193.     Saltpetre not treated as Governement property. - The question of the rights of Government in saltpetre was raised in 1891 in connection with the settlement of the Hissar District when the Punjab Government held that neither the saltpetre earty or the educed saltpetre can properity be brought under the term spontaneous produce other interest in land, "within the meaning of Section  42 of the Land Revenue Act. It was added that Sir James Lyall believed that" " in practice the Government nowhere in the Punjab claims proprietary right in saltpetre eart or a title to a monopoly of the rights of educting saltpertre though preceding native Governmentn may have claimed such a title. All that Government claims is the right of regulation or preventing the manufacture." Seltpetre of shora must not be recorded therefore as Government property in the village administration paper, and any profits which the land-owner derive from it may be taken into account in assessing the land-revenue1[1]. If for the any reason they are left unassessed the fact that Government has not abandoned its right to assess them at some future time should be distinctly noted.

 

194.     Management, sale and lease of Government waste lands. - The exisiting rules regarding the management, sale and lease of Government waste lands are noticed in the Land Administration Manual, Appendices III and IV.

 

CHAPTER IX

On the rights of tenants

195.     Classes of tenants.- Tenants are usually considered to be of two kinds, occupancy tenants and tenants-at-will. The vernacular equivalents are maurusi or hereditary, and ghair-maurusi or non-hereditary.1[2] An occupancy tenants has a right to hold his land so long as he pays the rent fixed by authority, and to pass it on to his descendants on the same terms. A tenants-at-will is a tenant from year to year, andhis rent is determined by the areement between himself and his landlord, The status of the occupancy tenant depends on law whether statute or customary, the status of the tenant-at-will depends on contract, though certain stipulations, if included in a contractr of letting, will be treated by the courts as invalid.2 A more detailed and precise classification of tenants is into..

            (1)        occupancy tenants whose rights are determined by the provisions of Act XVI of 1887;

            (2)        tenants of Government lands whose tenancies have been created under Act V of 1912;

            (3)        tenants for a fixed tem exceeding one year under a contract or decree or order of a competent authorty;

            (4)        tenants from year to year;

            But even this classification cannot be regarded as quite exhaustive. It does not include the mortgagor tenant whose fixity of tenure is secured by one of the statutory forms of mortgtage allowed by the Punjab Alienation of Land Act, XIII of 1900, or some of the local forms of tenure referred to in paragraph 215. The position of the former is explained in the 41st paragraph of the land administration Manuai.

 

196.     Early history of occupancy right in the United Provinces.- The Punjab received the distinction between occupancy tenants and tenants-at-will the rest of its early revenue Code from the United Provinces. The possession of a right to fixity of tenure by many cultivators in northern India was early recognised. Indeed the fact that in Lower Bengal the connection of teh persons whom we had recognised as proprietors with the land was often far more recent than that of the cultivators inevitably suggested that the latter had rights in the soil that required protection. Fixity of tenure of resident cultivators at rents determined by authority was a prominet, feature of the Bengtal settlement as originally planned.3[3] Reguiation XXVIII of 1803 professed to extend the Bengal system to the North-Western Provisions of Regulation VII of 1822 were more definite. By its 9th section Settlement Officers were required not only to prepare a record of “persons enjoying the possession and property of the soil, or vested with any heritable or transferable interest” in it, that is to say, of proprietors, but also of “the rates per bigha..........demandable from the resident cultivators, not claiming any transferable property in the soil whetyher possessing the right of hereditary occupancy or not.” But, as alrealdy noticed, small progress was made with the settlement of right till Regulation IX of 1833 was passed. In the discussion which the preceded the passing of that Act the rights or tenants, were much referred to, but it is clear that no very definite conclusions on the subject had yet been generally reached. Mr. R. M. Birds held that every tenant who lived in a villagelard a right to have his rent fixed by Govenment, however long or short, had been his resience, and was entitled to occupy the land as long as he paid the rent. Rents should be fixed for the term of settlement, and be revised simultaneously with the revision of the land revenue. Non-resident or pahikasht tenants had no such rights, and should be left to make their own bargain with the landowner.1 2 Lord William bentinck in a Minute, dated 26th September, 1832, observed.2 3 “I have little hesitation in declaring my conviction that threr is very generally all over India a description of raigats having a proprietary title in the lands cultivated by them. These raiyats are remed mirasidars, mirasi maurusi,3 4 khudiusht. kadim, and have other designations. Those resident raiyats, again who may acquire a sort of possessory title by prescription are called chapparbands, jama, jadid and other appellations.” The former class had possessd a right “of appropriating the surplus produce of the soil after satisfying the Government demand, and should be treated as proprietors as regards the enjoyment of the profits arising out of the limitation of the Government demand.” The second class had possessed no defined rights, but were” entitled to consideration on proof of prescriptive occupancy.” Lord Willam Bentinck dissented entirely from Mr. R. M. Bird’s view that all resident cultivators were.” “entitled to have their tents fixed without reference to the tem of their residence.” “It should, “he remarked “always he borne in mind that, though there may be cultivators who have prcprietary right or rights of occupancy, it does not follow that all cultivators have such rights........The or rights of occupancy, it does not follow that al cultivators have such rights.....The greatest care should be taken.........to avold confounding.........the greatest agricultuaral labourer (or individual who, having settled in the village as a stranger many years ago, has ever since continued to cultivate at the discretion of the zamindar) with he hereditary raiyato whose ancestors perhaps first broke up the soil and paid the revenue or rent of the lands direct to the servant of the State.” In an earlier Minute he had observed that “whenever a resident cultivator may be found who has paid the same money rate for a consecutive period of twelve years, it is fair onevery ground to determine that neither he nor his successor shall be subjected to any enhanced demands.”4[4]

