' FAZAL-E-MIRAN CHAUHAN, J.---By filing the instant writ petition, the petitioners have challenged the impugned order, dated 14-7-2008, passed by the learned Member (Judicial), Board of Revenue, Punjab at Rawalpindi.
2. Briefly, the facts of the case are that, on 29-7-2000, the petitioners filed a suit/application for ejectment of respondents Nos. 5 and 6 before the Tehsildar/Assistant Collector 1st Class, Fateh Jang on the grounds that, respondents Nos. 5 and 6/tenant had not paid share of produce (Hissa Batai). They are not cultivating the land and are using the same for the grazing of their cattle and are damaging the value of the land; further that, the land is required for their personal use. The learned Assistant Collector, after framing issues and recording evidence of the parties, proceeded to decree the suit vide order, dated 28-12-2001, in favour of the petitioners and against respondents Nos. 5 and 6. Being aggrieved of that, respondents Nos. 5 and 6 filed an appeal before the Deputy District Officer (Revenue), Fateh Jang, who vide his order, dated 23-10-2003, accepted the appeal and without assigning any reason, proceeded to set-aside the order of the Assistant Collector 1st Class, Fateh Jang. The petitioners filed appeal against respondents Nos. 5 and 6 before the Executive District Officer (Revenue), Attock, who vide his order, dated 13-6-2007 accepted the appeal and set-aside the order, dated 23-10-2003, passed by the Deputy District Officer (Revenue) and upheld the order, dated 28-12-2001, passed by the Assistant Collector/Tehsildar, Fateh Jang by holding that, relationship of landlord and tenant is established on the record. It is also established that, there is decree of share of produce (Hissa Batai) against respondents Nos. 5 and 6; they are the defaulters, thus, are liable to be ejected. The matter went up before the Member (Judicial), Board of Revenue and the learned Member (Judicial), Board of Revenue confirming the finding of relationship of landlord and tenant and default committed by respondents Nos. 5 and 6, proceeded to accept the revision petition of respondents Nos. 5 and 6, simply on the ground that, respondents Nos. 5 and 6, promised to pay the share of produce in future and will also cultivate the land, hence, this writ petition.
3. It is argued by the learned counsel for the petitioners that, the impugned order, dated 14-7-2008, passed by the learned Member (Judicial), Board of Revenue, suffers from patent illegality and irregularity, which is not based on law, facts and the evidence on the record. The order passed on the undertaking to disadvantage the petitioners without soliciting the consent was not sustainable in law. He has referred to LUCAS alias LUCI, etc. v. S.M. Nasim, Member (Revenue), Board of Revenue Punjab, Lahore and another (1984 PSC 379), and Akbar v. Faizullah Khan etc. 1992 CLC 1355. Further argued that, two remedies i,e, one suit for recovery of Hissa Batai and ejectment on the ground of default are maintainable and was rightly decreed by the Assistant Collector/Tehsildar. Argued that, the documents (Exhs. P.1., P.2 and P.3) clearly showed the past conduct of respondents Nos. 5 and 6.
Every time, petitioners had to approach the revenue authorities for the recovery of their share of produce. It is settled law that, law makes no distinction between default and wilful default. Failure on the part of tenant to pay rent/arrears of rent at proper time rendered him liable to eviction.
Respondents Nos. 5 and 6 are chronic/habitual defaulters as observed by the learned Member (Judicial), Board of Revenue, thus, were not entitled to any concession, as held in Samar Khan, etc. v. Safdar etc. PLD 1989 Pesh.102 and Niaz Ahmad, etc. v. Allah Diwaya, etc. 1983 CLC 401. Further contends that, where finding is not supported by evidence on the record, the same can be disturbed in writ petition. Reference is made to The Commissioner and another v. Mian Sher Muhammad (1972 SCMR 395), Habib Khan v. Additional Settlement Commissioner, Multan and others (1980 SCMR 84) and Irshad Ahmad v. The Settlement Authority, Punjab (1981 SCMR 758).
5. On the other hand, learned counsel for the respondents opposed this writ petition by arguing that, the respondents are not defaulters and they had been paying share of produce (Hissa Batai) in time. The land is under cultivation and is not used for any other purpose. The order of ejectment passed by the Assistant Collector/Tehsildar upheld by the Executive District Officer (Revenue) is against evidence on record. Respondents Nos. 5 and 6 are defaulters and conduct be ejectment.
Reference is made, to Ali Muhammad and others v. Deputy Commissioner/District Collector, Vehari and others (1988 CLC 4981 Lahore], Nusrat v. Assistant Commissioner, Vehari and others (1986 CLC 2347 Lahore] and Hashim Ali and others v. Mst. Bhirawan and others (2002 YLR 1700 Lahore].
