FAZAL ELAHI KHAN, J.--In these two writ petitions Nos.482 of 1985 (Hamid Khan v. Wali Muhammad Khan and others) and 535 of 1985 (Jan Said v. Mst. Shamim Ara Begum and others), the same questions of fact and law are involved we, therefore, propose to dispose them of by this single judgment.
2. In Writ Petition No.482 of 1985, Wali Muhammad (Landlord) prayed for the recovery of Rs.25 or whatever amount was to be fixed in respect of land measuring 12 kanals one marla bearing Khasra Nos.1837 and 1879, situated in Mauza Pabbi Tehsil Nowshera for the period Kharif 1974 to Rabi 1976.
He also prayed for ejectment of the tenant on his having made default in payment of rent. The defendant contested the suit in his written statement where after issues were framed and evidence of the parties was recorded. The learned Revenue EA.C. On consideration of the evidence produced in Court held that there existed a relationship of landlord and tenant between the parties and that defendant failed to prove payment of landlord share of the land held by him to the plaintiff. It was further held that according to the Revenue record and the defendant's own statement he was a lessee of the suit land hence the plaintiffs' suit was decreed against the defendant for Rs.689.75 as lease money at the rate mentioned in the Revenue record and also ordered his ejectment as prayed for on 28-11-1978. The defendant's appeal and revision petition were dismissed by the learned Collector and the Additional Commissioner respectively vide their orders dated 24-4-1979 and 8-2-1981. His further revision petition was dismissed as incompetent by the learned Member, Board of Revenue on 7-10-1985.
In Writ Petition No.535 of 1985, Mst. Shamim Ara Begum had brought Suit No.222/1 in the Court of Revenue EA.C. Charsadda against Jan Said and others for recovery of landlord share on half Batai in respect of land measuring 64 kanals 10 marlas, detailed in the heading of the plaint situated in village Moza Khan Korrona Tehsil Charsadda, for the period Kharif 1970 to Kharif 1972. The defendants contested the plaintiffs' suit and alleged that they were cultivating the land as lessees and that they have paid the entire lease amount to the defendants and further stated that they would be entitled to compensation for improvements made in the land, in the event of their ejectment. After framing issues arising out of the pleadings of the parties and recording evidence the learned Revenue EA.C. In his detailed judgment after having found that there existed relationship of landlord and tenant between the parties held that the plaintiff had a cause of action in bringing the present suit. It was further held that defendants failed to prove that each of them had paid Rs.1,500 as advance to the plaintiff or her authorised agent as alleged in their written statement. Regarding the allegation of the plaintiff that the tenants were holding the land as tenants on Batai or on payment of Rs.40 per annum as lease money the learned trial Court placed reliance on the entries in the Revenue record wherein they were shown in cultivating possession of the-land of `Batai Nisif' and not as lessee as alleged by the defendants. Baidar and Rehman, Gul defendants compromised the suit with the plaintiff and agreed to surrender possession of the land in their possession to the plaintiff in lieu of the arrears of rent found against them. However, on the defendants' failure to prove payment a decree for produce and ejectment was passed against the remaining defendants on 31-12-1983. The defendants went in appeal against the judgment and decree while the plaintiff filed cross-objection to it. Both these matters were heard together and disposed of by the learned Collector vide his judgment and order dated 7-3-1984, maintained the judgment and decree of the trial Court and dismissed the same. The defendants' revision petition also failed before the Additional Commissioner on 28-i1-1984. Their second revision petition was dismissed by the learned Member, Board of Revenue as incompetent on 14-11-1985.
3. Two common questions have been raised, apart from challenging the impugned judgment and order on merits, in the individual case. Firstly, that the learned Member, Board of Revenue did not properly appreciate the import of the judgment of the Supreme Court of Pakistan in Haji Samad Khan and others v. Khalid Khan and others, rather the same has been misread and misapplied to the facts of the present case. Secondly, that the Courts below miss-read the evidence and misapplied the law in ordering the petitioners' ejectment from the land held by them.
