' IKRAMULLAH KHAN, J.---Through the instant civil revision the petitioners have challenged the impugned judgment dated 9-4-2011 passed in Civil Appeal No,45 of 2013 by the learned Additional District Judge, Charsadda whereby above mentioned appeal was dismissed.
2. Facts leading to filling of the instant revision petition are that a suit for possession in regard to the suit house whose boundaries was well mentioned in the head note of the plaint, instituted by the respondent, against the petitioners in the Court of Senior Civil Judge, Charsadda. Wherein the respondent prayed for decree for possession against the petitioners on the ground that the respondent was owner of the suit house while petitioners were tenants residing in the said house but failed to pay the agreed rent in shape of natural manure/debris/dung of animals. Also prayed for the recovery of an amount of Rs,24,000/- for the last two years in lieu of non-supply of natural manure and at last prayed for permanent injunctions for the purpose to restrain the petitioners from all kinds of improvement over the suit house. The petitioners contested the suit by means of filing their written statements wherein they admitted their tenancy over the suit, house and raised numerous objections to the maintainability of the suit whereby denied therefrom non-supply of the natural manure to agricultural land of the- respondent; however, claimed that the manure etc. Is used for the agricultural land which is in the tenancy of the petitioners however owned by the respondent, seriously contested the jurisdiction of the Court. The learned trial Court framed the relevant issues arising out there from the divergent pleadings of the parties including the issue of jurisdiction. At the conclusion of the trial, the learned trial Court decreed the suit in favour of respondent against the petitioners but only to prayer 1st for possession while rest of the prayers asked for by the respondent were straightaway rejected, vide impugned judgment dated 24-2- 2010. The petitioners went in appeal against the above mentioned judgment of the Civil Judge, Charsadda but the same was also accordingly dismissed vide impugned judgment dated 9-4- 2011, hence the same impugned judgment is under question before this Court in instant civil revision filed by the petitioners.
3. The learned counsel for the petitioners contended that impugned judgment is against the law and evidence on record, being rendered by the Court having no jurisdiction therefore passed by an unlawful authority which could not be allowed to remain in field. Further submitted that house in question is not situated in a village and not occupied as a site of building in a village or town but it is a house where the petitioners though resides but use it for a purpose subservient to agriculture.
The debris of the animals is supplied to surrounding lands owned by respondent under tenancy of the petitioners. So in this view of the matter the suit house squarely falls within the definition of land.
In such a situation the respondent was required thereunder the provisions contained in section 48 of the N.-W.F.P. Tenancy Act, 1950 to invoke the jurisdiction of revenue Court. Also argued that as prior to institution of the instant suit a dispute in respect of the other agricultural land on which the petitioners were tenants arose which remained under adjudication before various competent Courts and was finally decided on the basis of compromise whereas 36 kanals of land was kept in the tenancy of the petitioners on payment of half of the produce out of total income, but now the respondent tried indirectly to eject the petitioners therefrom the whole land comprised in their tenancy as without abode, the agricultural land could not be properly looked after.
4. As against that the learned counsel for the respondent supported the impugned judgment and contended that impugned judgment is based on correct appreciation of law and evidence on record rendered by competent Court of law in this regard. Further contended that the question of jurisdiction as raised by the petitioners had already been decided by the learned trial Court through its interim order dated 26-10-2009, which was assailed before the District Judge but the same was dismissed too by the learned Additional District Judge, Charsadda which has attained the status of closed and past transaction which could not be reopened before this Court at the revisional stage.
5. I have heard both the learned counsel for the parties and anxious consideration was attended thereto the arguments of learned counsel in the light of available records and law.
6. However this Court exercising revisional jurisdiction in the instant matter conferred upon it there under the provisions contained under section 115 Civil Procedure Code, 1908 could not suppose to embark upon the factual controversy exists between the parties, but without giving reference to the context to the facts alleged by one party A and denied by other in their respective pleadings, evidence adduced by the both parties during the course of trial as well as concurrent findings on facts rendered by both the lower Courts below could not be over-sighted at all, in strive of just and fair dispensation of justice.
7. The record reveals that the respondent had instituted suit for possession on the sole ground that the petitioners had failed to pay the required natural manure (Thora and Khakshora) but this issue was decided by the learned Civil Judge, Charsadda against the respondent through its impugned judgment dated 24-2-2010, wherein it had admitted that petitioners are throwing the agreed natural manure/debris (Thora and Khakshora) in the land owned by respondent, but in spite of the fact that both the parties were not at controversy in this regard as landlord and tenants over the suit house even then the learned trial Court as well as the learned first appellate Court passed a decree for possession against the petitioners on the sole ground that the respondent was owner of the suit house which is on the face of record seems to be illegal for the only ground that the case in hand did not fall under section 8 or 9 of the Specific Relief Act, 1877, as respondent had never agitated the matter that the petitioners were either trespasser over the suit house, or had forcibly occupied the suit house. The stance of the respondent as alleged there in his pleading for dispossession of the petitioners therefrom the suit house was that petitioners had defaulted in providing natural manure to his land, and also prayed for recovery of Rs,24000/- in lieu of the non- supply of the manure, which issue was decided by the learned Civil Judge, against the respondent while the respondent did not challenge it either by way of appeal or cross objection in the first appellate Court, has got finality, whereas petitioners were not held as defaulter then, what was the ground on which, the learned Civil Judge based his finding and a decree for possession was awarded in favour of respondent is a serious question which certainly lead to an exercise of jurisdiction not vested in both the learned Courts below.
