2007 PLP 757 (CLC)

MAULVI ANWARUL HAQ, J.

On 17-1-1991 the private respondents filed a suit for recovery of produce and ejectment of the petitioner from land measuring 20 Kanals comprising Khasra No.2018/1469/2 as per Register Haqdaran Zamin for the year 1987-88. It was stated that the petitioner is a tenant under the respondents in the said land subject to payment of 2/5th share of the produce. He has failed to pay the share of the produce for Rabi and Kharif, 1993. The petitioner in his written statement took the plea that he is in possession as co-sharer. He also relied on the same Jamabandi. The Collector, Sub-Division, framed issues and recorded evidence. Vide order, and decree dated 27-10-1994 the suit was decreed. An appeal filed by the petitioner was dismissed by the Commissioner, Rawalpindi Division, on 9-9-1997. A Member (Judicial-III), Board of Revenue, Punjab, dismissed the revision filed by the petitioner on 24-11-1999.

2. Learned counsel for the petitioner contends that the suit could not have been instituted in the Court of Collector, Sub-Division, as under Rule 2 of the Punjab Land Reforms (Procedure for Ejectment Suits) Rules, 1977, the suit has to be filed in the Court of Collector-I, Grade. Further contends that his client is duly recorded as a co-owner of the suit-land and as such the suit for ejectment was not competent. He, however, does not question the decree for produce which according to him has since been deposited. No one has turned up for the respondents.

3. I have gone through the copies of the records. As noted by me above ejectment has been sought from Khasra No.2018/1469/2. According to Exh.D.1 being relied upon by the petitioner, he is recorded as one of the co-owners in the column of ownership in Khewat No.433 where the said Khasra number is located. However, in the column of possession pertaining to the Khasra number it is Sardar Khan co-owner (he is the predecessor-in-interest of the respondents) who is recorded in Hisadari possession while the petitioner is recorded as a tenant under him subject to payment of produce share. Learned counsel has relied on the cases of Muhammad Nadar Khan and 2 others v. Jam Khair Muhammad 1989 CLC 1410 and Mithoo v. Member, Board of Revenue, Punjab, Lahore and 7 others PLD 1988 Lah. 277 in support of the aforenoted contention. In the first judgment, it was held that a co-owner cannot be ejected by another co-owner without filing a suit for partition while in the second judgment, it was held that a tenant in possession who later purchases the share in the Khata becomes a co-owner in possession. To my mind, none of the said judgments are attractive to the facts of this case. It is true that in the column of ownership, the petitioner is one of the co-owners. However, the said specific Khasra number is in a Hisadari possession of the respondents and the petitioner is a tenant under them subject to payment of produce. This concept is wholly different from a tenant in possession later purchasing share in the Khata. Here the possession of the petitioner is not relatable to his holding any share in the joint Khata but his possession is under the respondents who are in Hisadari possession of the said specific Khasra number in the joint Khata. Needless to state that the entry is not at all being questioned by the learned counsel rather is being relied upon by him. This being so, the petitioner by all means is a tenant under the respondents who are in Hisadari possession through him subject to the terms of the tenancy. He has, therefore, rightly been ordered to be ejected.

4. So far as the said first contention of the learned counsel is concerned, nothing turns on the same as the said Rule 2 since stands amended with effect from 16-8-1978 and by virtue of the said amendment the suit is to be filed in the Court of a Sub-Divisional Collector. The notification is published as PLD 1978 Punjab Statute

74. Learned counsel contends that this, in fact is an amendment in the Punjab Land Reforms (Procedure for Ejectment Suits) Rules, 1977. It is so mentioned in the said notification but apparently it is a clerical error. The reason being that the Punjab Land Reforms (Procedure for Ejectment Suits) Rules, 1977, were promulgated on 19-1-1977 whereas the notification is dated 16-8-1978. It is but obvious that the said Rules were applicable and were to be amended.

5. No other point has been urged. The writ petition is without any force and is accordingly dismissed but without any orders as to costs. M.H./H-5/L Petition dismissed.