SALEEM DIL KHAN, J.---Khushnur, petitioner herein, has approached this Court under Article 199 of the Constitution of issuance of a writ to declare order dated 16-3-1995 passed by the Member, Board of Revenue in the backdrop of the order dated 18-12-1993 passed in Revision by Additional Commissioner, Mardan, and order dated 14-6-1993 passed in appeal by District Collector and order dated 20-2-1993 passed by Extra---Assistant Commissioner (Revenue), Mardan, as without lawful authority and of no legal consequence.
2. Brief facts are these; Mst. Mussarat Jabeen brought a suit for recovery of produce and ejectment of her tenant named Khushmir petitioner herein, from her tenancy and land belonging to her; detailed in the plaint. The petitioner/tenant was cultivating the land of the respondent/landlord on the basis of 1/2 share of produce and had failed to pay the share of produce of the owner to the plaintiff/respondent and the suit was thus, necessitated. The petitioner/tenant contested the suit and the averments were reduced into nine issues. Evidence was recorded by learned EAC Revenue the trial Court. The trial concluded in passing the decree prayed for in favour of the plaintiff through order dated 20-2-1993. Not content therewith, the petitioner approached the Court of District Collector by filing an appeal but set with no better success and the same was dismissed through order dated 14-6-1993. He then filed a revision petition which, too, was dismissed by the learned Assistant Commissioner, Mardan, through order dated 18-12-1993. Thereafter, he approached the Highest Court of the revenue hierarchy known as Member, Board of Revenue, N.-W.F.P. But, could not succeed and his petition was dismissed through order dated 16-3-1993. The petitioner has now come to this Court by way of this petition with the prayer to declare all the orders passed by the lower forum as without lawful authority.
3. We have heard the learned counsel for the petitioner at length who mainly contended that the learned trial Court has erred in law by appointing Additional District Qanungo as Commissioner.
That the petitioner has specifically pleaded to be tenant of Abdul Ghafoor and, therefore, under section 2 (d) of the N.-W.F.P. Tenancy Act, he is responsible to Abdul Ghafoor and not to Mst.
Mussarat Jabeen, and, that Abdul Ghafoor has admitted to have received the rent from him and he is, thus, not a defaulter; relies on PLD 1953 Pesh. 42 and PLD 1952 FC 138. Learned counsel for the respondents vehemently contested all these arguments and stated that all the lower Courts have passed speaking orders based on evidence recorded at the trial and the Revenue Record produced in the Court. He further contended that this Court would like not to sit as Court of appeal but would see only if the orders are passed without lawful authority.
4. After hearing the learned counsel for the rival parties we examined the record down to the lowest strata. There is no lacuna in the evidence recorded nor any relevant document has been left out.
Therefore, we proceed to record our observations on the basis of the evidence, documents and arguments of the learned counsel.
5. The picture which emerge out of the record is more than vivid that Mst. Mussarat Jabeen was given the suit property in lieu of her "Haq-e- I Mehar" in 1975 and she has been entered as owner in the Revenue Record right from 1975 till the filing of the suit. Similarly, Khushmir petitioner has been entered as tenant of Mst. Mussarat Jabeen. Therefore, there is no challenge to the status of the petitioner as tenant and that of Mst. Mussarat Jabeen as owner. There was litigation between Mst.
Mussarat Jabeen on one side and the brother of her husband on the other side wherein Khushmir petitioner had appeared as witness. It is also borne on record that Mst. Mussarat Jabeen was living in home of her parents having attained relations with her in-laws including Abdul Ghafoor D.W. 3.
6. This petition was admitted to regular hearing on the ground that respondent No.6 Abdul Ghafoor had admitted in his statement that he was the landlord while the petitioner was tenant under him and that he was receiving the rent of the land. The main point which was agitated was also confined to the same proposition. Learned counsel for the petitioner argued that the petitioner was tenant under Abdul Ghafoor and had paid the produce to his landlord and, therefore, he could not be declared a defaulter because he was a tenant under Abdul Ghafoor, as contemplated by section 2 (d), N.-W.F.P. Tenancy Act. He relied on PLD 1953 Pesh: 42 and PLD 1952 FC 138. We find it advantageous to deal with this proposition first because it would clinch the matter.
7. True that Abdul Ghafoor has appeared as witness on behalf of the petitioner and has categorically stated that he has received the rent from Khushmir petitioner but it would not end the matter. Abdul Ghafoor is the father of the late husband of Mst. Mussarat Jabeen but his second son, Abdul Halim, had filed a civil suit against Mst. Mussarat Jabeen and the relation between Abdul Ghafoor and Mst. Mussarat Jabeen were strained. Khushmir petitioner was in know of this situation as evident from his statement beside having appeared as witness in the litigation between Mst.
Mussarat Jabeen and Abdul Halim. The deed on which the petitioner has relied is available on page 59 of the record which is extremely dubious and has been rightly rejected by the learned lower fora. Similarly, Abdul Ghafoor when cross-examined, has shown his ignorance about the exact location of the land which he had rented out to the petitioner. Moreover, Abdul Ghafoor was never arraigned in the litigation nor he has made any application for impleadment as party in the litigation between Mst. Mussarat Jabeen and Khushmir petitioner. Beside the aforesaid facts we could not find an iota of evidence hinting at the assertion that Khushmir petitioner is the tenant of Abdul Ghafoor instead of Mst..Mussarat Jabeen. The record vividly indicates that Khushmir was in know of the ownership of Mst. Mussarat Jabeen and his refusal to pay 1/2 share of produce to her is clearly a default on t his part. Payment of the share of Mst. Mussarat Jabeen to Abdul Ghafoor, her father-in-law, would not exonerate Khushmir petitioner from his responsibility towards Mst.
Mussarat Jabeen. Therefore, we are of the firm view that the learned lower fora have arrived at correct conclusion in this behalf.
8. The next contention of the learned counsel was that instead of Additional District Qanungo some practising lawyer should have been appointed as Commissioner. It may sound reason on the basis of loud thinking but there is no provision in law to this aspect. The appointment of a Commissioner is the prerogative of the Court concerned and any relevant person can be so appointed. We understand that Additional District Qanungo, being a Revenue Officer, was the most appropriate person for the determination of the ground realities in a matter which pertains purely to the domain of Revenue Record. Therefore, we do not find any substance in this argument.
9. Learned trial Court has determined the respective shares of the landlord and tenant in the improvements made on the suit-land. The record clearly shows that the order of the trial Court in this behalf is fully supported by the record produced during trial proceedings. Moreover, the learned trial Court has correctly followed, the dictum laid down in 1992 SCMR 1849.
10. For what has been stated above, we do not find merit in this petition and therefore, dismiss the same with costs.