2011 SCMR 743 (PLP)

IJAZ-UL-HASSAN, J.

The above captioned appeals, by leave of the Court, arise out of a common judgment passed by a learned Division Bench of the High Court, of Balochistan, Quetta dated 5-4-2004 whereby C.P. No. 713 of 2000 was allowed and orders dated 24-9-1999, 15-3-2000 and 12-8-2000 passed respectively by Assistant Commissioner/Collector Sub-Division, Pishin, Additional Commissioner, Quetta and Senior Member Board of Revenue, Government of Balochistan, were declared illegal and without jurisdiction and resultantly set aside.

2. Shortly narrated the facts relevant for the disposal of instant appeals are, that Syed Muhammad Hussain Shah appellant moved an application before Deputy Commissioner, Pishin for ejectment of Abdul Qayyum and his brothers, respondents from suit property, bearing Khasra No.150, in Mouza Sharan Karez, alleging that respondents were inducted in suit property as "Bazgers" and later on relieved from the tenancy but they declined to vacate the houses given to them for residential purposes. The application was strongly resisted. Record reveals that an inquiry was conducted in the matter by Tehsildar concerned and in the light of the report, respondents were directed to vacate the premises in their possession. The said order was challenged before Additional Commissioner, Quetta who dismissed the same vide order dated 9-9-1998. The Revision petition was filed before Senior Member, Board of Revenue Balochistan, Quetta, which was also dismissed vide order dated 2-1-1999. The matter was taken to the High Court through Constitutional Petition No. 16 of 1999 on the basis of which orders passed by Official Respondents were set aside and case was remanded to the Deputy Commissioner, Pishin with direction to send the file to Revenue Court, having jurisdiction, for disposal in accordance with law. Resultantly, vide order dated 24-9-1999, respondents were ordered to vacate the premises in their possession. An appeal was preferred thereagainst before Additional Commissioner, Quetta, which was dismissed vide order dated 12-8-2000. The matter was assailed before Senior Member, Board of Revenue Balochistan, Quetta, which met the same fate vide order dated 12-8-2000 giving rise to the filing of C.P. No.713 of 2000 before the High Court of Balochistan, Quetta, which was allowed vide judgment dated 5-4-2004 impugned herein.

3. We have heard Mr. Kamran Murtaza, Advocate for the appellant as well as Mr. Iftikhar-ul-Haq, Advocate, representing the private respondents. We have also gone through the available record with their able assistance.

4. Learned counsel for the appellant reiterated the arguments on which leave to appeal was granted by ,this Court on 25-11-2004 and attempted to argue that controversy regarding jurisdiction, having been resolved in the first round of litigation between the parties, when the matter was remanded to the Collector with the consent of the parties, this ground was not available to the other side to non suit the appellant but learned Division Bench in the High Court, failed to consider this aspect of the case, resulting in complete failure of justice. The learned counsel also submitted that the law on the point has been misapplied and misinterpreted and evidence on record has not been appreciated in a legal fashion.

5. Learned counsel for the private respondents, on the contrary, refuted the arguments of learned counsel for the appellant and supported the impugned judgment on all counts, asserting that, learned High Court has discussed all aspects of the case, considered and appreciated the entire evidence and there are concurrent finding of facts arrived at by the forums below, justifying no interference by this Court. To substantiate the contentions, reliance was placed on Muhammad Hussain and another versus Muhammad Shafi and others, (2004 SCMR 1947), Mukhtar Ahmad and another versus Rana Ghulam Rasool, (2004 SCMR 407).

