Abdul Ali and others Vs Senior Member (Judl-1) Board of Revenue, Peshawar and others

PESHAWAR HIGH COURT, PESHAWAR

(JUDICIAL DEPARTMENT)

WP No. 6420-P/2024

Abdul Ali and others.

...........................Petitioners.

V/s

Senior Member (Judl-1) Board of Revenue, Peshawar and others.

.........................Respondents.

For the Petitioners: M/s Mustafa Firdous Seemab & Qaiser Rasheed, Advocates.

For Respondent: Mr. Subhan Sher, Advocate.

Date of hearing: 02.03.2026

JUDGMENT

SYED ARSHAD ALI, J.- By way of the instant petition filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, the petitioners have assailed the judgment/order dated 18.10.2024 passed by the learned Member, Judicial-I, Board of Revenue, Peshawar, and have prayed for setting aside the impugned judgment/order dated 18.10.2024 and for upholding the order dated 13.11.2023 passed by the learned Additional Commissioner, Peshawar.

2.The brief facts of the case are that the petitioners instituted a suit before the learned Assistant Commissioner (Saddar), Peshawar, seeking recovery of their share of produce from Rabi 2017 to Kharif 2020 and onwards until the final decision of the suit, along with the ejectment of the respondents from the landed property situated in Telaband Maira, Mauza Sorizai, Tehsil and District Peshawar. After completing the requisite proceedings, the learned trial court, vide order dated 13.03.2023, rejected the plaint. Aggrieved by

the same, the petitioners preferred an appeal before the learned Additional Deputy Commissioner, Peshawar, which was dismissed vide order dated 19.07.2023. The petitioners subsequently challenged the said dismissal through a revision petition before the learned Additional Commissioner, Peshawar. The revision was accepted; consequently, the orders of the learned trial court and the learned Additional Deputy Commissioner were set aside, and the case was remanded to the trial court for a decision on merits. Dissatisfied with the remand order, the respondents filed a revision petition before the learned Member, Judicial-I, Board of Revenue, Peshawar. The learned Member accepted the revision petition via the impugned order dated 18.10.2024, the operative part of which is reproduced as follows:

“Accordingly, the revision petition is accepted. The Additional Commissioner Peshawar Division order dated 23.11.2023 is set aside. However, plaintiff is at liberty to approach the trial forum after setting the issues mentioned in trial court dated 13.03.2023 to realize his rights as per law. No order as to cost”.

3.The learned counsel for the petitioners contended that the entire edifice of the respondents' case rests upon an unregistered agreement dated 13.05.1981, which, being unregistered, creates no title or interest in their favor. He emphasized that the revenue record unequivocally establishes the petitioners as the owners/landlords of the suit property, while the respondents are recorded as their tenants. Consequently, the findings of the learned Member, Board of Revenue, whereby the dismissal of the suit was upheld and the order of the learned Additional Commissioner, Peshawar Division, dated 23.11.2023, was set aside, are legally untenable and not sustainable in the eyes of law.

4.Conversely, the learned counsel for the respondents contended that as the respondents have already instituted a suit for declaration and specific performance based on the agreement dated 13.05.1981, which remains pending before a civil court of competent jurisdiction, the underlying issue pertains to title and falls outside the jurisdiction of the revenue forums. However, the Jamabandi for the year 2007–2008 in respect of the suit property provides a clear depiction of the parties’ status. According to the said revenue record, Sher Ali, Abdul Ali, and others (the petitioners) are recorded as owners/landlords, whereas the respondents’ predecessor, Jamshed, is recorded as a tenant (Ghair Dakhilkari). Thus, the revenue record prima facie establishes the existence of a landlord-tenant relationship between the parties.

5.The legal framework governing the transfer of immovable property mandates that an agreement to sell or an unregistered deed does not create any title, interest, or ownership in the property. Under Section 17 of the Registration Act, 1908, documents affecting immovable property require mandatory registration, and Section 54 of the Transfer of Property Act, 1882, explicitly stipulates that a contract for sale does not, of itself, create any interest in or charge on such property. This principle is firmly established in Muhammad Younas v. Muhammad Bibi (2001 YLR 2789) and G. Muhammad v. Custodian of Evacuee Property (PLD 1966 Lahore 953), where it was held that an “unregistered sale‐deed like agreement to sell creates no title in the property for a clear bar provided under section 54 of the Transfer of Property Act.” Furthermore, the Supreme Court in Muhammad Iqbal v. Nasrullah (2023 SCMR 273) reaffirmed that “an agreement to sell does not create any title or claim

over the property” and cannot serve as the basis for a decree of title where the transaction remains incomplete. Consequently, a party whose initial entry into the property was in the capacity of a tenant is legally estopped under Article 115 of the Qanun-e-Shahadat Order, 1984, from denying the landlord’s title during the subsistence of the tenancy. It is a settled principle of law that a tenant cannot avoid eviction by merely asserting a claim of ownership based on an unregistered agreement. As ruled by the Supreme Court in Mst. Bor Bibi and others v. Abdul Qadir and others (1996 SCMR 877) , “a tenant cannot be allowed to retain his possession on such agreement till decision of their title by a Civil Court of competent jurisdiction.” This duty to surrender possession is absolute; as held in Muhammad Asif v. Naseem Begum (2021 MLD 1398), that “subsequent plea of having purchased the premises under sale agreement is of no help to deny relationship” and the pendency of a suit for declaration or specific performance does not terminate the landlord-tenant relationship nor does it entitle the tenant to retain possession against the recorded owner.

6.In the present case, the Jamabandi for the year 2007– 2008 unequivocally records the petitioners as owners and the respondents’ predecessor as a tenant (Ghair Dakhilkar), establishing a clear landlord-tenant relationship. The respondents’ counter-suit, filed on 26.01.2022 only after the petitioners instituted ejectment proceedings on 23.04.2021, is a reactive attempt to frustrate the revenue forum’s jurisdiction. Given that the civil court refused to grant interim relief to the respondents on 11.05.2022, and their claim rests entirely on an unregistered deed which creates no title, there is no valid title dispute to stall the ejectment. The learned Member, Board of Revenue, erred in law by failing to recognize that a tenant

must first surrender possession before challenging the landlord’s title.

7.Accordingly, this petition is allowed; the impugned judgment of the Member, Board of Revenue, is set aside, and the order of the learned Additional Commissioner dated 23.11.2023 is hereby maintained.

JUDGE

Date of hearing & announcement Of judgment.............02.03.2026

Date of preparation & signing Of judgment............. 26.03.2026

Nawab Shah CS (SB) Justice Syed Arshad Ali