2016 PLP 2803 (YLR)

WAHEED AKHTAR ANSARI, MEMBER (JUDICIAL-III).

This revision petition has been filed against order dated 02.11.2015, passed by learned Additional Commissioner (Consolidation), Multan Division, Multan, whereby appeal of the present petitioner was dismissed.

2. Arguments heard and record perused.

3. Learned counsel for the petitioner argued that respondent submitted an application to learned Tehsildar for ejectment of the petitioner from the land measuring 379-kanals, 1-marla, situated in Mauza Jamrani Wah, Tehsil Karor Pakka, District Lodhran. In the said application, contention of the respondent was that the petitioner is tenant-at-will of the respondent, but he was not paying due share of produce to the respondent and not cultivating the disputed land properly. The Tehsildar vide order dated 13.02.2014 passed decree against the petitioner. That order was challenged by the present petitioner through appeal filed in the court of learned Assistant Commissioner, Karor Pakka, which was dismissed vide order dated 14.06.2014. Thereafter, revision petition of the petitioner was also dismissed on 02.11.2015. The petitioner is in cultivating possession of the said land for the last 30 years. The ejectment proceedings can only be initiated if the tenant did not pay share of produce to the owner. The respondent is living in England for the last 45 years. Therefore, he could not cultivate the land in question, himself. Moreover, the petitioner has been regularly paying due share of produce to the respondent. The petitioner duly paid cheque for Rs.5,20,192/- to the respondent, therefore, the respondent cannot claim that his share of produce has not been paid. Similarly, no proof for non-payment of the share of produce to the respondent by the petitioner is available on record. Learned lower courts did not keep these important and essential facts of the case in mind while passing the impugned orders. Those orders were passed without obtaining evidence which was necessary to arrive at a right and fair conclusion. Finally, it was prayed that the revision petition may be accepted.

4. Learned counsel for the respondent contended that the petitioner is real brother of the respondent. The respondent is owner of the land in question and petitioner has been cultivating the same for the last so many years as tenant at will. The petitioner was cultivating the land in question improperly and also was not paying due share of produce to the respondent since year 2008. Then, the respondent submitted an application to learned Tehsildar for ejectment of the petitioner from the said land. The Tehsildar after observation of codal formalities, hearing contention of the parties and consultation of record passed decree of ejectment in favour of the respondent. The petitioner filed appeal and revision petition before learned lower courts, which were rightly dismissed. Actually, the petitioner is gaining undue benefit from the land owned by the respondent. It is well settled principle of law that no one should be deprived of his legal and lawful right. The petitioner did not produce any convincing documentary evidence with regard to rebuttal of respondent's ownership of the land in question either before learned lower courts nor before this Hon'ble court. No irregularity or illegality has been committed in the impugned orders passed by learned lower courts which are valid in the eyes of law. Lastly, it was prayed that the revision petition may be dismissed.

5. I have considered the arguments advanced by learned counsel for the parties and also gone through record of the case. Brief of the matter is that the respondent submitted an application before Tehsildar, Karor Pakka for ejectment of the petitioner from land owned by the respondent measuring 379-kanals, 1-marla, situated in Mauza Jamrani Wah, Tehsil Karor Pakka, District Lodhran. The said application was accepted and decree for ejectment dated 13.02.2014 was passed in favour of the respondent. Feeling aggrieved by the order, the present petitioner filed an appeal before learned Assistant Commissioner, Karor Pakka, which was dismissed vide order dated 14.06.2014. The concluding para reads as under:--

6. Being dissatisfied with that order, the present petitioner preferred a revision petition in the court of learned Additional Commissioner (Consolidation), Multan Division, Multan, which was dismissed vide order dated 02.11.2015. The operative part of the order is reproduced hereunder:--

7. The crux of the issue is that the petitioner and respondent are real brothers. The respondent used to live in United Kindom and in his absence his brother, the present petitioner used to cultivate his land. Now the respondent wants to take his land back. So the issue cropped up.

8. The petitioner contends that ejectment proceedings initiated under Section 45 of Punjab Tenancy Act, 1887 were finalized against him despite the pendency of suit under Section 45(5) of Tenancy Act 1887. Further the allegations leveled against him by the respondent that he is damaging the quality of land by not cultivating the same and not paying Hisa Pedawar are baseless. As, he is continuously cultivating the land and also paying Hisa Pedawar regularly. On the other hand, respondent contended that in terms of rule 7 of Punjab Land Reforms (Procedure for Ejectment Suits) Rules 1977, the present petition is not maintainable. The court of Commissioner was the final court of competent jurisdiction to hear the appeal, as the original order was passed by Assistant Commissioner, Kehror Pacca. Responding to such contentions of the respondent, the petitioner responded as per Section 84 of Punjab Tenancy Act 1887, the Board of Revenue has been empowered to take cognizance of the issue. Such position is still there even after the issuance of above referred rules. So, rules referred to above are not relevant and revision before this Hon'ble court has rightly been filed. Further stated that the "Hisa Pedawar" has been paid upto Rabi 2014 and there is no default on the part of petitioner. Regarding reasonability of amount of payment paid as "Hisa Pedawar", it was contended that no such question of reasonability arises as no terms of tenancy have been settled between the parties.

