SHAFIUR RAHMAN, J.---Leave to appeal was granted to the` unsuccessful defendant to examine whether the Civil Court had the jurisdiction in IA a suit pertaining to the terms of the tenancy and the violation thereof.
2. The subject-matter of the dispute is Khasra No.159, Mahal Khushkaba, Yasinzai, Tappa Saddar Kansi, Quetta. It is shown to be 40 rods and 9 poles, the whole of it `Ghairmumkin Gaudi' since long.
Adjoining to it are two Khasra Numbers 158 measuring 12 poles a Ghairmumkin well and No.157 measuring 11 rods and 6 poles recorded as Selaba. This land belonged to Parsi owners, Club Wala.
Its tenancy vested to the extent of 1/2 in Muhammad Yousaf and the others 1/2, at one time, in the plaintiff/respondent. They were recorded to be `Bazgaran', `Lathband'. However, the facts of the case found established and all the Courts have found that this Khasra No.159 was being utilized as a brick-kiln and there was a lease deed of three years periodically kept alive whereby the appellant was running it on lease. Muhammad Yousaf, the recorded `Bazgar ; `Lathband' sold his 1/2 share to the appellant on 15th of March, 1969. The remainder of such right was, sold by the plaintiff/respondent to him on 4-9-1974. No longer in need of a lease from the original owners, he on the basis of such purchase maintained the continuity of running the brick-kiln. In this background, after the plaintiff/respondent had purchased the proprietary rights by registered deed dated 19-4-1976 preceded by two mutations attested on 2-11-1974 and 2-1-1975, he filed a civil suit. The claim made by him in the suit on merits reads as hereunder:---- "That the defendant has no lawful authority nor allowed by the plaintiff to run the brick-kiln and use the clay from the said land. The defendant is taking undue advantage of the entries of `Lathband' `Bazgar' which stand in Revenue Record in favour of the defendant, but without prejudice to the plaintiff's case, the defendant being `Lathband Bazgar' has no authority or entitled to run the brick- kiln owned by the plaintiff and to use the clay from the said land for running the brick-kiln. The defendant by his this act is causing regular wrongful loss to the plaintiff and his property."
The relief that he sought from the Court was as hereunder:-- "... The defendant may be permanently restrained from running the brick---kiln and digging the clay of the said land, passing a decree in favour of the plaintiff and against the defendant, and other relief for which the plaintiff found entitled in the circumstances of the case. Costs of this suit may also be awarded to the plaintiff."
3. The suit was contested by the appellant on numerous grounds. He objected to the jurisdiction of the Civil Court on the ground that the tenancy arrangement was the basis for the suit inasmuch as the plaintiff's suit proceeded on the contention that the agricultural tenancy agreement was being violated. Such a suit, according to the appellant was not to be instituted in Civil Court but had necessarily to be instituted in Revenue Court as provided in section 64 of the Baluchistan Tenancy Ordinance, 1978 (Ordinance XXIV of 1978---hereinafter referred to as the Ordinance) and the Land Reforms Regulation, 1972 (MLR 1151. On merits it was contended that the disputed land had been in use as a brick-kiln since long before the purchase by the plaintiff/respondent of and interest therein and he was himself estopped from seeking the restraint order in view of the fact that he himself had sold his such rights to the plaintiff. The following issues were framed on the pleadings of the parties:--- "(1) Whether the plaintiff has no locus standi to file the suit in view of the preliminary objection `A' of W.S.?
(2) Whether the suit is misconceived and not maintainable in view of the preliminary objection `B' of W.S.?
(3) Whether this Court has no jurisdiction to entertain the suit?
(4) Whether the suit is liable to be stayed under section 10, C.P.C. In view of the P/O `E' of W.S.?
(5) Whether the plaintiff has already been restrained by Civil Judge, Loralai at Quetta vide his order, dated 6-5-1975 in pre-emption suit, if so to what effect?
(6) Whether the defendant is Lathband Bazgar on the land in dispute and instead of cultivating land the defendant is running brick-kiln over there, if so what would be the effect of doing so on the right of Lathband Bazgar?