 

197.     Accepted ideas as to occupancy right at annexation of Punjab.-The accepted ideas on the subject of renant riht fifteen years later, that is to say, about the time of the annexation of the Punjab, may be gathered form the following extracts from the Directions for Settlement Officers:-

            “There can.....be no doubt that many non-proprietary cultivators are considered to have rights of occupancy, and thus two classes are commonly recognized, those who are entitled to hold at fixed rates, and those who are mere tenants-at-will. cultivators at fixed rates, and those who are mere tenants-at-will. Cultivators at fixed rates have a right to hold certain fields and cannot be ejected from them so long as they pay those rates. are notable to alienate them without the consent of the proprietors, but theri sons or their immediate heirs, residing with them in the village, would succeed on the same terms as them selves. NOr are they compentent of themselves to perform any act which is considered to indicate proprietary right, such as the digging of a well, or the planting of a garden, or the laocation of a labourer. The simple right is to till their fields themselves, or to provide for their tillage, and for these fields they pay certain rates and afe in some cases liable to be called upon to perform certain services or to pay certain fees to the proprietors. So long as these conditions are fulfilled they cannot be ejected form their fields, and if an attmpt is made to eject them, they have their remedy by summary suit before the collector. If they fail to pay the legally demandable, the proprietor must sue them summarily, for the arrears; and, on obtaining a decree.........and failing........to collect his dues, he may apply to the collector to eject them......It is impossible to lay down any fixed rule defining, what classes of cultivators are to be considered entitled to hold at fixed rates. They are known in different parts of the country by different names as chapparband, khudkasht, kadimi, maurusi hakkdar, & c,. all of which terms imply attachment to the soil or prescriptive right. Those who have no such right ar commonly called kacha asamis or pahikasht. It has sometimes been suppposed that all raiyats resident in the village (khudkasht) are of the former class, and that those who reside in another village (khudkasht) have no rights, But there are frequent excepitions to this rule, Many cultivators residing  in neighbouring village may have marked and recognized rights. Prescription is the best rule to follow. Those who have for a course of years occupancy whilts those whose tenure is not similarly sanctioned are considered tenant-at-will.[5]” Mr. Thomason was unable to lay down any fixed directions as to the dettermination of the rents of occupancy tenants.22

 

198.     Grounds of occupancy right recognized in early Punjab settlements.- It seems to have been common in United Provinces to admit twelve year’s uninterrupted possession of a holding at the same rate of rent as a sufficient proof of occupancy righ the twelve years rule3 was very generally adopted in early Punjab settlements, though the best revenue officers held that it should not be regarded as the sole criterion, and that the quality, as well as the length, of occupation should be considered.4 Afterwards it became usual to draw a distinction between resident tenants, to whom the tem asami was some times exclusively applied and on-residents tenants, to whom the tem asami was some times exclusively applied and on-resident or pahikasht tenants, and to accept twelve possession as sufficent in the case of the former and twenty years in the case of the latter.

            In some settlements a file embodying the decisions as to the status of all every estate, and this is of great value in case of disputesp. As a matter of fact in the absence of definite rules every Settlement Officer decided such cases as came before him according to his own view of what was right and proper. For example, grounds which one man whould have considered enough to establish a claim to a proprietary title, anothe might regard as only sufficient to justify him in treating a cultivator as an occupancy tenant. Patwaris and other infreor native officials, who practically decided the status of cultivators in a great many cases naturally followed the only definite rule they knew, which was that bases on length of possession5[6], landlords had not awakened to the profits to be dervid from a cash assessment, and indeed these profits were mostly prospective. They were, therefore, little disposed to contest entries, the immediate effect of which was to make tenants share in teh bured of a money demand which they dreaded, and where land was abundant and hands scarce the landwner was sometimes more eager to concede, than the tenant was to accept, an occupancy title.6 2 In some places tenant right was held to betransferable, in other not, and the local customs on this point were really various.

