FARIDOON Versus COLLECTOR, IST GRADE MARDAN
FAZAL ELAHI KHAN, J. ‑‑‑This Constitutional petition under Article 199 of the‑Constitution of Islamic Republic of Pakistan by Faridoon is directed against the judgment and order dated 3‑12‑1)89 passed by respondent No.4, whereby he after setting aside the orders of respondents 1 to 3 dismissed the plaintiff's suit for produce and ejectment filed against respondents 5 to 7 herein.
2. Facts of the case briefly stated are that Faridoon, petitioner, brought the present suit on 27‑12‑1983 for the recovery of Rs.10,000 or whatever amount is found due as share of produce/lease amount in respect of land measuring 35 kanals bearing Khasra Nos.1657, 1658, 1660 and 1661 situated in Mauza Gujrat Tehsil and District Mardan for the period Kharif 1978 to Rabi 1981. It was alleged in the plaint that defendants cultivated the suit land during the said period but did not pay the lease amount. It was further alleged that though previously the lessee was paying a nominal lease amount but he was entitled to lease amount at the rate of Rs.10,000 per jarib per annum which was the prevailing rate in the area during the said period.
3. Defendants in their joint written statement resisted the plaintiffs suit on various legal and factual pleas which gave rise to the following issues:‑
(1) Whether plaintiff has a cause of action?
(2) Whether the suit is incompetent in the present form?
(3) Whether this Court has jurisdiction in the matter?
(4) Whether the suit is liable to be stayed?
(5) Whether the defendants are liable to ejectment?
(6) Whether defendants cultivated the suit land during the relevant period and failed to make payment of landlord's share?
(7) If issue No.6 is proved in the positive, what amount .and from whom he is entitled to recover the amount?
(8) Relief.
Sher Ali Khan Patwari (P.W.1), Abdul Qayum, Advocate, and Faridoon the plaintiff, appeared on behalf of the plaintiff while Munjri Khan defendant appeared as his own witness and closed his evidence. Amanullah, Advocate who was appointed as Local Commissioner to assess the valuation of the improvement, if any, made by the defendants in the suit property appeared as C.W.1 in support of his report. The learned Revenue E.A.C. after considering the evidence of the parties decreed the plaintiff's suit for produce and ejectment regarding Khasra No.1060 and a portion of Khasra No.1658, the land found in defendant's possession subject however, to the payment of Rs.1,961, the proportionate costs of improvement. Defendants' appeal and revision petition filed before respondents 2 and 3 respectively were also dismissed. Respondent No.l, namely the Board of Revenue, rejected their second revision petition on the ground of incompetency under the law. These judgments and orders were challenged in Writ Petition No.171 of 19M which was decided on 1‑10‑1989. Their Lordships in the High Court held that second revision before respondent No.l was competent hence remanded the case to respondent No.l for decision of the revision petition on merits in accordance with law.
4. After the remand respondent No.4 namely the Member, Board of Revenue N: W.F.P., having held that the plaintiff‑respondents had never been landlords for the suit crops i.e. from Kharif 1987 to Rabi, 1981, accepted the revision petition, set aside the concurrent finding of all the Courts below i.e. respondents 1 to 3 and dismissed the plaintiff‑petitioner's suit.
5. The main grievance on which the order of respondent No.4 is challenged in the present writ petition is misreading and non‑reading of evidence of the parties, disregard of the documentary evidence and mis‑application of law apart from lack of jurisdiction. After hearing the learned counsel for the parties and perusal of the record the case of the petitioner in brief was that the land in dispute being an evacuee property was leased out to him through a registered deed in the year 1947 which continued till it was allotted to one Muhammad Latif, an evacuee. He, therefore, entered into an agreement of sale with the allottee and continued in possession of the land. He then leased out the suit property to the defendant‑respondents in the year 1966 initially for a period of three years at the rate of Rs.100 per jarib per annum which amount they were regularly paying to him. When the lessee failed to make payment of the landlord's share in the year 1975 he brought a suit against them in the Revenue Court which was decreed against them vide judgment copy Ex.P.W.3/3 and the defendants' appeal failed vide copy of the judgment Ex.P.W.3/4. On the other hand, Munjara Khan defendant No.l in his solitary statement denied the relationship of landlord and tenant between the parties in the suit for produce for the subsequent disputed period and stated that the land stood transferred to Shad Muhammad Khan and others and that they have made payment of produce to them. It was stated that the question of title of Shad Muhammad Khan was pending decision before the Deputy Settlement and Rehabilitation Commissioner in pursuance of the order of the High Court dated 14‑6‑1986. At the trial of the case apart from the statements of the parties and the certified copies of the previous litigation Patwari Halqa was also examined who placed on file correct copies from the Revenue Record and Khasra Girdawari. In his statement recorded in Court he has clearly stated as follows:‑‑
