IJAZ-UL-HASSAN, Hazrat Zaman and Said Zaman sons of Ghulam Siddique residents of Parmoli, District Swabi petitioners, have filed instant Writ Petition No. 1222/2001 against Senior Member Board of Revenue, N.W.F.P., Peshawar and others, respondents, seeking annulment of order dated 21.6.2001 of respondent No. 1 and the decree passed by respondents Nos. 3 and 4 namely Collector Swabi and Revenue E.A.C. Swabi dated 29.4.1999 and 7.2.2000 respectively, as without lawful authority and of no legal effect.
2. Succinctly stated the facts leading to the filing of this writ petition are that Mst. Lhsania daughter of Muhammad Sharif resident of Shawa, District Swabi respondent No. 5 herein, filed a suit for recovery of produce in respect of a piece of land, measuring 15 kanals, 5 marls located in Khasra Nos. 2424, 2425 and 2426 situated at village Parmoli District Swabi. The Suit for the crops of Rabi 1993 upto Kharif 1995 filed before the Revenue E.A.C. Swabi. The petitioners resisted the suit and denied the possession of the land in question and the entitlement of respondent No. 5 to the produce under reference. The learned Revenue E.A.C. Recorded the evidence of the parties and decreed the suit on 29.4.1999 for a sum of Rs.24363.86 for the disputed crops. Feeling aggrieved, the petitioners lodged appeal against this order before the Collector Swabi which was dismissed on 7.2.2000. The petition then filed a revision petition before the Commissioner Mardan Division Mardan, which was accepted on 11.7.2000 and the case was remanded with a direction to the Trial Court to depute a commission to visit the spot and verify about the physical possession of the petitioners on the land in question. The respondent No. 5 filed a further revision petition before the Revenue Board which was accepted on 21.6.2001 and the remand order of the learned Commissioner was set aside. Hence the present writ petition.
3. We have heard Mr. Mazullah Barkandi, Advocate for the petitioners and Haji Muhammad Zahir Shah, Advocate for respondent No. 5 at length in the light of the material on file. We have also gone through the judgments impugned before us and the precedents cited by the learned counsel in support of their respective contentions.
4. It is mainly contended by learned counsel appearing on behalf of the petitioners that the impugned order is contrary to facts, law, as well as principle of natural justice and thus not tenable in the eyes of law and it is liable to be set aside. It is next contended that the revisional powers once exercised by respondent No. 2, under the N.W.F.P. Tenancy Act were not available to the Member :Board of Revenue under the same Act and as such the order passed by respondent No. 1 is without jurisdiction. Additionally, it is urged that the petitioners never remained in possession of land in question and thus the question of payment of recovery to respondent No. 5 does not arise. The plea of respondent No. 5 is misconceived and based on mala fide. Concluding the arguments, it was maintained that as question of fact is involved, High Court is not justified to intervene and resolve such question of fact.
5. The above explained position has been strenuously controverted by learned counsel for respondent No. 5 who argued with vehemence that the impugned order was neither arbitrary nor whimsical but passed strictly in accordance with law. He contended that the petitioners have not approached this Court with clean hands and thus they are not entitled for grant of equitable relief.
6. Having heard the submissions of learned counsel for the parties with reference to the material on record we find ourselves in agreement with learned counsel for the petitioners the the revisional powers once exercised by the learned Commissioner Mardan Division in this case under the N.W.F.P. Tenancy Act was not available to the learned Member Board of Revenue under the same Act and as such the order passed by respondent No. 1 is without jurisdiction and cannot be allowed to remain intact. The learned Member has accepted the second revision petition against a remand order which was passed for verification of the physical possession of the petitioners over the land in question and this was a quite lawful order as the petitioners have been contesting the suit on the plea that they never remained in possession of the disputed land and this plea could not be determined properly without deputing a commission. The learned Commissioner had passed a lawful order in this respect to resolve the controversy involved. The plea of respondent No. 5 for produce against the petitioner is misconceived and based on mala fide. There is nothing on the file to demonstrate that the petitioners had ever remained in possession of suit land as tenants on behalf of respondent No. 5 and as such they are liable to pay share of produce to: respondent No.
5. The mere assertion of respondent No. 5 regarding recovery of produce, without a positive attempt on her part to substantiate the same, is of no consequence.
7. In the result and for the foregoing reasons, we accept the writ 'petition and declare the impugned order dated 21.6.2001 of respondent No. 1 and the decree passed by respondents Nos. 3 and 4 dated 29.4.1999 and 7.2.2000 as without lawful authority and of no legal effect. We shall make no order as to costs. .