MANGA Versus BASHIR AHMAD KHAN

1. SARDAR SAID MUHAMMAD KHAN, CJ.‑‑‑ This appeal has been directed against the judgment and decree of the High Court dated 7‑5‑1991, whereby the appeal filed by the respondents, herein, was accepted and the suit filed by the appellant, herein, was dismissed.

2. Brief facts giving rise to the present appeal are that Manga, appellant herein, brought a declaratory suit with consequential relief of possession in the Court of Sub‑Judge, Kotli, alleging that he had the occupancy rights in the land, measuring 128 Kanals 4 Marlas, comprising Survey Nos.171, 172 and 173; situate in village Jerrahi, Tehsil Kotli, but defendant, Hassan, had got sanctioned Mutations Nos.539 and 540 dated 12‑8‑1964 in his favour against the facts. The plaintiff‑appellant also challenged the entries of Khasra Girdawari so far as the same pertained to his possession. However, he alleged that the possession of the suit land was forcibly taken from him by the defendants‑respondents. ,

3. The contesting respondents resisted the suit on all grounds. The trial Court decreed the suit filed by the appellant in terms that the plaintiff, Manga, had the subsisting occupancy rights in the suit land. However, he was given the relief of possession by the trial Court only so far as the land comprising Survey No. 172, measuring 99 Kanals was concerned. The trial Court observed that as the remaining land was in possession of other respondents against whom relief of possession was not sought, the decree for possession about the same could not be passed in favour of the plaintiff. On appeal to the District Judge by the legal representatives of the defendant, Hassan, their appeal was dismissed; the District Judge passed decree for possession of whole of the suit land, measuring 128 Kanals 4 Marlas, in favour of Manga, plaintiff‑appellant. The appeal filed by the respondents, herein, to the High Court was accepted and the suit of Manga, appellant, was dismissed on the ground that his occupancy rights in the suit land had been declared by the SA.L.C. as extinguished and that the Civil Court had no jurisdiction to entertain the suit in view of the provisions contained in section 25 read with section 32 of the Azad Jammu and Kashmir Land Reforms Act, 1960.

4. We have heard the arguments and gone through the record. It has been contended by Raja Muhammad Siddique Khan, the learned counsel for the appellant, that no objection to the jurisdiction of the Civil Court was raised by the defendants‑respondents in the trial Court or first appellate Court nor there is any issue on the point. He has argued that the High Court was not competent to allow the objection regarding the jurisdiction in second appeal. The learned counsel has also argued that the perusal of the Revenue Record shows that Manga had been occupying the land as occupancy tenant right upto 1960 and, thus, the Mutations Nos.539 and 540 were sanctioned on the assumption of incorrect facts. The learned counsel has also argued that the files pertaining to the proceedings before the SA.L.C. which were got summoned by the respondents cannot be read in evidence; thus, the statement of Manga which was allegedly made by him and the other material in the said files cannot be considered.

5. In reply, Mirza Muhammad Anwar Baig, Advocate, appearing for the respondents, has argued that a pure question of law and especially of jurisdiction can be raised at any stage; even if it is not raised by the party to the proceedings, the same can be gone into by the Court suo motu. He has argued that irrespective of the material contained in the files of SA.L:C., the attested copies of the statement of Manga made before the SA.L.C. and the order passed in pursuance of the said statement wherein he admitted that he had not been in possession of the suit land as an occupancy tenant since long, were placed on the record of the case in the trial Court by . the counsel for the respondents on 14‑11‑1973 and the same bear the endorsement of the Presiding Officer. Thus, even if the files regarding the proceedings before the SA.L.C. are not taken into consideration, the attested copies of the statement of Manga, the order of the SA.L.C. and the other documents produced on 14‑11‑1973 are sufficient to prove the case of the respondents and the same were rightly relied upon by the High Court. He has also argued that the fact that the attested copies were not exhibited would not debar the Court from reading the same in evidence. _ The learned counsel for the respondents has cited following authorities in support of his contentions that the attested copies of the statement of Manga made before the SA.L.C. and the order of the SA.L.C. can be read into evidence without having been exhibited; and that the objection regarding the jurisdiction could be raised for the first time in the High Court and the same can be even gone into suo motu by the Court:‑‑

6. In Hakim Khan v. Aurangzeb P L D 1975 Lah. 1170, it was observed that the absence of endorsement on the documents by the Presiding Officer is merely an irregularity and it would not render the document as inadmissible. It was further opined that there is nothing in the law to prevent the Court from looking into the documents even if they are not exhibited, provided they have been placed on the record by the parties concerned. The non‑production of a document, according to the relevant provisions of C.P.C., is merely an irregularity. It was further observed that objection as to the formal proof of a document cannot be raised for the first time at appellate stage.

