' MUHAMMAD BASHIR KHAN JEHANGIRI, J.--Kamdar Khan and six others, petitioners herein, instituted in the Court of Assistant Collector, First Grade, Takht Bhai, a suit under section 49 of the N.-W.F.P.
Tenancy Act (XXV of 1950) (hereinafter called as the Act) against Qadeem Khan, respondent No,1 herein, for recovery of arrears of rent at the rate of half of the produce of land measuring 33 Kanals out of Khasra Nos. 944 and 945 situate in the Revenue Estate of Village Kalu, Tehsil Takht Bhai, District Mardan, for the period from Rabi 1983 to Kharif 1985 and also sought his eviction.
2. In resisting this claim in the Revenue Court, the tenant-at-will did not categorically deny the status of the landlords as occupancy tenants but maintained that it was determinable from the entries of the revenue record. While denying the assertion of the landlords that he had not paid the arrears of rent, the tenant laid claim to compensation for improvements which he had made in the land under his tenancy. He also raised few legal objections which need not be addressed. For the purpose of this writ petition the following three issues are material:-- "(5) Whether the defendant has made any improvements in the suit land, if so, its effect upon the suit?
(6) Whether the defendant is defaulter?
(7) Whether the plaintiffs are entitled to receive the share of rent from the defendant, if so, to what extent?
' The learned Assistant Collector, after appraising the evidence, held on issues Nos.6 and 7 that the defendant has committed wilful default in the payment of rent for the disputed period and that in consequence he was liable to be ejected. On issue No,5 it was held that the defendant had, made improvements to the tune of Rs,10,758 and, after deducting the share of rent amounting to Rs,14,915.14, therefore, the landlords were held entitled to Rs,5,379. The tenant, feeling aggrieved, filed an appeal before the Collector. The contention in appeal that "the ownership of the suit land is disputed and the case is sub judice between the respondents (landlords) and the Auqaf Department, so the execution of any such decree would be in direct conflict with the decision of the Peshawar High Court" prevailed with the Collector Resultantly, while accepting the appeal on 31-8- 1989, he not only set aside the judgment and the decree dated 15-6-1989 passed by the Assistant Collector but also "remanded the case in the light of the aforementioned observations.' Feeling dissatisfied this time the landlords challenged before the Additional Commissioner the appellate order passed by the Collector. The Additional Commissioner by his order dated 25-9-1989 observed that the assertion that "the suit land is a Waqf property being controlled and administered by the Provincial Government through Auqaf Department does not in itself abolish or diminish the land lordship thereof exercised uninterruptedly by the appellants for more than two generations of male descent as occupancy tenant" and further that "the judgment of the High Court has not affected the landlord-tenant relationship between the parties on the basis of which the trial Court had passed a decree in favour of the plaintiffs/appellants." The tenant, therefore, moved second revision in the Board of Revenue which was heard and disposed of by the learned Member, Board of Revenue by virtue of his order dated 8-7-1992. From the perusal of the three divergent orders of the Courts subordinate to the learned Member held that, "it was established that the suit land is Waqf property since long and its administration, control and management had been taken over by the Provincial Government". According to the learned Member, "the issue of ownership was agitated by some of the occupancy tenants of the Waqf land up to Supreme Court but of no avail" and that "the administration, control and management of the Waqf land will be carried out under the existing Waqf laws." The learned Member also held "that plaintiffs have not made the Provincial Government through Chief Administrator Auqaf as a party to the suit." Viewed in this context, the learned member while upholding the order dated 31-8-1989 of the Collector, set aside the order dated 25-9-1989 of the Additional Commissioner.
3. The petitioners-landlords again feeling dissatisfied have invoked the Constitutional jurisdiction of this Court to assail the impugned order of the learned Member, Board of Revenue dated 8-7-1992 praying for its annulment and for restoration of that of the trial Court, inter alia, on the following grounds:-- "(a) That Respondent No, 1 (tenant) had out rightly admitted the tenancy under the petitioners in the written statement as well as in evidence and cannot claim any other position."
That the learned Member, Board of Revenue had misunderstood and misinterpreted the judgment of the Supreme Court."
"(c) That the impugned order passed in revision petition, if implemented, will cause fresh series of suits in between the inhabitants of village and the Provincial Government."
4. Pir Mukammil Shah, learned counsel for the petitioners, while reiterating the grounds in support of this petition enumerated in para. 3 ante raised the following contentions:--
(a) That the tenant/respondent has neither denied his status as tenant-atwill nor of the petitioners as landlords throughout the protracted litigation, nonetheless, the learned Member Board of Revenue has erroneously introduced the element of title of the Auqaf Department which was not warranted either under the provisions of the Act or of the Land Revenue Act (XVII of 1967). In this context, reliance was placed on: SA. Waheed v. The Dayal Singh College Trust Society (PLD 1955 Lah. 570).
(b) That the learned Collector and the learned Member Board of Revenue have misconstrued the judgment of the learned Division Bench of this Court in Writ Petition No, 282 of 1987 and that of the Supreme Court in Civil Appeal No, 53-P titled Muhammad Iqbal and 52 others v. Administrator Auqaf N.-W.F.P. And 3 others respectively decided on 16-5-1989 and 12-5-1992.
(c) That there was no warrant in law for the learned Member to have affirmed the direction of the Collector for impleadment of Auqaf Department, in that, the inter se rights of the Department and the occupancy tenants have been fmally determined by the Supreme Court in the case of Muhammad Iqbal and 52 others cited above.
