' ABDUL KARIM KEAN KUNDI, J.-Writ Petitions Nos. 364, 365 and 366 of the year 1981 respectively brought by Said Ahmad and another, Abdul Manan and others and Hassan Malik and others against Additional Commissioner, Malakand Division and others, are directed against the judgments and decrees of the Revenue Courts awarding rent produce for Kharif 1975 to the respondents after holding the petitioners as tenants in occupation of the lands under them on the basis of the judgments of the Land Commission in their favour. Since alike points of law, mainly of want of jurisdiction, are involved, it is, therefore, proposed to dispose off the writ petitions by a consolidated judgment.
2. Regarding the land in dispute in Writ Petition No, 364/81, Badshah Sahib, Ex-ruler of Swat was declared to be its owner by the Deputy Commissioner, Swat after following the recommendations of the Land Dispute Inquiry Commission and his orders as such were also confirmed by the 0. S. D.
But on revision the Federal Land Commission reversed the orders and instead declared the respondents to be the owners of the land in dispute. However, regarding the land in dispute in Writ Petition Nos. 365/81 and 366/81, the respondents were found to be the owners by the Land Disputes Inquiry Commission who recommended the restoration of the land to them. The Deputy Commissioner accepted the recommendation and issued a notification to the effect. His orders were further upheld by the 0. S. D. And revisions filed by the late Ex-ruler of Swat before the Federal Land Commission had also failed.
3. Respondents/decree-holders had then applied for the execution of the Land Commission orders and in consequence they were delivered the symbolic proprietary possession of the lands in dispute in the year 1975 as such promoting them to apply to the Revenue courts for the award of rent produce of Kharif 1975 against the petitioners under a simple statement that they had been declared as owners by the Land Commission and had also obtained the proprietary possession and that since the petitioners were cultivating the land as tenants on payment of half of the rent produce, hence there be awarded decrees of rent produce to them for Kharif 1975 against the petitioners. The petitioners filed alike written statements in reply thereto, raising preliminary objections of bar of limitation, want of jurisdiction and non-existence of relationship of landlord and tenant and also claimed to be the owners in possession since ancestors. In the evidence too the respondents mainly placed their reliance on the judgments of the Land Commission and delivery of proprietary possession of the lands in dispute to them while the petitioners stated to be the owners in possession of the lands in dispute since their ancestors and to have never paid the rent, whatsoever, to any one including the Ex-ruler.
4. Regarding the land in dispute in Writ Petition No, 364/81, Federal Land Commission while accepting the revision/petition of the respondents had summed up as follows : -- "In these circumstances, the petitioners must succeed. As the quantum of area claimed by them was not challenged by the respondents, there is no evidence to justify its reduction. They have claimed that out of the total area known as Taung, their property which yielded 110 maunds, a part yielded 60 maunds is already in their possession. It is only the part yielding the remaining 50 maunds which is in the possession of the respondents. It will be for implementing authorities to identify the entire area and to isolate from it, the one yielding 50 mounds (which one may presume is an estimate) and restore it to the petitioners (underlying is mine) The petition is accepted to this extent and in this sense."
[Here in italics] ' Perhaps in the circumstances narrated above there was necessitated the delivery of proprietary possession to the respondents against the Ex-ruler, judgment-debtor. But unfortunately the execution proceedings were conducted as mere formality and the description and location of the lands in dispute were not ascertained by metes and bounds on the spot.
5. Regarding the land in dispute in Writ Petition No, 366/81, a NaibTehsildar, Land Reforms Swat was appointed as Commissioner to conduct local investigation who reported that it was difficult to point out correctly if the decrees pertained to the land in dispute. He further stated that the description of the land in dispute given in the plaint was also different at least to the extent of situation in the East on the spot. He also reported that there had been given decrees to `Miangans' in village Islampur and unless all the decrees were executed simultaneously or the settlement record was prepared, it could not be said with certainty if the decrees in favour of the respondents pertained to the land in dispute in occupation of the petitioners.
6. In the proceedings before the Assistant Collector Grade-1, Swat in respect of the land in dispute in Wirt Petition No, 366/81, respondents in a number of 58 and the petitioners in a number of 190 were jointly, put questions as one witness both in examination-in-chief and cross-examination and one cannot understand as how and through whom they jointly answered the questions as their spokesman. Even in the said joint novel statement the petitioners had stated that the lands in dispute had been in their possession since ancestors and that they had never paid the rent produce to the. Ex-ruler or the respondents.
7. A reference was made to a photostat copy of an application addressed to S. P. Swat as placed on the file of the revenue Court vide Hassan Malik and some other petitioners had allegedly acknowledged themselves as "Faqiran" and "Zamindaran" of Ex-ruler of Swat and were to complain against their ejectment from the lands and `Kothas' by the "Pakhtoon" and "Miangans" who had allegedly obtained decrees from the Courts. Along the said complaint copies of the statements of Kherati and Jaukar recorded by M. I. C. Swat on 7th July, 1975 had been filed in which they had reportedly stated that Kothas were to belong to the Ex-ruler. These documents were, however, not put to the petitioners during their examination. Moreover, the petitioners had denied the suggestion in their statement if they were ever the tenants of Badshah Sahib, the Ex-ruler.
