' This revision petition is directed against the order of the learned District Judge, Peshawar dated 24-5-1986 whereby he dismissed the petitioners' appeal against the judgment and decree dated 28-21-1983 of the learned Additional Civil Judge, Charsadda ordering their ejectment in a suit brought by the respondents.
2. Facts forming the background of this petition are that Karim Dad Khan and others, respondents, filed a suit against Jan Said and his four sons, petitioners for their ejectment from a house situate in Khasra No,2623 in the revenue estate of village Mouza Khan, Teshil Charsadda and for recovery of Rs,100 as price of Khakshora for the period of three years prior to the institution of the suit. The respondents claimed in the plaint that the petitioners were in occupation of the disputed house owned by the respondents on payment of Khakshora which they had failed to pay for three years preceding the institution of the suit. It was further averred that the petitioner No,l was also tenanting the respondents' agricultural land but having defaulted to pay their share of produce a suit for his ejectment therefrom had been filed in the competent Revenue Court which was pending decision. The suit was resisted by the petitioners/defendants Nos.1, 2 and 5 on the grounds, inter alia, that the Civil Court was devoid of jurisdiction to entertain the suit. This plea was reflected in issue No,6 viz., 'whether this Court has got jurisdiction to entertain the present suit'. Both the Courts below have concurrently held that jurisdiction of the Civil Court was not barred to entertain the suit. Hence this petition.
3. Mr. M. Zahoor Qureshi, leamed counsel for the petitioners submitted that the disputed house clearly fell within the purview of 'land' as defined in clause (i) of section 2 of the N.-W.F.P. Tenancy Act, 1950 (N.-W.F.P. Act XXV of 1950) (hereinafter called as the Act) and, therefore, the matter could only be heard and determined under clauses (c) and (f) of Second Group of subsection
(3) of section 49 thereof.
4. As against this, Mr. Z. Mahfuz Khan, learned counsel for the respondents, contends that jurisdiction of a forum is determined on the pleadings of the parties and the petitioners had denied their liability to pay Khakshora, therefore, the Revenue Court was debarred to take cognizance of this case. In this context the learned counsel referred to para. 1 of the written statement filed in the trial Court on behalf of the petitioners Nos.1,2 and 5 which is in vernacular and reads as under:- {{URDU TEXT}} ' The learned counsel for the respondents also invited my attention to the statement of petitioner No,l in the trial Court wherein he had denied his liability to pay to the respondents Khakshora for occupation of the disputed house. He further urged that the dispute with regard to 'house' was not cognizable by the Revenue Court because it was not subservient to agriculture purposes particularly the land in which the disputed house was situate was not the subject-matter of dispute in the Revenue Court.
5. Since interpretation of sections 2(i) and 49(3) of the Act is involved it would be necessary to reproduce them in extenso. Clause (i) of section 2 ibid reads as under:-
(1) 'land' means 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 site of buildings and other tenures on such land or to any right or interest in any such land; ' Clauses (c) and (i) of Second Group of subsection (3) of section 49 ibid arc as follows:- 49(1)
(2)
(3) The following suits shall be instituted in and heard and determined by Revenue Courts, and no other Courts shall take cognizance of any such dispute or matter with respect to which any suit might be instituted. FIRST GROUP (a)
(b)
SECOND GROUP
(c) suits by a landlord to eject a tenant;
(f) any other suit between landlord and tenant arising out of the lease or conditions on which a tenancy is held.
6. The pivotal point for determination in this revision is whether the house in dispute forming part of 'Ghairmumkin Abadi' measuring 6 Kanals and 18 Marlas in all falls within the purview of 'land' as defined in clause (i) of section 2 of the Act reproduced above because if it be so, then obviously the jurisdiction of Civil Court would be barred under clauses (c) and (f) of subsection (3) of section 49 ante. For this purpose the allegations in the plaint, averments in the written statement and the evidence of the parties in the trial Court would be determinative of the real controversy. The case of the answering respondents as set up in the plaint was that they had settled the petitioners in the disputed house and in lieu of rent agreed to pay 'Khakshora' as a customary charge which they intended to use as manure in the lands and that petitioners had not fulfilled the said condition and were, therefore, liable to ejectment. The petitioners not only denied in their written statement the assertion of the answering respondents that they had been inducted on payment of Khakshora but also raised an objection as to jurisdiction of the Civil Court to entertain the suit. It is contended on behalf of the petitioners that as the object of .The respondents was to secure manure for the purposes of cultivating their land, therefore, the land underneath the house in dispute must be deemed to have been let for purposes subservient to agriculture. A similar contention raised in Memmon and others v. Allah Bakhsh and others AIR 1931 Lah. 726 was repelled and it was observed:- "But in my opinion the purpose which is contemplated in the definition should be the direct purpose for which the land is occupied by or has been let to the occupier by the owner, that is to say, it is the purpose of the occupier and not the object of the owner which supplies the test. The purpose in the present case is merely the residence of the occupier in the houses in question. The consideration paid or to be paid by the occupier is no doubt calculated to promote the agricultural purpose of the owner, but it cannot be asserted that the occupier's purpose is agriculture or subservient to agriculture."
7. I respectfully subscribe to the view expressed in Memmon's case cited above and I am inclined to hold that the purpose subservient to agriculture within the contemplation of clause (i) of section 2 of the Act is the direct purpose for which the land is occupied by or has been let to the occupier by the owner, that is to say, it is by and large the purpose of the occupier that is determinative of the object of the occupation of the house, particularly when the occupier and landlord are at variance on the purpose itself which is not clearly discernible from the record as is the case before me.8. In the instant case the petitioners denied in their statement as well as in the statement of Jan Said defendant appearing as D.W.l to have occupied the house on payment of Khakshora. It would additionally show that the house in dispute does not fall within the purview of 'land'. Had the petitioners taken up the stand that they were paying Khakshora then the position would have been otherwise because it would have been tentamount to consideration paid or to be paid by the occupier for promoting the agricultural pursuits of the answering respondents, but having denied the assertion they cannot be allowed to say that the purpose of their occupation of the disputed house is subservient to agriculture.
9. I am, therefore,' of the considered opinion that occupation of the disputed house without any purpose subservient to agricultural tends to take it out of the definition of 'land' as laid down in clause (i) of section 2 of the Act and, therefore, the suit clearly did not fall within the ambit of clauses (c) and (f) of Second Group of subsection (3) of section 49 of the Act. The. Present suit in my view was thus cognizable by the Civil Court and it is not shown that a jurisdictional error has been committed by the two Courts below. In consequence, there is no force in this revision petition which is dismissed with costs.