5. In SA. Waheed v. The Dayal Singh College Trust Society (PLD 1955 Lahore 570) it was pointed-out that when suit is based on agreement of tenancy ordinarily the question as to whether the property does not belong to the landlord would be irrelevant in a suit filed by a landlord against his tenant for recovery of rent. We respectfully subscribe to the law laid down in the precedent case of SA.
Waheed that if the agreement of tenancy be admitted and further that the tenant was put in possession, he would be bound to pay rent to the landlord irrespective of whether the plaintiff was or was not owner of the property. In this context, the definitions of 'tenant' and 'landlord' provided under clauses (v) and (vi) of section 2 of the Act are very significant. A 'tenant' means a person who holds land under another person and is but for a special contract would be, liable to pay rent for that land to that person. A person, in order to become a landlord has to fulfil two conditions:--
(i) that a tenant is holding land under him; and that the tenant is liable to pay rent for that land to that person. It would thus be noticed that the element of title or ownership of the land has been intentionally omitted from the two definitions noted above. We are, however, inclined to leave for the moment the controversy on this point at this juncture.
6. We have gone through the two judgments referred to above. In our consideration the ratio of the judgment of the learned Division Bench of this Court, firstly, is that the property in dispute was a Waqf property and its administration, control and management had been taken over by the Provincial Government in 1950; secondly that to challenge it in the year, 1987; would badly suffer from laches. In the third place, in so far as the plea that occupancy tenants had become owners of the land by operation of law was concerned, it was untenable; and lastly, that the impugned order of the Chief Minister could not be interfered with because he could not be arraigned as respondent under Article 248 of the Constitution. In the Supreme Court "the parties were allowed time to enter into a meaningful dialogue for just solution. As a result thereof, both sides have submitted their separate proposed drafts." They were reproduced as under:-- "1. The parties have agreed as under:-- `(1) That the rights of the parties are regulated by the Notification of 3/4/50, issued under section 3 of Act VIII of 1949.'
(2) That the directions of the Chief Minister of N.-W.F.P. Of 29-3-1987 be ignored.'
' The appeal may be allowed in the terms above and the parties left to bear their own costs.
(Sd.)
NUR AHMED, A.O.R. FOR THE APPELLANTS."
2. The Chief Minister's directions that the land should be given to tenants-at-will be ignored. The appellants be considered, if they take the land in their possession on lease in accordance with law.
They shall be liable to ejectment if they do not abide by the terms settled or show a conduct unbecoming of a tenant for instance they are troublesome."
' The above was read out by me to the Administrator Auqaf (Mr. Nazir Hussain) and Chief Administrator Auqaf (Mr. Shafi). They agree with what I have written in the first para. The latter, however, added that fresh terms will be settled with the appellants.
' Submitted. Orders may be passed which your Lordships consider to be in the interest of justice.
(Sd.)
(ABDUL HAKIM KHAN), SR. ASC., 29-3-1992."
' In this context, we can do no better than reproduce the penultimate paragraph of the judgment of their Lordships which is as under:-- "Both the parties have agreed that the directions of the Chief Minister dated 29-3-1987 should be ignored. That being so, the further clarification by the learned counsel for the respondents in his note does not present any unsurmountable difficulty in partly allowing this appeal in terms of both the drafts submitted by the counsel. They are fair. When read together they are workable. They shall be given the effect accordingly." To our mind the ratio deducible from the above paragraphs is that the direction of the Chief Minister, N.-W.F.P. Dated 29-3-1987 to the Administrator Auqaf N.- W.F.P. To the effect that the entire land of Village Kalo measuring 36, 110 Kanals being exclusively the property of Hazrat Sheikh Mian Umar of Chamkhani be taken over and be leased out to the tenants at will was annulled and further that the appellants (the occupancy tenants) therein shall be considered, if they take the land in their possession on lease in accordance with law.
7. It would thus be seen that the learned Collector and the learned Member Board of Revenue have not been able to deduce the ratio of the judgment of the Supreme Court in its true perspective.
8. In the instant case, the learned Member Board of Revenue after directing the impleadment of Auqaf Department ought to have himself heard the stance of the petitioners and the Auqaf Department. In all fairness to the petitioners he should have considered the prayers made by the petitioners/landlords qua their entitlement to realize their share of produce from the tenant/respondent along with the relief for his ejectment without recourse to the aforesaid two judgments in that, the status of 'tenants-at-will' qua the occupancy tenants was never determined.
The learned Member, Board of Revenue being at the apex of the hierarchy on the revenue side was required to have given a determinative finding on the right of occupancy-tenants to have their tenant-at-will ejected on the ground of default in payment of rent and could also consider the inter se relationship of the occupancy tenants on the one hand and the Auqaf Department N.-W.F.P on the other and arrive at the conclusion himself rather than out rightly upholding the order dated 31-8-1989 of the learned Collector and setting aside the order dated 25-9-1989 of the Additional Commissioner. In point of fact, the issue before the learned Member Board of Revenue was not of ownership of the petitioners before him but was of their claim to be the landlords of the disputed land and their right to eject the tenant-respondent. Another ancillary matter was as to which forum would be competent to determine the inter se rights of the petitioners before us and the Auqaf Department for taking the land in dispute on lease.
9. In this view of the matter, we are constrained to declare the impugned order dated 8-7-1992 of the learned Member Board of Revenue to be without lawful authority and of no legal effect and remand the case to him to hear the learned counsel for the parties in the light of oar observations made above and then decide it in accordance with law.
There shall be no order as to costs.