RUSTAM S. SIDHWA, J.--This order will dispose of Civil Petitions Nos.157/P and 158/P of 1989 filed by Abdul Quddus and another seeking leave to appeal against the order of a learned single Judge of the Peshawar High Court dated 2-4-1989 dismissing their Writ Petitions Nos.397 and 398 of 1985.
2. The brief facts of the case are that on 14-9-1968 Abdul Quddus and another, petitioners, took on lease from Haji Zar Baz and others, respondents Nos.4 to 6, 162.1/2 jaribs of irrigated land for a period of three years on a rental of Rs,13,000 per annum. In 1970 the lease expired. The respondents asked the petitioners to vacate the land, which they did not do. Accordingly, the respondents sought ejectment of the petitioners through a suit, which was decreed on 1-8-1974. The petitioners thereafter availed of legal remedies, but were ultimately physically ejected in 1979. However, in 1977 the respondents instituted a suit against the petitioners before the Assistant Collector for recovery of produce share of suit crop from Kharif, 1974 to Rabi, 1977 at the rate of Rs,39,000 per annum. On 24-10-1979 the suit was decreed. On appeal the case was remanded on 30-4-1980 to the Assistant Collector for a fresh decision, after recording further evidence. On 12-10-1983 the Assistant Collector again passed a decree in favour of the respondents at the rate of Rs,39,000 per annum. The petitioners appealed against the said decision, which was dismissed on 31-3-1984. Likewise, the revision filed by the petitioners also failed on 19-9-1985. Being aggrieved by the said orders, the petitioners preferred a Writ Petition W.P.No,397/1985 before the Peshawar High Court, which was dismissed by a learned single Judge on 2-4-1989.
3. With regard to the recovery of the produce share of the crop relating to the same land for the period Kharif, 1977 to Rabi, 1979 the respondents filed a second suit on 24-5-1980 for compensation at the rate of Rs,39,000 per annum. The Assistant Collector, 1st Grade, decreed the suit on 12-10- 1983. An appeal taken by the petitioners before the Collector, Malakand failed on 31-3-1984.
Likewise, the revision filed by them before the Additional Revenue Commissioner, Malakand Division, also failed on 19-9-1985. Being aggrieved by the said decisions, the petitioners filed Writ Petition W.P.No,398/1985 before the Peshawar High Court, which was also dismissed on 2-4-1989.
4. Being aggrieved by the above two orders of the High Court dated 2-4-1989, the petitioners have preferred the present two civil petitions for special leave to appeal against the same.
5. On behalf of the petitioners the learned counsel for the petitioners submits that section 6 of the N.-W.F.P. Tenancy Act, 1950, applies to the case and not section 7, as has been applied by the learned single Judge of the High Court. It is, therefore, contended that the two judgments being contrary to law, deserve to be set aside. In this connection the learned counsel has cited Haji Abdul Ghaffar Khan v.Gullah Jan (PLD 1952 Pesh.50) and Shah Pasand Khan and others v. Sher Zaman Khan and others (PLD 1952 Pesh. 62). It is further submitted that the rate of compensation has not been legally and correctly worked out, for the same should have been calculated on the basis of the rent payable in the preceding agricultural year i,e 1973-74.
6. With the assistance of the learned counsel we have examined sections 6 and 7 of the N.-W.F.P.
Tenancy Act, 1950. The case in instance is not one of holding over. The petitioners were ejected through a suit, which was decreed on 1-8-1974. They, however, retained possession of the land, as they took other legal proceedings to set aside the decree for eviction, till they were finally physically ejected in 1979. In these circumstances, section 7 of the N.-W.F.P. Tenancy Act, 1950, has been correctly applied by the learned Single Judge of the High Court and no exception can be taken to his action. The two cases cited by the learned counsel are distinguishable. In any case, the observations in Shah Pasand Khan and others v. Sher Zaman Khan and others (PLD 1952 Pesh. 62) actually go against the petitioners. The law has been properly applied in the case and the first submission of the learned counsel carries no weight and is.Rejected. As regards the second submission, the rate of compensation fixed by the lower Courts for the use and occupation of the respondents' land by the petitioners, no exception can be taken to the same, as the same was fixed on the basis of oral and documentary evidence produced by the parties. The respondents, claimed compensation for the years 1974-75, 1975-76, 1976-77, 1977-78 and 1978-79. Under section 7 of the N.-W.F.P. Tenancy Act, 1950, the compensation had to be fixed, for these years at the rental payable in the preceding agricultural years i,e. At the rate payable in the years 1973-74, 1974-75, 1975-76, 1976-77 and 1977-78. Documents Ex. P.W.1/2 and Ex.P.W.1/3 show that the rate was Rs,400 and Rs,500 per jareeb respectively. These documents relate to the year 1974. Since the rate of rent payable after 1974 would obviously have been higher, the lower Courts fixed the average at Rs,600 per jareeb (which works out to Rs,39,000 per annum); which cannot be said to be capricious or perverse. In these circumstances, no objection can be taken to the rate of compensation fixed by the lower Courts with regard to the use and occupation of the respondents' land by the petitioners, after they were legally ejected.
7. The learned counsel for the petitioners has not been able to show that the orders of the lower Courts impugned by the petitioners in their two writ petitions suffered from any lack of jurisdiction.
For the foregoing reasons, there is no merit in the two petitions, which are hereby dismissed.