' The respondent Khalid Khan sued the petitioners for possession of Khasra No,543 measuring 41 Kanals 9 Marlas alongwith Orchard, Abadi etc., on the allegations in the plaint that he was lessee 'of the land in suit on behalf of defendant No,2 while defendant No,1 was " " over this land; that a month before the institution of the first plaint defendant No,1 denied the possessory rights of the plaintiff, therefore, the plaintiff is entitled to restoration of the disputed land alongwith the trees, fruit garden and Abadi; that defendant No,2 was added as defendant because the learned District Judge ordered so in the revision filed by him otherwise the plaintiff would not be bound by any collusive action of the defendants inter se. The defendants put in joint written statement wherein they pleaded that defendant No,1 has never remained as " of the plaintiff but instead he is cultivating the land under defendant No,2 and similarly the lease in favour of the plaintiff was also denied.
2. Plaintiff examined patwari halqa as P.W.1 who brought the extracts of Jamabandis from 1929-30 to 1968-69 and 1977-78 as Ex.P.W.1/1 to 1/10 and 1/12 and the Khasra Girdawari from Kharif 1968 to Rabi 1978 and Rabi 1980 as Ex.P.W.1/1 and Ex.D.W.1/D-3. Plaintiff in his statement in Court relied on the lease deed dated 9-5-1978 Ex.P.W.3/2 and stated that he is the lessee of the land on the basis of this deed and that he had been depositing the lease money with the revenue officer and placed photostat of the receipt as Ex.P.W.3/6. He also stated, {{URDU TEXT}} ' P.W. 3 Akhtaray was also examined by the plaintiff. Defendant No,2 appeared as D.W.1 and stated that defendant No,1 is a lessee over the suit land on his behalf and that the lease in favour of the plaintiff was only for one year and on its termination the land was leased out to defendant No,1. Zair Muhammad defendant No,1 while appearing as D.W.1/1 stated that earlier he was a tenant under Sherin Khan and now from 1980 he is cultivating the land under defendant No,2 and has executed a lease deed with him.
3. The learned trial Court while deciding the main issues 7 to 9 regarding the status of the parties held that the deed in favour of the plaintiff was not for one year but was brought about for indefinite period and that this deed is effective whereas the lease deed in favour of defendant No,1 by defendant No,2 was declared as collusive and not binding. On issue No,6 relating to jurisdiction of the Court it was held, "In the instant case the dispute is between the lessee-tenant and the landlord on the one hand and that those claiming tenancy adversely but accepted by the landlord.
Once the relationship is denied by the landlord, the suit fell out of the pull of cases covered by Section 49 of the N.-W.F.P. Tenancy Act. Civil Court has jurisdiction in all such matters where the dispute primarily is between the rival claimants to the right of tenant-at-will and the plaintiff is not executed as tenant by the landlord either". Consequently as a result of the finding on these issues the plaintiff's suit was decreed and the Civil Courts were held competent to adjudicate upon the controversy in suit between the parties. The appellate Court concluded that the lease in favour of the plaintiff was for indefinite period and the plaintiff is lessee of the suit land; that the owner had no right to execute a lease deed in favour of defendant No,1; that defendant No,1, "holding the suit land as a licensee under the plaintiff and he has refused to admit the right of the plaintiff, the Civil Court has, therefore, got the jurisdiction to entertain the suit. The tenant defendant No,1 has also not produced any evidence to show that he is in possession of the suit land in his own right and the alleged lease deed copy Ex.D.W.1/1. Therefore. Clops not create relationship of landlord and tenant between him and defendant No,2".
4. The learned counsel for the petitioners argued that the Civil Court had no jurisdiction to decide the dispute arising between the parties in this case and as such he maintained that issue No,6 in respect of the jurisdiction has wrongly been decided by the two Courts. He also challenged the legality of the lease deed in favour of the plaintiff and questioned the correctness of the finding of the two Courts in this respect. On the other hand, the learned counsel for the respondents supported the impugned judgments.