 

199.     Determination of rent in early Punjab settlements.- In the matter of fixing rents there was great diversity. In many instances it appeared that with the exception of a few headmen, all sultivators, whether they belonged to the original proprietary body or not, had paid revenue on eqal terms by division of crop or appraisement to the Sikh taxgatherer, in others it was shown that the landowners had been in the habit of reveving from the iferior cultivatiors undre the name of malikans, biswi, or ismi some triflingshare of teh produce, or an anna in the ruppee in the case of zabti crops, i.e. crops for which the state took a occupancy tenants, and even it would seem in some districts of tenants-at-will. In Rawalpindi and Attock Major Cracroft fixedthe rents of both occupancy tenants and tenants-at-will, and very generally at exactly the same rates.1 3 Conditions were entered in villagge administration papers forbidding any alteration of teh rents of occupancy tenants durin the term of the settlemtne, and a general provision to the same effect was inserted in the Punjab Civil Code.2 [7] Our first Settlement Officers exercised the power of reguating the rents of occupancy tenants, and even it would seem in some districts of tenants-at-will. In Rawalpiondi and Attock Major Cracroft fixed the rents of both occupancy tenants and tenants-at-will, and very generally at exactly the same rates.1  Conditions were entered in village administration papers forbiding any alteation of the rents of occupancy tenants during the term of the settlemtn, and a general provision to the same effect was inserted in the Pujab Civil Code.2 Our first Settlement Officers had a strong prejudice against grain rents, and it seemend to them natural and only equtiable when they. commuted the grain payment into a cash assessment in the case of the lanlord, to do the same in the case of the tenant. And the landlord’s great distrust of their ability to pay a money demand regularly no doubt often led them willingly to acquiesce in these proceedings. Very frequently no malikana at all was fixed unless the tenant was whon to have been in the habit of paying sermani or some other proprietary fee. Where one was imposed, it took the shape of trifling percentage on the land revenue. Gradually the expedinecy of always making the tenant pay more or less malikana was admitted.2 more liberality was shewn to the landlords after 1857 than had been usual at an earlier petiod. There was less disposition than formeraly to commute grain into money rents. The official objections to division of crop had grown weaker, and landlords were now anxious to maintain it wherver it still existed.43

 

200.     Tenant-righ controvesy arguments for restricting occupancy rights.- In the sisxties when th first regulare settlements of the districts of the Central Punjab were being revissed under Mr. Prinsep’s supervision trenant right became the subject of a keen countroversy. It was urged by Mr. Prinsep that occupancy right had no real foundation in village custom or even in the condition of things produced by the levelling fical adminisiration of the Sikhs, but was in fact a creation of our own rule5 rule4 and amounted to the 1 confisctation by amdinistrative action of the rights of the landowners. The iattter had always possessed a right to evict, and had exercised it much more freely than was usually supposed. The extent of the interference of Sikhs kardars in much more freely than was usually supposed. The extent of teh interference of Sikh kardars in such matters had been greatly exaggerated. It was not denied that certain classes of cultivators deserved, and would by village usage receive more consideration than others. But the rules by which Settlement Officers had determined what these classes were, and the degree of protection which they had afforded to them, were quite inconsistent with native customs and ideas. The importance attached to mere length of occupation and the grant of a permanent tenure to village menials and to non-resident tenants were examples of the first kinds of error, the assation that an occuapancy tenant ould under no circumstances be evicted so long as he paid his rent was an instance of th second. The entries by which tenants were recored as hereditary at the first regular settlements had been made in the most mechanical way without any real inquiry. A few of the recorded occupancy tenants should have been shown as inferior proprietors, while others had a right to retain possession of their holdings except where the landowner required the land for his personal use,1[8] and even in that case were faily entitled to protection for a limited period or perhaps to compensation for disturbances, if they had effected improvement. But very many of them ought to have been classed as mere tenants-at-will. As each district was reassessed the mistakes made at the first regular setttlment should be rectified, and under Regulation VII of 1822 and executive intructions Settlement Officers had power to make such corrections. The use of the term maurusi was objectionable. Privileged tenants should be recorded under the names by which they were locally known, and the particular incidents of each tenure should be carefully noted.

 

201.     Arguments on the other side. - It was urged on the other side that, although the name by which occupancy right was described was new, the thing itself had a substantial existence before our rule began. The liabilites of very many tenants had been the same as those of the landlords and their privileges had been little, if at all les.. Resident tenants had often been settled on the land by the Sikh kardars and would have been maintained in possession had any landloard attempted to oust them. Even where they got the land originally frome the landwoners the latter had never thought of evicting them. It was only equitable that men who had borne the burdens of native rule should share in the benefits of the more liberal adminsitration which had succeeded it. The statement that the entries at the first regular settlements had been made without inquiry was exaggerated. Native subordinate had to guide them by the decisions of Settlement Officers in contested cases. If there were not numerous, it showed that at all parties were satisfied with what was being done. At any rate it would be unjust and impolitic to distrub at a revised settlement entries which had been acted on for years, and in fact no legal power to do so existed.2[9]

 