8. The impugned judgment as well as that of the learned Civil Judge, is silent in this record, which itself, attract the provisions contained in Order XX, Rule 4 of Civil Procedure Code, 1908, whereas it is the mandate of law that every judgment rendered therein a suit shall be based on reason. For convenience it would be not out of context hereunder to reproduce the provisions contained in Order XX, Rule 4 of Civil Procedure Code, 1908.
' Order XX, Rule 4. Judgments of Small Cause Courts.---(1) Judgments of a Court of Small Causes need not contain more than the points for determination and the decision thereon.
Judgments of other Courts.---(2) Judgments of other Courts shall contain a concise statement of the case, the points for determination, the decision thereon, and the reasons for such decision".
' Now adverting to the question of jurisdiction, which remained a hot context between the parties thereto, that whether the subject matter in contest was of a civil nature, as enumerated thereunder section 9 of Civil Procedure Code, 1908.
9. A owner or landlord of a premises/immovable property may invoke the jurisdiction of a civil Court for dispossession or ejectment of or taking possession back over such property therefrom a person entered upon any property either as a tenant or otherwise, subject to the conditions enumerated thereunder the provisions contained in section 8 or 9 of the Specific Relief Act, 1877 or the provisions contained in Transfer of Property Act, 1882, in case the property is not situated in an urban area, otherwise would be dealt under West. Pakistan Urban Rent Restriction Ordinance, 1959.
10. The provisions contained in section 8 of Specific Relief Act, 1877, provide remedy for recovery of specific immovable property, whereas any person entitled thereto the possession over such property against any person having no legal title to retain or occupy or possess such a land.
11. While the provisions contained in section 9 of Specific Relief Act, 1877, provide remedy to a person who has been dispossessed without his consent otherwise than in due course of law, to recover its legal possession by institution of a suit before the civil Court.
12. But as the respondent in his pleading himself had alleged that petitioners were tenants over the suit house, then in such state of affairs, if the suit house, is excluded therefrom the definition of land as envisaged thereunder section 2 of the Khyber Pukhtunkhwa Tenancy Act, 1950, in such eventuality the provisions contained in subsection (g) of section 111 of the Transfer of Property Act, 1882, would be applied thereto the suit in hand, which reads as;-- ' Section 111(g). By forfeiture; that is to say (1) in case the lessee breaks an express condition which provides that on breach thereof the lessor may re-enter; or (2) in case the lessee renounces. His character as such by setting up a title in a third person or by claiming title in himself; or (3) the lessee is adjudicated an insolvent and the lease provides that the lessor may re-enter on the happening of such event; and in any of these cases the lessor or his transferee gives notice in writing to the lessee of his intention to determine the lease;"
13. The grounds for forfeiture of a lease enumerated hereinabove in subsection (8) of section 111, does not attract hereto the case of the petitioners, as no findings against the petitioners is given by the learned both Courts below, nor prior notice under subsection (g) of section 111 was given by the respondent to petitioners, for determination of the lease, so the case does not fall under section 111 of Transfer of Property Act, 1882.
14. But the question, that whether the dispute, between the parties does not fall within the jurisdiction of Revenue Courts and whether such a person being a tenant over land could not be ejected therefrom premises by Civil Court, has to be considered herein.
15. As, from averment, raised and alleged by the respondent in his pleading and the defence raised by the petitioners in their pleadings, in unequivocal term specify that both parties stand at relationship of landlord and tenants, while the house in question is not situated or occupied as site of a building in a village or town but used for agriculture purpose and subservient to agriculture as mentioned hereinabove.
16. The provisions contained in section 2(i) of NWFP Tenancy Act, 1950 define land as;-- "Land" means land which is not occupied as the site of any building in a town or village and is occupied or has been let for agricultural purposes or for purposes subservient to agriculture, or for pasture; and includes the site of buildings and other tenures on such land or to any right or interest in any such land;
17. When both the learned Courts below have found that petitioners II were tenant over the land (suit house) the matter squarely falls within the jurisdiction of Revenue Courts, thereunder the provisions contained in section 48 which reads as; Section 48. Application and proceedings cognizable by Revenue Officers.--(1) The following applications and proceedings shall be disposed of by the Revenue Officers such, and no Court shall take cognizance of any dispute or matter with respect to which any such application or proceeding might be made or had; ' FIRST GROUP.