7. In case reported as Muhammad Akbar Khan v. Said Khan P L D 1978 SC (AJ&K) 6, it was observed that absence of endorsement of the Presiding Officer on the document, as envisaged under Order XIII,. Rule 4, C.P.C., would not take away from the probative value of the document, especially so when the document was referred to during the argument and was used in the judgment.

8. In Mst. Manzoor Fatima v. Mazhar Hussain Shah P L D 1988 SC (AJ&K) 35, it was observed that a party should follow the procedure laid down in Order XIII, Rule 4, C.P.C. while producing a document in evidence. However, when the Court is satisfied that a document admitted in evidence, in derogation of the procedure, is genuine or admitted by opposite' party and the same was read in evidence without objection, it is permissible to read the same in evidence. Failure to object the admissibility of the document in evidence by the party in the, trial Court would estope such a party from raising such an objection afterwards.

9. In Nathe Khan v. Mst. Rahmat Bibi P L D 1961 BJ 96, it was held that where the document is placed on the record without the same having been exhibited, it is admissible in evidence and can be looked into by the Court.

10. In Haq Nawaz Khan v. Muhammad Yaqoob 1991 C L C 1606, it was observed that the factum of non‑endorsement of the Judge on a document would not render the same as inadmissible. If the document was placed on tte record that can be looked into while deciding the case.

11. In Pathana v. District Judge, Montgomery P L D 1975 Lah. 588, it was held that a dispute which falls under section 77(3)(2)(1) of Tenancy Act is exclusively triable by a Revenue Court and the provisions contained under section 3 of Conciliation Courts Ordinance do not override the provisions of section 77 of the Tenancy Act. It was observed that a decree passed by the Chairman, Conciliation Court was liable to be quashed as being without jurisdiction.

12. In Shafiq Ahmad v. Malik Wazir P L D 1991 Pesh. 76, although no issue was framed on the question of jurisdiction of the trial Court nor the question was dilated upon by the appellate Court, yet it was opined that the trial Court and the appellate Court had no jurisdiction to grant declaration to the effect that the transaction in question was violative of Martial Law Regulation 64. Thus, the judgments and decrees of the lower forum were set aside so far as the grant of relevant declaration was concerned; as being without jurisdiction; the plaintiffs were directed to approach the proper forum for adjudication of their claim so far as it pertained to declaration.

13. In Muhammad Hussain Khan v. Muhammad Din 1987 C L C 2461 (Supreme Court AJ&K), it was held that while determining the question of jurisdiction of a Civil Court, the plaint is to be looked into irrespective of the fact‑as to what the defendant may assert or asserts by way of defence. The nature of a suit for the purpose of jurisdiction would be determined by resorting to the averments made in the plaint and not on the basis of defence that may be taken up.

14. In Suleman v. Khurshid 1982 C L C 2511 (Supreme Court AJ&K), it was opined that when a Court suffers from inherent want of jurisdiction, no amount of consent or participation in the proceedings, or absence of objection to jurisdiction can invest such Court with the jurisdiction. The question of waiver or estoppel in that case would not arise; however, where there is a question of irregular exercise of the jurisdiction then the participation in the proceedings without any objection to irregular exercise of jurisdiction would estop the party from raising the same afterwards.

15. In Sultan Ali v. Khushi Muhammad P L D 1983 SC 243, it was held that total absence of jurisdiction cannot be waived by a party nor such irregularity can be cured by the consent of a party.

16. In Haji Abdul Sattar v. Additional District Judge, Rawalpindi 1984 SCMR 925, it was observed that objection to jurisdiction of a tribunal or Court may be taken in writ jurisdiction despite the fact that the same was not taken before the relevant tribunal or appellate Court whose decision is under challenge.

17. In Sardar Muhammad Ibrahim Khan v. Azad Jammu and Kashmir Government P L D 1990 SC (AJ&K) 23, it was observed that a point of law which was not taken before the High Court can be raised before the Supreme Court with the permission of the Court.

18. In Haji Abdullah Khan v. Nisar Muhammad Khan P L D 1965 SC 690, it was held that a pure question of law can be raised for the first time in the Supreme Court, despite the fact that the High Court had observed that to allow the question of law to be raised for the first time would clearly prejudice the other party and, thus, defeat the ends of justice. It was held that it is the duty of the Court to apply correct law. Where a law becomes applicable to admitted or proved facts, the same should be given effect whether or not it was relied upon by a party.

19. In Mst. Hafizan v. Muhammad Yasin 1985 C L C 1448, it was held that the jurisdiction vested in a Court or tribunal should be first exercised by such Court or tribunal before the same is exercised by any higher forum.