202.     Alteration in Mr. Prinsep's Settlements of entries of former settlements. - There was a large element of truth in Mr. Prinsep's contention. The degree of protection which tenants enjoyed and the ground which entitled them to protection differed in different parts of the country. The rule that twelve years' possession conferredc occupancy right was quite arbitrary. The sinking of a well would probably have been accepted even rywhere as a sufficient foundation for a claim to permanent title of some sort. But in the case on non-proprietary cultivators fixity of the tenure as a thing which could be earned by bringing waste land under the plough or by ordinary improvements had perhaps no real existence except in the hills and in the south-western districts. When a body of loose and varying local customs is poured into the mould of rigid definition it is certain to be changed in the process, and it is well to delay the operation till the  customs have been fully escertained. It might have been better, therefore, at the first regluar settlements to record tenants by the names by which they were locally known and to note carefully the incidents of the tenure in each case. But the policy of altering former records of right was open to grave doubt. This, is however, what Mr. Prinsep did with the sanction of the Financial ! Commissioner.3 2 A few of the recorded occupancy tenants were made proprietors a muct larger number continued to be shown as maurusi, but the majority were treated either as tenants-at-will or as protected (panahi) for life, for the term of settlement, some religious institution maintained, or some revenue-free grant was continued.

 

203.     Passing of Act XXVIII of 1868. -  The tenant-right controversy which arose in connection with Mr. Pirnsep's settlements led to the passing of  the first Punjab Tenancy Act, XXXVIII of 1868, the main features of which ahve been reporduced in Act XVI of 1887. The changes in status of tenants effected by Mr. Prinsep were held to be invalid and measures were taken to restore the netries of the first regular settlement. These were not carried out completely, and at the resettlement of the districts concerned it was found that a number out completely, and at the resettlement of the districts concerned it was found that a number of teants were still shown as panahi or protected for various periods. It was held that under section 37 of the Land Revenue Act of 1887 the record could only be altered by agreement of the parties or in consequence of a decree of court declaring whether the tenant was or was not an occupancy tenant.1[10]

 

204.     Working of Act XXVIII of 1868. - A full account of the provisions of Act XXVII of 1868 will be found in paragraphs 145-147 of the Direction for Collectors (Barkley's edition). With its passing it eceased to be the duty of a  Settlement Officer to revise the rent of occupancy tenants at a re-settlement. Rents consisting of the land revenue and cases with or withoug the addition of malikana were re-adjusted in the manner described below (paragraph 217), and in a few cases ht eold rents were left untouched at the request of the landowners.2 The provisions of the Act relating to enhancement were unsatisfactory and diffcult to work. But fortunately for many years very few enhancement suits were instituted. "This was partly due to ignorance of the law and partly to the fact that the proprietors with very few, exceptions (did) not believe that they had any real right to claim an suuhanced rent.3 Entries in the village administration papers of teh first regular settlement declaring that rents should not be changed during settlement, which operated as  agreements between landlords and tenants under section 2 of the Act, were also a bar to enhancedment during the term of settlement.

 

205.     Act XVI of 1887. - The apprehansion that difficulties would arise in Hoshiarpur and elsewhere when this bar was removed by revision of settlement was one of the reasons for the passing of Act XVI, of 1887. The tenancy law of the Punjab concerns all revenue officers, and a description of the chief provisions of Act XVI of 1887 is given in Chapter II of the Land Administration Manual. A few remarks on rent and a brief discussion of the different kinds of occupancy right will, however, not be out of place here.

 

206.     History of rent in the Punjab. - Rent is defined in the Act as "whatever is payable to a landlord in money, kind, or servce by a tenant of account of the use or occupation of land held by him [section 4(3)] and tenant as "as person who holds land under another person, and is, or but for a special contract would be, liable to pay rent for that land to that oterh persons."4[11] The kind of rent commonly met with are noticed in Chapter XVIII. The cheif fact in connection with the history of rent in the Punjab is that it owes its origin mainly to fiscal arrangements, and not directly to economic causes.5 2 This is obvious in the case of the rents consisting of the land revenue and cesses with or without a small additional payment on account of malikana, which are still commonly paid by tenants-at-will, some parts of the country. But it is equally true of batari and zabti rents. The former represent the share of the produce which native govenremnt claimed under the name of mahsul or hakimi hissa (i.e. the ruler's protion). When the British Government comunted this into a cash revenue demand the landlords continued to take it under the old names and at the old rates from the tenants, and the rates have often remained unchanged to the rpesent day. The small grain fee which the proprietors sometimes realized in th days of Sikh rule is even now very frequently set aisde as a separate item when the crops ar divided. In this case too the former names are used and the traditional fractions is commonly taken. Zabti rents are still paid in many placed for the crops for which the Sikhs took cash payments. Chakota rents, i.e., rents consisting of a fixed amount of grain in the spring and a fixed amount of cash in the autumn harvests have a similar history.1 3 Even fixed cash rents often originated in the revenue arragements, bu they are more susceptiable of readjusted on an economic basis than other kinds of rent. The importance of studying the history of rent in any tract which is being assessed will appear in teh sequel (see Chapter XX).