(7) Whether while running brick-kiln on the land in dispute the defendant has caused injury to the property owned by the plaintiff, if so to what effect?
(8) Whether the brick kiln has deteriorated the market value of the property in dispute and the same becoming useless for agricultural purposes, if so to what effect?
(9) Whether the defendant has been allowed by the plaintiff to use the land as brick-kiln, if so to what effect?
(10) Whether the plaintiff is entitled for the relief claimed for?
(11) Relief.
4. The trial Court held that the suit was competent, the Civil Court had jurisdiction, the suit was not liable to be stayed on account of pre-emption suit in respect of the subsequent sale and the injunction order does not affect the proceedings in the suit. Taking up the material issues together, the Court held as under:----- "From the evidence produced by the parties on the record, it is crystal clear that plaintiff is the owner of the disputed property and the defendant is Lathband Bazgar therein. The existence of the brick-kiln is also not disputed. According to the defendant's own statement that when, he took the possession of the disputed land, since then there exists brick-kiln on one piece of the land. The first question which is to be decided is whether as Lathband Bazgar the defendant has a right to continue the business of brick-kiln .... In my opinion as Lathband Bazgar the defendant has no right to continue the business of brick-kiln on the disputed land. The land in dispute is for agriculture purpose, the defendant can be allowed only to the extent of using the land for cultivation."
The trial Court granted the injunction by decreeing the suit of the plaintiff.
5. On appeal, the findings of the trial Court on merits were reversed by the District Judge by holding as hereunder:----- "That the rights of this appellant existed much before the purchasing of this land by the respondent and brick-kiln existed on Khasra No.159 of this land much before the title of the respondent. Rather the respondent first purchased the rights of Lathband Bazgari, selling it to this appellant, the brick- kiln existing at that time through Intiqal No.341. Then the respondent purchased the ownership rights. So now he is estopped from challenging the appellant's rights of running brick-kiln. But lower Court has not appreciated this aspect of the case and has given a contrary finding."
The Court came to the conclusion as hereunder:-- "This fact has come on record, that brick-kiln was already running and that the respondent himself has sold the tenancy rights through Exh.D./3, now the respondent is estopped to challenge the appellant's right of running the brick-kiln, because the transferor cannot convey a better title to the transferee the respondent/plaintiff than the one he himself has at the time of the transfer.
As such the assertion in para VI of the plaint by the respondent that the brick-kiln was started in the first week of January, 1975 has been disproved by the statement of the respondent's attorney and Exh.D/1, Exh.D/2 and Exh.D./3 documents proved by appellant."
6. In revision, the High Court did not accept the bar of jurisdiction on the Civil Court but reversed the finding of fact by concluding as hereunder:----- "Then Mr. Arshad Chaudhry, Advocate, emphasized that before purchase of land by petitioner respondent with permission of land-owner was running brick-kiln. He relied on Exh.D./1 whereby respondent was permitted to use land for 3 years by old owner. No other material was shown to me whereby he was allowed to use the land for running brick---kiln thereafter.
It may be further observed that after purchase of land by petitioner indeed right of respondent as Lathband Bazgar but not for running brick-kiln. Hence principles of estoppel as alleged by Mr. Arshad Chaudhry would not be attracted as petitioner immediately challenged his such action before Civil Court.
Obviously findings of learned appellate Court on issues III, VI, VII, VIII and IX are erroneous which are set aside. In result whereof judgment and decree, dated 31-12-1987 are set aside. The judgment and decree, dated 30-6-1987 passed by learned Civil Judge remain intact."
7. Mr. Muhammad Ali Sayeed, Senior Advocate, the learned counsel for the appellant contended that in view of the Revenue Record and the admitted facts that the appellant was being sued in no other capacity but as a Lathband Bazgar which means the tenant of agricultural land or agricultural tenancy and on the violation of the terms thereof, the jurisdiction of the Civil Court was ousted in view of section 64, subsection (3)---Second Group---clause (h) of the Ordinance.
According to him, the first proviso did take care of limited retrospectivity of the Ordinance enforced on 27-12-1978. On merits he contended that there was in fact a brick kiln in the use and utilization of the appellant either as a lessee under the proprietors or as a Lathband Bazgar being the purchaser of the rights of Muhammad Yousaf and plaintiff/respondent himself. In the circumstances, plaintiff /respondent could not be permitted to make the existence or the functioning of a brick-kiln ground for getting rid of the interest of the appellant.