The learned Assistant Collector Ist Grade (respondent No.l) on consideration of the evidence, while giving his finding on issues Nos. 6 and 7 regarding non‑payment of the landlord share and the defendants' liability to make payment, held that the defendants were liable to make payment of the landlord's share to the plaintiff. This finding of fact was maintained in appeal and revision by respondents 2 and 3 respectively. When the defendants' second revision petition was dismissed by respondent No.1, as under law no second revision petition was competent, the defendants challenged the order in Writ Petition No.171 in the High Court. Relying on the judgment reported in P L D 1984 SC 227 the writ petition was accepted and the case was remanded with direction to respondent No. l to give its decision on merits of the case. After the remand the learned Member, Board of Revenue apart from his failure to consider limitation placed on exercise of revisional power under section 115 of the Code of Civil Procedure did not discuss the evidence while setting aside the concurrent finding of the three forums below on the issue of existence of relationship of landlord and tenant between the parties. The learned Member acted in ex, ss of his jurisdiction by embarking upon the question of title regarding the suit land. As already observed in the previously instituted suit by the petitioner against the respondent herein the relationship of landlord and tenant was found proved between the parties as is evident from the judgment and order copies Ex.P.W.3/3 and Ex.P.W.3/4 referred to above. As defendants‑respondents have been put in possession by the petitioner as lessees they could not set up title of Shad Muhammad to the land as against their landlord. The jurisdiction of the Revenue Court is confined to determination of existence of relationship of landlord and tenant and not beyond that. The learned Member acted in excess of his jurisdiction in setting aside the concurrent finding of fact of the forums below on extraneous matters. The learned Member also failed to look into the oral and documentary evidence of the parties led in the case so as to bring the case within the ambit of section 115 of the Code of Civil Procedure, which is applicable to the case under the Tenancy Act, for setting aside the finding. His observations regarding cancellation of the allotment made in favour of Muhammad Latif in the year 1970; the effect of the judgment of this Court in W.P.No.171 of 1988 and observations regarding the question of title, are misconceived. In W.P.No.171 the facts were that the land in suit stood allotted to Muhammad Latif, a refugee from Jammu and Kashmir, temporarily, in the year 1953. Subsequently, allegedly, on the application of Muhammad Latif to the Department such allotment was cancelled and the land was allotted to Fazal Din and Ghulam Muhammad. Faridoon, who had entered into an agreement of sale with the previous allottee brought a suit against Muhammad Latif for declaration/specific performance of the agreement of sale made in his favour. Specific performance was refused on the ground of there being an order of cancellation of the allotment in the field. On the repeal of evacuee laws evacuees from Jammu and Kashmir were declared entitled to the purchase of the land found in their possession. As such Faridoon acting on behalf of Muhammad Latif offered to purchase the land. When report was called for on the application, it was found on 9‑5‑1978 that the case was that of double allotment. Accordingly it was ordered that allotment made in favour of Muhammad Latif shall continue. The last order was challenged by Shad Muhammad and others in the said writ petition in the context of the dispute whether there was any valid order of cancellation of the allotment made in favour of Muhammad Latif by a competent authority and if so, its effect on subsequent allotment. As admitted the above order was passed without hearing of the interested parties, Writ Petition No.171 was accepted and the case was remanded to the competent authority for proper decision. However, till the decision of that matter the tenant was bound to make payment of the lease money to his landlord, plaintiff‑petitioner, till he was to be ejected by the force of law by a person having paramount title in the land which was yet to be determined as stated above.
6. There is yet another aspect of the case which does not justify remand of the case to the learned Member, Board of Revenue for decision on merits in the light of the provision of section 115 of the C.P.C. Admittedly defendant‑respondent in this case is a lessee of the land hence cannot be termed as a "tenant" within the meaning of paragraph 25 of the Land Reforms Regulation. Unfortunately when W.P.No.171 came for hearing no proper assistance was provided to the learned Bench. Neither the distinction between revisional jurisdiction of the Member, Board of Revenue under the N: W.F.P. Tenancy Act, 1950 and those under the Punjab Tenancy Act was pointed out nor the relevant provision regarding definition of a tenant under paragraph 25 has been considered which led to the order of remand for decision on merits. Undoubtedly the concurrent finding of the forums of exclusive jurisdiction that the defendant‑respondent was holding the land as lessee is supported by the record and paragraph 25 of the Regulation is not attracted to the case. No second revision petition is, therefore, competent. Reliance can be placed on the judgment of the Honourable Supreme Court of Pakistan in Haji Samad Khan and others v. Khalid Khan and others reported in 1985 SCMR page 770. The judgment in Locas alias Luci and others v. S.M. Nasim, Member (Revenue), Board of Revenue, Punjab, Lahore and others P L D 1984 SC page 227 is not applicable to the present case. The above case was under the Punjab Tenancy Act under which the Board of Revenue has got an independent revisional jurisdiction under section 84(1) of the Act, even against the revisional order of Commissioner. Such power does not exist when revisional power is once exercised by the Commissioner under section 56(1) of the N.W.F.P. Tenancy Act. This question has been elaboratedly dealt with by their Lordships in Haji Samad Khan and others v. Khalid Khan and others.
For the reasons stated above we would accept this writ petition and declare the judgment and order of respondent No.4, as illegal, without lawful authority and of no legal effect and in consequence thereof the judgments and orders of respondents 1 to 3 stand restored. There shall be no order as to costs.
AA./1176/P Petition accepted