVIII of 1868 was found to be defective, and the opportunity was taken, when removing these defects, to provide also for certain acknowledged cases of hardship, as well as to supply other omissions in the original Act, which was more or less a crude measure introduced with some hesitation to meet the pressing necessities of a situation which had been precipitated by the action of the Settlement Commissioner, Mr. Prinsep.

The result was the Punjab Tenancy Act, 1887 9Act XVI of 1887). In the revision of the old Act of 1868 it was not contemplated to depart in any important particular from the principles and policy to which it gave expression, but to confine the operation to the correction of mistakes which had crept into it owing to the haste with which in its later stages it was passed through the Council, and supply defects which subsequent experience of its working had shown to exit.

NOTE.-As to this see No. 8 P. R. 1884.

The Punjab tenancy Act is not exhaustive of the law of landlord and tenant in the Punjab. The preamble of the first Punjab Tenancy Act of 1868 stated in clear words that it was being enacted with a view “to define and amend the law relating to certain matter connected with the tenancy of land in the Punjab.” The Act was not a consolidating Act, nor did it purport to be exhaustive except, of course, with regard to the matters which were dealt with therein expressly or by necessary implication. The Act of 1868 remained in force till 1887, when it was repealed by the present Act which also was enacted “to amend the law relating to the tenancy of land in the Punjab.” It is, therefore clear that with regard to matters which are not specially provided for in the Punjab Tenancy Act, 1887, the general principles of the law of landlord and tenant are still in force (A. I. R. 1930 Lah. 515 (F. B.,); 31 P. L. R. 644; 127 I. C. 1; 11 Lah. 427). But if a particular matter is covered by any specific provision of an Act, it must be taken that so far as that matter is concerned, the Act is exhaustive and we should not travel beyond it for the purpose of deciding any question, which may arise in connection with the said mater (A. I. R. 1930 Lah. (F. B.).

Paras. 152 to 222

It is beyond the scope of a treatise on Customary Law o the Punjab to deal with all the provisions of law embodied in the Punjab Tenancy Act, 1887. There are, however, certain matter relating to custom which we shall examine.

(A) Establishment of right of occupancy on grounds other than expressly stated in the Punjab Tenancy Act, 1887.

Section 8 of the Punjab Tenancy Act, 1887, provides that ‘nothing in the foregoing sections of this Chapter shall preclude any person from establishing a right of occupancy on any ground other than the grounds specified in those sections. Claim to occupancy rights under this section may be properly decreed where-

(1) the right has been generally or customarily or by act of proprietors conceded to other tenants similarly circumstanced in the same village or neighbourhood ; or

(2) the recognition of the right would be in accordance with the custom of the country ; or

(3) there has been a promise never to eject ; or

(4) the right would exist but for a palpable error in the Settlement Records.

Right of occupancy on ground of custom.

The principle laid down is that where the tenant shows that the occupancy rights have been generally or customarily conceded to those similarly circumstanced in the village or in the neighbourhood or where the recognition of the right would be in accordance with the custom of the country, he may be granted occupancy rights under this section. Where there was long possession with the facts that the tenants had been considered hereditary tenants and that cultivators in similar circumstances had in the same village been admitted by the proprietors to occupancy rights, it was held that these grounds were sufficient for a decree for grant of occupancy rights under this section (4 P.R. 1875 (Rev.); 4 P. R. 1876 (Rev.); 17 P.R. 1892 (Rev.).

The following are some of the instances in which rights of occupancy have been granted on these ground :-

(i) Adhlapi custom and taraddadakar- We come across this tenure in the south-western Punjab. According to this, a man whoc sinks a well in land which does not belong to him, with the owner’s permission becomes proprietor of half the land which it commands. He very commonly cultivates or arranges for the cultivation of the whole of the land, takes half of the proprietor’s share of the procude, and pays half the land revenue (See Para. 173 of the Punjab Settlement Manual). The question is whether he has a right of occupancy in the half of the land which he does not own. It is doubtful if an adhlapidar becomes occupancy tenant of the other half of the land (Para. 73, Settlement Mauual). Where the plaintiff’s claim related to this half for grant of occupancy rights, of which it appeared he had held possession for fifty years during which period he had cleared the waste and otherwise incurred charges for the improvement of the land, it was held that the rights of occupancy were rightly awarded to the plaintiff 9110 P.R. 1885).