 

207.     Acquisition of occupancy right. - Under Act X2VI of 1887 no tenant can obtain a right of occupancy by mere lapse of time (section 9)[12], and, unless a special custom to the countrary is proved, no joint owner of land can acquire one in any part of the land (section 10). For example, a proprietor who is in cultivation possession of field in the village common, cannot claim of right of occupancy under section 5(1) (a), though all the cirucmstance exist which would enable another person to so successfully. The first of these provisions embodies a marked difference between the law of the Punjab and that of other parts of Northern India as to the acquisition of occupancy right. The facts which are sufficient to establish a right of occupancy are set forth in sections 5 and 6 of the Act, while section 8 saves any local customs by which a permenent tenure is acqurd on grounds other tahn those described in these two sections, and section 11 any rights already acquired under Act XXXVIII of 1868. If the tenant voluntairly exchanges one plot for another the land taken in exchange is held to be "subject to the same right of occupancy as them to which the land given in exchange would have been subject, if the exchange had not taken place." (section 7)

 

208.     Classes of occupancy tenants. - Considered with reference to the incidents of their tenures occupancy tenants fall into three classes :–

(1)        Tenants under section 5 (1) (a)

(2)        Tenants under section 5 (1) (b), (c) and (d).

(3)        Tenants under section 6 and 8.

 

209.     Occupancy right of the first clas how established. - The first class includes every tenant, who on Ist Nov. 1887 had "for more than two generations in the male line of descent through a grand-father or grand-uncle and for a period fo not less then twenty years been occupying ladn paying no rent therefor beyond the amount of the land-revenue thereof and the rates and cesses for the time being chargeable tereon. " [section 5(1) (a)]. The date mentioned is that on which the Act came into force. Thirty year's occupation at the rent named raise a presumption that the tenant possesses the qualifications described above, but this presumption may be rebutted.3 2 It must be remembered that "tenant" in Act XVI of 1887 includes "the predecessors and successors in interest of tenant,"4 3 and that words in section 5(1) (A) denoting natural relationship denote also relationship by adoption, including the customary appointement of an heir and spiritual relationship by adoption, including the customary appointment of an heir and spiritual relationship, such as that of  a chela to his guru or father in the faith.5[13] Sir james Lyall  construed "land-revenue" in section 5(1) (a) as including batai and zabti collections made by jagirdars before a cash assessment had been introduced. He considered that the definition of "land-revenue" in section 4(10) as "land-revenue assessed under any law for the time being in force" did not prevent this interpretation, whic was clearly equitable and in accordance with the intentions of the Act. He remarked :- "I am of opinion that it is necessary to construe the word (an) here as it was equivalent with Act. I believe there was no Act or Regulations for the assessement of the land-revenue, strictly speakin, in force in the Punjab before 1871, and the present day in Madras or the greater part of the Presidency, there is no statue law for the assessment of the land-revenue. The Governemnt of Madras acts in imposing it upon the old customary law of Inida. It is to this law that I understand the preamble of Punjab Land Revenue Act, XXXIII of 1871, referes, No. Enactments were repealed by that Act.

            "Putting aside the question of intrepretation of the work law in section 4(10) of the Act, and coming to section 5(a) it is manifest that section is intended to deal with a question between the landlord and tenant, and the question is, has the tenant paid as rent (i.e., as due to teh landloar-seee definition of rent) anything more tha land-revenue and rates and cesses chargeable ? Now, as a matter of fact, unless the tenants we are concerned with (i.e.those who have paid revenue and cessess without malikana since Settlement) paid the proprietors a sermani  fee while barat was in force (in which case we may be sure a cash malikana was put on in place of sermani as that was the invariable rule in the old settlements), they really paid the landlord no rent at all so long the jagirdars maintained bata collections in respect to both proprietors and tenants of this class, for teh jagirdars collected direct from these tenants as from theproprietors; these men, therefore, paid nothing in those days as rent to the landlords, and what they paid direct to the jagirdars they paid undoubtebly as the old land-revenue and cesses of the country. These batai and Zabti collections are teh ancient from of teh land-revenue of India."12

 

210.     Occupancy right of the second class how establised. - The second class includes every tenant. -

(1)        "Who, having owned land, and havig ceased to be land-onwer there of otherwise then by forfeiture of the Government or by any voluntary act, has, since he has ceased to be ladowner, continuously occupied the land," [section 5(1) (b)]. The right may be claimed by the representative of the person who lost the proprietary right (Revenue judgement No. 6 of 1895 in Punjab Record of September, 1895).

            claim is realy maintain under this sub-section.

