' The facts of this revision petition have been very elaborately noted in the two judgments of my learned brothers Mr. Justice Faiz Muhammad Khan and Mr. Justice Inayat Elahi Khan, However, for the purposes of this judgment I will reproduce them briefly. Sikandar and others petitioners herein had purchased the suit land from previous owner Muhammad Aslam by Mutation No,428 attested on 11-4-1970. Muhammad Ayub and others respondents herein claimed to be tenantsat-will of the same. The petitioners entered into possession of the suit land in 1974 claiming that the respondents had relinquished their tenancy rights by agreement executed on 15-6-1974. However, the respondents questioned the execution of the said agreement and filed a complaint against the petitioners under section 447/379/34 P.P.C. But the same was dismissed by the learned Magistrate on 9-3-1976. Thereafter the respondents filed a civil suit against the petitioners under section 9 of the Specific Relief Act for recovery of possession of the suit land. The suit was contested by the petitioners inter alia on the ground of limitation and jurisdiction of the Court. The learned Senior Civil Judge, who was seized with the matter, held that the suit was barred by time and that the civil Court had also no jurisdiction to adjudicate upon it, which could only be heard by revenue Court and dismissed the suit on 25-7-1977. Feeling aggrieved the respondents filed an appeal in the Court of learned District Judge, Abbottabad. The respondents did not challenge in appeal the finding of the trial Court with regard to the point of jurisdiction and contended that if the civil Court had no jurisdiction then the point of limitation should not have been adjudicated upon by it. This argument prevailed with the learned District Judge, who by judgment dated 3-4-1978, set aside the finding of the learned Senior Civil Judge on the point of limitation as well. However, instead of filing a suit in revenue Court the respondents again approached the civil Court by instituting suit for possession. This suit was also contested by the petitioners inter alia on the ground of res judicata and jurisdiction. The learned trial Court decided the issue regarding res judicata against the petitioners but accepted the plea of bar of jurisdiction and by judgment dated 20-10-1981 returned the plaint to the respondents for presentation to the proper forum. However, the respondents filed an appeal before the learned District Judge, Abbottabad which was accepted on 14-4-1983 and they were granted a decree for possession of the suit land. The aforesaid decree of the learned District Judge has been assailed by the petitioners in the revision petition in hand.
2. The revision petition was heard by the learned Division Bench as referred to above but a difference of opinion having arisen between them the matter has been referred to me.
3. I have heard learned counsel for the parties at length who have also led me through the record of the case.
4. The first suit of the respondents filed in the Court of learned Senior Civil Judge, Abbottabad would indicate in its heading that it was a suit under section 9 of the Specific Relief Act, 1877. The original plaint of Suit No,96/1 of 1976 returned to the respondents has been filed alongwith the plaint of the second suit of the respondents registered under No,196/i of 1978. The minute perusal of the contents of the plaint of Suit No,96/1 would clearly indicate that the respondents had taken up the plea that they were illegally dispossessed by the petitioners herein within 2 months of the filing of the suit and they were entitled to be put in possession thereof. I have given my very anxious thought to the contents of this plaint and I am of the opinion that it was not a regular civil suit but it was only a suit filed under the provisions of section 9 of the Specific Relief Act. Not only the heading of the plaint but the other contents of the plaint also disclose and confirm it to be a suit envisaged by section 9 of the Specific Relief Act. It cannot by any stretch of imagination be considered a, regular civil suit. In order to determine the jurisdiction of a forum the important criterion is the allegation made in the body of the plaint and judged by this criterion the same was suit under section 9 of the aforesaid Act for all intents and purposes. In arriving at this conclusion I also draw support from the case of Haji Amen Gul and another v. Mian Khadim Shah (1985 CLC 78)
5.