6. A perusal of the record would reveal that in consequence of application moved by the appellant before Deputy Commissioner, Pishin, seeking ejectment of respondents, from houses in question, an inquiry was conducted by Tehsildar, Pishin. The report of the Tehsildar dated 12-5-1998 indicates that the houses under reference were situated in `Abadi Deh' and as such do not fall within the meaning of `land' as defined in Balochistan Tenancy Ordinance, 1978. In the instant case, the only question requiring determination would be, whether the respondents are liable to be ejected from the houses in dispute under the Balochistan Tenancy Ordinance, 1978, after they ceased to be tenant on the lands owned by the appellant? Section 33 of the Ordinance (ibid) provides that a suit for ejectment by a landlord against a tenant shall be filed in a revenue Court of an Assistant Collector of Ist grade under section 44 of the Ordinance a tenant at will shall be liable to ejectment from his tenancy on any of the grounds mentioned in the Section. The word "tenancy: has been defined in section 2(8) as under:-- "Tenancy means a parcel of land held by a tenant of landlord under one lease or one set of condition".

7. Needless to add that the landlord can invoke the jurisdiction of revenue Court under the Balochistan Tenancy Ordinance, 1978 for ejectment of the tenant from tenancy in respect of land which is occupied or has been let for agricultural purpose and it also includes the sites of buildings and other structure on such land but does not include site of any building in a town or village. In the instant case, the houses in question are not situated in the land which was let for tenancy to the respondents or occupied by them under the tenancy but are situated in `Abadi Deh' thus could not be termed as part and parcel of the tenancy giving jurisdiction to revenue Court to initiate ejectment proceedings under the Balochistan Tenancy Ordinance, 1978.

8. Adverting to the contention of learned counsel for the appellant that the issue of jurisdiction was decided by High Court in C.P. No.16 of 1999, as such, it could not be reopened and pressed into service, it may be observed that from the contents of the application filed by the appellant it was not clear that the houses in question were situated in `Abadi Deh' and not in the land let for tenancy to the respondents. In the said application, it was averred that the respondents were inducted as tenants/bazgers in the land of the appellant but they failed to vacate the houses in their possession. After remand a specific objection to the jurisdiction of revenue Court was taken and agitated before the appellate and revisional forum. In fact the case was sent for adjudication to the revenue Court having jurisdiction under the Balochistan Tenancy Ordinance, 1978 with consent of parties but such consent does not confer jurisdiction on the sub-ordinate Revenue Court, which has otherwise no jurisdiction in the matter in view of the admitted position that the houses in question were situated in a village and was not a site of building occupied on the land of tenancy let' for agricultural purposes, when a Court suffers jurisdiction, no amount of consent or acquiescence in the proceedings can invest such Court with such jurisdiction. No question of estoppel is attracted in such circumstances.

9. This Court does not interfere with findings of facts reached by primary Courts or High Courts. It is established that findings of the Courts below are, on the whole, reasonable and are not arrived at by disregarding any provision of law or any accepted principle concerning appreciation of evidence. Burden lay heavily on the appellant to show that the concurrent findings recorded by the Courts below are not sustainable but he has improbably failed to discharge the same as held by this Court in Abdul Ghaffar v. The State, (PLD 2007 SC 467), wherein it was observed: "This Court does not, normally, go behind the concurrent findings of fact recorded by the Court's below unless it can be shown that the finding is on the face of it against the evidence or so patently improbable or perverse that to accept it could amount to perpetuating a grave miscarriage of justice or if there has been any misapplication of principle relating, to appreciation of evidence, or finally, if the finding could be demonstrated to be physically impossible."

10. Having considered the matter from all angles in the light of material on file, we find that the impugned judgment is unexceptional. The High Court has examined, scanned and scrutinized each material piece of evidence and arrived at a definite conclusion with reasons based upon the facts on record. Learned High Court has discussed all aspects of the matter and assigned cogent and sound reasoning before arriving at the conclusion. Neither any misreading or non-reading of the evidence on record nor any infirmity legal or factual, has been pointed out in the impugned judgment. We are of the view that impugned judgment of the High Court is plainly correct to which no exception can be taken.

11. Pursuant to above, finding no merit in these appeals, we dismiss the same with no order as to costs. M.A.K./M-95/SC Appeals dismissed.