1985 PLP 1438 (SCMR)

Nemo for Respondents. Date of hearing: 17th April, 1985. MIAN BURHANUDDIN KHAN, J .‑‑By this petition leave is sought to appeal against the judgment and order of a learned Division Bench of the Peshawar High Court, dated 21‑1‑1985 in Writ Petition No.200 of 1981.

2. Petitioner is a lessee of agricultural land owned by respondent No.l on the basis of a lease‑deed, dated 15‑6‑1970. Respondent filed a suit for ejectment on the grounds of arrear of rent, damages for illegally cutting the trees and building three houses by using the timber belonging to the respondent and for the rent of these three houses and in the alternative demolition of the said houses. The petitioner contested the suit on various grounds and averred in his written statement that the trees were planted by him and he has cut the same with the permission of the landlord to build two Katcha Kothas inside the boundary wall of an existing house and a Ghani sugarcane crushing machine for agricultural purpose. He further alleged that the respondent had also taken his share of the trees. Parties led their evidence before the trial Court. Consequently, decree for ejectment was passed in favour of the respondent.

3. Petitioner filed an appeal which was partially accepted by the learned Collector vide judgment and decree, dated 2‑3‑1978 and ordered the trial Court to assess the damages caused to the respondent for cutting the trees and building of additional Kothas. Petitioner filed a revision petition against the said order of ejectment which was accepted on 11‑10‑1978 and the case was remanded for appointment of a Commissioner to assess the value of the Kothas after the inspection of the spot. After remand, the trial Court reported that additional Kothas had been built on the land which were not necessary and that the cost of the construction of the Kothas amounted to Rs.2,500 and order of ejectment was maintained vide order, dated 30‑4‑1979 awarding Rs.2,500 as compensation for the improvement to the petitioner.

4. Aggrieved from the aforesaid order, dated 30‑4‑1979 the petitioner filed an appeal before the Collector, a revision before the Additional Commissioner and a further revision before the Board of Revenue but all of these were dismissed vide order, dated 26‑9‑1979, 15‑11‑1980 and 18‑2‑1981 respectively. Petitioner thereafter filed a writ petition in the Peshawar High Court which was also dismissed vide the impugned order.

5. Learned counsel contended that the claim of the petitioner for compensation regarding cutting down trees, rent for the Kothas and demolition of the Kothas has been turned down by all the Courts and as such the ejectment which has not been prayed for, was totally without jurisdiction; that the respondent /landlord never asserted that the petitioner had violated the provisions of any law thereby forfeiting the tenancy or lease rights, and, therefore, the Courts below had no justification in making a new case for the respondent; that it was not alleged by the respondent at any stage of the proceedings that the nature of the land or purpose of agriculture had been changed by the petitioner and the land had been converted to non‑agricultural use; that the Kothas constructed by the petitioner were Ktacha and removable and were constructed only because these were necessary for the maintenance of the family of the petitioner who all were helping him in the agricultural pursuits; that none of these Kothas was outside the boundary wall of the existing house. He lastly contended that the order of the ejectment is against the provisions of paragraph 25 of M.L.R.115 and the Tenancy Act, and the orders of the revenue authorities were against the pleadings of the parties and the evidence led by them; that the respondent had been renewing the lease from year to year and thereby he has waived his right of ejectment. Inter alia we grant leave to consider the points raised by the learned counsel. Security rupees one thousand. Status quo order to continue till the final decision of the appeal which shall be prepared on the present record with liberty to the parties to file additional documents, if desired, and the appeal shall be heard at Rawalpindi. M.I.???? ?????????????????????????????????????????????????????????????????????????????????? Leave granted.