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Criminal Revision No. 207 of 1974, decided on 12th December 1975.

-- Ss. 33 & 34 read with S. 2(1).-Tenant-Ejectment-Civil Court, jurisdiction of Suit by landlord for ejectment of tenant on ground of tenant's failure to pay Khakshora-Contention that case being one relating to agricultural land civil Court had no jurisdiction-Houses situated on land in question, including house occupied by tenant petitioner-Independent residential quarters providing shelter for persons whose living there not subservient to agriculture-Area of land covered by houses of tenants-Not let for agricultural purposes or for purposes subservient to agriculture-Meaning of land as given in N.-W. F. P. Tenancy Act, 1950-Not attracted to house in question-Civil Court, held, in circumstances, not devoid of jurisdic tion to adjudicate in matter.

Anayat Elahi Khan for Petitioner.

Muhammad Hamayun Khan for Respondent.

Date of hearing : 5th December 1975.

This revision petition by Shamroz son of Jalat against the concurrent judgments of the Courts below, was admitted for reconsideration on the ground (as it was contended by the learned counsel) of failure by the Courts below to appreciate that there exists no custom prevailing in Peshawar District regarding the ejectment of tenant from 'Miana'. At the very outset, the learned counsel for the petitioner conceded his inability to press the point any further. However, the question of jurisdiction was raised contending that a civil Court has no jurisdiction to entertain the suit of this nature. This is an admitted fact that the question of jurisdiction can be raised at any stage of the proceedings; it, therefore, has necessitated to give brief facts relevant for the decision of the matter on its legal aspect.

2. Wali Muhammad Khan (landlord-respondent) brought a suit for ejectment against---Shamroz Khan (tenant-petitioner) on the ground of his failure to pay Khakshora and inter alia on this ground he has rendered himself liable for ejectment. On the pleadings of the parties, following were A he issues:-

(1) Whether plaintiff has got a cause of action

(2) Whether the suit cannot proceed in the present form

(3) Whether the defendant cannot be ejected on account of the custom prevailing in the village where he resides

(4) Whether the defendant is liable to be ejected on the grounds of non-payment of Khakshora and for reasons stated in para. No. 4 of the plaint

(5) What is the price of Khakshora of the disputed house

(6) Relief.

'The learned trial Court held that the plaintiff had the cause of action, that :the suit was in the proper form, that there existed no custom contrary to the ejectment of the tenant and that the tenant was defaulter in payment of Khakshora and the suit was accordingly decreed which was confirmed ;by the learned lower Appellate Court.

3. It will be pertinent to refer to the following evidence with regard to the contention raised before me. In Exh. P. W. 1/2 (copy of Fard Jamabandi), Wali Muhammad Khan is shown in the column of ownership and in the column of cultivation, Muhammad Ashiq is entered in cultivating possession. Muhammad Ashiq has deposed to this effect that he is lessee under Wali Muhammad. However, the name of Shamroz does not appear in whatever capacity in this column. It follows from it that the plea of the petitioner that he is in cultivating possession of a portion of land under Wali Muhammad finds no support from the revenue record. The petitioner is in occupation of one of the houses built on an area of 9 kanals 10 marlas of the Khasra Nos. described in Exh. P. W. 1/2. As per statement of the petitioner Shamroz Khan, there are some tenants of the houses built on the above-mentioned 9 kanals 10 marlas who worked elsewhere. There is no indication in the evidence to give distinction to the house in question from the houses whose occupants work elsewhere. The conclusion is obvious that the house in question is one of the houses in the small hamlet on the land of the respondent which is not specifically meant to come under the purview of 'land' envisaged by the Tenancy Act. "The residents of the hamlet at times work elsewhere, but they might also work on the land of Wali Muhammad if the work is available and they want to do it. To put it otherwise if the helping hand of the other residents in the form of agriculture labour can be employed somewhere else there is no reason why the petitioner should claim preferential status. It is in the evidence that the service of the petitioner is dispensed with by Wall Muhammad and his service is not indispensable for the lessee Muhammad Ashiq even. It, therefore, follows from it that the husbandry work of the orchard is not dependent on the petitioner and for that matter on the house where he resides. It thus becomes clear that the houses situate in the land in question are independent residential quarters providing shelter for those whose living there is not subservient to agriculture within the meaning of land as defined in the Tenancy Act. The dictionary meaning of 'subservient' is:-

"Serving as means to an end, acting in subordination to, as ancillary to."

Wali Muhammad Khan respondent has stated in the plaint that he is the owner of the house in question and that he had inducted the petitioner in lieu of payment of Khakshora and for the consideration of service to be rendered by the petitioner, which on being refused, he is liable to ejectment. As alluded to above, the area of 9 kanals 10 marlas covered by the houses of the tenants has not been let for agricultural purposes or for purpose subservient to agriculture and, therefore, the meaning of 'land' in the Tenancy Act is not attracted to the house in question. For the above reasons, I come to the conclusion that the civil Court has jurisdiction and the petition fails on this ground also.

4. Dismissed with costs.

S. A. H.

Petition dismissed.

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