1. ' WALI MUHAMMAD KHAN, J.---Haji Faqir Muhammad predecessor-in-interest of Wazir Muhammad and others, respondents 1 to 13 herein, sued Haji Jamroz Khan, petitioner herein, for recovery of arrears of rent at the rate of half Batai in respect of land measuring 154 Kanals 7 Marlas comprised in various Khasra numbers in the estate of Sarki Kashran, Tehsil and District Charsadda for the crop Kharif, 1983 to Kharif, 1985 and also for his ejectment from the suit land in the Court of Assistant Collector, respondent No,17 herein. The petitioner contested the suit and in his written statement, inter alia, alleged co-ownership in the suit land on the basis of purchase of land measuring 11 Kanals 6 Marlas vide Mutation No,1238 attested on 17-5-1984 and No,1239 attested on 18-6-1984. He admitted his possession on the other part of the land but as lessee on payment of cash rent and asserted that the lease money for the suit crop Kharif, 1983 to Rabi, 1984 was paid by him to the deceased/plaintiff through the receipts and deposited the lease money for Kharif, 1984 to Rabi, 1985 in the Treasury under section 16 of the Tenancy Act as the plaintiff was reluctant to receive the same. It was additionally averred that a sum of Rs,3,081 was already outstanding against the plaintiff which was paid to him as advance money vide agreement deed dated 18-2-1980.
2. Necessary issues in the case were framed, evidence led pro and contra thereon recorded, and the learned trial Court vide judgment dated 29-6-1988 passed a decree for Rs,22,997.50 in favour of the plaintiff against the defendant as arrears of rent and also for his ejectment from the suit land on payment of Rs,2,15,826 as compensation for improvements. It was also ordered that the cash rent deposited in the Government Treasury shall be adjusted in the decretal amount. The petitioner's appeal before the Collector was accepted vide judgment dated 22-2-1989 and the case was remanded to the trial Court for determining whether he was a defaulter or not in view of the deposit already made by him in the Treasury. The respondents preferred revision petition before the Additional Commissioner, who vide his judgment dated 6-7-1989 accepted the same and by setting aside the judgment of the appellate Court restored that of the trial Court with the only modification that the defendant/petitioner was entitled to half of the improvement as the trees grown on land was not his exclusive property but the landlord had also a share in it. The petitioner filed a revision petition before the Board of Revenue which was returned on 2-8-1989 on the ground that second revision was not competent. Having exhausted his remedies before the hierarchy of revenue forums, the petitioner invoked the Constitutional jurisdiction of the High Court through Writ Petition No363 of 1989 which was heard by a Division Bench of the Peshawar High Court and dismissed vide judgment dated 18-12-1990 holding that the rule laid down in case Fazal Rehman and 12 Others v. Board of Revenue, N.-W.F.P. And 16 others (PLD 1983 Pesh. 1) was applicable to the facts and circumstances of the case and that no second revision was competent before the Board of Revenue. The learned Judges did take notice of the judgment of this Court in the case of Haji Samad Khan v. Khalid Khan (1985 SCM R 770) but observed that the same was not applicable.
3. Both the parties feel aggrieved from the aforementioned judgment of the High Court and they have filed separate Petitions for Leave to Appeal No,135-P/91 by defendant/petitioner Haji Jamroz Khan and No,157-P/91 by Wazir Muhammad and others successors-in-interest of Faqir Muhammad deceased/plaintiff, and both of them are being disposed of through this single judgment.
4. ' We have heard Mr. Z. Mahfuz Khan, Advocate for defendant/petitioner Haji Jamroz Khan; Mr. Abdul Samad Khan, Advocate for Wazir Muhammad Khan and others, successors-in-interest of. Faqir Muhammad deceased/plaintiff; and have perused the record of the case with their assistance.
5. Henceforth Haji Jamroz Khan would be referred to as defendant/petitioner and Wazir Muhammad etc. As plaintiff/respondent.
6. ' The learned counsel for the defendant/petitioner strenuously argued that in view of the judgment of this Court a second revision was competent and that the learned Member, Board of Revenue legally erred in declining to entertain the revision petition filed by the defendant/petitioner before him and thereby refused to exercise jurisdiction vested in him by the law. He stressed with vehemence that the learned Judges of the High Court wrongly interpreted the judgment of this Court in Haji Samad Khan v. Khalid Khan (1985 SCM R 770). This being a legal question requires determination at the outset before embarking upon the factual controversy between the parties.
