The brief facts giving rise to the present appeal are that the appellants were allotted land under Ejected Tenants Scheme and proprietary rights have been granted to them. According to the appellants rate of rent was fixed at 10 times the land revenue but later on the Collector attempted to recover rent at 20 times of the land revenue. They, therefore, brought a suit for declaration that the order of the Collector charging rent at the rate of 20 times the land revenue was illegal, without jurisdiction and ineffective. The plaint was rejected by the learned trial Judge holding that since the amount was recoverable as arrears of land revenue, the jurisdiction of the civil Court was barred under section 158 of the Land Revenue Act. The order was confirmed in appeal by the learned Additional District Judge holding that the suit was barred under section 158 read with section 78 of the Revenue Act since the amount had not been deposited before bringing the suit. It was also observed that the jurisdiction of the civil Court was barred under section 36 of the Colonization of Government Lands Act. The learned Additional District Judge has rightly applied section 78. The section allows the bringing of a suit in the A Civil Court on the condition that the amount to be recovered as arrears isi paid first under protest made in writing. It is thus clear that the jurisdiction of the civil Court is not barred but the condition is that amount should be deposited first.
2. Learned counsel for the appellants has argued that the Collector had no jurisdiction under the Act to charge rent at 20 times of the land revenue, therefore, it was not necessary for the appellants to deposit the amount first. This is not denied that the Collector has jurisdiction to recover the rent, so the recovery is not without jurisdiction. The dispute is about the rate meaning that the case of the appellants in reality is that they are not liable to pay rent at 20 times of the land revenue. This is also not denied that under section 28 of the Colonization of Government Lands Act rent can be recovered as arrears of land revenue. This further shows that the jurisdiction to recover the rent as arrears of land revenue also cannot be disputed. At this stage even this cannot be said that the increase in the rent from 10 times to 20 times of the land revenue was without jurisdiction. There is nothing on the record to show whether rent at 20 times of the land revenue cannot be legally charged. What are the terms and conditions under which the land was allotted are also not known because there is no such document on the record. The result is that legal as well as questions of facts are involved, therefore, it was necessary for the appellants to have first deposited the amount and then to show that they were not liable to pay rent at the rate at which it was thereafter assessed. The statement of the arrears shows that the amount to be recovered from every appellant is not such that it may be inconvenient for them to deposit under protest. By this I do not mean that where the amount is big, without its deposit suit can be brought. Since admittedly the appellants are tenants, they are liable and as mentioned above the dispute is only about the rate. In these circumstances I do not find any illegality in the orders of the Courts below.
Since without depositing the amount they brought the suit, the plaint did not disclose any cause of action. Learned counsel has relied upon PLD 1969 Pesh. 324 in which PLD 1966 B J 19 was dissented from but the very authority relied upon by the learned counsel is distinguishable from the facts of the present . Case. PLD 1952 Lab. 200 is also not helpful. It has been held in the said authority "Unlless the penalty is imposable under a condition which has the sanction of the Act behind it, the sum claimed cannot be held to be within the scope of section 28 of the Act and, therefore, could not be recovered as arrear of land revenue. In the present case it was not shown that the penalty in question was recoverable by virtue of any provision of the Act of any rule or condition issued thereunder."
It is apparent from the facts of the present case that no question of penalty is involved but rather rent is to be recovered, the authority to recover which is not denied but only the dispute is about the rate.
3. As a result of the observations made above, I do not find any force in the appeal and dismiss it.
But in view of the complicated legal questions involved, the parties are left to bear their own costs.
M. A. K.