20. In Pakistan v. Messrs Agro Marketing Corp. 1981 C L C 443, it was observed that it is the duty of the Court to apply correct law irrespective of the contentions of the parties.

21. It may be stated here that in the interim order, dated 14‑11‑1973, it is clearly recorded by the trial Court that the statements of the two witnesses for the defendants have been recorded and that the counsel for the defendants has also placed on record twelve sheets of attested copies of the documents; it is further recorded that the counsel for the defendants also got summoned the files of the proceedings before S.A.L.C. Thus, it is evident from the interim order, dated 14‑11‑1973 that the attested copies particularly that of the statement of Manga, appellant, the order of S.A.L.C., the statement of Hassan, the predecessor‑in‑interest of the respondents, and the attested copies of the Mutations Nos.539 and 540 were brought on record as evidence by the counsel for the defendants‑respondents. The authorities referred to above,‑clearly lay down that an objection to total absence of jurisdiction can be raised at any ,p stage by a party and the same can be even sue motu gone into by the Court. itself. Thus, the contention of the learned counsel for the appellant that the attested copies of the documents could not be read into evidence because the same were not formally tendered in evidence by exhibiting the same has no force and is hereby repelled.

22. So far as the objection regarding the jurisdiction is concerned, it may be stated that sections 25 and 32 of the Azad Jammu and Kashmir Land Reforms Act, 1960, read together, clearly lay down that the question as to whether an occupancy tenant was in possession of land as such on the date of the promulgation of the Land Reforms Act is within exclusive jurisdiction of the authorities empowered under the Land Reforms Act and no other Court or authority has jurisdiction to give findings on any of the matters which fall within the jurisdiction of such Court or authority. For the sake of convenience, sections 25 and 32 of the Land Reforms Act are reproduced as under:‑‑

23. "25.‑‑‑(1) Notwithstanding anything contained in any law for the time being in force, including the law relating to tenancies or any rule having the force of law or any agreement between the parties or persons claiming through them or any custom or usage, no person shall, after the 4th day of September, 1954, acquire or have occupancy rights or be deemed to have acquired or to have had occupancy rights in any land under any enactment or contract or any decree or order of any Court or other authority and the existing occupancy rights in respect of all lands, other than lands owned by Government, shall be extinguished and shall be deemed to have been extinguished, and the land comprised in a tenancy so extinguished shall vest as .hereinafter provided.

(2) An occupancy tenant, who at the time of the coming into force of this Act, occupies any land as such shall become owner as under:‑‑

(a) of the entire land comprised in his tenancy without payment of any compensation where he pays no rent therefor beyond the amount of the land revenue, and rates and cesses for the time being chargeable therefor;

(b) of such portion of land comprised in his tenancy without payment of any compensation as corresponds to his share of the produce, where he pays rent in the form of a share of the produce; and of the remaining portion on payment of compensation by him to the landlord at eighty times the land revenue of the said remaining portion of the tenancy;

(c) of the entire land comprised in his tenancy on payment of compensation to the landlord at 20 times the annual rent including land revenue and rates and cesses within one year from the date of commencement of this Act, where he pays rent only in cash;

(d) of the entire land comprised in his tenancy on payment. of compensation to the landlord at 20 times the annual rent (consolidated cash rent plus produce rent) including the land revenue, and rates and cesses within one year from the date of commencement of this Act, where he pays rent partly in cash and partly in kind.

24. Explanation .‑‑ Produce rent shall be commuted into cash rent on the basis of the yearly average of previous five years' produce of that kind of land in the assessment circle in which the land is situated, multiplied by the average price of each type of produce for the same period.

(3) Any occupancy tenant acquiring land in accordance with the provisions of subsection (2) , shall acquire . it free from any encumbrance created in respect of that land by the landlord, and, notwithstanding any provision of any law for the time being in force to the contrary, such encumbrance shall become the exclusive liability of the landlord.

(4) If a tenant fails to pay the compensation to the landlord within the period of one year as prescribed in clauses (c) and (d) of subsection (2) of this section, the rights of occupancy on payment of such compensation by the landlord to the tenant, shall be extinguished and shall vest in the landlord and he shall be entitled to the possession thereof free from any encumbrance or lease created by the tenant.

(5) In the case of an occupancy tenant falling under clause (b) of subsection (2) of this section, if the tenant fails to pay the compensation to the landlord within one year from the date of the commencement of this Act the right of occupancy shall be extinguished with respect to that portion of the tenancy which shall vest in the landlord without any compensation and he shall be entitled to the possession thereof free from any encumbrance or lease created by the tenant.

