' In these Civil Revision Petitions Nos. 378/1980, 379/1980 and 216/1982 as the same question requires determination, therefore, are disposed of by a single judgment.
2. The facts giving rise to C.R.No.378/1980 briefly stated are that land measuring 102 kanals bearing Khasra Nos.526, 527, 533, 696/534, 532 and 612/528 to 531, situated in Mauza Sarki Teetara was leased out by Mian Khadim Shah hereinafter to be referred to as the landlord to Haji Aman Gul and Saida Gul sons of Muhammad Zaman, hereinafter to be referred to as lessees, at the rate of Rs.150 per jarib per annum since the year 1968 upto Kharif 1973. On the expiry of the lease period and the default allegedly made in the payment of lease money for the year 1972, the landlord brought a suit in the Court of Assistant Collector Ist Grade, Charsadda on 12-12-1974 wherein claim at the enhanced rate of Rs.400 per jarib per annum was made for the period in dispute and for the subsequent period. The lessee resisted the suit on various grounds which are reflected in the issues framed by the learned Assistant Collector in the suit of which the material one for the decision of this revision petition pertains to the jurisdiction of the Court for the enhancement in the rate of lease amount or for that matter in the rent of the land in suit. After recording the evidence of the parties the learned Assistant Collector vide his order, dated 30-1-1976 fixed Rs.200 as the lease amount per jarib per annum since Rabi 1976. However, the prayer for ejectment of the lessee from the suit. land was rejected. Both the parties feeling aggrieved by the order appealed against it before the learned Collector who vide his order, dated 30-7-1976 partially allowed the appeal of the landlord and re-fixed Rs.400 per jarib per annum, however, in revision filed by the lessee the rate of the lease amount per jarib per annum was reduced to Rs.300 by the learned Additional Commissioner, Peshawar. Finally the learned Member Board of Revenue vide his order, dated 1-3- 1978 while giving his decision in appeal and revision against the orders of Additional Commissioner re-fixed Rs.480 as the lease amount per jarib per annum to which the landlord was held entitled.
The order with regard to ejectment of the lessee from the suit land was, however, maintained. In working out the lease amount per jarib per annum reliance was placed on the Goshwara of produce (Ausat Takhmina Paidawar) which was available on the file of the case.
3. Having exhausted their remedy before the proper forum Haji Aman Gul and one another, the lessees, brought the present suit of which this revision petition arises in the Court of Civil Judge, Charsadda against their landlord seeking declaration that they are holding the land mentioned above as lessees at the rate of Rs.150 per jarib per annum and that the orders of enhancement in rent passed by the Revenue Courts are collusive, fraudulent, without jurisdiction, against the provision of law and are not binding on them. Prayer was made for restraining the landlord from proceeding against the plaintiffs in Suit No.241/1, 242/1 and 243/1 then pending in the Revenue Court. Alongwith the plaintiff was also filed an application for temporary injunction as stated above.
4. In the Civil Court the plaintiffs suit was contested apart from other grounds on the grounds of res judicata, bar of jurisdiction of the Civil Court and estoppel. The question of jurisdiction of the Civil Court was argued before the Court when arguments over the application for temporary injunction were addressed by the learned counsel for the parties. The learned trial Judge, therefore, while giving his decision on the question after having held that the Civil Court has got no jurisdiction in the matter, order the return of the plaintiff for presenta tion in the proper forum.
5. Similar are the facts giving rise to C.R. No.379/1980 where too the plaint was ordered to be returned to the plaintiff. The facts in C.R.No.216 of 1982 are, however, somewhat different. In that case after recording the evidence of the parties instead of ordering the return of the plaint, plaintiff's suit was dismissed for want of jurisdic tion.
6. The learned District Judge in all these three cases, concurred with the finding of the trial Court and dismissed all the three appeals filed by the plaintiffs.
7. Mr.Abdur Rahim Khan, Advocate for the petitioners and S.Ahmad Shah Gillani and Mr. Muhammad Aman Khan, Advocates for the respondents present and heard.
8. The learned counsel for the petitioners contended that in the absence of specific provision for the enhancement in rent or in the rate of lease amount the judgments and orders of the Revenue Courts were illegal and without jurisdiction. Reference was made to the relevant sections of the N.- W.F.P. Tenancy Act, 1950 (hereinafter to be referred as the Act). Section 6 of the Act deals with the commutation and alteration of rent while section 13 provides for the alteration of rent on alteration of area. Similarly provisions has been made under section 15 of the Act for the remission and suspension of rent or like treatment of land revenue. It was further pointed out that no provision has been made in the Act for the enhancement of rent in any other eventuality.
' It was, therefore, argued that the orders having been passed by the Revenue Courts against law are open to challenge in the Civil Court under section 9 of the Civil Procedure Code.
9. The learned counsel appearing for the respondents controverted the aforementioned contentions. It was argued that tenancy was created for a fixed term at a fixed rate of the suit property and on the expiry of the period of lease the possession of the land was to be delivered to the landlord unless by the consent of the parties the period of lease was to be extended. In the present case the period of lease having expired and in the absence of any fresh agreement between the parties there arose a dispute between the landlord and tenant (lessees) for determination of the Court. According to the learned counsel dispute of the nature referred to above is covered by sub-clause (f) of clause (3) of Section 49 of the Act.
