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Writ Petition No. 1795 of 1977, decided on 15th November, 1983.

---Para. 25--Limitation--Tenants forcibly dispossessed by landlord--Soon after their dispossession tenants applied for restoration of possession and registered criminal case against landlord--Application for restora tion--Limitation--Tenants, dispossessed on 12-6-1974 and application for restoration of possession filed on 18-6-1974, held, was within time.- [Limitation].

---Para. 25--Evidence Act (1 of 1872), S. 145--Previous statement Non- confrontation with--Consequences--Tenant not confronted with his previous statement regarding surrendering land to landlord--Held, requirements of S. 145, Evidence Act, 1872 not complied with--Such statement could not, therefore, be used against tenants.

---Art. 199--Waiver of rights--Question of fact--Findings on such question of fact could not be recorded for first time in exercise of writ jurisdiction when Tribunal below, gave concurrent findings on facts of forcible dispossession.

A . H . Najafi for Petitioner.

Saeed-ur-Rehman Farrukh for Respondent No.2.

Nemo for the Remaining Respondents.

Date of hearing: 15th November, 1983.

The facts are that respondents Nos. 1 and 2 occupied the land in dispute as tenant under one Shadi, who sold it away to the petitioner. The latter's case is that respondent No. 1 alone was tenant under the vendor and on his application moved before the Naib-Tehsildar, the tenant aforesaid made a statement, dated 13-2-1974 agreeing to surrender the land to the petitioner by June, 1974 and that in fact before that date . he voluntarily delivered the possession in his favour. On the other hand, both the respondent contended that they, were forcibly dispossessed by the petitioner. Accordingly they applied to the Tehsildar with powers of Assistant Collector, for restoration of possession. This application was allowed. However, the petitioner's appeal against this order was accepted Tin 29-5-1975 by the Assistant Commissioner with the powers of Collector and the case remanded to the Tehsildar. The latter after rehearing the parties uphold his previous decision. The petitioner again went in appeal but it was dismissed by the Collector on 7-5-1976. His revision before the Additional Commissioner also failed, and the second revision brought before the Member, Board of Revenue also met the same fate. It was dismissed by the learned Member by his order, dated 5-7-1977, impugned through this writ petition.

2. The main reason which, prevailed with the authorities below in awarding the decision against the petitioner was that the ,possession was claimed to have been passed on to him by the respondents on 12-6-19.74 but .on the same date they got a case under sections 447/148/ 149, P.P.C. registered against the petitioner, complaining their illegal ejectment from the land in question. The fact that the respondents applied for restoration of possession soon after Rabi, 1974 also, weighed with them. Ail the Tribunals below came to the conclusion that there was no voluntary abandonment of tenancy by the respondents. As regards the statement (Annex. 'A') of respondent No. 1 before the Naib Tehsildar; the Additional Commissioner was of the view that it carried merely corroborative value and in any case it was only an agreement to surrender the land and there was no evidence that the respondents actually abandoned the tenancy. Before the learned Member too the petitioner relied upon the statement Annex. 'A' but it was maintained that the terms on which the alleged compromise was reached, between the parties, were not brought on the record and even if such a compromise was there it was violative of para. 25 of M.L.R. 115. However, he upheld the concurrent findings of the Collector and the Additional Commissioner that the respondents having been dispossessed illegally, were entitled to the restoration of possession.

3. I have heard the learned counsel for the parties and examined the available record. It was argued on behalf of the petitioner that the application for restoration of possession having been filed on 27-1-1975 was barred by time. In this connection he referred to the copy of Assistant Collector's order, dated 16-2-1976 embodying the number of case as 424 and its date of institution as 27-1-1975. His other submission was that the statement of respondent No. 1 (Annex. 'A') was fully proved in accordance with law and it amounted to waiver of his rights and that as there was a compromise between the parties the provisions of para. 25 of M.L.R. 115 could not said to have been violated. He further argued that respondent No. 1 accepted a sum of Rs.1,300 from the petitioner as compensation for delivery of possession but later on he resiled from his commitment and in collusion with respondent No. 2 instituted proceedings for restoration of possession. According to the learned counsel the conduct of the respondents disentitled them to any relief by the Tribunals below and the failure of the learned Member, Board of Revenue, to set aside the illegal orders of the subordinate authorities, amounted to refusal. to exercise jurisdiction lawfully vested in him.

4. I do not find myself in agreement with the learned counsel for the petitioner. Both the learned Additional Commissioner and the learned Member, Board of Revenue held that the respondents were dispossessed on 12-6-1974 and the application was brought by them on 18-6-1974. I have myself seen the original record. The application is, dated 18-6-1974 but it was presented before the Assistant Collector on 20-6-1974. Obviously it is within time. The objection is baseless.

5. The record further demonstrates that the statements of respondents Nod. 1 and 2, were recorded by the Assistant Collector on, 10-1-1975. Respondent No. 1 was never confronted with his previous statement Annex. 'A'. The requirements of section 145 of the Evidence Act, were thus, not complied with. Such a statement, therefore, could not be used against the respondents. In any case Muttalli respondent No. 2 never made any such statement. The learned counsel for the, petitioner has not said anything about the latter's status as tenant.

6. As regards, the waiver of his rights by respondent No. 1 it is to be seen that the waiver is a question of fact. Such a finding cannot be recorded for the first time in exercise of writ jurisdiction, particularly when the Tribunals below gave a concurrent findings, that both the respondents were dispossessed forcibly. In the face of such findings I wonder how the petitioner can plead the existence of lawful compromise and that too to which respondent No. 2 was not a party. The authorities below have examined the case in its true perspectus and on the basis of the material before them, discarded the petitioner's version and upheld the stand taken up by the respondents. With such a finding the learned Member, Board of Revenue in exercise of his revisional jurisdiction, rightly declined to interfere. Needless to mention that in the impugned' order the learned Member maintained that payment of any consideration to the respondents was not proved. Upon the facts of the case it is idle for the petitioner to urge that there was any failure of exercise of jurisdiction by the learned Member, Board of Revenue. In fact the order passed by him does not suffer from any jurisdictional defect.

For the foregoing reasons this writ petition having been found without any merit, is dismissed with costs.

H . B . T .

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