A man who has sold his land but continues to cultivate it is of course a mere tenant at-will of the purchaser

(2)        "Who, in a village or estate in which he settled along with or was settled by, the founder thereof as a cultivatior therein, occupied land on the twenty-first day of Oct., 1868, and has continuously occupied the land since that date" [Section 5(1) (c)], unless the landloar proves "that the tenant was settled on land previously cleared and brougth under cultivation by, or at the expenses of, the founder." The 21st October, 1868, is the date on which the first Punjab Tenancy Act came into force.

(3)        "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 jadirdar and has continuously occupied it for not less than twenty years." [section 5 (1) (b)]. Jagridar includes any assignee of land other then a village servant.2 A jagridar under a grant made by a former Native Government falls within the definition of that term in the Tenancy Act (Revenue judgments 2 of 1892 and 2 of 1897 in Punjab Record of March, 1892 and February, 1897, respectively).

 

211.     Occupancy right of the third class how establised. - The third class includes

(1)        any tenant entered in a record of rights sanctioned by the Local Government be fore the passing of Act XXVIII of 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 unless by a decreee of a competent court in a suit instituted before the passing of Act XVI of 1887 he has been declared not to posses such a right (section 6), and

(2)        any tenant who can establish a right of occupancy on any gorund otherthan those described in section 5 and 6 (section 80. This refers specially to the rights which by the custom of particular parts of the country persons efecting improvements or bringing waste under cultivation acquire. Exampies are the lathband or lathmar tenant of Dera Ismail Khan and Dera Ghazi Khan who obtains hsi title by embanking fields and the butemar, or mundhimar who earns it by clearing/jangla.1[14] The rights of the tardaddadkar tenants of th Jhang District seem to have been acquired by merely engaging to keep in cultivation the lands attached to a weel constructed by the owner. They mist by distinguised from those of the well constructed by the owner. They must be distinguished from those of the taraddadkar owner described in paragraph 173. It is very doubtful whetehr the right of taraddadkar to sublet is limited by section 58(2) of the Tenancy Act. According to Mr. Steedman "all taraddadkars have the power of arranging for the cultivation. It does not matter wheter the taraddadkar cultivates himself for by a tenant."2 The mukarraridar tenant of Attock cannot be considered as falling under secion 8 or any other section of the Punjab tenancy Act for the has by custom more unrestriced powers of alienation than any class of occupancy tenant enjoys under Act XVI of 1887, and holds his land at a fixed rent which can not be altered during the term of settlement. It has been judicially decided that some mukadmadairs descend like owner's holdings, and are not subject to the special rules referred to in the next paragraph. 3

            The mukarraridar almost invariable acquired his title by sinking a well. But there and few mukarraridars in Attock whose holdings consist of irrigated lands. The kumhar tenant of Dera Ghazi Khan got his itle in the same way, and "his tenure lasts as long as the pakka brick or wooden well he has sunk last."4 In Hazara wefind that curious feature of occupancy tenants holding their land not from the proprietors, but as sub-tenants of otehr occupancy tenants.5

(3)        During Mr. Barry's settlement of the Attock District (1923-27) the Punjab Tenacny Act, XVI of 1887, was amended in 1925 at the instance of the Settlement Officer in order in include specific provisions regarding muqarraridars in that district. The amending Act XI of 1925, defined a muquarridar in that district. The amending Act XI of 1925, defined a uqarraridar as any person who holds land in the Attock District and who, on the date of the commencement of the Punjab Tenancy (Amendment) Act 11925, was recorded in the revenue records as muqarraridar in respect of such land or who, after the said date, was so recored with his consent and the consent of the proprietor of such land and includes the successors in interest of a muqarraridar. It futher provided that for the purpose of section 22 of the Teancy Act a muqarraridar shall be deemed to be a tenant of the class specified in section 5 (1) (a) of the Act, and that for the purpose of sections 24, 27, 27-A, 38 and 39 of the Tenancy Act a muqarraridar shall be deemed to be a tenant having a right of occupancy. The amending Act also provided that the provisions of chapter IV of teh Tenancy Act shall not apply to nuqarraridars.

 

212.     Devolution of occupancy right. - On the death of an occupancy tenant his holding passes on a like tenure -

(a)        to this male lineal descendants in the male line of descent,

(b)        failing them, to his widow for life or until remarriage, but without any pwoer of sale, gift, or mortagage, or of subletting for a period exceeding one year

(c)        failing male descendants and a widow, or when a widow succeeds, then after her death or remarriage, or in the event of her abandoning the land, to agnates or male collateral relatives in the male line of descent, provided that the common encestor of the later tenant and the agnates occupied the land. Among agnates the right of occupancy falls to the person of persons who would have inherited the land if it had been owned by the deceased. On failure of legal heirs the holdings revers to the landlord (section 59)

 

213.     Rights possessed by all classes of occupancy tenants. - Every occupancy tenant has a right to make improvements as defined in section 4 (19) of the Act (section 63), not withstanding any conditions in a record-of-rights, or in an agreement between himself and his landfor a term not exceeding seven year (section 58). He can, with the consent of his landlord, transfer his land to all the memeber of a co-operative society, for the consolidation of holdings of which both he and his landloar are mambers, and obtain from them any othe hand in exchange land so obtained in exchange being subject to the same right of occupancy as the land given for it (section 58-A)]. He forfeits his right if for over a year he fails withoug sufficient cause to cultivate his holdings either by himself for some other person and to arrange for payment of the ent (section 38), but he can only be ejected (a) in execution of a decree for adjectment, or (b) when adecree for an arreas of rent has been passed and remains unsatisfied of a revenue officer (section 44). A decree for ejectment wll only be passed on one or other of the following grounds :-

(a)        that the tenant "has used the land comprised in the tenancy in a manner which reders it unfit for the purpose for which he held it."

