P L D 1966 W (PLP)

Qazi Sabahuddin for Petitioners. Mian Muhammad Shafi and Yunus Shah for Respondent. This is a revision filed against an order, dated the 10th of October 1963, passed by the Additional Commissioner, Peshawar, whereby he dismissed the appeal preferred by the petitioners, but accepted that filed by the respondent and remanded the case for fresh examination. The facts of the case are that the petitioners (mortgagors) filed a suit for the recovery of Rs. 10,480.75 paisas against the respondent (mortgagee) on account of rent for the land in dispute from Rabi 1959 to Kharif 1960. The Additional Revenue Assistant passed a decree for this amount against the respondent. The respondent went in appeal before the Collector and the amount was reduced by one‑fourth. Cross appeals were preferred by the parties before the Additional Commissioner, who passed the order mentioned above. Hence this revision. I have heard the learned counsel for the parties and have examined the record. The learned counsel for the respondent has raised the question as to whether the mortgage subsists or not. I am afraid I cannot go into this question at this stage. Nor was it raised before the Collector or the Commissioner. The learned counsel for the respondent has drawn my attention to commentary on the Punjab Tenancy Act by Mr. Aggarwal (Sixth Edition), page 114 where the reference has been made to 31 LLT

7. In the first instance, the full ruling is not before me and, in the second; it cannot be made applicable to this case. The mortgagee has been retaining the possession in spite of the fact that compensation of amount was deposited on the 23rd of April 1955. Moreover, this was the question of the execution of decree which after reduction by one‑fourth, was accepted by the respondent. The learned counsel for the petitioners has also contended that the amount of land revenue and Abiana is much less than one‑fourth, but in view of the fact, that the respondent pays other Government; dues like cesses etc ; he has ultimately agreed to the reduction of one‑fourth. Having considered the merits of the case and the evidence available on record. I do not think that it was really necessary to remand the case. The position has also changed because the learned counsel for the petitioners has agreed to the reduction of the decretal amount by one‑fourth, In these circumstances, I accept the revision, set aside the order passed by the learned Additional Commissioner and direct that the order passed by the learned Collector shall be implemented. K. M. A. Revision accepted.