(6) The amount of compensation to be paid by a tenant to the landlord in accordance with the provisions of this section shall be paid in lump sum within the prescribed period by a deposit in the Government treasury under the head `Land Revenue Compensation', and on receipt of the amount of compensation the Commission shall get the, necessary mutations effected through the concerned revenue officers and allow the landlord to draw the amount.

32. Bar of jurisdiction.‑‑‑ (I) No provision of this Act or of any rules or orders made thereunder shall be called in any Court including the High Court or before any authority other than an authority appointed under this Act, and no such Court or authority shall hav6 jurisdiction in respect of any matter which the Commission or an officer acting under the‑ authority of the Commission is empowered to determine.

(2) No such Court or authority as aforesaid shall be competent to grant any injunction or other order in relation to any proceeding before the Commission or before any officer exercising any power or discharging any function under this Act or the rules or orders thereunder, or. In relation to anything done or intended to be done by or at the instance of the Commission or such officer."

25. It is evident from subsection (2) of section 25 of the Land Reforms Act that the question whether a person was occupying the land as occupancy tenant on 22‑3‑1960, the date on which the Land Reforms Act was promulgated, is within exclusive jurisdiction of the authorities empowered under the provisions of the Land Reforms Act and not the Civil Court, until and unless a case of mala fides or total absence of the jurisdiction of the authority empowered under the provisions of the said Act is shown to exist. The matter came up for consideration before this Court in a case reported as Sher Muhammad Khan v. Muhammad Aslam khan 1979 C L C 857, wherein the scope of sections 25 and 32 of the Azad Jammu and Kashmir Land Reforms Act was considered and it was observed as under:‑

26. "There is no doubt that the plenary jurisdiction to decide civil rights vests in the Civil Courts under section 9 of the C.P.C. But where certain rights and obligations are created under a special Act, as distinct from rights in common law, and special authority is also created for deciding such rights and obligations, it is that authority alone which has the jurisdiction to adjudicate upon them. It is more so when such an Act, in unequivocal terms, bars the jurisdiction of the Civil Courts for deciding the disputes arising under such an, Act. Of course, if under the cloak of such powers, the authority so created, travels beyond its jurisdiction or usurps the powers of Civil Courts, which are the principle Courts, such an order can be struck down as without jurisdiction. But so long as an authority created under a special Act, is found to be legally invested with the powers to decide the rights created. under the Act and special machinery is also created under the Act to challenge the order of such an authority by way of appeal, revision or review, the jurisdiction of the Civil Courts is ousted by virtue of the ouster section even if the order passed by the authority is erroneous. There is a very fine, though subtle, distinction between the lack of jurisdiction and its wrong exercise. In the former case, the order passed will be a nullity in the eyes of law but not so in the later one‑as it could be rectified by the hierarchy of the authorities created by the Act. Because the mere error of judgment by a specially created authority or tribunal under a statute does not render such a judgment as without jurisdiction or mala fide. The reason is that the authority which has the jurisdiction to adjudicate upon rights and obligations created under the Act, has also the jurisdiction to decide rightly as well as wrongly. So even if the impugned order is presumed to be erroneous or not strictly in accordance with the provisions of a section of the Act, it does not ipso facto render such an order as without jurisdiction much less a `fraud on the Act', or mala fide as held by the learned single Judge."

27. The attested copy of the statement made by Manga before the S.A:L.C. clearly shows that he admitted before the S.A.L.C. that he had not. been in possession of the suit land since long. Manga had not put himself in the witness‑box and denied that he did not make any such statement before the S.A.L.C. It may be stated here that in the mutation attested in favour of Hassan, the owner of the suit land, there is clear reference to the decision of the S.A.L.C.; similarly, in the copy of the Mutation No.539 the occupancy rights E of Manga were declared to have been ceased. Both these copies were filed by Manga, plaintiff‑appellant, alongwith the plaint but no averment was made in the plaint that he was not aware of any decision of SA.L.C. The perusal of the statement of one of the pro forma defendants, Ismail, shows that he and Manga, appellant, had appeared before Tehsildar (who was also designated as S.A.L.C.) in the proceedings under the Land Reforms Act, which implies that the said proceedings were, at least, in the knowledge of Manga, appellant. Therefore, the contention of the learned counsel for the appellant that Manga was not aware of any such proceedings nor he made any statement before the S.A.L.C., is not tenable, especially so when Manga did not put himself in the witness‑box to rebut the said facts.

28. In the light of what has been stated above, finding no force in this appeal it is hereby dismissed with costs.

ORDER

29. This judgment, alongwith file, shall be transmitted to Branch Registry, Mirpur, and the same shall be announced by the Acting Deputy Registrar after giving notices to the counsel for the parties.

30. AA./349/SCA Appeal dismissed.