(b)        "where rent is payable in kind, that he was without sufficeint cause failed to cultivate that land in the manner or to the extent customary in the locality in which the land is situate." (section 39)

 

214.     Occupancy right how far tranferable. - A tenant belonging to eighter of the first can transfer his right of occupancy by sale, gift, or morgage. But the must first give notice of his intention through a revenue officer of his landload, and the latter may then claim to purchase the right as it fall value as determined by a revenue officer (section 53). The landlord's power of pre-emption does not arise in the case of collateral mortgages not involving any actual or constructive transfer of possession to the mortgagee unless the transaction to be of the dexription known as bai-bil-wafa, or mortgage by conditional sale.1 Tenant righ of the third class cannot be transferred by private contract without the previous written consent of the landlord (section 56). Nor can it be attached or sold in execution of a decree or order of Court (section 56). Tenant right of the first two classess is not protected from sale in execution, but the landlord has a right of pre-emption if it is sold (section 55).

 

215.     Rights not expressly provided for by law. - Rights possessed by any class of occupancy tenants, which are not expressely provided for by law, should be carefully described in the village administration paper. Under orders issued in 1887 Settlement Officers were enjoined to "notice in their records of local usage the custom relating to the right  of occupancy tenants of lands submerged by fluvial action and subsequently restored."1[15]

 

216.     Enhancement and redcution of rent. - Where an occupnacy tenant pays a grain or zabti rent it can be enhanced or reduced if the quality of the cultivation is changed by the land becoming, or ceasing to be, irrigated or flooded (sections 20 and 21). If he pays a cash rent it may be enhanced on the suit of the landlord on the grund that, after deducting the land revenue and the rates and cesses chargeable on the holding, the balance does not amount to a malikana -

(a)        of two annas in the rupee, or 12-1/2 per cent, on the land revenue in the case of a tenant of the first class;

(b)        of six annas in the rupees, or 37-1/2 per cent, on the land revenue in the case of a tenant of the second class;

(c)        of 12 annas in the rupee, or 75 per cent, in the case to tenant of the thrid class. Enhancement may be decreed up to the limited fixed for the class of tenants to which he defendant belongs (section 22). Subject to these limits a Revenue Courth has full discreation as to the amount of enhancement to be decreed (section 25). Too much weight should not be given to the class to which the occupancy tenant belong. Tenants of old standing who have hitheto paid a very light malikana may often only be able to prove that their status falls under section 6. The most important points to consider are the rate of malikana hitherto paid and those commonly realized from similar occupancy tenants in the neighbourhood. The law has given the landowners a claim to an increased rate of profit, an this must be fairly satisfied. But sudden and severe enhancemnets drawn up by the Settlement Officer has been approved as a useful general guide for Revenue Courts.2[16] But of course they are in no way bound to follow it exactly.

            If enhancement has been decreed or a suit for enhancement has been dismissed on the merits no further suit will lie for ten years, unless the land has menawhile become irrigated of flooded [section 24(3)]. The cash rent payable by an occupancy tenant may be reduced on the ground that the productive powers of his holding have eben lessened by a casue beyond his own control (section 23). The reduced rent must in no case be less than the land revenue and cesses payable on the holding (section 25).

 

 

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[1] Punjab Government No. 650, dated 9th November, 1891.

[2] It is better to use these well-known terms that to adopt transanctions of "occupancy" and "non-occupancy" such dakhilkar and ghair-dakhilkar.

2. Act XVI of 1887, section 101(b) and (c).

[3] See Regulations II, XXXIII and LI of 1895. For an interesting discussion of the whole question Mr. R.M. Bird's Minute, dated 25th September, 1832, printed on Page 419 of Selections from the Revenue Records of the North-Western Provinces Government, 1822-33, may be consulted.

2. See minutes referred to in note on page 98.

3. Page 385 of Selection from the Revenue Records of the North-Western Provinces Government, 1822-33. The paragraphs from which quotations are taken above are 35, 41, 42 and 44.

4. Maurusi was not yet appropriated as a title for occupancy tenants.

 

[4] Paragraph 72 of a Minute, dated 20th January, 1932, printed on page 351 of Selection from the Revenue Records of the North-Western Provinces Government, 1822-33.

 

[5] Direction for Settlement Officers, edition 1849, paragraphs 127, 128 and 130.

