MUHAMMAD NASIR MAHFOOZ, J.---Petitioner has. invoked jurisdiction of this court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 for declaring the order dated 03.09.2013 passed by respondent No,5/Member II Board of Revenue as without jurisdiction and without lawful authority.
2. Vide the impugned order Member Board of Revenue has allowed an application of respondent No, 1, (now deceased) and represented by legal heirs, for recovery of produce for the period Rabi 2010 as well as ejectment of the petitioner from the suit property comprised in khasra Nos,1078 and 1163. Petitioner submitted reply and denied relationship of landlord and tenant and stated that another suit is also pending decision regarding the suit property filed by present respondent No, 1.
Parties produced their evidence and learned trial court granted partial decree for recovery of produce and dismissed the prayer for ejectment on 02.03.2011. Both the parties challenged the order in appeal, which was allowed by the Collector and the case was remanded on 18.05.2011.
Thereafter, on 28.01.2012 learned trial court decreed the whole application of respondent No,
1. Said order was challenged in appeal by present petitioner but his appeal was dismissed on 23.05:2012.
On his revision before the learned Additional Commissioner the orders of courts below were set aside and the case was remanded back to the learned trial court on 13.12.2012. Aggrieved therefrom, respondent No,1 filed second revision before the Senior Member Board of Revenue which was heard by Member II, Board of Revenue Khyber Pakhtunkhwa and the same was allowed through the impugned order on 03.09.2013 and the judgment and decree passed by the learned trial Court was restored.
3. Hence, aggrieved therefrom, petitioner has filed this writ petition on two fold grounds. Firstly, that Member Board of Revenue had no jurisdiction to hear second revision under section 56 of the Khyber Pakhtunkhwa Tenancy Act, 1950 and secondly, on facts and circumstances of the case as available on record during evidence of the parties. On the first point he referred to a number of judgments PLD 1986 Peshawar 67 wherein this court has held as under:-- "Taking this view of the mater and respectfully following the rule laid down in the judgment of the Supreme Court in Civil Appeals Nos, 51-P etc. Haji Samad Khan and another v. Khalid Khan and others (1985 SCMR 770), we have come to the conclusion that in the case in hand the second revision was incompetently entertained and disposed of by the learned Member, Board of Revenue. The writ petition is, therefore, allowed and the impugned order dated 29.05.1982 of the Member, Board of Revenue N. W.F.P., is declared as without lawful authority and of no legal effect.
In the circumstances there shall be no order as to costs" In another judgment passed by Hon'ble Supreme Court of Pakistan 1985 SCM R 770 it is held as under:-- "After hearing the learned counsel for both the parties in all the appeals before us we are inclined to agree with the conclusion of the learned Judges of the High Court that once the Commissioner has exercised the revisional jurisdiction conferred upon him under section 56 of the N. W. F. P.
Tenancy Act the Board of Revenue would not be competent to exercise the same powers with respect to the same case under the said section TM.
Similarly, in case reported as 1992 SCM R 2103 it is held as under:-- "There is thus no ambiguity in the judgment delivered by this court in Haji Samad Khan's case and in view thereof the judgment of the Peshawar High Court reported as PLD 1983 Peshawar 1, having been set aside was no longer a good law and could not be made basis for the judgment impugned herein".
In light of the judgments of Hon'ble Supreme Court of Pakistan it is now well established that Member Board of Revenue has got jurisdiction to entertain 2nd revision under section 56 of the Khyber Pakhtunkhwa Tenancy Act, 1950.
4. As regards the 2nd point on merits of the case, learned counsel for petitioner referred to revenue record and evidence and submitted that petitioner is tenant of other landlords and not of respondent No,1 .
Learned counsel for the respondents relied on a judgment of this court in another W.P. No,257 of 2011 passed on 19.01.2012 whereby writ petition of the present petitioner filed against the present respondent No,1 regarding the present disputed property was dismissed in limine. The said writ petition was outcome of another application for recovery of produce for Rabi and Khareef 2009 while present writ is out come of year Rabi 2010, filed by present respondent No,1 against present petitioner which was decreed up to this court and has attained finality. It also shows that the present petitioner is habitual defaulter of payment of produce and has deliberately kept the proceedings prolonged against respondent No, 1 to remain in unlawful possession of the suit property. He has denied relationship of landlord and tenant but has failed to either prove that someone else is his landlord or has produced his alleged landlord as a witness to corroborate his contention. Present petitioner is in possession of the suit property as a tenant from the last more than a decade without paying a single penny or any produce to respondent No, l. He is, therefore, not entitled to any relief and learned Member Board of Revenue has rightly allowed revision of respondent No,1 and granted her decree as prayed for. Hence, this writ petition stands dismissed with no order as to costs.