10. In order to appreciate the contentions raised by the learned counsel for the parties section 9 of the Civil Procedure Code is reproduced as under:- ' The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred."
' From the plain reading of the section it is clear that for attracting the jurisdiction of the Civil Court it must be established firstly; that the dispute between the parties is of a civil nature and secondly; that there is no bar provided in the Statute (Special Statute) for taking cognizance of the suit.
Applying this test I have no hesitation in holding that the suit brought by the petitioners in the Civil Court is hit by the exception mentioned by the latter part of section 9 of the Civil Procedure Code.
11. N.-W.F.P. Tenancy Act, 1950 is a special statute enacted for regulating the relationship between landlord and tenant and all matters covered by the enactment is to be heard and decided by the forum provided for in it. The existence of relationship of landlord and tenant has not been denied by the petitioners at any stage of the proceedings before the Revenue Courts. It may, therefore, be pertinent to refer to section 49 of the Act whereby exclusive jurisdiction has been conferred on the Revenue Court for determination of the matters enumerated thereunder. The relevant part of section 49 (3) of the Act reads as under:-
(3) The following suits shall be instituted in and heard and determined by Revenue Courts, and no other Courts shall take cognizance of any such dispute or matter with respect to which any suit might be instituted.
Second Group.
(f) any other suit between landlord and tenant arising out of the lease or conditions on which a tenancy is held."
Keeping in view the above provision of law now I may revert to the prayer made by the petitioners in their plaint filed before the Civil Court attracting the jurisdiction of the Court. In the suit declaration was prayed for to the effect that the plaintiffs were in possession as lessees of the land at the rate of Rs.150 per jarib per annum and that the judgments and decrees of the Revenue Courts referred to therein were illegal and without jurisdiction. It is an accepted principle of law that the jurisdiction of the Court is to be determined on the allegation made by the plaintiffs in their plaint. The jurisdiction of the Revenue Court to determine the dispute with regard to the condition of lease is not denied. In the present suit declaration was prayed for to the effect that the petitioners herein were the lessees in possession of the suit property and further determination of the condition of the rate of lease of Rs.150 per jarib per annum. The prayer so made is apparently within the exclusive jurisdiction of the Revenue Court and the jurisdiction of the Civil Court to adjudicate in the matter is expressly ousted. The objection that no provision has been made in the Act for the enhancement of the lease amount is of no substance in the circumstances of the case when the agreed period of lease had already expired and thereafter the parties had not agreed to the continuation of the relationship on the old terms and conditions. Admittedly in such situation it can be safely gathered therefrom that there existed a dispute between the parties arising out of the lease which was exclusively determinable by the Revenue Court under sub-clause (f) of clause
(3) of section 49. Ind the instant case undoubtedly both the parties were bound by the conditions set out in the lease agreement, however, on the expiry of the lease period and in the absence of any fresh contract between the parties the aggrieved party had to resort to the Revenue Courts for their redress. As is apparent from the judgments of the Revenue Courts the rate agreed upon by the parties for the stipulated period has neither been enhanced nor has been interfered with, however, for the period subsequent to the expiry of the lease period the Revenue Courts have correctly determined the dispute raised before them for determina tion which was within their exclusive jurisdiction. In case the leasees are not willing to accept the new rate or to enter into a new agreement of lease they are not under any compulsion to continue with the tenancy.
12. The question of jurisdiction came for consideration in Civil Revision Petition Swan Singh v.
Rehman and others 55 I C 739. The facts of the case cited were that Rehman and others instituted a suit against Sondi Mal and others in the Court of Munsif 1st Class claiming declaration to the effect that the plaintiffs were liable to give to the defendants 1/3rd share of grain as rent in respect of their occupancy lands despite an entry in the revenue record showing the liability to pay a larger share. The preliminary objection raised to the jurisdiction of the Civil Court by the landlord having been decided in favour of the plaintiffs was challenged in revision. Dealing with the question reference was made to an earlier judgment in Ram Singh v. Bakhshi 41 I C 866, relied upon by the Munsif, his Lordship observed:- "There, however, the facts were quite different. The plaintiffs in that case alleged that the entries in the revenue papers relating to the ownership of certain khasra numbers were incorrect, and the relief prayed for was that proceedings relating to a certain mutation be held null and void, the entries in the Record of Rights being corrected. In the present suit the plain tiffs pray for a declaration that they are not liable to pay rent as entered in the revenue records, and it seems to me that such a case clearly falls within the purview of section 77(3)(i), being a suit between a landlord and a tenant arising out of the conditions on which a tenancy is held.
13. The above legal proposition has not been controverted nor any authority to the contrary was cited by the learned counsel for the petitioners that the prayer made in the plaint was not covered by the provision of section 49 of the Act or that the matter falling for determina tion was triable by the Civil Court. I am of the view that the question of jurisdiction has been rightly determined by the Courts below. There is no merit in C.R.Nos.378 and 379 of 1980 which are dismissed with costs.
However, C.R. No.216 of 1982 is accepted. The case is remanded back to the trial Court with the direction to return the plaint to the plaintiff for presentation before the proper forum.