1990 PLP 404 (SCMR)

Nemo for Respondents. Date of hearing: 8th October, 1989. S. USMAN ALI SHAH, J.‑‑Leave to appeal has been sought by the petitioners against the judgment of the Peshawar High Court, Circuit Bench, Abbottabad, dated 30‑11‑1988, arising out of litigations between the parties regarding land measuring 98 kanals bearing Khasra No.161, situate in village Sarbangla, Tehsil and District Abbottabd. The petitioners purchased the said land from one Muhammad Aslam vide Mutation No.428 attested on 11‑4‑1970. The respondents claimed that they were the to ants‑at‑will and remained in possession of which from the time of their ancestors. The petitioners entered into possession of the land in dispute in 1974 and a complaint under section 447/379/34, P.P.C. was lodged by the respondents in the Court of a Magistrate which was dismissed on 9‑3‑1976. The respondents filed a civil suit under section 9 of the Specific Relief Act for possession of the said land before the Senior Civil Judge who vide his order dated 25‑7‑1977 dismissed the same on the ground of limitation and for want of jurisdiction. Civil appeal of the respondents before the District Judge was allowed on 3‑4‑1978, accepting the contention of the respondents that in the circumstances plaint should have been returned for presentation in the proper Court without deciding the point of limitation. The point of jurisdiction was not questioned in the said order. The respondents then filed a suit in the Civil Court instead of Revenue Court. The same was returned to the respondents vide order dated 20‑10‑1981 and against which the respondents filed appeal before the District Judge who vide his judgment dated 14‑4‑1983 accepted the appeal and granted a decree for possession to the plaintiffs/respondents herein. The petitioners filed civil revision against the said order of the District Judge which concluded on difference of opinion of the learned Judges of a Division Bench of the High Court and the matter was referred to another Judge who vide impugned judgment dismissed the civil revision of the petitioners. We have heard the learned counsel for the petitioners and have gone through findings of the Courts below. The learned counsel says that neither in the Peshawar and Lahore High Courts nor in the Supreme Court any case is available m which the tenant‑at‑will has filed a suit against his dispossession or ejectment in the Civil Court or Revenue Court. In this particular case there is a difference of opinion on this point of the learned Judges of the High Court which needs consideration and an authoritative pronouncement of this Court. Leave to appeal is granted. Security for costs in the sum of Rs.5,

000. Appeal is to be made ready on the present record, however, the parties are allowed to file additional documents, if any. Status quo is to continue subject to furnishing security for compensation for use and occupation of the disputed land from the date of impugned judgment to the satisfaction of the Deputy Registrar (Judicial) of this Court. M.B.A./S‑473/S ???????????????????????????????????????????????????????????????????????????????? Leave granted.