MUHAMMAD HAFEEZ vs ADDITIONAL COMMISSIONER (REVENUE), SARGODHA

ORDER

SHAFI-UR-RBHMAN, J.-The petitioner seeks leave to appeal in two petitions against the judgment of the Lahore High Court whereby his constitutional petitions challenging the decision of Courts in the revenue hierarchy were dismissed.

2. One Fazal Haq, the maternal grand-father of the petitioner, was the owner of agricultural land. By a registered deed dated 7-4-1969 supplemented by another registered deed dated 24-11-1969 he transferred the property in favour of Abdur Rehman, the son of his predeceased son Fazal and. The muta--tion giving effect to the registered deed was entered and attested in 1970. On 4-8-1972 Fazal Haq died. On 6-10-1973 the petitioner instituted a civil suit challenging the validity of the registered gift deed in favour of Abdur Rehman and claiming 1/3rd share in the property of Fazal Haq as the son of his predeceased daughter Noor Begum. While the civil suit was pending and is still pending, on 12-2-1978 Abdur Rehman exchanged the land with respon--dent No. 4, Jalal Din who was substituted in the civil suit. In this background of conflicting interests Jalal Din instituted proceedings in the Revenue Court on 2-10-1978 seeking batai claiming the petitioner to be his tenant. The petitioner and attention of the revenue Courts was drawn to the civil litigation then pending challenged that relationship. Notwithstanding this the revenue Court proceeded to decide and held that the petitioner was the tenant of Jalal Din on the basis of the registered deed as reflected in the mutation and the entries of the revenue record and passed a money decree of Rs.2,696 on 30-4-1979. It remains unsatisfied. Another petition was then filed in the revenue Court by Jalal Din for ejectment of the petitioner on various grounds. The revenue Court also allowed this.

The appeal of the petitioner against these two decisions failed in the hierarchy upto the Member, Board of Revenue. The petitioner then invoked the constitutional jurisdiction and filed two constitutional petitions challenging each of the two decrees of the revenue Court. The High Court dismissed both the petitions.

3. The learned counsel for the petitioner has taken up two grounds to challenge the decisions of the revenue Court and of the High Court. Firstly it is contended that as a question of title was involved and was already a matter under examination in the civil Court, the revenue Court should not have proceeded with the matter and, in any case, in recording a finding that the relationship of landlord and tenant existed it has omitted to take into consideration material evidence. The other legal ground taken up is that rule 4 of the Punjab Land Reforms (Procedure for Ejectment Suits) Rules, 1977 was violated and the jurisdiction was lost by that authority as the matter was not decided within 60 days.

4. So far as the first ground is concerned, the principle of law that the averments in the plaint or the application determine the jurisdiction and the forum initially is not disputed and is beyond doubt.Perusal of the two petitions filed by the respondent would show that they related to matte exclusively within the jurisdiction of revenue Courts, and concerned matter which were, under section 77 of the Punjab Tenancy Act, kept outside the purview of civil Courts. It follows, therefore, that the revenue Court in assuming jurisdiction neither committed any illegality nor excess of jurisdiction. The claim put forward by the petitioner before the revenue Court certainly raised a question of title but his plea neither determined the forum nor the jurisdiction. The jurisdictional fact namely the existence of relation--ship of landlord and tenant was to be determined and decided by that very Court which had the initial jurisdiction to take cognizance of the matter namely the revenue Court. It decided the matter. The only course open to the petitioner is to demonstrate that the decision of the jurisdictional fact at the hands of the revenue Court suffers from any legal infirmity. In the face of a registered deed duly acted upon in the revenue record, the revenue Court could not, on the mere assertion of the petitioner, hold that the relation " ship of landlord and tenant does not exist. A specific mention of this fact ha been made in the order of the revenue Court. The proceedings in the revenue Court could not be kept in abeyance as long as the civil suit remained pending or was not finally decided. There is, therefore, no defect in assuming jurisdic-- tion or in deciding jurisdictional fact.

5. As regards the question of violation of Rules whereby if the matte was not decided within 60 days, the case was to be deemed to be transfer to the next higher authority, this contention was raised for the first time I the constitutional petition. Rectification being possible and having not been E availed of by the petitioner at the appropriate stage it cannot independently be made a ground for seeking or obtaining leave to appeal.

6. We find no merit in these petitions. Leave to appeal is, therefore, refused. Leave refused.