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Civil Petition for Special Leave to Appeal No. 73 of 1970, decided on 13th April 1970.
(On appeal from the judgment and order of the High Court of West Pakistan, Lahore, dated the 19th February 1970, in Writ Petition No. 232 of 1970).
Art. 98‑Suit under S. 77(e)(n) of Punjab Tenancy Act, 1887 for ejectment and recovery of batai- No established relationship of landlord and tenant between parties, respondents all along disputing petitioners' title‑Question of title to disputed land seriously in issue‑Decision given by Member, Board of Revenue that matter was fit to be adjudicated by civil Court Held cannot be taken exception to Remedy sought by way of writ entirely misconceived and writ petition, held, rightly dismissed Punjab Tenancy Act (XVI of 1887), S. 77(e)(n).
Raja Said Akbar, Senior Advocate Supreme Court instructed by Maqbool Ahmad Rana Qadri, Advocate‑on‑Record for Petitioners.
Sher Alam, Advocate Supreme Court instructed by Abdul Karim, Advocate‑on‑Record for Respondents Nos. 2 and 3.
Nemo for Respondents Nos. 1 and 4 to 6.
Date of hearing : 13th April 1970.
The petitioners are aggrieved by the decision of a Division Bench of the High Court of West Pakistan made in writ jurisdiction, refusing to interfere with the order of the Member, Board of Revenue, dated the 4th of February 1970, by which in acceptance of the revision petition filed by the respondents, it was directed that the petitioners should seek their remedy in the civil Court.
The land in dispute was a part of the estate of one, Fateh Muhammad, who died in the year 1887. In the absence of any other customary heir, his step‑mother Mst. Imran succeeded to his estate. She, in turn, made a gift of it to her step‑daughter Mst. Hussain Bibi, the mother of respondents Nos. 2 and 3, somewhere in the years 1939 and mutation No. 1361 was attested in this behalf on the 20th of December 1939. This gift was successfully challenged in the civil Court by the predecessors interest of the petitioners and was held to be ineffective against their reversionary rights.
On the death of Mst. Umran in the year 1948, her inheritance mutation was entered in favour of the petitioners and attested on the 9th of February 1963. The petitioners thereafter brought a civil suit for possession of various items of property left by Mst. Umran, against Mst. Hussain Bibi and others, but failed to include in that suit the land now in dispute. The civil Court granted a decree in favour of the petitioners for apart of the property which was found to be ancestral qua the petitioners, disallowing their relief for the rest which was found to be the self‑acquired property of Mst. Umran.
In the year 1966, the petitioners brought a suit in the Revenue Court under section 77 (e) (n) of the Punjab Tenancy Act, 1887, to eject the respondents from the land in dispute and for recovery of its batai for the years 1963 to 1966, on the assertion that they were their tenants‑at‑will. This claim was entirely grounded on the mutation that was sanctioned in their favour in the year 1961 mentioned above.
The respondents disowned the title of the petitioners and claimed that they were in possession of the land in dispute in their own right ever since 1941. One of the pleas taken was that the petitioners not having included the land in question in their earlier civil suit for possession of the estate left by Mst. Umran, were precluded now from claiming it. The petitioners suit was decreed by the Assistant Collector and the decree was confirmed in appeal and revision by the Collector and the Additional Commissioner, respectively. In a further revision before the Revenue Board, a learned Member reversed the order of the Revenue Courts below and held that in view of the complicated questions of fact and law involved in the case, pertaining to the title to the land, it should be decided by the civil Court. It was further directed that the respondents who had been ejected by the orders of the Courts below should be restored to possession.
The learned counsel for the petitioners has not been able to show how the impugned order of the Board of Revenue lacks jurisdiction to be the subject‑matter of a challenge in the writ jurisdiction of the High Court. The respondents had all along disputed the title of the petitioners repudiating the latter's assertion that they were tenants‑at‑will under them. As the question of title to the disputed land was seriously in issue and there was no established relationship of the landlord and tenant between the parties, no exception can be taken to the direction made by the Member, Board of Revenue, that this was a fit matter to be adjudicated by the civil Court.
In any case, the remedy sought by the petitioners in the writ jurisdiction of the High Court, was entirely misconceived and their writ petition was rightly dismissed by the High Court. We dismiss this petition.
Leave refused.
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