' IRSHAD HASAN KHAN, J.---This appeal is directed against the judgment dated 17-12-1990 passed by the Peshawar High Court in Writ Petition No, 102 of 1990 arising out of a suit for ejectment and recovery of landlord's share of produce, which was dismissed by the learned Member, Board of Revenue, Peshawar, in second revision.
2. The relevant facts are that Faridoon, respondent No,1 instituted a suit before the Assistant Collector, 1st Grade, Mardan against appellants Nos.1 and 2 and respondent No,6 for the recovery of produce of Rs,10,000 or whatever is proved in the average produce statement in respect of Khasra Nos. 1657, 1658, 1660, 1661, Khata No, 771/1785 to 1788, entered in Jamabandi for the year 1977-78 situated in Mouza Gujrat, Tehsil and District Mardan, for the crops from Kharif 1978 to Rabi 1981 and also for their ejectment from the suit land. The suit was resisted by the defendants and the learned trial Court decreed it partially by granting ejectment in respect of Khasra Nos. 1660, 1661 and half of 1658 conditional on payment of Rs,1,959 by way of compensation for improvements while it was dismissed regarding crops prior to Kharif 1980 being time-barred vide judgment dated 10-6-1987.
Appellant No,1 filed appeal against the said judgment, which was dismissed by the Collector, Mardan vide judgment dated 24-8-1987. Revision against the judgment of the Collector was dismissed by the Additional Commissioner, Peshawar on 22-11-1987. Further revision filed by appellant No,1 before the learned Member, Board of Revenue was also dismissed on 14-4-1988 on the ground that it was not maintainable. Appellant then filed W.P. No, 171 of 1989, which was accepted vide judgment dated 1-10-1989, remanding the case to the Board of Revenue, N.-W.F.P.
For decision afresh on merits after hearing the parties. In post-remand proceedings, the learned Member, Board of Revenue, accepted the revision petition vide order dated 3-12-1989 quashing all the previous orders and dismissed the suit of respondent No,1 holding that he had never been landlord for the suit crops from Kharif 1987 to Rabi 1981. Being aggrieved with the aforesaid order, respondent No,1 filed W.P. No, 102 of 1990 before the Peshawar High Court, contending therein that the land in dispute being an evacuee property, was leased out to him through a registered deed in the year 1947, which continued till it was allotted to one Muhammad Latif, a refugee from Jammu & Kashmir. Muhammad Latif entered into an agreement of sale with the allottee and continued in possession of the land. The suit property was thereafter leased out to the appellants in the year 1966 for a period of three years at the rate of Rs,100 per Jarib per annum, which amount they were regularly paying to him. It was alleged that when the lessees made default in payment, a suit was instituted against them in 1975 in the Revenue Court, which was decreed. The appeal also failed against the said judgment. Before the High Court the appellants denied the relationship of landlord and tenant between the parties for produce for the subsequent disputed period, in that, the land stood transferred to Shad Muhammad Khan and others and that they never made payment of produce to them. It was further contended that the question of title of Shad Muhammad Khan and others was sub judice before the Settlement Authorities pursuant to the order of the High Court dated 14-6-1986 in W.P. No, 24 of 1985. Reliance was also placed on the entries in Khasra Girdawari.
' The learned Judges of the High Court after hearing the parties and going through the material on record, recorded a finding that the appellants had been put in possession by respondent No,1 as lessees, they could not set up title of Shad Muhammad and others as landlords as against him and that the appellants were bound to make payment of the lease money to their landlord, respondent No,1 till they were ejected by the force of law by a person having paramount title in the land, which was yet to be determined. It was further held that the learned Member, Board of Revenue was not competent to exercise revisional jurisdiction under section 56 (1) of the N.-W.F.P. Tenancy Act (XXV of 1950) inasmuch as the revisional power under the aforesaid section had already been exercised by the Commissioner/Collector. In view of the above findings the writ petition was accepted, the impugned order of the Member, Board of Revenue was declared without lawful authority and the orders of the lower Revenue Courts were restored.
