Mr. Amit Rawal, J. The present Regular Second Appeal is directed at the instance of the appellant-plaintiffs against the concurrent findings of fact and law, whereby their suit for declaration claiming ownership being occupancy tenants, has been dismissed.

2. Appellant-plaintiffs instituted the suit on the premise that one Chandra son of Gora was in cultivation possession of the suit land described in Para 1 of the plaint prior to 1938-39. After his death, he was succeeded by Smt.Suhagi and Illiyas in equal shares. Suhagi died issueless and she was succeeded by father of the plaintiffs Illiyas and mutation No.3418 in this regard was sanctioned. Father of the plaintiffs Illiyas also expired and succeeded by the plaintiffs and mutation No.3716 was also sanctioned. Since then, they are in long and continuous possession.

3. Revenue record placed on record, i.e., Ex.P1 to Ex.P26, Ex.PX and Ex.PJ commencing from 1938-39 till 2001-02, proved the long and settled possession of the plaintiffs. Over and above the documentary evidence, plaintiffs examined four witnesses, namely, PW-1 Mohd.Farukh, PW-2 Gariba, PW-3 Mohammad Deen and PW-4 Yusuf Lambardar.

4. Mr. Mukul Aggarwal, learned counsel representing the appellant-plaintiffs submitted that both the courts below have abdicated in dismissing the suit by holding that Gair Marusi tenants cannot acquire the right of ownership as per the Punjab Tenancy Act, 1887 (for short “1887 Act”). In this regard, he had drawn the attention of this court to the provisions of Sections 5 and 8 of 1887 Act to contend that a person, who had been in long and settled possession and occupied the land continuously for more than thirty years is entitled to claim the ownership. Attention of this Court has also been drawn to the definition of “occupancy tenant” , i.e., Section 2(f) of the Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act, 1953 (for short, “1953 Act”). Sections 5 and 8 of 1887 Act and Section 2(f) of 1953 Act read thus:-

“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 therefore 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 landowner thereof otherwise than by forfeiture to the Government or than by any voluntary act, has since ceased to be landowner continuously occupied the land; or

(c) who in a village or estate in which he settled along with

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 the 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 therefore 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 had 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.

Section 8

Establishment of right of occ