2013 PLP 756 (YLR)

AMIN-UD-DIN KHAN, J.

Through this civil revision the petitioners have challenged the judgment and decree passed by the first appellate court dated 7-11-2000 whereby appeal filed by the Board of Revenue etc. was allowed and the judgment and decree dated 22-2-1999 passed by the learned Civil Judge was set aside.

2. Brief facts of the case are that the petitioners filed a declaratory suit praying therein that they are entitled for the allotment of proprietary rights on the basis that they are in possession of the suit-land for more than 30 years. They made the land cultivatable and they are in continuous possession of the suit-land. They further paved that through Exh.P-1 they have also paid the rent of the suit as well as the fine assessed by the Revenue hierarchy. Further that on the basis of order passed in Writ Petition No.3417 of 1997 dated 17-7-1997 they are entitled to the proprietary rights.

3. Learned counsel for the petitioners states that the respondents have received rent from each petitioner and each petitioner paid Rs.50,000 rent ,therefore, they become the lessee under the law and they were entitled to the allotment of the land under temporary cultivation scheme vide Notification No.3215-79/3973-C-II. dated 3-11-1979. They are landless and there is no hurdle in giving proprietary rights to the petitioners. He has supported the judgment passed by the learned trial Court and has attacked that without valid reasons the learned first appellate court reversed the findings of the learned trial Court.

4. On the other hand, learned A.A.-G. has objected that the suit was not competent under the bar contained under section 36 of the Colonization of Government Lands Act, 1912.

5. Heard. Record perused.

6. The possession of the petitioners over the suit-land for more than 30 years has not been denied by the defendants/ respondents. It is not denied that they have paid the rent in accordance with the assessment made by the Revenue Authority. It is also not denied that there are recommendations for transfer of land in favour of the petitioners. Further that through letters issued by Secretary (Colonies) Board of Revenue, Punjab Mark A and the Deputy Secretary (Colonies) Board of Revenue Punjab Mark-B, the case of the petitioners/plaintiffs has been recommended for giving them rights under temporary cultivation scheme. Paras Nos.2 and 3 of letter issued by the Secretary (Colonies) Board of Revenue, Punjab dated 3-8-1988 are re-produced as under:-- (2) Please find enclosed a copy of application dated 22-7-1987 along with a list of 100 persons duly attested from Mr. Muhammad Siddique son of Badar Din resident of Chak No.30/DNB Tehsil and District Bahawalpur. (3) Your report under reference has been considered. The Govt. of Punjab has been pleased to decide that the aforesaid occupants of the State agricultural land situated in Chak No.30/DNB should be charged tawan for each harvest during past 16/17 years and allow them to compete with others @ 12-1/2 acres per family for lease on temporary cultivation contained in Punjab Government Colonies Department Circular Memorandum No.7402-87/7033-CLI dated 11-10-1987 read with instructions contained in Memorandum No.8837-79/325-CLI dated 11-2-1984.

7. I have noticed that the judgment and decree passed by the learned trial Court are well-reasoned and are based on the evidence available on the record, whereas the learned appellate court without any legal justification set aside the findings of the learned trial Court. In the light of judgment of this court reported as Abdul Ghafoor v. Member (Colonies) Board of Revenue West Pakistan, Lahore and others (PLD 1976 B.J 32), "tenant already in possession for 26 years, regularly paying instalments, developing land, department accepting instalments from tenant even after passing of order of resumption of tenancy. Petitioner paying up major portion of price of land and a petty tenant, Deprivation of land in question in circumstances a great hardship to tenant".

8. The law laid down through the above referred case is fully applicable to the case of the petitioners; therefore, the petitioners are also entitled to the same treatment.

9. So far as the objections of learned A.A.-G. with regard to section 36 of Colonization of Government Lands Act, 1912 is concerned, now it is settled law that if the action under challenge before the Civil Court has been passed with jurisdiction in accordance with the statute the barring clause exist wherein, then Civil Court has no jurisdiction and if the order/action impugned before the Civil Court has been passed without jurisdiction then Civil Court has jurisdiction to entertain suit against that action/order. The order passed by Revenue officials refusing the rights of plaintiffs/petitioners is without jurisdiction, therefore, Civil Court rightly exercised jurisdiction. Even otherwise Civil Court is a court of ultimate jurisdiction and having plenary jurisdiction. In the light of what has been discussed above, this civil revision is allowed and I set aside the judgment passed by the learned appellate court dated 7-11-2000 and restore the judgment of the learned trial Court dated 22-2-1999. KMZ/M-171/L Petition accepted.