1. SHAFIUR RAHMAN, J.-Leave to appeal was granted to the petitioner, a defendant, to examine whether in view of section 49 of the North-West Frontier Province Tenancy Act, 1950 and the proviso to section 77 of the Punjab Tenancy Act, 1887 as applied to N.-W. F. P., the defence of the petitioner in a civil suit filed by the respondent did not require return of the plaint for presentation in the revenue Court, the substance of the controversy being concerning a matter exclusively within the jurisdiction and competence of the revenue Court.
2. The facts giving rise to this appeal are that the respondent claiming to be the landlord of the petitioner in respect of agricultural land measuring 100 Kanals in village Shamdhara tehsil and district Mansahra sought his eviction on the grounds that he had failed to pay the rent to him and had damaged the utility of the land also. In resisting this claim in the revenue Court the petitioner took up the preliminary objection and also an objection on merits that the revenue Court had no jurisdiction in the matter and that he was the owner of the land on account of the provisions of N.- W. F. P. Tenancy Act of 1950. He claimed that originally Faqir Muhammad, his predecessor-in- interest was the occupancy tenant of it and after his death he continued in possession of it and under the law as it then stood he was full owner of it and the respondent was left with no interest.
3. An application was thereupon made by the respondent to the revenue Court that he be permitted to withdraw this claim as question of title was raised by the petitioner which could only be adjudicated upon in Civil Court. He then instituted a civil suit on 24th September 1970 alleging that he was the owner, the petitioner a tenant who had repudiated the tenancy and the landlord's title and was claiming to be the owner of the land. The petitioner in his written statements reiterated the same defence and there also he raised the objection to jurisdiction, this time of the Civil Court. The trial Court framed the following issues on the pleadings of the parties- "(1) Whether the plaintiffs have got a cause of action ? .
(2) Whether this Court has got no jurisdiction to entertain this suit ?
(3) Whether the plaintiffs are estopped from suit ?
(4) Whether the suit is hit by the principle of res judicata ?
(5) Whether the plaintiff's is entitled to the possession of the suit land and recovery of Rs. 200 or whatever amount is found due by rendition of accounts ?
(6) Relief.
4. The trial Court held that the plaintiff had a cause of action, that the Civil Court had the jurisdiction as the question of title was involved, that the respondent was not estopped nor the case hit by the -principle of res judicata and the plaintiff was entitled to the possession of the suit land on account of forfeiture of the tenancy of the petitioner. The suit was decreed. His appeal and revision failed before the higher authorities.
5. The learned counsel for the petitioner contended that from the written statement of the petitioner filed in the revenue Court it was clear that he was not repudiating the claim of the respondent to be a landlord and had not therefore, incurred forfeiture. On the contrary he was claiming himself to be the occupancy tenant under the respondent and it was on account of the law (N.-W. F. P.
6. Tenancy Act, 1950) that he claimed to have become the owner of the land. On such a plea in defence in proceedings instituted by the respondent, his own stand in the proceedings initiated by him in revenue Court, forfeiture of the tenancy could not be implied or inferred. In support be has relied on Abdul Majid Mia v. Nabiruddin (PLD 1970 SC 465), Fakir & Co. v. Wazir Khan & Co. (1918 P R 32) and Feroze Din v. Hashmat All (PLD 1963 (W. P.) Lah. 283). In the alternative it was contended that if forfeiture was pleaded then notice under section 111 clause (9) was necessary, in the absence of which the claim of the respondent could not prevail. In support Umar Pulavar v.
