P L D 1964 (W (PLP)

Nasir Shahmir for Petitioners. Ibrahim Abbasi for Respondents Nos. 2 and

3. Naimuddin for Respondent No.

1. Date of hearing : 19th May 1964. This revision application is directed against the order of the Collector of Lasbella District dated 7‑12‑1963, by which the Collector has upheld a previous order of the Assistant Collector, Lasbela District, dated 5‑8‑1963.

2. In view of the preliminary legal objection as to the maintainability of this revision application raised by Mr. Naimuddin appearing on behalf of the respondent No. 1 it becomes unnecessary to set out in this order with any detail the acts giving rise to this matter. It would suffice to say that the dispute between the parties relates to eleven pieces of land situated in village Mawali, Tehsil Hab Naddi, District Lasbela. The applicants lay claim to have inherited this land from their ancestors and to have been in possession thereof for several years. On the other hand, the respondents 2 and 3 lay a similar claim to this land and as a result of this dispute there was a criminal case between the parties filed by the respondents 2 and 3 against the applicants under sections 506, 441 and 425, P. P. C. which ended in a discharge. Thereafter, proceedings under section 145, Cr. P. C., were initiated and on 26‑I1‑1962, an order was passed by the Magistrate concerned restoring the possession of this land to the applicants. On 3‑4‑1963, the respondents 2 and 3 filed an application under section 50 of the Punjab Tenancy Act (XVI of 1887), which was heard by the Assistant Collector who on 5‑8‑1963, passed an order under section 5 (1) (a) of Act XVI of 1887, declaring that the respondents were occupancy tenants of these lands. The applicants aggrieved by this order prefer red an appeal under section 80 of the same Act before the Collector of Lasbela District which appeal, as pointed out above, was dismissed by that officer on 7‑12‑1963. It is as against this appellate order of the Collector dated 7‑12‑1963, that the present revision application ]has been filed in this High Court.

3. On these facts, Mr. Naimuddin appearing on behalf of the Collector of Lasbela respondent No. 1 has raised a preliminary objection as to the maintainability of this revision application. He has argued that this Court has no jurisdiction to entertain this revision application for three reasons: (i) that the applicants having accepted, as it were, the applicability to this case of the Punjab Tenancy Act, 1887, by contesting this matter before the Assistant Collector and thereafter by filing an appeal under section 80 before the Collector should exhaust the remedy available to them of a revision under section 84 of the said : Act to the West Pakistan Board of Revenue; (ii) that the jurisdiction of the Civil Court is barred by reason of section 77 (3) of this Act XVI of 1887, and, (iii) that the Collector as a revenue authority is not a Court subordinate to this High Court under section 115, C. P. C.

4. Elaborating these three objections taken by him Mr. Naimuddin has submitted, in the first instance, that the appli cants have, in this revision petition, mainly contended that the Punjab Tenancy Act is not applicable to the facts of this case and that in view of the fact that they have themselves by their appeal to the Collector under section 80 submitted to the applicability 'of the Punjab Tenancy Act and to its provisions, they are now precluded from contending that this Act does not apply to the facts of this case. I have examined the provisions of this Act and, in particular, the provisions of section 80 and section

84. To me it is plain that section 84 follows section 80 and provides for a revision to the West Pakistan Board of Revenue in cases where a party is aggrieved by an order made under section

80. Inasmuch, therefore, as the applicants have, admittedly, proceeded under section 80 and filed an appeal against the order of the Assistant Collector of 5‑8‑1953, before the Collector of Lasbela District, they cannot now be heard to say that this Punjab Tenancy Act is not applicable to Baluchistan and, therefore, to bring this present revision application.

5. On the question of the applicability of the Punjab Tenancy Act, 1887, to Baluchistan Mr. Naimuddin has produced before me a copy of Notification dated 9‑3‑1955, issued by the Secretary to the Council of Rulers, Baluchistan States Union. He has also placed before me the ruling of a Division Bench of Inamullah and Munshi, JJ., in the case of Hameed and another v. Gul Muhammad (P L D 1958 Quetta 34), in which their Lordships have upheld the validity of this particular notification. Under this notification, the Punjab Tenancy Act XVI of 1887, is declared as applicable to the Baluchistan States Union and since the vires of this notification has been upheld by a Division Bench of this High Court sitting singly as I am. I am bound by that ruling and, therefore, am compelled to hold that the Punjab Tenancy Act has rightly been applied to the facts of this case.

6. With regard to the second contention of Mr. Naimuddin I observe that section 77 (3) of this Punjab Tenancy Act expressly excludes the jurisdiction of the Civil Courts in regard to suits by a tenant under section 50 for the recovery of pos session or occupancy or for compensation or for both. A glance at sub‑clause (g) appearing in the second group under subsection (3) of section 77 makes this position perfectly clear. As a result, then, of the provisions of section 77 (3) I am bound to hold that the jurisdiction of a Civil Court is barred in a suit under section 50 of the Punjab Tenancy Act.

7. In support of this third contention Mr. Naimuddin has invited my attention to section 3 of the Code of Civil Procedure which sets out the hierarchy of Civil Courts. From a perusal of this section it is perfectly manifest that the Collector as ah Revenue Officer is not a Court that is subordinate to this High Court.

8. Mr. Nasir Shahmir appearing on behalf of the appli cants in reply to the preliminary point raised by Mr. Naimuddin has argued that the original application under section 50 made by the respondents to the Collector was time barred in that it was made after more than the prescribed period of one year mentioned in that section. The learned Advo cate for the applicant had submitted that under section 99 of the said Act it was incumbent upon the Assistant Collector, in the first instance, and the Collector before whom the appeal was filed to refer this matter to the District Judge or Commissioner as provided for by this section. Since this has not been done Mr. Shahmir submitted that the present revision application must be considered as an application to this Court under section 99 of the said Act. Now, it seems to me, that is a much belated argument. Surely, if the applicants had felt at the time that they were summoned before the Assistant Collector in response to the application made by the respondents 2 and 3 under section 50 that the Assistant Collector had no jurisdiction to hear the matter, it was their duty there and then and at that time to have objected to the jurisdiction of the Assistant Collector. The facts show that neither before the Assistant Collector nor in appeal before the Collector had the applications at any time urged this objection of time‑bat. Therefore, not having done so at the appropriate time I cannot permit them at this very late stage to raise this objection.

9. In conclusion, then, I find that there is a great substance in the preliminary objection raised by Mr. Naimuddin and accepting his arguments I hold that this revision petition is incompetent and, accordingly, should be dismissed but with no order as to costs. Mr. Naimuddin appearing on behalf of the res pondent No. 1 claims costs as also does Mr. Abbasi appearing on behalf of the respondents Nos. 2 and

3. But, in view of the facts of this matter I do ‑not think that this is a fit case in which costs should be allowed. S. Q. Petition dismissed.