2010 PLP 1152 (MLD)

MAZHAR ALAM KHAN MIANKHEL, J.

Petitioners herein have impugned the decree/orders of the revenue hierarchy through the instant writ petition whereby ejectment of the petitioners from the suit-land was ordered except the order, dated 28-8-2008 of District Collector who had adjourned appeals sine die and directed the respondents to seek declaration of title from a competent civil Court.

2. Learned counsel for the petitioners submitted that as question of title was involved in the case and the learned District Collector had rightly directed the respondents to approach the civil Court for proving their title in the property as relationship of landlord and tenant was denied by the present petitioners by claiming themselves to be the owners of the property. He further contended that under the N.-W.F.P. Tenancy Act, 1950, no second appeal is competent, so the appeal of the respondents before Presiding Officer, Revenue Appellate Court was not competent. Thus the findings arrived at by the D.D.O.R. Judicial as well as the Revenue Appellate Court and the Board of Revenue are against law and are liable to be set aside.

3. On the other hand, the learned counsel for the respondents submitted that the petitioners had frivolously denied the relationship of landlord and tenant which existed between the parties and the learned D.D.O.R. Judicial had correctly observed about the existence of the same and thereby decreed the suit of the respondents for ejectment of the petitioners. He further contended that the findings of District Collector were against the record and law on the subject and requested for dismissal of the writ petition.

4. We have heard the learned counsel for the parties in detail and have perused the record carefully.

5. A suit for ejectment as well as recovery of produce was filed by the respondents against the present petitioners wherein the petitioners by categorically denying the relationship of landlord and tenant between them have claimed their ownership of the property on the strength of a sale/receipt, dated 2-6-1986 from one Abdul Hamid Khan son of Abdur Rashid Khan. The same was partially decreed to the extent of ejectment whereas rest of the claim of the respondents was denied. Appeals there-against of both the parties to the District Collector were adjourned sine die with the direction to the respondents to approach the Civil Court for a declaration of title of the suit property. This order of the Collector was again impugned before the Presiding Officer, Revenue Appellate Court No.3, Swat a Saidu Sharif, by the respondents through an appeal which was allowed and the share of produce was also decreed in their favour against which present petitioners approached the Senior Member Board of Revenue through revision petition which was dismissed.

6. When the petitioners had categorically denied the existence of relationship of landlord and tenant and thereby had claimed it to be their own property, then under the law, the respondents were required to prove their title to the suit property and that was only possible through a decree of a competent civil Court and the revenue Courts in this regard have no jurisdiction. The record of the case would reveal that the matter I was not properly dealt with by the trial Court i.e. D.D.O.R. Judicial and the Presiding Officer of the appellate Court as well as Revenue Board. Under the law, the Collector had rightly directed the respondents to seek the declaration of title of the suit property from a competent civil Court.

7. As far as the argument of learned counsel for the petitioners that second appeal to the Commissioner Revenue Appellate Court was not competent appears to be misconceived. No doubt, in proceedings under the West Pakistan Land Revenue Act, 1967, no second appeal is competent but in proceedings under N.-W.F.P. Tenancy Act, 1950, second appeal to the Commissioner/Revenue Appellate Court is competent if the decree or order of the original Court is not confirmed in an appeal before the District Collector. So, in this view of the matter, the contention of the learned counsel holds no legal ground. The jurisdiction of appeals has been provided in section 52 of N.-W.F.P. Tenancy Act, 1950 which is reproduced:- "

52. Appeals.

Subject to the -provisions of this Act, and the rules thereunder, an appeal shall lie from an original or appellate order or decree, made under this Act, by a Revenue Officer or Revenue Court, as follows, namely:-- (a) to the Collector when the order or decree is made by an Assistant-Collector of either grade; (b) to the Commissioner when the order or decree is made by a Collector: Provide that when an original order or decree if confirmed on first appeal, a further appeal shall not lie."

8. So in this view of the matter, we are constrained to allow the present writ petition as the question of title is there and the same could only be determined by a competent civil Court. So, the judgment/orders of the ejectment of the petitioners are hereby set aside and that of the District Collector, dated 28-8-2008 is hereby restored. The respondents may approach the competent civil Court to get a declaration of title regarding the suit property if need be. A.R.K./141/P Petition dismisse