(a) proceedings relating to the remission and suspension of rents under section 15;
(b) application under section 26 for the ejectment of a tenant against whom a decree for an arrear of rent in respect of his tenancy has been passed and remained unsatisfied;
(c) applications under section 26, subsection (6) for the ejectment of a tenant on whom a notice of ejectment has been served and who has not instituted a suit to contest his liability to be ejected but has claimed compensation under section 43;
(d) application by landlords for possession of land, the right of occupancy in which has become extinct;
(e) proceedings with respect to the Award of compensation for improvements or disturbance: ' SECOND GROUP.
(f) Applications under section 28, subsection (6), for the ejectment of a tenant on whom a notice of ejectment has been served and who has not instituted a suit to contest his liability ejected and has not claimed compensation under section 43;
(g) Applications for the determination;
(i) Under section 32, of the rent payable for land occupied by crops uncut or ungathered at the time of an order being made for the ejectment of a tenant, or
(ii) Under section 32 or section 46, of the value of crops or of the sum payable to the tenant for labour and capital expended by him in preparing land for sowing; ' THIRD GROUP.
(h) Applications under section 16 by tenants to deposit rent;
(i) Applications under section 21 for service of notice of relinquishment;
(j) Applications under section 26, for service of notice of ejectment.
(2) Except as otherwise provided by any rule made by the Board of Revenue in this behalf:
(a) A Collector or an Assistant Collector of the first grade may dispose of any of the applications and proceedings mentioned in subsection (1);
(b) an Assistant Collector of the second grade, not being a Naib-Tehsildar may dispose of the applications mentioned in the second and third groups of that subsection; and
(b) A Naib-Tehsildar, when invested with the powers of an Assistant Collector of the second grade, may dispose of any of the applications mentioned in the third group of that subsection.
18. In view of the above reasons both the parties stand with each other as landlord and tenants while the house in dispute, clearly falls within the definition of land; therefore, the matter exclusively falls within the jurisdiction of Revenue Courts and the civil Court has got no jurisdiction to adjudicate upon a matter exclusively triable by Revenue Courts, established for the purpose under the N.-W.F.P. Tenancy Act, 1950, also the provisions contained in section 7 of the Khyber Pukhtunkhwa. Tenancy Act, 1950, does not restrict the jurisdiction of Revenue Courts, only to tenant but the landlord may invoke the jurisdiction of the Revenue Court, against any person being in occupation of land without his express or implied permission, which reads as;-- ' Section 7, Paym ent for land occupied without consent of landlord.-- Any person in possession of land occupied without the consent of the landlord shall be liable to pay for the use or occupation of that land at the rate of rent payable in the preceding agricultural year or, if rent was not payable in that year, at such rate as the Court may determine to be fair and equitable.
19. The crux of the matter for determination in this revision is whether the house in dispute was forming part of Ghairmumkin Abadi or fall within the purview of land as defined in clause (1) of section 2 of the Act reproduced hereinabove because if it be so, then obviously the jurisdiction of civil Court would be barred under clauses (c) and (f) of subsection (3) of section 49 of the Khyber Pukhtunkhwa N.-W.F.P. Tenancy Act, 1950, for the purpose, the averments in the plaint and written statements shall be taken into account as well the evidence of the parties in the trial Court.
20. The petitioners have not denied therefrom their tenancy over the suit house which otherwise too had also alleged in unambiguous term by respondent himself that the petitioners had occupied the house in lieu of rent agreed to pay "Khakshora" as a customary charge which he intended to use as manure in the land and that petitioners had not fulfilled the said condition and were, therefore liable to ejectment. Irrespective of this fact that the said issue of default is decided against the respondent which is not more under challenge in this revision, but it is proved on record that both parties stand with each other as landlord and tenant and the house in question squarely falls within the definition of "Land". Therefore the civil Court has got no jurisdiction to adjudicate upon the matter and was bound under the 'provisions contained in clause (1) of subsection (3) of section 49 to return the plaint to the respondent thereunder strict compliance of Order VII Rule 10 Civil Procedure Code, 1908.
21. The contention of the learned counsel for respondent was that, the question of jurisdiction had attained finality, is misconceived as no estoppel is applicable against law point could be agitated in any stage, before any Court.
22. An interlocutory order, even if decided against a judgment debtor, may be assailed in appeal or revision against the final judgment passed by the trial Court. In case of Shamshad Khan and 2 others v. Arif Ashraf Khan and 2 others (2008 SCM R 269) the apex Court has held as;-- "Interim order would merge in final Judgment---Party aggrieved of interim order may challenge same while assailing final judgment in appeal".
23. For the reasons given hereinabove, this civil revision is allowed and the impugned judgment as well as the judgment of the learned Civil Judge, are accordingly set aside while the plaint to be returned to the respondent in original by the learned Civil Judge in accordance with the provisions of Order VII, Rule 10, Civil Procedure Code, 1908, for presentation before competent Court of law. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.