7. ' Prior to the judgment delivered by the Peshawar High Court in Writ Petitions Nos.197/81; 616/77 553/77 and 89/77 (PLD 1983 Pesh. 1) the Board of Revenue used to entertain the revision petitions under the N.-W.F.P. Tenancy Act against the judgments of subordinate Courts for satisfying itself with regard to the correctness, legality and propriety of the judgments and orders passed by them.
8. For the first time, the question arose before the High Court in the writ petitions quoted above that once the Commissioner had exercised the revisional jurisdiction conferred upon him under section 56, the Board of Revenue would not be competent to exercise the same powers already exercised by the Commissioner. The Peshawar High Court, on consideration of the relevant provisions of the tenancy law, came to the conclusion that a second revision befoie the Board of Revenue is not competent, thereby, practically divesting the Board of Revenue of all powers vested in it, in its revisional/supervisional jurisdiction over its subordinate Courts/officers. This judgment was challenged before this Court and a learned Bench comprising of three Hon'ble Judges accepted the appeal, set aside the orders passed by the High Court declaring the orders of Board of Revenue as valid and restored them. This judgment is reported as 1985 SCM R 770 and is titled Haji Samad Khan v. Khalid Khan.
9. ' The learned Judges of the Peshawar High Court seized of the controversy in case Fazal Rehman v.
10. Board of Revenue, N.-W.F.P. (PLD 1983 Peshawar 1) in their judgment mainly relied on the wording of section 56 of the N.-W.F.P. Tenancy Act, 1950 without adverting to the relevant provision of the Martial Law Regulation 115 whereby protection from eviction had been conferred on the tenants and also the rules framed thereunder and came to the conclusion that either the Commissioner or the Board of Revenue is empowered to exercise revisional jurisdiction over the orders of their subordinate Courts/officers and once the power is exercised by the Commissioner, the Board of Revenue ipso facto is divested of the same powers. As stated above this very judgment was challenged before this Court in Haji Samad Khan's case. Since the High Court had not referred to the provisions of Martial Law Regulation 115, placing restrictions on the eviction of tenants, except under certain circumstances its overriding effect on the other laws and the provisions of sub-para.
(7) of para. 25 of the Regulation ibid, the Supreme Court dealt with the legal question in its proper perspective in the light of the tenancy laws coupled with the Martial Law Regulation 115 and finally concluded as follows:-- "This plea, however, cannot be accepted. Para. 3 of Martial Law Regulation 115 as already noted has overriding effect and, therefore, notwithstanding the provisions of the ejectment rules, reproduced 'above, a revision before the Board of Revenue would still be competent under sub-para. (7) of para. 25 of the aforesaid Martial Law Regulation. In a recent case Lucas alias Luci and others v. S.M.
11. Nasim, Member (Revenue), Board of Ravenue, Punjab, Lahore and another PLD 1984 SC 227 this Court has also considered this question and, inter atia, observed:-- ' It is not necessary to examine the reasoning of the learned Judge because even if it be assumed that under any rule, a final approach through revision before Board of Revenue in matters dealt with under para. 25 is prohibited or not provided or the rule is silent in that behalf, the provisions in sub-para. (7) of para. 25 make it amply clear that the Board of Revenue can at any time of its own motion or otherwise call for the records of any case or proceedings, "under this paragraph" which is pending or in which a Collector or Commissioner has passed an order for purpose of satisfying itself regarding correctness, legality or propriety of such proceedings or order.'
12. ' Thus, even if the ejectment rules framed under Martial Law Regulation 115 which make section 56 of the N.-W.F.P. Tenancy Act applicable to revisions etc. Prohibit a second revision to the Board of Revenue, the Board of Revenue could still, in accordance with the provisions of sub-para. (7) of para. 25 of Martial Law Regulation 115 which has overriding effect call for the record of any case or proceedings under the said paragraph to scrutinise any order passed by a Collector or a Commissioner and proceed to pass any order in relation thereto.
13. ' The result is that all these appeals must succeed. The orders passed by the High Court and impugned in these appeals are set aside and those passed by the Board of Revenue are found to be valid and are restored.
14. ' The appeals succeed but the parties are left to bear their own costs."
15. ' There is thus no ambiguity in the judgment delivered by this Court in Haji Samad Khan's case and in view thereof the judgment of the Peshawar High Court reported as PLD 1983 Peshawar 1, having been set aside was no longer a good law and could not be made basis for the judgment impugned herein.
