P L D 1952 Peshawar 62 (PLP)

MUHAMMAD SHAFI, J.‑On the 26th of September 1943, one Faqir Chand, sold away 229 kanals 11 marlas of land, situated in Charguli, in favour of Arsallah Khan, ostensibly for Rs. 20,

000. On the 17th of July 1944, Sher Zaman Khan, son of Tajul Malook Khan, instituted a suit for possession by pre emption of the above land. He was granted a decree therefore on the 7th of December 1945, on payment of Rs. 19,

970. An appeal and a further appeal against this decree were dismissed on lst May 1947, and 12th February 1948, respectively. Out of the amount on payment of which the decree was granted, Rs. 4,100 were deposited in Court on the 11th of September 1944, and the balance on the 15th of January 1946. The defendant took this amount on 9th June 1948, and 17th September 1948. Sher Zaman Khan obtained possession of the property in suit on 24th December 1948. Arsallah Khan, the original vendee of the property has now died. Sher Zaman Khan has instituted a suit for the recovery of Rs. 8,000, for the use or occupation of the above land, against the legal representatives of Arsallah Khan, He claimed that after the decree was passed in his favour Arsallah Khan was not entitled to remain in possession of the land, and he was con sequently entitled to get from the defendant, the profit of the land, which accrued from Kharif 1944 to Rabi 1948. The suit was very hotly contested by the defendants, and amongst others one objection raised was that it was not triable by a Civil Court. The learned Senior Sub‑Judge, who heard the case, held that the Civil Court had jurisdiction to try the case, and having finally come to the conclusion that the plaintiff became the owner of the property on 15th January 1946, when he deposited the balance of the decretal amount, he was entitled to take the profits of the land therefrom, he granted in his favour a decree for Rs, 4,624‑13‑0, against the estate of Arsallah Khan, and for Rs. 306‑7‑6 against the person and property of his legal representatives. The latter have come upon appeal against the above order, and if has been argued on their behalf that the suit as framed was not cognizable by a Civil Court. Under section 77, subsection (3). Third Group (n), of the Punjab Tenancy Act, all suits for the sums recoverable under its section 14, can be instituted in and heard and determined by the Revenue Courts only. The jurisdiction of the Civil Courts to take cognizance of any dispute with respect thereto is com pletely barred. The Punjab Tenancy Act in this Province has now been replaced by the North‑West Frontier Province Tenancy Act, 1950. The above provision of law is reproduced exactly in the same words in section 49, subsection (3) Third Group (k) of the new Act. Section 14 is reproduced in section 7 of the new Act, which is to the following effect :‑ "Any person in possession of land occupied without the consent of the landlord shall be liable to pay for the use or occupation of that land at the rate of rent payable in the preceding agricultural year, or, if rent was not payable in that year, at such rate as the Court may determine to be fair and equitable". It is urged for the appellants that the present suit is clearly covered by these provisions of law, and the learned trial Court consequently, which is a Civil Court, had no jurisdiction to hear or determine it. For the respondents it is argued that the term "landlord" used in this section is used in relation to a tenant; and con sequently it is contended that the only suits which would be barred under this provision of law would be those suits which are brought by the landlord against the tenant. This argument is based on the definition of the term "land lord" given in section 2 (vi) of the North‑West Frontier Pro vince Tenancy Act 1950. According to it a landlord means a person under whom a tenant holds land to whom the tenant is or but for a special contract would be liable to pay rent for that land. The word: "tenant" is defined in section 2 (v) of the above Act, and it 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) an inferior land‑owner, or (b) a mortgagee of the rights of a land‑owner, 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 sub‑letting it. The amount which is payable by the tenant to the landlord is called "rent". If the tenant fails to pay the rent, the arrears are termed technically as "arrears of rent". A suit by the land lord against 'a tenant for the arrears of rent is governed by section 49 (3) Third Group (k) of the North‑West Frontier Province Tenancy Act: It is note a well-established principle of law that a person, who enters into possession of a property as a tenant and continues to be in possession after his tenancy is terminated, is still a tenant and his possession cannot be said to be wrongful or that of a trespasser. He shall in law still be termed as a tenant, and the amount payable‑by him to the land lord would still be rent and the arrears thereof as arrears of rent. If the Legislature in section 7 of the North‑West Frontier Province Tenancy Act, wanted to use the term "landlord" in relation to tenant, then there was no necessity for it to write the words "any person in possession of land occupied without the consent of the landlord". One single word "tenant" would have served the purpose. The very fact that the term tenant is not used in this section, and the above words have been inserted instead, is a clear proof of the intention of the legis lators that the word "landlord" in this section was not used in relation to tenant. In our view a person entitled to the posses sion of the land is a landlord within the meaning of this section) and every suit brought by him against any‑person, who occupies the land against his consent, is a suit under section 7 of the N.‑W. F.'P. Tenancy Act, and is triable only by a Revenue Court. We consequently hold that the suit in question should have been heard and determined By the Revenue Court. Having gone through the record we are firmly of the opinion that the suit was determined by the learned trial Court in good faith, and the parties have not been prejudiced by the mistake as to jurisdiction. We consequently in exercise of the powers conferred on us by section 72 on the N.‑W. F. P. Tenancy Act, hereby order that the decree under appeal be registered in the Court of the Collector Mardan. There will be no order as to costs in this Court. Order Announced. A H.