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Petitioner: AHMAD VS Respondent: ARBAB RAHMATULLAH KHAN AND OTHERS
P L D
P L D 1963 W. P. (Rev.) 33
Before Nasir Ahmad Member Board of Revenue West Pakistan
AHMAD‑Petitioner
versus
ARBAB RAHMATULLAH KHAN AND OTHERS Respondents
Revision Side No. 7 of 1960‑61, decided on 29th August 1962, District Peshawar.
Landlord and tenant------
----‑Ejectment‑Suit filed by some of landlords for bona fide interest of all‑Competent.
Muhammad Afzal for Petitioner.
Sirdar Bahadur for Respondents.
ORDER
This case has got a long history behind it; but facts, briefly, are that the respondent‑plaintiffs who are landlords obtained a decree for ejectment of the petitioner‑defendants, their tenants, from the suit land situated in Mauza Maira Mushtiraka, district Peshawar, for non‑payment of rent from Rabi 1954 to Rabi 1955 i.e. one year. The case went up to the Additional Commissioner, Peshawar, who remanded it to the trial Court for fresh inquiry and disposal in accordance with law. The Assistant Collector again decreed the suit in favour of respondent‑plaintiffs and against the petitioner‑defendants on 17‑2‑1958 in the amount of Rs. 109 found as arrears of rent and ordered their ejectment on payment of Rs. 1,000 as compensation for improvements etc. In appeal the Collector, Peshawar upheld the decree passed by the Assistant Collector but remitted the amount of compensation to be paid to the petitioner‑defendants whom he did not hold entitled to anything. The learned Additional Commissioner has maintained the order passed by the Collector, Peshawar. The tenant h; now come up in second revision.
Two main points have been urged before me by the learned counsel for the petitioners ; firstly, that in the absence of Abdul Jabbar Khan, one of the landlords, the suit for ejectment could not proceed and secondly, that the order passed by the Collector. Peshawar in remitting the amount of compensation and upheld by the learned Additional Commissioner to revision is erroneous and contrary to the provisions of section 41 of the N.‑W.F.P. Tenancy Act. Regarding first point, I am not inclined to agree with the learned counsel cause it is not always necessary, sometimes even not possible, for all the co‑owners to join in a suit for ejectment. Where a suit for ejectment is brought by some of the joint owners and they act bona fide in the interest of and to the benefit of the other co‑sharers who are absentees, it should not be dismissed on this technical ground only. In this case the evidence on the file clearly shows that the suit was brought by Arbab Rahmatullah and others for the benefit of all the other co‑sharers. It was, therefore: quite competent and no Miscarriage of justice has been occasioned. As regards compensation, it has been concurrently held by the Collector and the learned Additional Commissioner that instead of making any improvement on the land as defined in section 2 of the N.W. F. P. Tenancy Act, the tenants had damaged the land by taking earth from it for building purposes, which process had continued for a period of one year. This had resulted in lowering the level of the land of the area by about one year from the surrounding area and had considerably decreased its utility. I agree with the learned Additional Commissioner in holding that in the circumstances of the case the petitioner is not entitled to any compensation.
As a result I find no reasons to interfere with the orders passed by the learned Additional Commissioner and dismiss the revision petition.
K. M. A. Revision dismissed.