8. On an examination of the facts and the decisions given by the various Courts, we find that certain principles of law have not been kept in view resulting in error in the judgments.
In the first place, jurisdiction of a Court is determined initially by what is recited in the plaint which is presented before the Court. If ex facie, without recording any further finding and assuming the facts stated therein to be correct a case of jurisdiction of the Civil Court is made out, then the suit becomes entertainable notwithstanding the defence that is taken. If the defence taken controverts the jurisdictional fact, in this case, the facts, whether the tenancy was agricultural or non- agricultural; whether the subject-matter of tenancy was land or an industrial concern, an enquiry has to be conducted and a finding of fact on jurisdictional facts has to be recorded namely, whether factually the case is so grounded as to invest jurisdiction in the Court which has been approached. Applying these two tests, we find that the plaint as presented did not make out a case of jurisdiction of the Civil Court because the plaint itself relied on the subject-matter of dispute being agricultural land and the tenancy being agricultural, of the violation of the terms of tenancy by putting it to use for non--agricultural purposes. But for assuming jurisdiction by the Civil Court, one may say that at that stage there was no Tenancy Act/Ordinance in Baluchistan. It came to be enacted in 1978. The Court had, therefore, the jurisdiction to go into the matter.
The other principle which has been violated in the case or ignored is that every Court has come to the conclusion that the specific disputed Khasra number had been used as a brick-kiln since long.
Once that conclusion with regard to the actual fact has been reached, the mere entry in the Revenue Record mentioning one party or the other as Lathband Bazgar, or mentioning of it or repetition of it as between the parties would not alter the established facts.
9. In section 2 (1) of the Ordinance, `Land' has been defined to mean "land which is not occupied as the site of any building, in a town or village and is occupied or has been let for agricultural purposes or for purposes subservient to agriculture, or for pasture, and includes the sites of buildings and other structures on such land". A brick-kiln does not fall within the definition nor does the Ghairmumkin Gaudi. Therefore, there was no question of taking a dispute at any stage to the Revenue Court. A tenant, as visualized in the Ordinance, is also one who is a tenant of a well. The Ordinance in its section 8 provides `Lathband tenants' as hereunder:---- "8. Lathband tenants: --A tenant---
(a) who at the commencement of this Ordinance has been recorded in the record-of-rights as a Lathband tenant; or
(b) who converts culturable or Khushkaba lands into Sailaba lands by constructing embankments and Bundat; or
(c) who with the consent of his landlord/owner of the land instals a tube--well, open surface well, persian wheel or manages to irrigate the land by a pumping machine or by any other mechanism, has a right of occupancy in the land as long as he keeps the embankments in repairs and cultivates the land whenever opportunity is offered by the rainfall."
10. Here also, necessarily, not mere entry but `land' as defined in the Ordinance has to be established. The entries of the Revenue Record do not ever prevail over the established facts.
Therefore, on the plea taken by the appellant himself, and on the finding of fact recorded by all the three Courts that there existed a brick-kiln on the land throughout, it was a case which was excluded from the jurisdiction of the Revenue Court and the Civil Court alone had the jurisdiction.
11. On merits, the only question remains, when the tenancy was not agricultural but industrial or commercial, could the parties by describing it as agricultural, alter the character of it or invoke the provisions of the Ordinance for getting an injunction against the person so continued in possession. The obvious answer is that as the plaintiff himself conferred on the appellant the tenancy rights in respect of a non-agricultural land for non-agricultural purposes, he cannot invoke the agricultural aspect of the tenancy for avoiding his own act, Khasra No.159 is wholly a Ghairmumkin Gaudi no part of it being agricultural. It is only in respect of agricultural land that the description `Lathband Bazgar' could hold good and not in respect of the portions which are `Ghairmumkin Gaudi' or brick-kiln.
12. In the circumstances this appeal is accepted, the judgments of the High Court and the trial Court are set aside and that of the first appellate Court maintained. The suit of the