SARDARA Versus PROVINCE OF THE PUNJAB

This revision petition is directed against the judgment and decree passed by learned Additional District Judge, dated 17‑3‑1987 and judgment/decree, dated 18‑2‑1986 passed by Civil Judge, Jhang. Both the Courts below non‑suited the petitioners on the ground that Civil Court has no jurisdiction to take the cognizance of the matter by virtue of section 26 of West Pakistan Consolidation Ordinance, 1960.

2. The brief facts giving rise to this revision petition are that petitioners filed suit for declaration alongwith application under Order 39, Rules t and 2, C.P.C. for issuance of temporary injunction. The contents of plaint reveal that petitioners are owners in possession of land measuring 21 Kanals; during the consolidation operation in village Tibba Gahli, petitioners had purchased the copies of mutations for the implementation; but contrary to this, the suit land was put in the Wanda of the defendants which resorted in reduction of 21 Kanals in petitioner's holding. The petitioners' suit was dismissed vide order, dated 18‑2‑1986; thereafter they preferred an appeal before the learned Additional District Judge, Jhang, who also dismissed the same vide judgment and decree, dated 17‑3‑1987; hence the present revision petition. ,

2. Petitioner's counsel submits that the suit filed by petitioners in which they raised a question of title which could not be decided by the Consolidation Authorities and as such the suit was not hit by the provisions of section 26 of West Pakistan Consolidation of Holdings Ordinance; 1960. Reliance is placed on Muhammad Shafi v. Ahmed Din PLD 1961 Lah. 183; that judgments of both the Courts below are result of misreading and non reading of record.

3. The learned counsel for respondents submits that judgment of both the Courts below are valid and in accordance with law as jurisdiction of Civil Court is exclusively barred by virtue of section 26 of West Pakistan Consolidation Holdings Ordinance, 1960; that both the Courts have given concurrent findings of fact against the petitioners, therefore, revision petition is liable to be dismissed. He relied upon Abdul Hakeem v. Habibullah 1997 SCMR 1139; that question of title does not arise in the present case as_ is evident from the contents of plaint itself. He summed up his arguments that judgment cited by the petitioner's counsel is distinguished on facts and law.

In rebuttal, the petitioners' counsel submits that question of title is involved in present case as during the consolidation proceedings land of the petitioners was reduced; that petitioners being aggrieved filed appeal before the learned Additional Deputy Commissioner against the order of C.O. dated 30 6‑1987, who directed the petitioners to avail remedy before the Civil Court vide order, dated 30‑11‑1982; that contents of plaint clearly reveal that question of title is involved, therefore, both the Courts below erred in law non‑suited the petitioners.

4: I have given my anxious consideration to the contentions of learned counsel for the parties and perused the record. It is better and appropriate to reproduce the facts in chronological order with operative part to resolve the controversy between the parties. The Consolidation Officer, confirmed the Scheme vide order, dated 30‑6‑1982. '

The petitioner being aggrieved tiled appeal before Additional Deputy Commissioner, who disposed of the appeal vide order, dated 30‑11‑1982 in the following terms:‑‑

The petitioners filed suit for declaration before Civil Court, Jhang, on 5‑3‑1983, para. 4 of the plaint reveals as under:‑‑

The contention of petitioners' counsel that petitioners filed civil suit under the direction of Additional Deputy Commissioner, Consolidation is not sustainable in the eyes of law, as is evident from the operative part of order passed by Additional Deputy Commissioner;_ dated 30‑11‑1982 which reveals that petitioners were directed for correction of papers. Plaint does not reveal that question of title is involved in the present proceedings; in fact the petitioners have challenged vires of Consolidation proceedings. The jurisdiction of Civil Court is exclusively barred by virtue of section 26 of West Pakistan Holdings Ordinance, 1960 which is reproduced hereunder for ready reference:

"Section 26. The jurisdiction of Civil Courts barred as regards matter arising to this Ordinance. No Civil Court shall entertain any suit or application to obtain a decision or order in respect. of any matter which Government or the Board of Revenue or any Officer has by this Ordinance, empowered to determine, decide or dispose of."

Mere reading of the aforesaid section, would indicate that any matter which the Government, the B.O.R. or any Officer is empowered to determine, decide or dispose of in the hierarchy of the Ordinance, cannot be called into question by way of civil suit' and there is specific ouster of jurisdiction of Civil Courts to entertain such a suit. The judgment of Muhammad Shafi's case (supra) PLD 1961 Lah. 183 relied upon by the petitioner s counsel in which Full Bench observed as under:‑‑

"This second consideration, however; is more decisive in the present case. This relates to the defendant's contention in the trial that he was in adverse possession. Now, since the decision of question of adverse possession amounts to a decision of a question of title, a question which the Consolidation Officer is not empowered to decide. the matter falls out of the limitation of section 22 and the Civil Court's normal jurisdiction asserts itself."

The aforesaid Full Bench in a special circumstance, has laid down aforesaid principle of law that Civil Court has jurisdiction to entertain the suit as one of the defendant claimed his claim on the basis of adverse possession but the petitioners did not claim right of adverse possession in the present suit, therefore; judgment of Honourable Full Bench is distinguished on facts and law and is not applicable in this case in view of the aforesaid distinguished feature. ‑Since jurisdiction of Civil Court is exclusively barred, therefore, judgment of both the Courts below are in accordance with law laid by the Honourable Supreme Court in the following judgments:‑‑

Muhammad Rafique's case 1983 SCMR 1024; Mst. Hijiani and another v. West Pakistan Land Commissioner, Lahore PLD 1966 SC 114 and Feroze Mining Ltd., Abbottabad's case PLD. 1990 Pesh.

174. Petitioner's counsel has failed to point out any material or irregularity committed by both the Courts below.

5. In view of what has been discussed above, there is no merits in this revision petition and the same is dismissed with no order as to costs.

H.B.T./S‑24/L Revision dismissed.