8. Next reference was made to "Riwajnama" Swat which records that the persons of "Gujar" tribe did not own any personal property and if they were to agitate their title of ownership the same was to be proved in a Court of law by a deed or through the oral evidence of 20 elders of the village. It was argued that since the petitioners were from Gujar tribe and had failed to substantiate their claim of ownership by any instrument or oral deposition of 20 elders of the village as required under the "Riwajnama" Swat, hence the revenue Courts had rightly held them as tenants of the land in dispute under them. We however, refrain to discuss the merits of the acquisition of prescriptory or non-prescriptory title by the petitioners in respect , of the lands in dispute and the proof thereof in the revenue Courts as it does ' not fall in the domain of writ jurisdiction to enter upon the factual inquiry and to hold one way or the other regarding the title of the lands in dispute.
I Such matters have to be thrashed out in regular proceedings in competent Court of law.#
9. Reference was also made to section 7 of the N.-W. F. P. Tenancy Act, 1950, which renders a person in possession of the land occupying without the consent of the landlord liable to pay for the use or occupation of the land at the rate of rent to the landlord. It was contended that since the petitioners were in occupation of the lands in dispute, necessarily without the consent of the respondents, as such, they were liable to pay rent to them. In support reliance was placed on PLD 1952 Pesh.
62. The facts of the case were that the pre-emptor was granted a decree for possession on payment of a certain amount which he had deposited in Court and as such was entitled to its possession but since the vendee still remained in possession of the land without his consent the grant of decree of the profits equivalent to the rent produce of the land by the civil Court for the intervening period to the pre-emptor decree-holder was declared by the High Court to be without jurisdiction holding the pre-emptor/decree-holder, a person entitled to possession of the land and a landlord of the vendee within the meaning of section 7 of the N.-W. F. P. Tenancy Act, 1950. The High Court declared that the suit was to be heard and determined by the Revenue Court and not the civil Court. Herein the petitioners were not a party to the proceedings between the respondents and Ex-ruler of Swat before the Land Commission Forums which had declared the respondents as owners of the lands. The judgments of Land Commission shall not ipso facto render the occupants of the land as tenants under the respondents/decree-holders. Again a pre-emption decree for possession is executable against the vendee judgment-debtor and is not akin to a decree of Land Commission awarded to a claimant landlord against Ex-ruler because such a decree is operative and executable against the Ex-ruler, the judgment-debtor only and accordingly the decrees in the instant cases were executed through the delivery of symbolic proprietary possession to the respondents against the Ex-ruler. On the other hand, reference was made to Abdur Zazzaq v.
Faizullah Khan and others (1). A ratio of the authority is reproduced in its own words:- "A suit under section 7 of the N.-W. F. P. Tenancy Act can proceed only on the assumption that the relationship of landlord and tenant exists between the parties. Where the alleged tenant claims the ownership of the land itself, the revenue Courts lose their jurisdiction .....
10. In the background of the facts the respondents were declared as owners of certain lands by the Land Commission Forums in preference to the Ex-ruler of Swat, bone of contention between them being if the Ex-ruler had usurped the land or had purchased the lands from the respondents some more than 50 years back. Petitioners had claimed to be the owners, in possession in their own rights since ancestors even denying the ownership of the Ex-ruler. They have not been made a party to the proceedings before the Land Commission and even the decrees awarded to the respondents were executed as a mere formality by the delivery of symbolic proprietary)) possession without identification and location of the lands held in occupation by the petitioners after measurements by metes and bounds on the spot. There had not been prepared a revenue record and even the revenue,
(1) PLD 1968 Pesh. 125 authorities were to face difficulties in the identification of the lands I dispute. There were brought suits by the respondents/decree-holders against the petitioners under a simple statement that they were the tenant in cultivating possession of the lands in dispute on payment of half of that rent produce. Their suits were for arrears of rent for Sharif 1975. As such the revenue Courts were to award decrees of rent produce to them only after the establishment of the relationship of landlords and tenant between the parties which relationship, as stated before, does not come through as proved. In case the respondents were to claim the rent product from the petitioners for the use and occupation of the land under section of the N.-W. F. P. Tenancy Act, as pleaded before us at the bar in the alternate, they were to be the persons entitled to the use and occupation of the lands in dispute. They were further to be the persons who would be the landlords if the lands were occupied with their consent and since the lands had been occupied by the petitioners without their consent, hence the were entitled at the rate of rent for the use or occupation of the lands by the petitioners.
Further, if the petitioners were to acknowledge themselves as tenants in occupation of the lands in dispute under the Ex-ruler of Swat, they were to render themselves as tenants under the respondents/decree holders. But on the contrary, the petitioners had claimed to be the owners in possession since ancestors and even denied the tenancy under the Ex-ruler, the judgment-debtor.
11. Prima facie in cases where the defendants are in occupation of lands for more than 12 years claiming to be the owners on the basis of non-prescriptory or non-prescriptory title, theirs shall be a case involving questions to be decided by a civil Court in preference to the revenue Court and the legislature in its own wisdom has enacted section 70 of the N.-W. F.P. Tenancy Act, 1950, providing that if it appears to the revenue Court that any question in issue is more proper for decision by a civil Court, it may, with the previous sanction of the Court, one step above, require, by order in writing, any party to the proceedings to obtain a decision on the question from a civil Court..
12. The net result is that in the peculiar circumstances of the cases, the revenue Courts had been found to have acted with material irregularity, rather illegality to sit in adjudication upon complicated question of title, more proper for decision by a civil Court. Their judgments and decrees as impugned in the writ petitions are, therefore, declared as void and without lawful authority. The cases are sent back to the Court of Assistant Collector Grade-I, Swat with directions to proceed in the cases in compliance of the provisions contained in section 70 of the N-W. F. P.
Tenancy Act, 1950. Parties are left to bear their own costs.