ORDER SHAHZAD HASSAN PERVEZ, MEMBER (JUDICIAL-I)- Brief facts of the case as narrated by learned counsel for the petitioners are that respondent No. 1 filed suit of ejectment against the petitioners in respect of land measuring 9 Kanals bearing Khata No. 41, Khatauni No. 471, Square No. 160, Killa No. 3/1 (4V4 Kanals and Khata No. 44, Khatauni No. 503, Square No. 160, Killa No. 8/1 (4 1/2 Kanals) recorded as orchard as per entries in Jamabandi for the year 1989-90 of Revenue Estate Bucha Kalan, Tehsil Bhalwal. Assistant Collector Grade-I after recording evidence of the parties and framing all necessary issues came to the determination that relationship of landlord and tenant did not exist between the parties. The suit, as such, was dismissed. The respondent No. 1 filed appeal in the Court of A.C/Collector, Bhalwal who vide his judgment and decree dated 6th of Marc, 1994 accepted the appeal and set aside the order of Assistant Collector Grade-I. The appeal of the present petitioners before Commissioner, Sargodha Division, was also rejected vide order dated 8th of May, 1995.
2. The learned counsel for the petitioners raised the following points:- {{ URDU TEXT }}
(i) The relationship of landlord and tenant did not exist appertaining to the period prior to filing of the suit, neither now, between the parties in dispute. Learned Commissioner decided the case without affording adequate opportunity to the petitioners to plead their case through their counsel.
Even if the counsel for the petitioners was wilfully avoiding to plead case on the date of hearing, Commissioner ought to have attended to the grounds of appeal and should have given reasoning for his decision on each and every point contained therein. Since, he did not advert to the grounds of appeal, his determination, therefore, was defective and not maintainable under law.
(ii) The true spirit of the entries made in khasra girdawari and in register haqdaran-e-zamin was neither appreciated nor evaluated properly in the impugned order in the context of settled principles of Tenancy Act. In register haqdaran-e-zamin. Square No. 160, Killa No. 3/1 measuring Kanals has been shown in the column of cultivation as being in possession of Bashir Ahmad and tenanted by the present petitioners. However, in the column of rent, the entry is made and in the column of ownership etc. Have been recorded. Similarly, against Square No. 160, Killa No. 8/1, measuring 4A Kanals, petitioners have been mentioned as in the column of cultivation without any reference to Bashir Ahmad. The entry made thereunder reads as It was contended by learned counsel for the petitioners that the petitioners had never paid any rent to the respondents even though they had been recorded as against Khata No. 41, Katauni No. 471. This entry, according to him, was erroneously made impacting the right of the petitioner adversely. This mistake occurred since under the Tenancy Act, Occupancy Tenants could not establish the right of ownership.
(i.e) The entries in khasra girdawari in respect of Killa No. 3/1 recorded orchard in possession of the petitioners depict the. Status of the petitioners as and against Killa No. 8/1 as 563/st/W. These entries, it was asserted, clearly establish that the status of the petitioners was never that of tenants-at-will under Bashir Ahmad. The entry of the petitioners as in the light of the notes in the column of rent in the register haqdaran-e-zamin and khasra girdawari rule out any possibility of the petitioners being considered in cultivating possession of the land as tenants. It was argued that Section 54 of the Transfer of Property Act deals with sale of land and Section 44 of the Transfer of Property Act deals with sale of possessionary rights. The word is explained in para 7(25) page 41 of the Land Records Manual. The respondents had been shown in record to be in possession of the land as it is and petitioners have been show as -fUft 1 on the basis of " 'tJfc- " and as such without the condition of payment of rent or " ctfl " by " {" to " ^ Was stated that " means not being in physical possession. It was stated connotes being in physical possession of the land. It was on this score argued that respondent No. 1 is without possession. The petitioners, it was stated are J*''S with possession. It was averred that the aforesaid explanation clearly establishes that relationship of landlord and tenant was non existent between the parties. In support of his contention, the learned counsel referred to PLD 1982 Rev. 60, 1958 West Pakistan (Revenue) 167 and PLD 1950 Revenue 444. {{ URDU TEXT }}
4. The learned counsel for the respondent No. 1 stated that concurrent findings on facts by the lower Courts ought not to be interfered with in revisional jurisdiction. It was stated that arguments of the learned counsel for the petitioners are not in line with the facts of the case and law on the subject. It was argued that the petitioners before having recourse to the Revenue, authorities had themselves taken the matter to the Civil Court where their suit for specific performance of contract was dismissed and appeal thereto was also rejected. It was averred that in the civil suit filed by the petitioners nine issues were framed and all were decided against the petitioners.
5. I have given careful consideration to the arguments of the parties. The operative part of the impugned order is reproduced below for facility of reference:- " After receipt of the record the case was fixed for arguments on 8th August, 1994. On the date and thereafter on two occasions the appellants sought adjournments. Today they again applied for the adjournment on the ground that their counsel had gone to Karachi. Various advocates present in the Court told that counsel for the appellant was present in this chamber today. The arguments of the counsel for the respondents have been heard and record perused. There is sufficient evidence on record to show that relationship of landlord and tenant exists between the appellant and the respondent... Consequently the appeal which has no force is rejected."
This statement in the impugned order clearly reflects that learned Commissioner did not advert to the grounds given in the body of the appeal.
There is no mention whether the appellants themselves in the absence of their counsel were given opportunity of hearing. The wilful absence of the counsel or his reluctance to argue the case cannot be made a ground to penalize the appellants. Principle of equity and natural justice demand that adequate opportunity be provided to the appellants/petitioners to put forth their view point before the Court. Granting that the appellants may not have' been equipped with sufficient skill to do so, the grounds given in the body of appeal ought to have been examined and clear determination given thereon. The impugned order in this revision petition, therefore, suffers for legal infirmity and as such cannot be maintained. The order dated 8th May, 1995 of Commissioner, Sargodha Division, is set aside and the case is remanded to the Commissioner with the direction that in the eventuality that the petitioners are not able to produce their counsel, the grounds given in the body of appeal should be taken up for determination. Also the pleadings made before this Court by the petitioners given at para 3 should be kept in view while deciding the case. With these observations, the revision petition is disposed of.