5. I studied the record in the light of the submissions made at the bar. Section 49 subsection (3) of the N.-W.F.P. Tenancy Act prescribes those suits which shall be instituted, heard and adjudged by Revenue Court and also debars other Courts from taking cognizance of such disputes or matters.
In the heading, "second group" of this subsection Clause is to the effect, "Any other suit between landlord and tenant arising out of the lease or conditions on which a tenancy is held". It is thus clear from the said provision of law that a suit involving disputes relating to lease or conditions in respect of tenancy would be exclusively entertainable by Revenue Court. Even if initially in view of the averments in the plaint a suit would be competent in a Civil Court but if during trial any matter arises for determination which is covered by this subsection then the suit will be returned in terms of Order 7 Rule 10 for presentation to the Revenue Court as envisaged by the first proviso to Section 49(3). In this proviso the use of the word "matter" is meaningful and is more comprehensive than the word "dispute". It obviously implies that even if the parties are not at issue about the matter but if a matter is of such a nature that finding is to be given over it then it can only be heard and decided by a Revenue Court and the plaint is to be returned for submission to it. If the allegations in the plaint are judged on the standard as laid down under Section 49 of the N.-W.F.P. Tenancy Act, then even initially the plaint was not cognizable by a Civil Court. The first para. Of the plaint reads:- - {{URDU TEXT}} ' It is thus obvious that the claim of the plaintiff for possession is based on the lease deed in his favour and obviously in support of the allegations in this para the Fard-jamabandi and 'Khasra Girdawari were also relied and appended with the plaint. The Civil Court was thus required to determine the genuineness or otherwise of the lease deed and the conditions on which the lease was held. In fact this is what the lower Courts have done as they have given a positive finding on this aspect of the case as is clear from the passages of the judgment quoted above and particularly the portion underlined by me. Even if in the beginning the Court could not hold this controversy to be the main issue in dispute between the parties it could not avoid the inference that the decision over the two lease deeds produced in the case and the revenue record brought on the file would definitely be a relevant "matter" arising for determination in the case. Moreso, when the revenue record shows defendant No,1 as tenant of the suit land. All these points can only be determined by a revenue Court as is laid down under section 49(3), second group, Clause 'F. Therefore, keeping in view this evidence on record the plaint was to be returned during the trial on account of the evidence brought on record under the first proviso to subsection (3) of section 49 as by then it was clear that the two lease deeds were in dispute and similarly the entries in the revenue record showing defendant No,1 as tenant under the plaintiff were to be enquired into, interpreted and determined.
The case act up by the defendants was that the lease in favour of the plaintiff was only for one year and on expiry of this period the owner-defendant No,2 leased it out to defendant No,1 who is now cultivating the land as lessee on behalf of defendant No,2. The decision on the nature of the tenancy of defendant No,1 on account of the lease in his favour was also a dispute or at least a "matter" which was exclusively within the competence of the Revenue Court under the provision indicated above. The two Courts have held the lease in favour of the plaintiff as operative for indefinite period and on that score the plaintiff to be entitled to hold on the property unless the lease is terminated by a competent Court which according to them would be the Revenue Court.
The interpretation and effect of the lease deed in favour of defendant No,1 by defendant No,2 was also in dispute in this case. Therefore, decision over the effect and genuineness of the two lease deeds was involved in the case which was the function of the Revenue Court and not the Civil Court in the circumstances of the case.
6. In view of the above discussion I hold that the Civil Court had no jurisdiction to take cognizance of the present dispute between the parties. Accordingly, while accepting this revision I set aside the judgment and decree of both the Courts and direct the Civil Judge to return the plaint under Order 7 Rule 10 of the Civil Procedure Code to the plaintiff for presentation to the Collector who would deal with it in accordance with law. I may clarify that the Revenue Courts will be within their rights to come to an independent finding on the evidence to be produced before them and the impugned decision of the Civil Courts having been declared as without jurisdiction by this Court will not stand in their way. Parties to bear their own costs.