KHAISTA KHAN vs SENIOR MEMBER, BOARD OF REVENUE, N. W.F.P., PESHAWAR

SARDAR MUHAMMAD RAZA KHAN; C.J.--- The grievances that led to the filing of this writ petition under Article 199 of the Constitution by Khaista Khan son of Akram. Khan and others of Kooz Behram Dheri Tehsil Tangi District Charsadda, are highlighted in the background that follows.

2. The parties jointly owned land measuring about 1096 Kanals in village Kooz Behram Dheri.

Respondents Khan Gui, Hasan Gul and Alain Gul filed a petition before the Revenue Court for partition of the joint holding against the present petitioners. It seems that the title got disputed before the Revenue Court and hence it assumed jurisdiction as Civil Court under section 141(5) of the N.-W.F.P. Land Revenue Act and, subsequently decided the case on 13-5-1987 with a grave omission that it failed to draw a decree-sheet as is required of a Civil Court. The petitioners went in appeal, heard and dismissed by learned Additional District Judge-I, Charsadda on 14-11-1987, on the ground that no decree-sheet was prepared and filed alongwith appeal.

3. The petitioners, instead of going in revision against the judgment of learned Additional District Judge, filed an appeal before the Collector against the judgment of the Revenue Court, dated 13- 5-1987 which was dismissed and-'rightly so by the District Collector vide .Order, dated 14-12-1999, holding that the Court below having passed a judgment as Civil Court, it lacked the jurisdiction. The same was held by the Additional Commissioner Peshawar Division vide his order, dated 28-12-1994 and then the Board of Revenue vide its order, dated 10-2-1999 and hence this writ petition.

4. It is a recognized principle of law that whenever a title becomes disputed before a Revenue Court seized of partition proceedings, it can assume jurisdiction as a Civil Court under section 141(5) of the N.-W.F.P. Land Revenue Act. It is also an established principle of law that whenever a decree is passed by a Civil Court, it is bound to draw a decree-sheet because the appeal, under the law, lies against a decree-sheet and not a judgment. Admittedly, in the instant case, a partitioning Court failed to draw a decree.

5. A failure to draw a decree-sheet does not operate to change the status of a Civil Court into a Revenue Court and thus, the learned Additional District Judge must have kept the appeal pending and would have called upon the lower Court to draw a decree-sheet and send the same to the First Appellate Court. In such a case, none of the parties can be deemed to have been at fault because no one can be condemned by an act of Court. The learned Additional District Judge had fallen into grave illegality equal to the serious omission made by the trial Court. The appellants before the learned Additional District Judge had, therefore, been condemned not due to their fault but due to the fault of the trial Court.

6. Instead of going in revision against the order of learned Additional District Judge, the present petitioners made a mistake of resorting to the revenue hierarchy and wasted their time up to the Board of Revenue. All the three decisions of revenue hierarchy were perfectly correct to the effect, that the trial Court having decided a matter in its capacity as Civil Court, they all had no jurisdiction to interfere.

7. In the above circumstances, we are faced with the only question of delay caused by the petitioners in resorting to the revenue hierarchy. Would such delay amount to laches on part of the petitioners qua the institution of present writ petition, is another question to be answered.

8. We have given our considered thought to the problem in hand and do believe and hold that the entire anomaly is created by the trial Court which committed a grave illegality by not drawing a decree-sheet. It had failed seriously to exercise a most important jurisdiction vested in it. Whatever time is wasted by any of the parties and whatever time would have been wasted in future as well, would never absolve a trial Court from not exercising a jurisdiction vested in it. The trial Court, under the law, was bound to draw a decree-sheet and shall remain bound forever, regardless of what the parties have been doing on-their part. This duty on part of the trial Court was so binding that it was bound and would remain bound forever to draw a decree-sheet even if the parties had gone no where to seek redressal of their grievances.

9. In the circumstances and for the reasons given above, we accept the writ petition, set aside the order, dated 14-11-1987 of the learned Additional District Judge-I, Charsadda, restore Appeal 21/13 filed on 13-6-1987 of the petitioners pending before him and direct the trial Court to draw a decree- --sheet which shall be sent to the Appellate Court within one month of the receipt of this order. The learned Additional District Judge-I shall also give similar directions to the trial Court and call for the decree-sheet simultaneously. The learned Additional District Judge-I shall summon the parties himself. If the Court of Additional District Judge-I, Charsadda happens to be vacant or without any successor, this case is remanded to the learned District Judge, Charsadda.