3. Mian Younis Shah, learned counsel for the appellants argued that the High Court erred in holding that there existed relationship of landlord and tenant or lessor and lessees between the parties, in that, the alleged landlord, respondent No, 1 got no title or interest in the land and his possession was that of a trespasser. It was further contended that although appellants were inducted into possession as tenants by respondent No, 1 on 3-7-1966, but his lease ceased to exist when the appellants attorned to the owners who had purchased the disputed land through a registered sale-deed from a displaced person to whom it was permanently allotted. He also argued that in the first round of litigation the High Court remanded the case to the Member, Board of Revenue for decision on merits. That order attained finality, in that, it was not challenged by way of review or petition for leave to appeal before this Court, therefore, in the second round of litigation, the learned Judges of the High Court erred in holding that the second revision before the Member, Board of Revenue was not competent.
4. The learned counsel for respondent No,1 argued that the property in dispute was allotted to Muhammad Latif on 3-10-1953 as Jammu and Kashmir refugees. Before that it was on lease with Faridoon respondent No, 1 through registered deed for a period of three years. The lease, however, continued. Thereafter, it was on 15-10-1965 that an agreement for sale was executed by Muhammad Latif in favour of respondent No,1 and in any case the appellants having been inducted into possession as tenants by respondent No, 1 on 3-7-1966, are estopped to challenge his title in view of the provisions of section 116 of the Evidence Act, which was applicable at the relevant time.
5. The concurrent findings of fact have been arrived at by the Assistant Collector, Collector and the Additional Commissioner that according to the revenue record and Khasra Girdawari for the relevant period respondent No, 1 was in possession of the suit land through the appellants on payment of cash rent and that during the disputed harvests the appellants failed to pay him his due share. These concurrent findings of fact were not open to challenge by the learned Member, Board of Revenue in the exercise of revisional jurisdiction in the absence of any misreading/non- consideration of any material piece of evidence. The learned Judges of the High Court rightly held that the Board of Revenue by setting aside the concurrent finding of fact recorded by the Revenue Courts as to the existence of relationship of landlord and tenant between the parties overstepped its jurisdiction and that it could not go into the question of title. The High Court has also cast doubt on the validity of the cancellation of allotment of Muhammad Latif through whom the respondent claimed the status of landlord on the basis of which the relationship of landlord and tenant was repudiated, therefore, no exception can be taken to the impugned judgment of the High Court on the basis of the plea raised in these proceedings. When faced with this, Mian Younis Shah, learned counsel for the appellants argued that although a tenant cannot deny the title of his landlord during the continuance of the tenancy till he parts with the possession and restores it to the landlord, yet in terms of section 116 of the Evidence Act, a tenant is not prevented from pleading that the title of the original lessor has come to an end. In support of his contention, the learned counsel for the appellant relied on the following authorities:-- ' S.A.A. Annamalai Chettiar v. Molaiyan and others (AIR 1970 Madras 396), wherein it was held that estoppel contemplated by section 116 of the Evidence Act is restricted to the denial of title at the commencement of the tenancy and by implication a tenant is not estopped from contending that the landlord had no title before the tenancy commenced or that the title of the lessor has since come to an end.
' Kumar Krishna Prosad Lal Singha Deo v. Baraboni Coal Concern Ltd. And others (AIR 1937 Privy Council 251), in which it held that a tenant is not estopped from denying landlord's title if the change relates to facts subsequent to commencement of tenancy.
' Krupasinghu Routra and another v. Purna Chandra Misra and others (AIR 1973 Orissa 44) wherein it was held that notwithstanding section 116 of the Evidence Act, it is open to a tenant to resist eviction by raising a plea that his landlord's title has been extinguished subsequent to the commencement of his tenancy. It was further held that where a tenant acquires a paramount title to the suit property after the commencement of his tenancy, he must be allowed to raise that plea in the landlord's suit itself.