9. It was further contended that after year 2013 nothing has been paid despite the fact that the Tehsildar has also determined the Hisa Pedawar for crop Rabi 2014 as Rs. 4,14,412/50. It was also contended that for such a huge piece of land, amount of "Hisa Pedawar" paid to the respondent is quite minimal. The petitioner has admitted in his suit for defence that he paid the amount of "Hisa Padawar" with the following details.

10. Firstly, the question of maintainability is dealt with. The current issue is to be adjudicated under relevant provisions of Punjab Tenancy Act, 1887. Learned counsel for the respondent has referred to Rule 7 of Rules 1977, which reads as under:-- "Appeal and Revision. (I) An appeal may be filed within fifteen days of the order of the Assistant Collector of the First Grade before the Collector whose order shall be final. (2) The Commissioner may at any time of his own motion or on a petition, made in that behalf to him by any aggrieved tenant within fifteen days of the impugned order, call for the record of any case disposed of by or proceedings pending with any Assistant Collector of the First Grade or a Collector subordinate to him. (3) If after examination, the Commissioner is satisfied that it is a fit case to interfere with the proceedings or the order of decree, he shall within period of thirty days of calling for the record under the proceeding sub-rule (2), pass such order a she deems fit, after due notice to the parties likely to be affected. (4) the order passed by the Commissioner in revision shall be final.

11. Learned counsel for the petitioner has referred to Section 84 of Punjab Tenancy Act, 1887, which reads as under:-- "Power to call for, examine and revise proceedings of Revenue Officers and Revenue Courts.

(1) The Board of Revenue may at any time call for the record of any case pending or disposed of by any Revenue Officer or Revenue Court subordinate to him. (5) If, after examining the record the Board of Revenue is of opinion that it is expedient to interfere with the proceedings or the order or decree on any ground on which the High Court in the exercise of its revisional jurisdiction may decree of a Civil Court, it shall fix a day of hearing the case, any subsequent day to which it may adjourn the hearing or which he may appoint in this behalf, pass such order as it thinks fit the case. (6) Except when the Board of Revenue fixes under subsection (5) a day for hearing the case, no party has right to be heard before the Board of Revenue when exercising its powers under this section.

12. From the above, it becomes clear that such provision, which empowers Board of Revenue to take cognizance of such matters, is still intact. It is settled principle of law that provisions of enactment are always superior to the rules made thereunder. Second issue is allegation of default on the part of petitioner. The details of payment mentioned in suit for defence by the present petitioner (para 09 of this order refers) are quite relevant. Mere perusal of such details shows that the amount of "Hissa Padawar" paid to the respondent from time to time varies considerably. Sometimes, it seems handsome and some time is quite meager. Further, the payments have not been made regularly. At one time, it is made just after harvesting the crop and on other occasion a delay of about two years even. No payment have been made after year 2013 on the pretext of litigation. So, it is established that the petitioner has clearly defaulted to the minimum from year 2013 despite the fact that amount of Hissa Pedawar was determined by the Tehsildar in consequence of application of present respondent.

13. The third issue is of pendency of suit filed by the present petitioner under Section 45(5) before Assistant Commissioner, Kehror Pacca. It is noted that order of ejectment was passed on 13.02.2014. Upon query, none of the party could mention the next date of hearing of such suit, which strengthens the contention of the respondent that such suit is not pending and has been disposed of in single order dated 13.02.2014 passed by Tehsildar/AC-I, Kehror Pacca. The perusal of such order and subsequent orders passed by learned Assistant Commissioner and Additional Commissioner (Consolidation), Multan Division, Multan, shows that the matter has been disposed of comprehensively after examining all aspects of the issue.

14. In the light of above discussion, it appeared that impugned orders are quite lawful and needs no interference. Hence, the revision petition is dismissed and impugned order dated 02.11.2015, passed by learned Additional Commissioner (Consolidation), Multan Division, Multan, is upheld.

15. The order in this case was reserved on 26.11.2015 and is being announced today i.e. 30.11.2015. HBT/5/Rev. Petition dismissed.