2021 PLP 1426 (YLR)

MUHAMMAD SHERAZ KIANI, J.

The captioned appeal assails the judgment and decree dated 23.07.2015, recorded by the learned District Judge, Muzaffarabad, whereby the judgment and decree passed by the learned Civil Judge, Court No.II Muzaffarabad dated 31.10.2014 and judgment in review petition dated 02.02.2015 have been maintained.

2. Precise facts of the case are that the plaintiff/appellant, herein, initially, brought a suit for declaration and perpetual injunction in respect of the land comprising survey No.16 old measuring 7 kanals 19 marlas, situated in village Kalochh Tehsil and District Muzaffarabad, against Azad Government and others, before the Court of Civil Judge, Court No. II, on 11.10.2011, with version that the plaintiff is in the ownership and possession of the land dispute vide sale-deed dated 06.03.1989 and the entries were made in the revenue record and the the plaintiff has made a huge improvement, thereupon. It was alleged that the defendants, in collusion with one another, have made wrong entries in the revenue record and thus, his landed property has been shown in the possession of Hassan Din, defendant No.7. It was stated that the plaintiff filed applications before the revenue authorities for correction of the entries and the matter was processed, however, the concerned Collector rejected applications and got entered the disputed land as 'Crown land', therefore, a decree for declaration and perpetual injunction was prayed for.

3. The learned trial Court, after usual proceedings ordered ex-parte against the defendant and directed the plaintiff to lead ex-parte evidence and finally, returned the plaint for want of jurisdiction vide judgment dated 31.10.2014. Feeling dissatisfied from the said judgment, the plaintiff preferred a review petition, which also stood dismissed with the modification that the plaintiff may avail remedy from the concerned/competent forum vide judgment dated 02.02.2015. Against this judgment, the plaintiff went in appeal before the Court of learned District Judge, Muzaffarabad on 04.03.2015, which also stood dismissed vide impugned judgment and decree dated 23.07.2015, hence, the above captioned 2nd appeal before this Court.

4. In the instant case, the defendant respondents, did not appear despite service, therefore, were proceeded ex-parte vide order dated 17.11.2016.

5. Syed Riaz Hussain Naqvi, Advocate, the learned counsel for the appellant, repeated the contents of the appeal and while referring; 2017 CLC 24 Lahore and 2007 YLR 960 Karachi, vehemently contended that when any right of a subject is infringed due to any entry of the revenue record, the civil Court is vested with the jurisdiction to pass a declaratory decree and both the learned Courts below failed to appreciate this legal point and reached at an erroneous conclusion, which resulted in miscarriage of justice, therefore, by accepting the instant appeal, the case be remanded to the trial Court for decision on merits.

6. I have heard the learned counsel for the appellant, perused the record and the impugned judgment and decrees, as well, with due care.

7. A careful perusal of the file reveals that the appellant, herein, on the ground that the suit land was in his ownership and possession and during the settlement the same has been entered in the name of defendant No.6, approached the revenue authorities for correction of the revenue record. The matter was processed by the relevant authorities and after due proceedings, the learned Collector reached at the conclusion that the land in dispute is 'Khalsa Sarkar', and hence his application was rejected.

8. Against the order of the Collector, the plaintiff/appellant, herein should have filed an appeal before the next higher revenue authority and should have redressed his grievance from the proper forum and finally, if he failed to seek his Redressal up-to the last forum, (Board of Revenue) and there was no alternate remedy, after exhausting all forums, then, he could have invoked the constitutional jurisdiction of this Court but he opted to file a suit before the civil Court, which, under section 172(2)(vi) of the Land Revenue Act, 1967 had no jurisdiction to try such a suit. It is a case of correction of revenue record, not the question of title between the private parties and where, there is mere correction of entries of revenue record are to be rectified, then, the Civil Court has no jurisdiction. For proper appreciation, relevant provision of law is reproduced, hereunder:- "

172. Exclusion of jurisdiction of Civil Courts in matters within the jurisdiction of Revenue Officers. (1) (2) (1) A civil Court shall not exercise jurisdiction over any of the following matters namely: (i) . (ii) (iii) (iv) . (v) . (vi) The correction of any entry in in a record of rights, periodical record of register of mutations."

9. Under the above provision of law, the learned trial Court did not have the jurisdiction to try such a suit and the same has rightly been held by the trial Court and up held by the 1st appellate Court.

10. As far the argument of the learned counsel for the appellant that the matter falls under section 53 of the Land Revenue Act is concerned. In proviso to the section 53 of the Act, it has been clarified that the civil Court has no jurisdiction in respect of the land, which is Khalsa Sarkar. Relevant provision is usefully reproduced, which reads as follows:- "53 .. Provided that no such declaration shall be made in respect of land which is Khalsa Sarkar or is owned by the Government."

11. In the instant case, it appears from the observation of the Collector and revenue record that the land in dispute is recorded as 'Khalsa Sarkar' and in case of Khalsa Sarkar land, the civil Court cannot pass a declaratory decree under the above provision of law. However, it is to be observed here that where, there the land in question is not recorded as crown land in the revenue record and a question of a title, (i.e. ownership, mortgage, lease, possession etc.) is disputed and denied by a defendant and the revenue entries are shown/recorded contrary to such title, then, the aggrieved person having such title can seek the remedy by challenging those wrong entries along with the declaration for such title from a civil Court of competent jurisdiction under section 53 of the Land Revenue Act, 1967 but in the present case, the entries are not in the name of a private person rather the land in question is recorded as 'Khalsa Sarkar'.

12. The precedent case law, referred by the learned counsel for appellant, being not attracted in the case in hand due to different proposition of law and facts, does not necessitate discussion and resolution.

13. In view of the afore-listed reasons, this Court has come to the conclusion that both the Courts below were justified in returning the plaint for want of jurisdiction. No illegality, irregularity whatsoever, has been committed by the Courts below while passing the impugned judgment and decrees and the same, being strictly in accordance with law, do not warrant any interference by this Court.

14. The pith and substance of the above detailed discussion is that the instant appeal failed to succeed, hence, stands dismissed with no order as to cost. SA/39/HC(AJ&K) Appeal dismissed.