16. ' The case of Lucas v. S.M. Nasim referred to in the aforequoted judgment of this Court decided on 20-11-1983 by four Hon'ble Judges of this Court also dealt with the instant controversy regarding the maintainability of the second revision by the Board of Revenue functioning under the Punjab Tenancy laws. No doubt, the ratio in the said case mainly related to the question whether in the case of prayer for ejectment of the tenant by the landlord it is necessary that the landlord must first arm himself with a decree for arrears of rent before embarking upon the procedure for ejectment of the tenant but after analysing the tenancy laws and rules enforced in the Punjab in conjunction with the provisions of Martial Law Regulation 115 placing restriction on the ejectment of land tenants, gave a definite finding regarding the powers of Board of Revenue to entertain revision petitions. The para. Dealing with the legal point in question is at page 241 of the judgment in Lucas v. S. M. Nasim, Member, Board of Revenue (PLD 1984 SC 227) and it would be profitable to reproduce the same hereunder:-- "Another case which needs to be noted is of Mst. Shher Bani and others v. Member (Revenue), Board of Revenue, Punjab, Lahore and others. A learned Single Judge of the Lahore High Court, while reiterating his view held in the case of Khuda Bakhsh also held, with regard to the ejectment of a tenant under para. 25 of Land Reforms Regulation, 1972 that the Board of Revenue has no jurisdiction to entertain a revision petition against the order passed by a Commissioner which was held to be final by virtue of rule 7(4) of 77, Punjab Land Reforms (Procedure for Ejectment Suits)
17. Rules, 1977. It is not necessary to examine the reasoning of the learned Judge because even if it be assumed that under any rule a final approach through revision before Board of Revenue in matters dealt with under para. 25 is prohibited or not provided or the rule is silent in that behalf the provisions in sub-para. (7) of para. 25 make it amply clear that the Board of Revenue can "at any time of its own motion or otherwise call for the records of any case or proceedings: "Under this paragraph" which is pending or in which a Collector or Commissioner has passed an order for purpose of satisfying itself regarding correctness, legality or propriety of such proceedings or order.
18. Thus, while upholding the view expressed in the cases of Khuda Bakhsh and Mst. Shher Bani to the extent that a prior decree for recovery of rent is not essential for filing a suit for ejectment of a tenant on ground of his being a defaulter in payment of rent we, with respect, have not been able to accept the view expressed in the case of "Mst. Shher Bani" that the Board of Revenue has no revisional jurisdiction in these matters."
19. ' This Court in a later judgment delivered in case Faiz Ahmad v. Muhammad Sharif Khan (1991 SCM R 689) once again analysed various provisions of the N.-W.F.P. Tenancy Act, Martial Law Regulation 115, and the Board of Revenue Act, 1957 vis-a-vis power of Board of Revenue to entertain revisions against the judgments/orders of the subordinate Revenue Courts/revenue officers, while hearing appeal against the judgment of the Peshawar High Court, Circuit Bench, Abbottabad dated 20-11- 1983 in Writ Petition No,1/79 and gave a conclusive finding in this respect which is contained in para. No,7 of the judgment and is reproduced below for ready reference:-- "Section 4 of the Punjab Board of Revenue Act, 1957 as well as the provisions of the Act reproduced above clearly establish that the power of the Board of Revenue of superintendence, control and of overseeing the functioning of all Revenue ,,,Officers and Revenue Courts in the matter of land revenue and tenancy is well entrenched. The interpretation placed by the High Court on the provisions of section 56 of the Act has the effect of obstructing this entrenched power inasmuch as the High Court has held the Commissioner's exercise of revisional powers to be immune from examination by the Board of Revenue. This has been done on the analogy of section 115 of the Code of Civil Procedure where an express legislative provision exists barring the re-examination of the same matter by the High Court which has been examined by the District Judge in Revision. In this law, in the Act, there is no provision barring such an examination. Besides, the revisional power of the High Court had inhibitions, none of which exists in the case of Board of Revenue. To notice only a few, the revisional power of the High Court could not reach a pending proceeding but is limited to a case decided. Further it is limited to cases which had been decided and in which no appeal lay.
20. The Board of Revenue and the Commissioner have no such constraint in the exercise of this power.
21. The District Court by subsection (2) of section 115 of the Code of Civil Procedure was expressed to be exercising the powers of the High Court to the limited extent of deciding a Revision within its jurisdiction. The Commissioner is not stated to be exercising the power of the Board of Revenue.
22. The power under section 56 of the Act is concurrently enjoyed by the Board of Revenue and the Commissioner but it is in respect of the authorities subordinate to each one; in the case of Commissioner the authorities subordinate to it are different for the purposes of revisional order while they are different for the Board of Revenue. The Board of Revenue would be examining in this case not the order of the Collector or the Assistant Collector but that of the Commissioner. The respondents in their Memo of Petition had sought revision of the order passed by the Commissioner and not the orders passed by the Assistant Collector or the Collector. In such a situation the Board of Revenue could certainly see whether the Commissioner had exercised jurisdiction properly or not. If the principle of interpretation adopted by the High Court for section 56 of the Act is adopted, it will lead to great disharmony in the other provisions, of the Act, for example section 51 confers in identical language the powers to distribute, withdraw and transfer cases. In a case where the Commissioner has exercised this power, the Board of Revenue would be helpless to exercise its own powers."
