SHAH NAWAZ BEGUM Versus MUHAMMAD RAMZAN
The judgments of the Courts below are at variance and through this civil revision, the findings handed down by the learned Additional District Judge, Sargodha vide his judgment, dated 19‑6‑1988 are assailed. Whereby, he set aside the judgment and decree given by the learned trial Court presided over by Mr. Muhammad Naseem Akhtar, Civil Judge, 1st Class, Sargodha, dated 7‑11‑1987 in Civil Suit No.608 of 1987.
2. Briefly the case of the plaintiff was for recovery of Rs.24,700 relating to a property which is, agricultural land and measures about 134‑1/2 Kanals located in Chak No. 154/NB, Tehsil Sargodha. This was leased out on 15‑6‑1984 and until 15‑6‑1984 for a consideration of Rs.9,500. It was said that the defendant paid Rs.1,000 in advance while the remaining lease money had to be paid through instalments ending on 30‑6‑1983. In case of default, the defendant had to pay additionally a sum of Rs.2,000 alongwith residual rent by 31‑10‑1983. The parties entered into an agreement which further indicated that no damage was to be caused to the standing trees. And that if terms were violated, further amount was to be paid as penalty. Fixing a quantum of Rs.24,700 for the suit thus was not for rent of ,the land but also against violations and damage to the property.
3. The defendant claimed Rs.7,500 as set off which, according to him, he had spent on the plantation etc. On the divergent claims of the parties, following‑issues were framed:‑‑
(1) Whether the plaintiff has got no cause of action to file this, suit? OPD
(2) Whether the plaintiff is estopped by her conduct to file the present suit? OPD
(3) Whether the plaintiff is entitled to recover Rs.24,700 from the defendant? OPP
(4) Whether the defendant is entitled to claim set off as prayed for? OPD
(5) Whether the defendant is entitled to special costs? OPD
Issue No. 1 which has now become an important issue and on the basis of which the appeal was accepted, was on the question whether the plaintiff had a cause of action to file the suit.
4. The trial Court decided Issue No. l in favour of the plaintiff while also deciding the' other issues and rejecting the claim of the defendant with respect td the special cost as well as the claim of set‑off.
5. In appeal .the learned First Appellate Court came to the conclusion that the case' was hit by the provisions of section 77 of the Punjab Tenancy Act, 1887 and more particularly section 77(2)(i) and declared that the Civil Court had got no jurisdiction and dismissed the suit instead of referring it himself to the Civil Court and ordering for the return of the plaint for presentation to the Collector, as required by the proviso to section 77(3) of the Punjab Tenancy Act, 1887.
6. Anyway the judgment of the learned Additional District Judge is impugned on various grounds. It was said that the learned First Appellate Court had not taken any decision on other issues and had in a haphazard manner dismissed the suit while touching only Issue No.1. That the respondent had leased the property and some entries which showed him as tenant previously in the Revenue Record were subsequently altered showing the respondent as a lease. That, therefore, he was not a tenant but a lessee and the Civil Court alone had the jurisdiction.
7. Section 4(5) of the Punjab Tenancy Act, 1887, defines a tenant in the following words:‑‑
"`tenant'‑means a 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 other person; but it does not include
(a) ' a mortgagee of the rights of a landowner, or
(b) an inferior landowner, or
(c) a person to whom a holding has been transferred, or an estate or holding has been let in farm, under the Punjab Land Revenue Act, 1887, for the recovery of an arrear of land revenue or of a sum recoverable as such an arrear, or
(d) a person who takes from the Government a lease of unoccupied land for the purpose of subletting it;"
8. The learned counsel appearing on behalf of the petitioner could not take out the case of the respondent from the ambit of section 4(5) of the Punjab Tenancy Act, 1887.
9. Section 77 is divided into three groups. Suits by a landlord for arrears of rent or money equivalent of rent, or for sums recoverable under section 14 are covered by section' 77(2)(n). Whereas, suits arising between landlord and tenant on account of the lease or conditions on which a tenancy is held are covered under the second group i.e. section 77(2)(i). The admitted position is that a lease deed was drawn between the parties and the money claimed is against the amount of the lease and of losses against conditions arising out of the lease.
10. Reliance is also placed on the case titled Muhammad Hafeez v. Additional Commissioner (Revenue), Sargodha and others 1981 SCMR 1171 for coming to the conclusion that there is no force in this revision petition and the findings of the learned First Appellate Court were correct except that the, plaint had to be returned and was to be presented to the Collector under the provisions of Order 7, rule 10, C.P.C. which modification is now made in the impugned judgment and whereafter the revision petition having no merits, .is dismissed.. No costs.
M.B.A. /S‑465/L Petition dismissed.