4. We have heard the learned counsel for the parties in all these cases and have gone through the record placed on file. There is no denial of the fact that the Courts below have concurrently held in these cases the existence of relationship of landlord and tenant between the parties. Such relationship in fact has neither been denied nor seriously challenged by the petitioners, herein, in their evidence recorded by the Revenue EA.C. Their grievance, however, was that they being tenants of the suit land were entitled to the protection provided to a tenant under paragraph 25 of Martial Law Regulation No.115. Such being the case under the Regulation which overrides the provisions of N.-W.F.P. Tenancy Act, the learned Member, Board of Revenue was to entertain, hear and decide a revision petition in case falling under the Regulation as held by their Lordships of the Supreme Court of Pakistan in Haji Samad Khan and others v. Khalid Khan and others 1985 SCM R
770. We, however, find no force in the contention raised by the learned counsel. Admittedly in these cases the defendants have asserted in their written statement as well as in their evidence before the Revenue EA.C. That they were cultivating the land on cash rent/lease amount and that they were not holding the lands on `Batai Nisfi'. This question was reduced into an issue and evidence was led by the parties and on its basis the defendants in these cases were held to be the lessees paying cash rent. Tenant and lessee both terms are synonymous. The former generally is used when payment of rent is made in kind and the latter when the rent is paid in cash but both are governed by the provisions of N.-W.F.P. Tenancy Act. Reference may be made to Dost Muhammad etc. v. Syed Kazim Shah PLD 1978 (Revenue) 33 and Muhammad Yousaf v. Province of Punjab through Collector and others PLD 1976 Lah. 328. The distinction arises when the case falls within the purview of paragraph 25 of the Land Reforms Regulation under which certain safeguards have been provided to the tenant as defined under sub-para. (13) of para. 2 of Land Reforms Regulation 115 which is reproduced as follows:- "(13) "tenant" means a person who holds land under another person, and is, or but for a special contract would be, liable to pay rent for that land to that another person and include the predecessors and successors-in-interest of such person; but does not include--
(a) ..................................................
(b) ..................................................
(c) ..................................................
(d) a lessee, whether cultivating the land himself or through another person."
It is clear from the plain reading of the above that a lessee does not fall within the ambit of a tenant and paragraph 25 of the Regulation would not be attracted in their cases. Hence reliance cannot be placed on the judgment of the Supreme Court of Pakistan which provides for revisional jurisdiction of the Board of Revenue in cases falling under the Land Reforms Regulation. In this view of the matter no second revision petition was competent before the Board of Revenue . And the impugned orders to that extent are unquestionable. '
In W.P.No.535 of 1985, however, the petitioner being tenant-at-will on payment of `Batai NisiP was entitled to the protection from ejectment under paragraph 25 of Land Reforms Regulation and in his case there was no bar in entertaining second revision petition in view of the judgment of the Supreme Court of Pakistan referred to above. However, even under the Land Reforms Regulation a tenant can be ejected of his tenancy if he makes default in payment of rent and all the three forums of exclusive jurisdiction having held that the petitioner was defaulter in payment of rent we feel no necessity of sending the case to the learned Member, Board of Revenue for hearing of the petitioner's second revision petition on merits as no useful purpose will be served there from.
5. Regarding the ejectment and compensation for improvements it may be pointed out that these questions have been fully dealt with by the forums of exclusive jurisdiction in competent proceedings in which the tenants (petitioners herein) were found defaulters in payment of rent and the question of compensation has been dealt with in the impugned judgment and orders. Such finding of fact based on proper appraisal of the evidence is not open to interference in constitutional jurisdiction. Even otherwise as the petitioners were not holding the land for a fixed term under a contract, decree or order of a competent authority they were liable to ejectment after three years of the commencement of the N.-W.F.P. Tenancy Act, 1950. There is no bar on the ejectment of a tenant-at-will (lessees in the present case) either in the Tenancy Act or any other law under which exception would be taken to the petitioner's ejectment. For the reasons stated above these writ petitions stand dismissed but the parties are left to bear their own costs.