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(b) Baluchistan Tenancy Ordinance (XXIV of 1978)-

-- S. 12-Appeal-Jurisdiction-Inherent lack of jurisdiction found from pleadings by appellate civil Court-Appellate civil Court, held, rightly directed case to be tried by revenue Court- -appellate civil Court was justified in entertaining plea of lack of jurisdiction and no further fact was required to be established.-[Jurisdiction].

(c) Civil Procedure Code (V of 1908)-

0. VII, r. 10-Appellate civil Court when reached the conclusion that Courts other than revenue Court had no jurisdiction, it was bound to return plaint for presentation to competent Court instead of dismissing suit.-(Jurisdiction].

A I R 1946 P C 47 and Akrarn v. Zakaria Khan and others P L D 1962 Pesh. 7 ref.

Haji Sarfraz Khan for Petitioner.

Muhammad Moquim Ansari for Respondent.

Date of hearing : 16th August, 1984.

This revision petition is directed against the judgment and decree of the Majlis-e-Sboora Kalat Division passed .on 4-7-1982, whereby on appeal the judgment and decree of learned Kazi Kharan, dated 14-2-1981, was reversed.

2. The short facts of the matter are that the petitioner had filed a suit for possession of a piece of land known as "Band" situated in Gawaz Sai Sir Sarawan on 19-3-1981, in the Court of Assistant Commissioner Kharan and it was avered that the defendant/respondent had obtained this piece of land for "Kashtkari" in the year 1381 Hijri and had agreed to pay "Haq-eMalkana". An agreement to that effect was obtained by him from the defendant. This arrangement worked satisfactorily for some years and Batai was paid by the respondent regularly but since the last year the crops had been misappropriated on the pretext that the crops had been carried away by the winds. For this act of the defendant his "Bazgari" has been determined. The plaintiff intends to cultivate the land herself but the defendant persists in his illegal possession after the determination of the tenancy hence the suit. The respondent in his written statement asserted that 2/3 of the suit land was in fact obtained by him from one Gul Muhammad on or about 21st July 1969, and the said Gul Muhammad Qambarani has been receiving "Malkana" share, but if the said land has been transferred to the petitioner he would have no objection to give the "Malkana" to the owner. It was also asserted by the defendant/respondent that 1/3rd of the land has been inherited by him through his ancestors. The learned Kazi Kharan whom the suit was referred for disposal under the provisions of the Dasturul Aenal Diwani Kalat after recording evidence, adduced by the parties decreed the suit and ordered that the possession of the land be taken from the respondent and given to the petitioner. The respondent being aggrieved by this judgment and decree of the Kazi passed on 14-2-1982, filed an appeal before the Majlis-e-Shoora Kalat at Mastung and it was contended, inter alia, that the lower Court had no jurisdiction to hear the matter as according to the petitioner's own showing the defendant/respondent was her Bazgar/tenant and the suit could only be tried by a revenue Court as laid down in. Baluchistan Tenancy Ordinance 1978. The learned members of the Majlis-e-Shoora agreeing with this contention of the respondent held that the suit was not maintainable in the Court of Kazi and set aside the judgment and decree passed by Kazi. The petitioner was directed to approach the revenue Court. The petitioner has, therefore, come to this Court in revision.

3. The learned counsel for the petitioner has made a grievance that the plea of jurisdiction raised for the first time in the memo. of appeal was not entertainable as no issue was framed by the lower Court in that behalf and has placed reliance on the case reported in A I R 1946 P C 47. In the alternative it is urged that if it was found that the Court had no jurisdiction in the matter the Majlis-e-Shoora should have ordered the return of the plaint for presentation to the competent Court instead of dismissing the suit.

4. I have given due consideration to the contentions of the learned counsel for the petitioner but it is not possible for me to agree with him for the simple reason that it was the case of the petitioner that the respondent was her tenant and the Bhatai used to be paid. The respondent did not dispute this fact and had admitted in the written statement that he was a tenant to the extent of 2/3 of the suit land but that was obtained from Gul Muhammad, the husband of the petitioner, and he was prepared to give Bhatai to the petitioner if it is established that the petitioner had been transferred this land. From the pleadings, therefore, it was a suit for ejectment pure and simple and that being the case, the provisions of 1A paragraph 25 of the Land Reforms Regulation, 1972 (Regulation No. 115)1 which regulation extends to Baluchistan also were attracted. The said provision provides that "A tenant shall not be ejected from his tenancy unless it is established in a revenue Court that he has failed to pay the rent in accordance with the terms of his tenancy". And by the enforcement of Baluchistan Tenancy Ordinance, 1978, the revenue Courts have been established. Even if it was alleged by the plaintiff that the defendant had continued in possession of the land without the consent of the landlord he was liable to pay for the use and occupation of the land at the rate of rent payable in the preceding agricultural year or at such rate as the Court may determine to be fair and equitable (section 12 of Ordinance, 1978) but there was no dispute of relationship of landlord and tenant. The plea raised in the memo. of appeal could be easily traced in the pleadings, and it was the legal obligation of the Assistant Commissioner or Qazi to have understood the nature of the case being dealt with by them. In the face of these pleadings the case relied upon by the learned counsel for the petitioner is inapt. I am, therefore, of the view that the learned members of the Majilis-e- Shoora were justified in entertaining the plea of lack of jurisdiction and from the pleadings it being found that it was a case of inherent lack of jurisdiction it has been rightly held to be triable exclusively by the revenue Court and to reach that conclusion which has been arrived at by Majlis-eShoora no further fact was required to be established. The want of jurisdiction was apparent on the face of the record. I do not, therefore, find any illegality in the exercise of Jurisdiction by the Masjlis-e-Shoora but I agree with the learned counsel that once the Majlis-e-Shoora had reached the conclusion that the Courts other than revenue Court had no jurisdiction they were bound to return the plaint for presentation to the competent Court instead of dismissing the suit as required by Order VII, rule 10, C. P. C. The Code of Civil Procedure has been extended to Kalat Area by virtue of the Statutes Reforms Ordinance, 1960. This view finds support from the authority of Akram v. Zakaria Khan and others (1), referred with approval in Vasdev's case (2).

For this reason I allow the revision and set aside the judgment and decree of the Majlis-e-Shoora Kalat impugned in this revision to the extent of its concluding portion whereby the suit of the petitioner has been dismissed and would direct that the plaint shall be returned to the petitioner for presentation to the revenue Court having jurisdiction for decision on merits. The parties shall bear their own costs.

M. Z. M. Revision allowed.

(1) P L D 1962 Pesh. 7 (2) P L D 1979 Quetta 35

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