2. Direction for Settlement Officers, edition 1849, paragraph 134.

3. The rule sometimes took the form of twelve years' occupation before annexation.

4. Paragraph 18 of Sir Richard Temple's Review of Mr. R.E. Egerton's Lahore Settlement Report. Ct. Sir John Lawrence's remarks in paragraph 3 of his Secretary's letter No. 1010, dated 11th December, 1855 to the Financial Commissioner – "The Chief Commissioner is not aware that a period of twelve years – has ever been authoritatively fixed….. a Settlement Officer should be aware that it is the nature quite as much as the length or occupancy which entitles a cultivator to privileges."

[6] Settlement Commissioner's No. 12, dated 12th January, 1865, paragraph 18.

2. Elphinstone's Settlement Report of Gugera, paragraph 50 Cf. Morris' Settlement Report of Gujranwala, paragraph 33, and O'Brien's Settlement Report of Muzaffargarh, page 95.

3. See Butler's Settlement of Attock tehsil, paragraph 26.

 

 

[7] Punjab Civil Code, Part I, Section XXI, clause 13, The Code was issued in 1854.

2. Financial Commissioner's No. 4543, dated 14th Dec. 1863. The Financial Commissioner "agree in thinking that to declare in hereditary cultivator permanently exempt from all demand of malkana is altogether anomalous."

3. Cracroft's Settlement Report of Rawalpindi, paragraph 303 – "Of late years it appears to be acknowledged on all sides that rent in kind is not so bad a  thing after all. The proprietors cling to grain payments with a tenacity impossible to overcome….. we have at last adopted a policy of non-information in the matter."

4. Cf. Paragraph 17 of the Financial Commissioner's (Mr. R. Cust's) Review of Gugera Settlement Report.

[8] In this connection Mr. Tucker's description of the position of tawani tenants in Koahat is worth reading (Settlement Report, paragraph 192).

 

[9] See proceedings of Lahore Tenant Committee forwarded to Government with Judicial Commissioner's No. 1179, dated 5th May, 1865.

2. Financial Commissioner's No. 2279, dated 6th June, 1865.

 

[10] See Colonel Wace's memo dated 18th Feb. 1889, on page 1176, and Sir James Lyall's note, dated 27th May, 1889, on page 1182, of Selections from the Records of the Financial Commissioner's – New Series – No. 14.

2. See note by Sir Jame Lyall forwarded to the Government of India with Punjab Government No. 113/534, dated 21st March, 1882.

3. For the complete definition see section 4(5) of the Act.

[11] For the complete definition see section 4(5) of the Act.

2. Some interesting observations on rent in India will be found in the VIth Chapter of Maine's "Village Communities in the East and West."

3. See Mr. Princep's Settlement Report of Sialkot, paragraph 242.

[12] This section reproduces the provisions of section 9 of Act XXVIII of 1868.

2. Section 5(2). The period of 30 years is counted back from the date of the institution of the suit, not from the date of the passing of the Act (Rev. Judge 5 of 1896, P.R. of June, 1896).

3. Section 4(7).

[13] Section 5(3).

2. Revenue Circular 17, paragraph 13, edition of 1890.

 

9. Section 4(15).

[14] In Dera Ismail Khan many of the lathband and butemar tenants were recorded at last settlement as inferior proprietors (see paragraph 171). Contrast paragraphs 197 and 203 of Mr. Tucker's Kohat Report. For the peculiar godhash tenure see Multan Gazetteer, page 179. The due known as bhoang, which the godhash tenant is entitled to take harvest by harvest as the reward for clearing jangal and the title to which he can sell, corresponds to the anwanda of the clearing tenant in Dera Ghazi Khan (Gazetteer of Dera Ghazi Khan, page 82).

2. Compare paragraph 173 in this manual and see paragraph 84 of Steedman's Settlement Report of Jhang.

3. For the mukarridari tenure see Revenue Judgement No. 10 in Punjab Record of November, 1896. The Revision of rent after the expiry of a Settlement would probably be made under the provisions of section 34 of the Tenancy Act.

4. Mr. Fryer's Settlement Report of Dera Ghazi Khan quoted on page 86 of Mr. Diack's Gazetteer.

1.        Captain Wace's settlement Report of Hazara page 131.

9. See Regulation XVII of 1806.

[15]Financial Commissioner's Circular XXI of 1877, issued in consequence of Chief Court Judgement in case No. 1389 of 1876. The recorded customs on the point are not uniform, see e.g., Mr. Fryer's Settlement Report of Dera Ghazi Khan, paragraph 225, Mr. Tucker's Dera Ismail Khan report, paragraph 184, Mr. Thorburn's Bannu Report, paragraph 143. It may be doubted whether there is often any real custom one way or the other.

 

[16] Mr. O'Dwyer's Settlement Report of Gujranwala, paragraph 195, and Mr. Talbot's Settlement Report of Jhelum, paragraph 118.