M. Nadir Shah alias Kotay Khan Vs Shakirullah etc

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT, MINGORA

BENCH

(DAR-UL-QAZA), SWAT

(Judicial Department)

W.P. No. 1803-P of 2009 with Interim Relief

JUDGMENT

Date of hearing: 17-9-2014.

Petitioner: ( Muhammad Nadir Shah) by Mr. Sher Muhammad Khan, Advocate.

Respondent: ( Shakirullah & others) by Mr. Asghar Ail, Advocate.

ABDUL LATIF KHAN, J.- Through instant petition, the petitioner has prayed that the impugned orders passed by the revenue hierarchy be declared void, illegal, without lawful authority and of no legal effect upon the rights of petitioner.

2.Arguments heard and record perused.

3.A perusal of record reveals that an application for ejectment was filed by the respondent, Shakirullah against the petitioner, Nadar Shah in the Court of District Revenue Officer, Dir Payeen at Timergara on 21-6-2003.

The petitioner filed written statement on 2-8-2003, wherein “ Nawab”

the specific plea taken by the petitioner to the effect that he is in possession of the property on payment of Rs. 10,000/- on the basis of yearly “Ijara” on behalf of Fazal Maula, Javaid, Assaudllah and Nausherawan sons of Sarbali Khan.

Thereafter, amended petition was moved by the respondent for impleadment of said persons as respondents No. 2 to 5, wherein amended written statement was filed. The petitioner took specific plea that brothers of the respondent/applicant have received Rs. 5 lacs from the petitioner vide document dated 8-12-1999 and statement of brother of the respondent namely Nausherawan dated 3-6-2005 is also made to this effect and in case the brothers of respondent returned back the said amount to the petitioner, he is ready to handover the possession of the disputed property to the respondents, however, no specific plea of non-existence of relation of landlord and tenant has been raised by the petitioner in the written statement.

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4.The petitioner mainly focused on the point that there is no relation between the parties as landlord and tenant and Under Section 70 of Khyber Pakhtunkhwa Tenancy Act, 1950; the Revenue Court has to refer the matter to the Civil Court for ejectment, as the petitioner has denied the relation between the parties on the ground that the suit before the Revenue Court can only proceed on assumption of relation of landlord and tenant between the parties. The plea of the petitioner to this effect; is misplaced for the reason that both the written statements filed by the petitioner are lacking the specific point of denial of relationship of landlord and tenant between the parties. It is also pertinent to mention that the petitioner has not claimed the ownership of the land himself and in such eventuality the Revenue Court does not lose jurisdiction nor its decree can be held as ineffective and the provisions of Sections 70/71 of the Khyber Pakhtunkhwa Tenancy Act, 1950 are not attracted to the instant matter. The “ Nawab”

Revenue Court of Deputy District Officer, Revenue Estate, Timergara has passed the ejectment order against the petitioner on 30-7-2007 with reasons, which has been upheld up to the apex Court of revenue hierarchy, against which no arguments have been advanced by the learned counsel for petitioner rather focused the point of applicability of Section 70 of the Khyber Pakhtunkhwa Tenancy Act, 1950 on account of non-existence of relationship between the parties as landlord and tenant, which has not been proved and the Revenue Court has rightly assumed the jurisdiction and proceed with the matter in accordance with law and has decided the “lis” pending before it with conscious and application of independent mind. No infirmity or illegality could be pointed out by the petitioner and, as such, the impugned orders of the Revenue hierarch are not open to any exception.

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For the aforementioned reasons, the instant petition being bereft of merits is hereby dismissed.

Announced.

Dt: 17-9-2014.

JUDGE

JUDGE

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