The taraddadkar in Jhang who had sunk a well acquired by custom a similar title. When the landlord himself sank the well it was sometimes worth his while to give a man a right to cultivate the land on a hereditary tenure on the condition that he would take half the proprietor’s share and pay half the revenue. Such a tenant is also known as taraddadkar (Para. 173, Settlement Manual).

(ii) Lathband means one who has raised bunds or dams on lands adjoining water-courses and tributary streams and brought the land under cultivation. This tenure is commonly found in districts bordering on the Indus. In Dera Ghazi Khan District of the Punjab a lathanbd and who raised the embankments and actually tilled the soil was held entitled to rights of occupancy (24 P.R. 1871).

(iii) In Dera Ghazi Khan District a tenant who sinks a well is called khumu and his tenure lasts as long as the pakka bricks or wooden well he has sunk lasts.

(iv) Basiku opahu tenure of Kangra District : A very full account of the basiku opahn tenure is given in Mr. (Sir James) Lyall’s Settlement Report of the Kangra District (paragraphs 51-56). The following are distinctive incidents of that tenure :-

(a) The tenant was included to settle down on the holding by the landlord.

(b) He was required to live on or near the land and build the farm houses thereon. In this respect he differed from the opahu who lived in the village and was not a basiku or basni.

(c) Though there was no deed or express verbal agreement there was an implied contract that the tenant should hlod as long as he farmed well and paid the rent, or in other words “ta quasur”, that is, till commission of a fault against his tenure.

A ‘basiku opahu’ is entitled to occupancy rights under section 8 of the Punjab Tenancy Act. (5 P.R. 1918 (Rev.), P.R. 1919).

(v) Morni tenure of the hill tracts : In Morni hill tracts the proved fact of occupation for 28 years through two generations without payment of any rent over and above land revenue and cesses was held sufficient to entitle the tenant to occupancy rights under this section [3 P.R. 1917 (Rev.)].

(vi) Butimar Sirsa- In the old District of Sirsa the persons who broke waste lands are called butimars. Disputes arose as to their status. It was held by Mr. Thornburn F. C., in Revenue case No. 406 of 1897-98 [quoted as an appendix to 6 P.R. 1914 (Rev.)] that the plaintiffs were entitled to occupancy rights under section 8 of the Act in respect of land subsequently broken the question depended on the finding of fact as to in what year landlords had occasion to stop the further breaking of waste in their own interest, that is, in what year, from any cause the competition changed from one for tenants on any terms almost to one for and amongst tenants on such terms as the landlords had to dictate. This judgement was considered in 6 P.R. 1914 (Rev.), and it was laid down that the above decision did not establish a new principle of law conferring occupancy rights under S. 8 of the Act on all tenants in the old Sirsa district who had broken up waste prior to 1882 but merely provided a new criterion by which each claim put forward by such persons to the establishment of such rights might equitably be decided in the absence of any express clause in the administration paper of the village conferring such right, and that the application of the criterion depended upon the particular facts of each case, and the question at issue in every such case was one of fact whether the circumstances, and in particular the rate of rent paid, pointed to the conclusion that at the time when the waste was broken up tenants were so scarce as to be in a position to dictate their own terms. It was further remarked that in cases where the breaking up of waste took place prior to 1882, the probability that tetanus were scarce was greater than the cases where it took place later but that the all the circumstances must be examined. It was observed : “The Assistant Collector who originally decided against the applicants, held that in the present instance there was not the slightest reason to suppose that there was any scarcity of tenants when their father broke up the land now in dispute and added that the rent rate (which, as pointed out by Mr. Thornburn, is an important consideration in determining whether the evidence points to a scarcity of tenants, is high. The rent rate is four annas and four pies per pakka bigha, equivalent to seven annas and two pies per acre, a rate which is certainly not particularly low for barani lands in the Sirsa District and was double the land revenue rate in this village.”

In 1923 L. L. T. 11, it was again observed : “I fully concur with Sir John Maynard’s ruling in 6 P. R. 1914 (Rev.). I go somewhat furthe in thinking that the decision of 1897-98 went dangerously far in the direction of widening S. 8 of the Punjab Tenancy Act, to a degree not contemplated by its terms on the more or less hypothetical basis of a very dubious oral agreement between landlords and occupancy tenants in the early days of the history of the village. I hold that the contention to which reference is made in 6 P. R. 1914 (Rev.) should be strictly applied in the class of cases to which it refers, whether in Mauza Ganga or elsewhere.”

(vii) In village Bakarwala (old Delhi District) a custom was found to exist whereby a tenant who had held in person or through his father for 50 years paying only land revenue and cesses acquired the right of occupancy.

Contents Next