' NISAR HUSSAIN KHAN, J.---Through this common judgment, two Civil Revision petitions, bearing No, 584P/2015 titled Sahibzada v. Mst. Shabana and another and No, 588-P/2015 titled Said Badshah v.
Mst. Shabana and another, are going to be disposed of, as identical questions of law and facts are involved in both the petitions.
2. Petitioners in both the petitions have questioned the judgments and decrees of learned Additional Sessions Judge, Tangi, District Charsadda, in C.A. No, 41/13 and CA No, 39/13, dated 24.6.2015, whereby both the appeals were dismissed and judgments and decrees passed by learned Civil Judge-I, Tangi, District Charsadda, in suit No, 65/1-Nim and suit No, 64/1-W/m respectively, decreeing the suits of respondents for possession, were maintained.
3. Resume of facts forming background of both the petitions is that Mst. Shabana Begum and another, respondents in both petitions, filed 2 suits against both the petitioners for ejectment from the houses; one constructed in Khasra No, 1545/1131 to 1132 occupied by Said Badshah, and the other constructed in Khasra No, 1512/1206, 1207 occupied by Sahibzada, both situated in Behram Khan Dheri, Tehsil Tangi, District Charsadda. In alternate, she prayed for recovery of possession of the said houses and Rs, 15000/- towards payment of Khakshora for the last three years from each of the defendants. It is averred in both the plaints that defendants are occupying the suit houses on payment of Khakshora (traditional rent) as their neighbours. They did not pay Khakshora for the last 3 years which constrained the plaintiff to file the suit for ejectment. The defendants in their written statements specifically averred that there is relationship of landlady and tenant between the parties and the suit houses have been constructed by them because they were cultivating the land of the plaintiff since their predecessors and they were occupying the suit houses in pursuance of the said tenancy. The agricultural property of the plaintiff was resumed by the Provincial Government under the Land Reforms and was then transferred to the predecessors of the defendants as sitting tenants vide mutation No, 239, dated 8.3.1984 and mutation No, 203, dated 15.11.1980 by the Provincial Government. The predecessors of the plaintiff challenged that allotments before the Court which was decided in their favour and allotment in favour of predecessor of the defendants was cancelled and the property was reverted back to the predecessor of the plaintiff.
However, predecessor of the defendants and thereafter defendants have been and are occupying the suit houses in continuation and pursuance of the said tenancy.
4. Learned counsel for petitioner mainly canvassed his argument on the question of the jurisdiction of the Civil Court by contending that since the petitioners are occupying the suit houses as tenants relating to the tenancy of agricultural property, so Civil Court has got no jurisdiction to entertain the suit.
5. As against that learned counsel for respondents argued that though the petitioners were sitting as tenants in the agricultural property of the plaintiff and that property was allotted to them in the Land Reforms which was challenged by the predecessor of the plaintiff and consequently the property was reverted back to the plaintiff and, possession was taken overt Ex.PW.1/1 is the report of the Revenue Officer regarding delivery of possession, according to which possession of the property was handed over to the plaintiff under the supervision of Superintendent of Police Charsadda, DSP and SHO concerned on 29.3.2012 and the same has been incorporated in the revenue record.
6. To resolve the controversy, statement of PW.3 Sirajuddin is relevant who stated that possession of the agricultural property was taken over from defendants with the assistance of police force by the Revenue Staff. However, possession of the suit house was not taken which was part of the said agricultural property, for which instant suit has been filed. Similar is the statement of Aurangzeb PW.2 who also stated that the defendants/petitioners were their tenants who were allotted the property under the Land Reforms but that allotment was challenged by the plaintiff and consequently was cancelled, as a result of which possession of the property was taken over by them through the police force. Strangely, no order of the Court has been produced which may unfold the enigma that whether there was any decree of possession in their favour which was executed. Because even if allotment under Land Reforms was cancelled, they still were tenants in the said property and how they could have been ejected therefrom in absence of any decree. But since this is not the question before the Court, so I would refrain from commenting on this aspect of the case. However, it is undisputed that both the petitioners were tenants on the agricultural property of plaintiffs/respondents and suit houses were built in the said property and were occupied by them in pursuance of that tenancy. More particularly, PW.2 Aurangzeb Khan has admitted in unequivocal terms in his cross-examination that defendants themselves constructed the suit houses. It was the same reason that they claimed cost of improvements in the written statements but strangely the learned Trial Court turned down their request for appointment of commission.
7. The nature of petitioners' possession of suit houses in view of this factual position is that of tenants in agricultural land. "Land" is defined in Section 2(i) of the KPK Tenancy Act, 1950 which runs as follows:--- "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."
' The houses in question were built up by predecessors of petitioners for agricultural purposes and purposes subservient thereto, hence fall within the ambit of "Land" provided in Tenancy Act, 1950.
Thus the petitioners are occupying the suit houses as tenants. The landlord/lady could have availed remedy under Section 26 of ibid Act before the Revenue Officer for ejectment of his tenant.
The jurisdiction of Civil Court is expressly barred under Section 48 of the KPK Tenancy Act, 1950.
Though the agricultural property has already been taken over by the plaintiffs/respondents, but petitioners are still occupying the suit houses as tenant and no fresh agreement of tenancy regarding payment of Khakshora as alleged in plaint, has been proved by the plaintiff. Rather, stance taken in written statement has not only been substantiated by defendant's evidence but also by plaintiff's witnesses.
8. Thus in view of this backdrop of facts and in purview of law, Civil Court had no jurisdiction to entertain the suits and the impugned judgments and decrees passed by the Courts below are nullity in the eye of law.
9. Though learned counsel for respondents pointed out that petitioners filed application for return of plaint for lack of jurisdiction before the Trial Court which was allowed but the same was set aside by the Appellate Court, hence petitioners are precluded to raise the same objection at the revisional stage because the issue had attained finality.
10. It is settled law that a law point can be raised at any stage of the proceedings particularly when it relates to the jurisdiction of the Court or Tribunal. Admittedly, the judgment passed, order made and proceedings initiated without jurisdiction are coram-non-judice which does not create or extinguish the right and are non-est. It is also settled that mere non-raising of objection or for that matter acquiescence of a party in jurisdiction of a Court or Tribunal would not vest jurisdiction in the Court if it otherwise is not vested or is expressly barred by law. Thus the objection raised by the respondents being misplaced is repelled.
11. For what has been discussed above, both these petitions are allowed, the impugned judgments and decrees of both the Courts below are set aside and both the suits are remitted to the Trial Court for return of the plaints to the plaintiffs for presentation before the proper forum. Parties to attend the Trial Court on 22.2.2016.
Revision /Impugned Judgments Set Aside.