6. The learned Assistant Advocate-General on behalf of respondents Nos. 1 to 4 argued that, if judgment of the trial Court and that of the appellate Court were at variance; the judgment of the appellant Court was not violative of the principle of administration of justice or arbitrary or fanciful would ordinary be preferred. Reliance is made to Kaniz Bibi v. Muhammad Ashraf and another (2008 YLR 159 Lahore] and Enayat Sons (Pvt,) Ltd. v. Government of Pakistan through Secretary, Finance and others (2007 SCMR 969).
7. I have heard learned counsel of the parties, as well as, learned Assistant Advocate-General and perused the orders, passed by the Assistant Collector/Tehsildar, Deputy District Officer (Revenue), Executive District Officer (Revenue) and the Member (Judicial), Board of Revenue. The Assistant Collector/Tehsildar, after framing necessary issues and recording evidence of the parties and receiving the documentary evidence, proceeded to decide the issue against respondents Nos. 5 and 6. He had rightly concluded that, as per documents (Exhs.P.1 to P.5), the conduct of respondents Nos. 5 and 6 was evident and every time, the petitioners had approached to the revenue authorities for the recovery of their share of produce (Hissa Batai) in accordance with law, thus, they rendered themselves to be chronic defaulters as held by the learned Member (Judicial), Board of Revenue; except the order of A Deputy District :Officer (Revenue), findings of the Assistant Collector/Tehsildar, Fateh Jang was upheld by the Executive District Officer (Revenue), as well as, by the Member (Judicial), Board of Revenue. There is no denial of relationship of landlord and tenant between the parties. Though a stance was taken in the written-statement that, no default was committed and respondents Nos. 5 and 6, as they had been paying share of produce (Hissa Batai) regularly to the petitioners and so was recorded in the revenue record, was belied from Exh.P.1 to Exh.P.3, the previous decrees, passed in favour of the petitioners for the recovery of Hissa Batai. Of course, after passing the decree, Hissa Batai was paid and it was so recorded in the relevant record. Respondents Nos. 5 and 6 again defaulted in payment of Hissa Batai and present ejectment suit was filed.
8. There is no evidence on the record to show that, respondents Nos. 5 and 6 offered or paid Hissa Batai for the said period to the petitioners. This fact was not contradicted as held by the Executive District Officer (Revenue) or the Member (Judicial), Board of Revenue nor by the Deputy District Officer (Revenue); when it is established on the record that, if a tenant failed to offer or pay the rent or default in the same rendered himself to be ejected. The other objection raised was that, the petitioners filed one suit for recovery of arrears and for C ejectment at the same time, hence, maintainable, which has no force. As it has been held in LUCAS alias LUCI etc. v. S.M.A Nasi, Member (Revenue) Board of Revenue Punjab, Lahore and another (1984 PSC 379) supra:- "if a landlord did not opt to seek remedy of recovery of rent by way of filing suit regarding ejectment of tenant on the ground of default or non-payment of rent; the remedy of suit would not be barred under the law. It is settled law that suit can be filed with joint prayer."
' Similarly, it was decided in Sarwar Khan v. Muhammad Basharat (PLJ 1992 Revenue 69] that, issues for the recovery of rent and arrears can be consolidated and decided by the revenue authority in one suit.
9. Learned counsel for respondents Nos. 5 and 6 has failed to controvert the ntentions raised by learned counsel for the petitioners. The law cited by the learned counsel for respondents Nos. 5 and 6 is not applicable to the facts and circumstances of the present case. Impugned order passed by the Member (Judicial), Board of Revenue does not appear to be a judicial order. The Member (Judicial) Board of Revenue should have maintained the order. This offer/promise to pay the rent in future was never put to the petitioners to seek their consent in that regard. The petitioners never consented to the order passed by the Member (Judicial), Board of Revenue. It is settled law that, if order passed by the subordinate Courts are- against law or facts, the same D cannot be set-aside, even with the consent of the parties, no order against law can be passed. In the present case, the petitioners never consented to the offer or consent given by respondents Nos. 5 and 6, thus, impugned order passed by the Member (Judicial), Board of Revenue suffers from material illegality.
10. There is no cavil to the proposition of law raised by the learned Assistant Advocate-General that, if judgment of the appellate Court was not violative of the principle of administration of justice or arbitrary or fanciful, the same should be preferred, whereas, in this case, impugned order passed by the Member (Judicial), Board of Revenue is not a judicial order, but, appears to be an order passed in a fanciful manner setting aside the well-worded judicial order, passed by the Assistant Collector/Tehsildar, Fateh Jang upheld by the Executive District Officer (Revenue), Attock.
11. In this view of the matter, this writ petition is allowed; the impugned order, dated 14-7-2008, passed by the Member (Judicial), Board of Revenue is set-side and the order, dated 28-12-2001, passed by the Assistant Collector/Tehsildar, Fateh Jang is upheld, leaving the parties to bear their own costs.