2023 PLP 759 (MLD)

FAZAL SUBHAN, J.

This civil revision petition under section 115 of Civil Procedure Code, 1908 is directed against the judgment/order and decree dated: 06.10.2021 passed by learned Civil Judge-II, Balakot, whereby, plaint of petitioner was rejected and that of Judgment/order dated: 14.12.2021 passed by learned Additional District Judge, Balakot, vide which, the appeal (No. 50/13 of 2021) of petitioner was dismissed.

2. Facts of the case in brief are that petitioner Rashim Khan son of Gulab instituted a suit for permanent injunction and possession in respect of the property mentioned in the headings of plaint. Respondents were summoned, who appeared before the Court. Respondent No. 1 submitted written statement, while respondents Nos. 2 and 3 relied upon written statement of respondent No.1. Along with written statement, respondent No. 1 filed an application under Order VII, Rule 11 of Civil Procedure Code, 1908 for rejection of plaint. Petitioner/plaintiff filed reply and after hearing arguments of learned counsel for parties, the learned trial Court while accepting the application rejected the plaint of petitioner/plaintiff on 06.10.2021.

3. Aggrieved from the order of learned trial Court, petitioner preferred an appeal, which was dismissed by the learned Appellate Court/Additional District Judge, Balakot, District, Mansehra vide its judgment dated: 14.12.2021. Being aggrieved from the judgments/orders of both the Courts below, the petitioner has filed instant revision petition.

4. Arguments of learned counsel for parties heard and record perused.

5. Perusal of record depicts that petitioner instituted a suit for permanent injunction and in alternate for possession, contending therein that his father Gulab and uncle Shah Zaman were recorded as "Ghair Dakheelkar" tenant-at-will in the suit property and after demise of his father and uncle, he being the sole surviving legal heir, is in possession as such. He also alleged to be owner of 13 marlas through purchase and has built his house thereon. That in the year 2018 respondent No. 1 instituted a suit and during pendency of suit, he was taken to Court premises where he was made to sign some papers and then he left but sometime later, the local police came to the suit property, pressurized him to vacate the property and was also kept in a lockup. It was alleged that the respondent No.1 in bent upon to evict him from his land without due course of law.

6. From the revenue record placed on file, the stance of petitioner as "Ghair Dakheelkar" or tenant- at-will is established and the respondents have not denied the tenancy rights of the petitioner thereon.

7. In the previous suit No. 121/1 of the year 2018 filed by respondent No. 1 against the present petitioner, parties entered into a compromise and in light thereof, suit was disposed of in view of the terms mentioned therein. Through the said compromise, which is still intact, exchange of 13 marlas was made between the parties. Due to admitted position of petitioner as tenant-at-will, he through a suit before Civil Court cannot seek a restraining order against the actual owners for deriving any benefits therefrom, however, if in case of infringement of his rights in respect of tenancy then he can safely resort to relief as contained in section 28 read with section 33 of the Khyber Pakhtunkhwa Tenancy Act, 1950. At the same time, respondents also cannot eject the petitioner without resort to the relevant forum, through petition under section 25 of the ibid Act.

8. It is, therefore, concluded that the two Courts below while passing the impugned judgments have not committed any illegality, irregularity or jurisdictional error, hence, the said judgments are upheld and this revision petition being meritless, stands dismissed. SA/317/P Petition dismissed.