7. Dawood Rowther (AIR 1947 Mad. 68) was cited. It has further been contended that in view of proviso to section 85 of the N.-W. F. P. Tenancy Act, 1950, section 77 of the Punjab Land Revenue. Act as applied to N: W. F. P. Remained applicable and as no determination of the occupancy rights had taken place under section 4 thereof, the respondent as an occupancy tenant would be entitled to plead in his defence occupancy tenancy not with-- standing the repeal of the Punjab Tenancy Act and the existence of section 3 of the N.-W. F. P. Tenancy Act, 1950. On the substance of the plea taken up by the appellant in the revenue Court as well as in the Civil Court, it was according to the learned counsel for the appellant, a case exclusively within the competence of revenue Court as held in Akram v. Zakaria Khan (PLD 1962 (W. P.) Pesh. 7) and the decree impugned in this case suffered from want of competence in the Court passing it. In any case, according to the learned counsel for the appellant, as substantial improvements had been made by the appellant, his ejectment could not be ordered unconditionally. He had to be compensated for it.
8. The reply of the appellant to the eviction petition filed by the , respondent has been placed on record. It has two prominent features. Firstly, the jurisdiction of the revenue Court, to adjudicate on the matter was denied. This denial of jurisdiction was not based on the averments made by the respondent but exclusively and solely on the case set out by the appellant in defence. Secondly, the appellant put forward his own ownership and title in the land, completely ousting thereby the title and ownership of the respondent. These features of the pleading prompted the respondent to t file an application, reproducing the claim and objection of the respondent and expressing his intention to move the Civil Court in the matter. Such a conduct of the appellant attracted the principle of estoppel by conduct and pleading against him. This principle has been considered in numerous cases fully recognized and given effect to e.g. In Pushavati Alakh Narayan Gajapatiraj Maharaj Manya Sultan Bahadur v. Secretary of State (AIR 1926 P C 18), Mahadeo Singh v. Pudal Singh (AIR 1931 Oudh 123), Ram Khelawan Singh and others v. 1vaharajah of Benares (AIR 1930 All.
9. IS), Saira Bibi v. Chandrapal Singh and others (A 1 R 1928 Oudh 503), Abdul Qayum v. Fida Hussain (301 C 551), Shea Ratan v. Lallu (95 1 C 845), Aiyathurat Pillar v. Gnanaprakasa . Odayar (52 1 C 829.), Uttamchand v. Saligram (117 1 C 285) and Mst. Basti Begam v. Sajjad Mirza (47 1 C 558).
10. Even looking to the merits of the case, we find that in his reply to ejectment proceedings initiated by the respondent in revenue Court, he had set up title over the suit land, his own, exclusive and full in presentae thereby ousting that of the respondent. A determination where com--peting titles to property were involved could take place only in a Civil Court and the respondent could justifiably on meeting such a resistance, go over to Civil Court and claim the relief which he sought. The case of Akram v. Zakaria Khan is distinguishable because in that case the declaration sought for was by the plaintiff and was based solely on a pre-existing occupancy tenancy which did not find mention in the revenue record. In this case, the claim of the plaintiff was not hedged in by any such limitation or precondition and the defence of the appellant could not be decisive in determining the forum where the dispute was to be adjudicated. It was a title suit which could be decided only in Civil Court.
11. So far as the merits of the case are concerned, the respondent had succeeded in proving his title.
12. The respondent's entire case with regard to ownership was based on his being successors-in- interest of Faqir Muhammad, whom he claimed to be his grand father. Not only this case was not put to any of the plaintiff's witnesses, but even the defence witness Qazi Abdul Jalil stated that Faqir Muhammad he died without any issue. The solitary statement of the appellant would be, insufficient to rebut the presumption. Arising out of entries of revenue record characterized by antiquity (1925) and continuity. The title claimed by the respondent in the property was established with nothing in the defence of appellant to doubt or suspect it or to condition or limit it.
13. As regards improvement and want of notice of forfeiture of tenancy, none of these pleas was specifically raised in the written statement and for this reason no issue was framed in respect of it.
14. Involving as they do questions of fact they had to be properly raised in the pleadings allowing an opportunity to the other side to meet them by evidence if necessary. A omission .To do so precludes the appellant from urging them as points of law at this terminal end of the proceedings.
15. This appeal has no merit and is dismissed with costs.