23. Thus it is the consistent view of this Court that the Board of Revenue possesses power of revision to satisfy itself as to the correctness, legality or propriety of the judgments/orders passed by the subordinate Revenue Courts/revenue officers under section 56 of the N.-W.F.P. Tenancy Act as well as sub-para. (7) of para. 25 of the Martial Law Regulation 115, the provision whereof overrides the provisions of any other law if there is a conflict between the two. The reasonings advanced in the judgment of the Peshawar High Court in the case reported as PLD 1983 Pesh. 1, were repelled one by one in the aformentioned judgments of this Court and there should be no doubt about the A power of revision of Board of Revenue any longer.
24. ' Obviously, the question of law being involved, the High Court in the normal course might have accepted the writ petition and remitted the case back to the Board for decision on merit of the revision petition filed before it. However, the learned High Court did not deal with factual aspect of the case, probably because no arguments were addressed before it on the merit of the case. As is apparent from the history of the case discussed in the introductory part of the judgment the respondents are the owners of the suit land and the petitioner is tenant under them, which fact has been accepted by the trial Court as well as by the appellate Court and have concurrently held that the defendant/petitioner is a defaulter. The learned Commissioner in the exercise of his revisional power under section 56 of the N.-W.F.P. Tenancy Act was not convinced about any illegality committed by the two Courts below or about any misreading or non-reading of evidence by them in arriving at their conclusion about the facts of the case and, in consequence, refused to exercise his revisional powers to set aside the judgments impugned before him. The Board of Revenue in view of the discussion made above, is only competent to exercise revisional power with regard to the judgment of the Commissioner and the learned counsel for the petitioner could not pin point any illegality committed by the learned Commissioner so as to persuade us to put the parties to further agony, mental torture and unnecessary expenses of a fresh trial from the stage of Board of Revenue.
25. This Court is not bound to grant leave against each and every order simply because it finds that any illegality or jurisdicitonal error has been committed by the lower Court unless it is additionally satisfied that such order has occasioned manifest injustice to either of the parties. In this respect the judgments of this Court in the case of Begum Shams-un-Nisa v. Said Akbar Abbasi (PLD 1982 SC 413); Muhammad Baran v. Member (Settlement and Rehabilitation), Board of Revenue, Punjab (PLD 1991 SC 691); Sadullah Jan v. Additional Secretary, Home and Tribal Affairs, N.-W.F.P., Peshawar (PLD 1991 SC 811) and Federation of Pakistan v. Haji Muhammad Saifullah Khan (PLD 1989 SC 166) can be referred to with advantage.
26. ' We questioned the learned counsel for the petitioner as to whether the remand of the case to the Board of Revenue can be of any substantial benefit to the petitioner, he submitted that the learned Commissioner had deprived the petitioner of half of the improvement assessed by the local Commissioner and that the Board of Revenue might disagree with him. We have already dealt with this question in a recent judgment in Civil Petition for Lea re to Appeal No,2-P of 1992 titled Hakim Khan v. Additional Commissioner, decided on 11-5-1992, and did not differ with the finding of the 1,;arned Commissioner that the landlord, had a share in the trees growing on the land under tenancy and that the tenant on ejectment is entitled to half of such improvements and, in consequence, refused leave to appeal. The decision of the learned Commissioner apparently is in accord with the prevailing custom of the area and does not suffer from any legal infirmity to call for interference in the revisional jurisdiction of the Board of Revenue, particularly in the presence of the verdict of this Court in the case cited above. The remand, no doubt, would help the petitioner in the prolongation of his possession over the suit land and enjoyment of the usufruct thereof for a long time against the wishes of the landlord and in violation of the tenancy laws and rules as ejectment decree has already been passed against him, will not be of any material gain to him so far as his claim for compensation of improvements is concerned. On the contrary it will cause manifest injustice to the landlord/respondent. Consequently, we are not inclined to remand the case to the Board of Revenue.
27. ' For the foregoing reasons, we refuse leave to appeal and dismiss both the petitions with the result that the impugned order of the High Court dismissing the writ petition filed before them stands dismissed but on different grounds as enumerated above. Copy of this judgment may be sent to the Senior Member, Board of Revenue, N.-W.F.P., Peshawar for future guidance.