P L D 1953 Peshawar 43 (PLP)

MUHAMMAD SHAN, J.‑‑Khasra Nos. 14 and 907, measuring 488 kanals 15 marlas, belonged to Ghulam Qasim Khan, commonly known as Nawab of Tank. By a deed dated the 6th of June 1944, this land was leased for a period of five years in favour of Gaman Khan defendant No.

1. The amount payable under the deed was Rs, 1,400 per annum, and in case of its non- payment on the due date, interest at the rate of Rs. 12‑8‑0 per cent, per six months. By a lease deed dated 23rd August 1948, the Nawab of Tank released the whole of this land in favour of Sadiq Ali Khan, the plaintiff, and his own son Saadat Khan defendant No.

3. The lease in favour of these two persons overlapped with the last year of the lease granted in favour of Gaman Khan. The rent for this year was thus recoverable not by the Nawab of Tank, but by Sadiq Ali Khan and Saadat Khan. Sadiq Ali Khan has instituted a suit for the recovery of the rent fixed as well as the interest, on the ground that Gaman Khan had not paid it to him or to defendant No.

2. As regards his co‑lessee he alleged in the plaint that his share was paid off by him, and, therefore, he alone was entitled to recover this amount from Gaman Khan. The suit was resisted mainly by Gaman Khan, who inter alia pleaded that in the last year the Nawab of Tank failed to supply him the necessary water, and as a consequence thereof the crop failed. The Nawab of Tank in lieu of the rent took his share of the produce from him and the claim was in that way satisfied. Some other objections were also raised in the case, which are not material now, because they have not been pressed by the learned counsel, appearing for Gaman Khan. Both the Courts below found the case against Gaman Khan, and held that he had paid no produce to either the Nawab of Tank or to his sons, and he was, therefore, liable to pay the amount claimed to the plaintiff. Gaman Khan has come up in revision to this Court. Two objections have been raised by his learned counsel ; first; that the suit was triable by a Revenue Court, and the Civil Court, therefore, had no jurisdiction to grant the decree in favour of the plaintiff, and second that the produce for the year in question had been given to Saadat Khan, the co‑lessor of the plaintiff and the latter was consequently not entitled to reclaim it from defendant No.

1. As regards the first objection, it was not raised in the first Court nor in the second ; it was also not raised in the grounds of revision. i hat however is immaterial. The objection raised for the first time today is that it is a suit which is hit by sub‑clause (k) Third Group of section 49 of the North‑West Frontier Province Tenancy Act, 1950, and is, therefore, triable by the Revenue Court alone. The above provision of law runs as under :‑ "Suit by a landlord for arrears of rent or the money equival ent of rent, or for sums recoverable under section 7". The question is whether the plaintiff by reason of the fact that he had acquired the right of the landlord to recover the rent from I Gaman Khan, becomes a landlord within the meaning of the above section or not. My answer to this question is in the negative. The word "landlord" is defined in the above Act as follows .‑ "landlord means a person under whom a tenant holds land and to whom the tenant is or but for a special contract would be liable to pay rent for that land;" A person, in order to become a landlord, has to fulfil two conditions :‑(1) that a tenant is holding a land under him, and (2) that the tenant is liable to pay the rent for that land to that person. In a case in which a landlord transfers the right to recover the arrears of rent to another person, that other person does not by reason of that fact alone become a person under whom a tenant holds the land. He consequently cannot be called a landlord at all. Since he is not a landlord his suit to recover the arrears of rent will not be barred by the above provision of law. As regards the second objection, there is no proof on this record showing that Gaman Khan gave the produce either to Nawab Qutabud Din Khan or Saadat Khan. The latter appeared in the witness‑box, and stated that the land in dispute was not leased out to the plaintiff, but in the same breath said that the plaintiff and he both had gone to Gaman Khan, and had realized the produce from him. By making this contradictory statement, he has belied himself and has thus become an unreliable witness. Apart from that, he stated that after Gaman Khan gave him and the plaintiff the produce of the land in dispute a receipt was executed by them. This receipt, however, has not been produced by Gaman Khan, nor has it been referred to by him in his statement. No other satisfactory evidence has been produced by Gaman Khan to prove the factum of his giving the produce for the period in question to the lessees or their predecessor‑in -interest. The result is that I see no respondent to disturb the concurrent finding of the two Courts below, which is hereby upheld, and the revision petition is dismissed with costs. Order announced. A. H. Petition dismissed.