' Ram Rakha Mal v. Munna Lal Maidhan (AIR 1931 Lahore 243), wherein it was held that one of the various defences open to a tenant in a suit for recovery of rent is that the landlord's title has expired or has been defeated by a title paramount. Such a defence is permissible without the tenant having to surrender his possession as is ordinarily necessary before a lessee can deny his lessor's title, however, defective and that where an ouster by title paramount or attornment thereto is pleaded, it is not the title of the landlord at the beginning of the tenancy which is being impeached by the raising of such a defence and the rule of estoppel laid down in section 116 no longer operates as a bar.
6. The aforesaid judgments from the Indian jurisdiction relied upon by the learned counsel for the appellants are of no avail to him, inasmuch as although the appellants took a vague objection in the written statement that the landlord had ceased to be the owner, yet it appears to have been abandoned later as it is neither reflected in the issues framed in the suit nor in the arguments before the High Court. The appellants were, therefore, rightly denied equitable relief in the exercise of discretionary jurisdiction. Furthermore, the induction of the appellants as tenants has since been admitted, they are estopped to repudiate the title of their landlord as held by this Court in Muhammad Anwar v. Abdul Shakoor (1982 SCM R 1120) . Also see Muhammad Ismail & Bros. v.
Muhammad Tahir (1981 SCM R 139) wherein the petitioner came in possession of the disputed land as tenant of the police. It was pleaded that though the Superintendent of Police inducted the petitioner therein into possession of the land in dispute as tenant, yet he was not the owner thereof.
The contention was repelled holding that irrespective of whether he was or was not the owner of the land, he was the landlord of the petitioner therein as the latter had been paying rent to him, hence estopped to refute his title so long he was in possession of that property. Further, in Ismail Brothers v. Kavil Ram (PLD 1981 SC 545) while explaining the principle underlying section 116 of the Evidence Act, it was held by this Court that the express words of the law restrict and confine it to the status and character of the landlord "at the beginning of the tenancy". The tenancy does not prima facie begin at the stage of renewal of a continuing tenancy. A determinative finding for which the stage has not yet arrived, will have to be recorded whether the principle of such an estoppel possibly be extended to foreclose an examination of subsequent change in character and status of the landlord.
7. As to the scope of power of revision vesting in the Board of Revenue under section 56 of the N.- W.F.P. Tenancy Act (XXV of 1950), refer Faiz Ahmad v. Muhammad Sharif Khan (1991 SCM R 689), wherein this Court held that the power under section 56 ibid 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 him are different for the purposes of revisional order while they are different for the Board of Revenue and thus the latter would be competent to examine the correctness or otherwise of the Order of the Commissioner passed in the exercise of his revisional jurisdiction under section 56 ibid. We are inclined to agree with the learned counsel for the appellants that the High Court in the earlier proceedings having itself remanded the case to the Board of Revenue for decision afresh, was not competent to hold that it had no jurisdiction to do so, in that, that order attained finality, but this by itself would not vitiate the proceedings as the impugned judgment of the High Court is in aid of justice. Clearly, no prejudice has been caused to the appellants on merits of the case.
Further, contrary view taken by this Court in the case of Haji Samad Khan and others v. Khalid Khan and others (1985 SCM R 770) is obiter, in that, the decision rendered therein was in relation to the scope of revisional powers reserved in clause (7) of paragraph 25 of the Land Reforms Regulation and rule 7 of the N.-W.F.P. Land Reforms (Procedure for Ejectment Suits) Rules, 1975, as has been explained earlier by this Court in the case of Faiz Ahmad (supra). It may also be observed that the D object of writ jurisdiction is to foster justice and not to perpetuate an illegality. Refer Syed Raunaq Ali Shah v. Chief Settlement Commissioner and others (PLD 1973 SC 236).
8. In view of the above, the appeal fails, which is hereby dismissed with no order as costs.