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Revision No. 33 of 1962‑63, decided on 18th February 1964, District Peshawar.

---West Frontier Province Tenancy Act (XXV of 1950), S. 7‑Persons possessing land without consent of landlord Liable to pay rent in manner prescribed in S. 7‑Revenue Court competent to adjudicate matter.

---Person claiming adverse possession of land should seek declaration from civil Court.

The facts of this revision petition, briefly, are that the petitioner instituted a suit for arrears of rent for Rabi 1959 to Rabi 1961 against the respondents who without the consent of the landlord had occupied the land in dispute, which is situated in village Wadpagga, District Peshawar. The Assistant Collector on 13‑4‑60 decreed the suit in favour of the petitioner for an amount of Rs. 237.04. The Collector, Peshawar, interfered in appeal on the sole ground that as the respondents were entered in the Revenue Records to be holding the land without payment of any rent (Bila lagan bawaja qabza) the relationship of landlord and tenants did not exist between the parties. He, therefore, set aside the decree passed by the Assistant Collector. The learned Additional Commissioner maintained this order in second appeal revision has now been filed by Mst. Mustafa Jan, the plaintiff landlord.

The main point argued by the learned counsel for the petitioner was that the tenants had occupied the land without the consent of the landlord and according to section 7 of the N.‑W. F. P. Tenancy Act they were liable to pay rent to the petitioner. It had also been contended that according to section 49, subsection (3), group third, class (k) of the Act, a suit for recovery of any amount due under section 7 is triable by Revenue Courts and the decree awarded by the Assistant Collector in this case was thus in accordance with law. The learned counsel for the respondents stated that the respondents were in adverse possession of the land in dispute for the last 12/13 years and no rent was, therefore, payable by them to the petitioner. The former part of this argument is not in accord with facts as the respondents entered into possession in Rabi, 59. Further section 7 of the N. W. F. P. Tenancy Act clearly lays down that persons in possession of land occupied without the consent of the landlord are liable to pay rent in the manner prescribed in the section and the Revenue Courts are quite competent to adjudicate in the matter. I would, therefore, hold that the suit was rightly tried and decreed by the Assistant Collector and the orders passed by the Collector and the learned Additional Commissioner are based on a mis‑application of the law. In case the respondents claim to be in adverse possession of the land they should seek a declaration from a civil Court of competent jurisdiction. I would, therefore, set aside the orders passed by the learned Additional Commissioner and the Collector and restore that of the Assistant Collector.

The parties should be informed.

S. Q.

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