KHIARO SAEED AKHUNZADA AND OTHERS vs MAHTAB ZAHIN AKHUNZADA AND OTHERS
This matter arises from a petition challenging concurrent findings of lower revenue and administrative forums and a Peshawar High Court order dismissing a writ petition in limine regarding a property dispute over reclaimed land in a mountainous area. The petitioners claimed ownership through inheritance and adverse possession spanning eighty years, while respondents asserted joint ownership. The Assistant Commissioner appointed a Jirga, whose award was approved and subsequently maintained by the Additional Commissioner and the Additional Home Secretary, with directions regarding execution. The core legal questions involved whether the Jirga was properly constituted, whether proper procedure regarding issues and evidence was followed under the applicable regulations, and whether limitation barred the respondents' claim. The Supreme Court held that the property was joint Shamilat property, that the Jirga was appointed with the consent of the parties without prior objection, and that the proceedings conducted under the relevant regulations were in accordance with law. Leave to appeal was refused.
- Whether the failure to frame formal issues vitiates proceedings before a Jirga under the PATA Regulations?
- Can a party challenge the constitution of a Jirga after participating in proceedings for years without objection?
- Does limitation run against joint owners in respect of Shamilat property?
- Whether concurrent findings of lower forums under PATA Regulations warrant interference in writ jurisdiction?
- PATA Regulations, 1975
ORDER
' MIAN BUR HANUDDIN KHAN, J.-Facts stated in this petition are that the father of the petitioners reclaimed some land in the mountaneous area which is in dispute and built some property in the nature of shops and small huts to be used by Carvans of mules and donkeys on their way to Chitral and other far-fetched places. After the death of petitioners' father the petitioners succeeded to the property and improved it further by building more houses and godowns; shifted from their encestral village Khal and' permanently settled on the disputed land ; that after about 80 years having received the rent of the shops and other built-up area as sole owners, respondents preferred a claim as joint owners of the same and as such entitled to their share in the same. The petitioners set up the plea of adverse possession having remained in occupation of the property in question for 80 years, and it was claimed by the petitioners that according to Islamic law as well as custom Crivajn they have become full owners of the property in dispute.
2. The matter came up before the Assistant Commissioner, Wari, who appointed a Jirga to go into the respective claims of the parties. The Jirga members submitted an award which was approved by the A. C. Wari vide order dated 30-7-1979. The petitioners then filed an appeal before the Additional Commissioner, Malakand, who after bearing the arguments, disposed of the appeal upholding the finding of Jirga consisting of local leaders, per order dated 7-4-1980. The petitioners then filed a revision petition before the Additional Home Secretary who maintained the finding of the lower forums but directed that the total area under the shops may be worked out and the expenditure involved in the development of this area by the petitioner be estimated in order to facilitate the precess of the execution of decree and it was further directed that as far as possible the same Jirga should undertake this task and to complete the job as per his direction within a period of 2/3 months. Thereafter the petitioners filed a writ petition in the Peshawar High Court which was dismissed in limine vide the impugned order.
3. The learned counsel contended that the provisions of Dasturul Amal, Dir and PATA regulations, 1975, are analogus to sections 8 and 11 of the P. C. R. And as such the A. C. Was required to form issues on the pleadings of the parties and then direct the Jirga to give its finding on the same. The A. C. Has failed to adopt this procedure and the learned High Court has also not appreciated that the A. C. Has failed to adopt the procedure as required by law and even on this score no proper reference-was made to Jirga, and lastly, the learned counsel contended that the Jirga was not properly constituted as contemplated by their ATA Regulation and as such the award approved by the A. C. Was in excess of the jurisdiction of the Tribunal ; that even the Jirga did not ask the parties to produce evidence nor any inspection of the spot was carried out as required by law.
4. We have examined the contentions raised by the learned counsel and find that the argument are not well founded. It was rightly observed by the lower forums that the question of limitation was not involved as the property was Shamilat and joint property of Mazid Khel, Mula Khel and Hafiz Khel tribes, which was in excess of the share of the potitioners. The respondents could claim their share in it being the joint owners. As regards the second objection, the Jirga members were appointed with the consent of the parties and during the pendency of the proceedings for for years no objection was raised to the credibility of any of the members of the Jirga. Furthermore, we find that there is no misreading or non-reading of the material on record. The orders passed under PATA Regulation are in conformity with the law on the subject supported by the facts on record and as such unexceptionable. A reference may be made to the proceedings conducted by the A. C.
Where in it is recorded: "The report of the Jirga members was read out to the parties and they were afforded opportunity to raise objections in case anyone had any objection to the appointment of Jirga members. None of the parties raised any objection, nor produced any concrete objection to the appointment of Jirga or alleging it to be one-sided or in contravention of the provisions of PATA Regulation."
' Therefore, we find that the proceedings carried out in the lower forums were conducted correctly and in accordance with the provisions of law. Leave refused. .