Muhammad Akbar Khan vs Muhammad Naeem Khan

2014 C L C 185

[Peshawar]

Before Assadullah Khan Chamkani and Muhammad Daud Khan, JJ

MUHAMMAD AKBAR KHAN and another----Petitioners

Versus

MUHAMMAD NAEEM KHAN and 6 others----Respondents

Writ Petition No.921 of 2005, decided on 6th June, 2013.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Scope---Lease of land---Default in payment of lease money---Order for ejectment of tenants---Validity---Tenancy existed between the parties--- Defendants neither produced any receipt nor any person to prove payment of lease money or produce---Suit-land had been sold in favour of plaintiffs---Plaintiffs were landlords whereas defendants were tenants who were defaulters and were liable to be ejected---Objection with regard to non-framing of issues had been raised for the first time before the High Court in constitutional jurisdiction and was never raised before the appellate, revisional or review forum-- -Such objection was meaningless as both the parties had adduced their evidence as they wished-- -Constitutional jurisdiction conferred on the High Court was of extraordinary nature which was not for interference with the matter pertaining to the exclusive domain of tribunal or statutory forum unless it was shown that order, action or inaction was in violation of any provision of law or without lawful authority or jurisdiction---Defendants had failed to make out a case for the indulgence of the High Court in its extraordinary jurisdiction---No jurisdictional error, illegality or irregularity was found in the impugned judgments/orders---Constitutional petition was dismissed.

Fazal Muhammad Bhatti and another v. Mst. Saeeda Akhtar and 2 others 1993 SCMR 2018 and Eada Khan v. Mst. Ghemwar and others 2004 SCMR 1524 rel.

Abdul Wadood for Petitioners.

Nasir Mehmood for Respondents.

Date of hearing: 6th June, 2013.

JUDGMENT

MUHAMMAD DAUD KHAN, J.--- Through this writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioners have challenged the orders of hierarchy of Revenue Court i.e. respondents Nos.4 to 7 in the petition.

2.Necessary facts of the instant petition are that the respondents/plaintiffs filed a suit for produce and ejectment of petitioners/defendants in respect of land bearing Khasra Nos.491, 492, 494, 500, village Sakhakot on the basis of landlord/purchased owners and the petitioners/defendants were defaulting tenants of the land.

3.The petitioners/defendants denied the allegations and contested the suit by submitting the written statement. After recording of evidence, the suit of respondents was decreed vide judgment and decree dated 28-11-2002 by DDOR, Dargai in favour of respondents Nos. 1 to 3 to the tune of Rs.150,000/- for the past three years and ejectment. This judgment and decree was upheld by D.O.R/Collector, Malakand vide judgment and decree dated 28-8-2003.

4.The petitioners then assailed the above judgment in revision petition before Revenue Appellate Court No.III, Headquarter at Saidu Sharif, which were modified to the extent of reducing the period of default vide order/judgment dated 5-10-2004, but instant modification was set aside by the Senior Member Board of Revenue, who restored the judgments and decrees of respondents Nos.4 and 5 vide impugned order dated 20-4-2005. Hence, this writ petition.

5.The main contentions of the petitioners are that the respondents/plaintiffs have not given any notice to them regarding the purchased ownership of previous owner Muhammad Akbar Khan and petitioners are the tenant of Malibaz Khan and plaintiffs have no concern with ownership of suit-land; they challenged the validity of judgment of learned trial Court as the Court did not frame the issues, therefore, judgments and decrees are null and void in the eye of law.

6.Arguments heard and record minutely perused with valuable assistance of learned counsel for the parties.

7.The petitioners/defendants admitted the tenancy in their written statement and stated that they have paid the lease money to the real owner/landlord, but they neither produced any receipt to this effect, nor produced any person to prove payment of the lease money or produce. Malikbaz son of Saidbaz, who was admittedly the previous owner of the suit-land, was

examined, who stated that he sold the suit-land to Nek Muhammad Khan on 7-6-1993. It is worth-mentioning that this Nek Muhammad had further sold the suit-land in favour of plaintiff/respondent on 8-7-1993 and both the deeds, Exhs.P.W.3/2 and 3/3, were duly exhibited. Sarbiland V.C. as P.W.-1 produced Khasra-e-Girdawri of irrigation Exh.P.W.1/1 in support of version of the respondents/plaintiffs.

8.All the fora in Revenue hierarchy are unanimous to the fact that as respondents/plaintiffs Nos.1 to 3 are landlord and petitioners/ defendants were tenant and defaulters and liable to be ejected from the suit-land.

9.The learned S.M.B.R., who is apex forum in the revenue hierarchy, rightly restored and upheld the order dated 28-11-2002 of D.D.O. (J) and order dated 28-8-2003 of D.O.R/Collector, Malakand. The other contention of petitioners, that the trial Court did not frame the issues, therefore, judgments of all the Courts are not sustainable. This objection carries no weight, as the objection has been raised by the petitioners for the first time before this constitutional forum. They never questioned or raised objection before the appellate, revisional or review forum. This question of framing or non-framing of issues is meaningless because both the parties adduced their evidence as they wished. It is a well-settled law that if once the parties are alive to contention raised and when once evidence is adduced in support of such contention, the framing or non-framing of issues loses significance. Reliance can be placed on the case-law reported in 1993 SCMR 2018 Fazal Muhammad Bhatti and another v. Mst. Saeeda Akhtar and 2 others 2004 SCMR 1524 "Eada Khan v. Mst. Ghemwar and others".

10.Moreover, jurisdiction conferred on High Court under Article 199 is of extraordinary nature, has been exercised springly and not interfere with matter pertaining to the exclusive domain of tribunal or statutory forum unless it is shown that the order, action or inaction is in violation of any provision of law or without lawful authority or jurisdiction.

11.Judged and considered from all legal and factual aspects, the petitioners have failed to make out a case for the indulgence of this Court in the matter in its extraordinary writ jurisdiction. This petition, in our view, is devoid of merit and liable to dismissal.

No jurisdictional error, illegality or irregularity is found in the impugned judgments/orders, hence this writ petition being meritless, is dismissed.

AG/540/P Petition dismissed.