5. However, the provisions of section 35 of the N.-W.F.P. Tenancy Act, 1950 place a bar of relief by suit under section 9 of the Specific Relief Act. It has been very clearly laid down in this section that possession of a tenancy or Of any land comprised in a tenancy shall not be recoverable under section 9 of the Specific Relief Act, 1877, by a tenant dispossessed thereof. In my opinion this ground of bar of jurisdiction had prevailed with the learned Senior Civil Judge when he held in the earlier suit that the civil Court had no jurisdiction. Not only that but the respondents also realized this legal position in the matter and that was the reason that they did not challenge this finding of the learned Senior Civil Judge in appeal before the learned District Judge. Their only contention was that since there was a bar of jurisdiction of the civil Court in the matter so the question of limitation should not have been decided by it. The later point prevailed with the learned District Judge who accepted the appeal and ordered the return of the plaint to the respondents for presentation before the proper forum that is the revenue Court. The bar of jurisdiction envisaged by section 35 of the N.-W.F.P. Tenancy Act is understandable when we find that there are clear provisions mentioned in section 33 thereof under which a tenant dispossessed without his consent of his tenancy can within one year from the date of dispossession or ejectment, institute a suit for recovery of possession or for compensation or for both. The provisions of clause (a) of section 33 are very clear in this respect and there can be no ground of any doubt therein. Such a suit is triable by a revenue Court under section 49, subsection (4), clause (e) of Second Group.
6. It is now, therefore, settled that the previous suit of the respondents registered under No,96/1 of 1976 could not proceed in the civil Court under the provisions of section 35 of the N.-W.F.P. Tenancy Act, 1950 and they could only file a suit in a revenue Court as envisaged by section 33 of the said Act. The respondents could claim such a relief from the revenue Court by a suit filed within one year from the date of dispossession or ejectment. It transpires that the respondents did not choose this course of action. They could file a suit in the revenue Court under the provisions of section 33 of the N.-W.F.P Tenancy Act, 1950 but instead they again filed a civil suit in the civil Court which was registered under No,196/1 cf 1978. The next question which falls for determination is whether, having failed to file a suit in the revenue Court under the provisions of section 33 of the N.-W.F.P. Tenancy Act within one year of the dispossession or ejectment, could the respondents file the latter suit again in the civil Court. My answer to this question is in the affirmative.
7. It is admitted that in the earlier suit which was filed on 19-4-1976 the respondents had claimed that they were dispossessed of the suit land two months before the filing of the suit and the second Suit No,196/1 cf 1978 was filed in the Court of Civil Judge, Abbottabad on 29-4-1978. It shall thus be seen that the second suit was filed in the civil Court two years after the alleged date of dispossession of the respondents. Obviously this suit was filed in the civil Court after the expiry of period of one year as envisaged in section 33 of the N.-W.F.P. Tenancy Act. In the case of Mahindar Singh and another v. Allah Ditta (AIR 1924 Lah'.539) it was held that where plaintiff claimed possession over certain land on the allegation that he was its occupancy tenant and had wrongfully been dispossessed by the landlord about 6 years ago, suit by the tenant could only be filed in revenue Court though filed after one year of dispossession. The same view was taken in the case of Baru and others v. Niadar and others (AIR' (29) 1942 Lah.217). However, in the case of Sher Ali Khan v. Nawab and others (PLD 1962 (W.P.) Pesh.110) it was held that the failure of the tenants to avail of summary remedy provided in section 50 of the Punjab Tenancy Act, 1887 did not take away their ordinary remedy under the civil law to gain possession of their occupancy tenancy in a civil Court unless it had become time-barred which would happen in cases where the tenant had discontinued possession for a period of more than twelve years and the landlord had in the meantime matured his adverse possession to it. This being the latest view in the matter I would with respect follow it. I am, therefore, of the confirmed opinion that if a tenant does not avail of the remedy provided in section 33 of the N.-W.F.P. Tenancy Act by filing a suit in the revenue Court within the prescribed period of one year, he is not precluded from filing a suit thereafter in a civil Court. His remedy under the ordinary law of the land would still be open to him to file a civil suit but such suit shall be filed when one condition is met that is the tenant did not avail of the provisions of section 33 of the N.-W.F.P. Tenancy Act by filing such a suit in a revenue Court within one year of his dispossession.
8. I am, therefore, of the confirmed opinion that the second suit, out of which the present revision petition has arisen, was competently filed by the respondents in the civil Court and the jurisdiction of the civil Court was not barred to adjudicate upon the matter. In so far as the facts of the case are concerned both the learned Courts having arrived at a concurrent finding after due appreciation of the facts, their findings do not call for any interference by this Court in revision.
There is neither any allegation of misreading nor non-reading of evidence by both the learned lower Courts. Finding no merit in this revision petition I will dismiss it leaving the parties to bear their own costs.