1990 PLP 1636 (CLC)

2. The admitted facts of the cases air, that Usman Ali and others are the owners landlords of the agricultural land in suit and the three petitioners are tenanting the same on their behalf. The landlords/respondents filed suits for the recovery of arrears of rent at the rate of half batai for the period from Kharif, 1.969 to Rabi, 1972 against them and after the usual proceedings in the cases, the learned Assistant Collector Ist Grade, vide his judgment and decree dated 31‑7 1975 decreed the suit of the landlords/respondents at the rate of half batai. Dis satisfied with the same the tenants/petitioners preferred appeals before the Collector and the only prayer made by them was about the amendment of the decree at the rate of 1/4th batai instead of half batai. The learned Collector vide his judgment and decree dated 20‑1‑1980 came to the conclusion that the land revenue and water rate had been paid by the tenants/petitioners regarding the land in question for the disputed crops and, therefore, they were liable to pay the landlords share at 1/4th batai relying on a decision of the Board of Revenue West Pakistan reported as P L D 1965 (Revenue)

56. The landlords feeling aggrieved from the same, filed appeals before the Additional Commissioner, Peshawar who, concurring with the findings of the appellate Court, dismissed the appeals. The landlords/respondents challenged the aforesaid judgments and decrees of the Collector and Additional Commissioner before the Senior Member, Board of Revenue N: W.F.P. Peshawar (respondent No.11 herein) who, vide his judgment and decree dated 14‑12‑1989 accepted the revision petitions, set aside the judgments and decrees of the Collector and Additional Commissioner and restored that of Assistant Collector Ist Grade dated 31‑7‑1975, thereby entitling the landlords/respondents for share of produce at the rate of half batai as per the conclusion of the trial Court. Hence the instant writ petitions calling in question the judgment and decree of the learned Senior Member, Board of Revenue, N. W.F.P. Peshawar dated 14‑12‑1989.

3. We have heard Haji Z. Mafooz Khan Advocate, learned counsel for the petitioners and have perused the available record of the case with his assistance.

4. The learned counsel for the petitioners vehemently argued that under para. 25 of Martial Law Regulation No.115 the payment of land revenue and other taxes, cesses, surcharge and levies on land and water rate are the liabilities of the owner landlord who is also bound to provide seeds to the tenant. However, the costs of fertilisers and pesticides required for the land comprised in a tenancy have to be shared equally by owner and the tenant. According to him the land revenue and water rate was paid by the tenants/petitioners and, therefore, they were not liable to pay at the rate of half batai but could be burdened with the liability of 1/4th batai only. He further submitted that even in the earlier Regulation No.64 of 1959 similar were the obligations of the landlords.

5. In order to comprehend the legal position involved, it is worthwhile to reproduce para. 25 sub paras 2 and 3 (a)(b) (c) of Martial Law Regulation No.115 as follows:‑ "(2) the crop grown at any time during Rabi 1971‑72 on any land comprised in a tenancy shall, on its maturing, be apportioned between the tenant and the landlord in accordance with the law for the time being in force. (3) As from Kharif 1972 (a) land revenue "and other taxes, cesses, surcharge and levies on land shall be payable by the owner; (b) the liability for payment of water‑rate and providing seed for any land shall be that of the owner or other person in possession thereof, other than the tenant; (c) the cost of fertilisers and pesticides required for the land comprised in a tendancy shall be shared equally between the owner and the tenant".

6. We have gone through the earlier Regulation No.64 of 1959 but could not find similar provisions therein. The arrears of rent claimed by the landlords/respondents pertained to the crops Kharif, 1969 to Rabi, 1972 and obviously they were prior to Kharif, 1972 as mentioned in sub para. 3 whereby payment of the Government dues on the land were made the responsibility of the owner‑landlord. Taking this view into consideration the learned Senior Member. Board of Revenue dissented from the view expressed by the lower Collector and Additional Commissioner and by setting aside their judgments and decrees held the landlords/respondents entitled to the rent at the rate of half batai and we do not find any illegality committed by him in the exercise of his special jurisdiction.

7. The petitioners have not filed the copies of the plaint, written statement, issues and the evidence recorded in the cases so much so that copy of the judgment of the trial Court (Assistant Collector Ist Grade) has also not been annexed with the writ petitions, with the result that we are unable to find out as to what particular pleas were raised by the tenants/petitioners and what evidence was produced in support thereof. However, this much is clear from the judgment of the Additional Commissioner dated 14‑9‑1985 that the rate of rent recorded in the revenue record viz. khasra girdawari and jamabandis regarding the suit crops was half batai and this must have been the reason for decreeing the suit at the rate of half batai by the learned trial Court and this might possibly be the cause for withholding the documents and the judgments referred to above. The learned counsel for the petitioners could not show us any law whereby the liability of the tenant is ipso facto reduced to 1/4th batai if he pays the land revenue and water rate. The rates of rent of half batai recorded in the khasra girdawari and the jamabandis were not challenged before the proper forums and in consequence they are presumed to be correct and genuine in the absence of any reliable and convincing evidence in rebuttal which is totally lacking in the cases in hand. Even according to the provision of para. 25 sub‑para. 2 of Martial Law Regulation No. 115 the crop is to be apportioned between the tenant and the landlord in accordance with law for the time being in force. In the absence of any definite legal provision or custom having force of law, the produce have to be divided equally, moreso, when the landlord has been burdened with the payment of Government dues, the providing of the total seeds and half of the manure as well. We are, therefore, of the considered opinion that mere payment of land revenue and water rate cannot absolve the tenant from payment of half batai to the landlord. At the most he can ask for the refund of the actual amount paid by him on behalf of the landlord. The judgments and decrees of the Collector and the Additional Commissioner were based on misreading and non‑reading of revenue record, misinterpretation of the provisions of law and were rightly set aside by the revisional Court (respondent No.ll herein).

8. The upshot of the above discussion is that we do not find any substance in the writ petitions and the same are accordingly dismissed in limine. AA./1021/P Petitions dismissed.