1993 PLP 76 (MLD)

Through this appeal, the appellants have called in question the judgment and decree of the learned District Judge, Muzaffarabad dated February 28, 1988 whereby, the appeal of the respondents has been accepted and the judgment and decree passed by the learned Additional Sub‑Judge, Muzaffarabad dated October 31, 1984 was set aside and the case was remanded to the learned Additional Sub‑Judge, Muzaffarabad.

2. The relevant and necessary facts for the disposal of this appeal are that the respondents (plaintiffs) brought a declaratory suit in the Court of Additional Sub‑Judge, Muzaffarabad on 17‑3‑1983, stating therein that the ancestors of the plaintiffs and defendants namely Faqeer Jee, Rasul Jee and Muhammad Jee, all three were the owners of the one, one share equally in the land measuring 8‑Kanals and 11‑Marlas comprising Survey Nos.500 and 509, situated in District Muzaffarbad, as it was recorded in Misl‑e‑Haqiat of 1986?

87. In the Jamabandi partaining to year 1994‑95 Bk, Faqeer Jee and Rasul Jee both have been recorded the owners of one share and Fazal Daddi widow of Muhammad Jee, owner of one share. By this entry of the Jamabandi, both Faqeer Jee and Rasul Jee who were the owners of one one share, have been recorded as the owners of only one share. This entry is perverse to the entry of the Misl‑e‑Haqiat of 1986‑87, as they have sought a declaration for the correction of the entry of Jamabandi pertaining to year 1994‑95 Bk. and have prayed that they may be declared the owner of one one share and the entry recorded in the aforesaid Jamabandi may be amended and should he recorded according to the entry of the Misl‑e‑Haqiat of 1986‑87.

3. This suit was contested by the appellants (defendants). The appellants (defendants) raised preliminary objection that the Civil Court has no jurisdiction to adjudicate upon the matter. The learned Additional Sub‑Judge Muzaffarbad vide his judgment and decree dated October 31, 1984 dismissed the suit of the respondents for want of jurisdiction. Feeling aggrieved from the judgment and decree of the learned Additional Sub‑Judge, the respondents brought an appeal before the learned District Judge, Muzaffarabad, who accepted the appeal of the respondents and held that the Civil Court has jurisdiction to adjudicate upon the matter and remanded the case to the trial Court for the‑ decision on merits. Now the appellants have challenged the Monthly Law Digest judgment and decree of the learned District Judge on the ground that the Civil Court has no jurisdiction to adjudicate upon the matter.

4. The learned counsel for the appellants argued that the Civil Court has no jurisdiction to amend the entries of the Jamabandi as the jurisdiction of the Civil Court has been barred by section 172 of the West Pakistan Land Revenue Act. The learned District Judge has wrongly held that the Civil Court has jurisdiction to adjudicate upon the matter pertaining to the correction of the entries of the Jamabandi. He referred the following authorities in support of his contention: ‑‑‑ PLD 1964 Lah.324,1980 CLC 520,1984 CLC 3156.

5. While controverting the arguments of the learned counsel for the appellants, the learned counsel for the respondents argued, that it is only the Civil Court who can correct or amend the long‑standing entry in the revenue record, as it has been clearly laid down in section 53 of the West Pakistan Revenue Act. As section 172 is concerned, that has only been meant for the officials of the Revenue Department and a private party can challenge the entry of the revenue record through a civil suit under section 42 of the Specific Relief Act.

6. I have heard the learned counsel for the parties and perused the record of the case. 7.In the instant case, the question requiring the determination is that whether the Civil Court has the jurisdiction to adjudicate upon the matter pertaining to the amendment of the entry of the Jamaban or not?

8. The question of the jurisdiction is always to be decided on the basis of the averment contained in the plaint. Court while determining the jurisdiction has only to look into the averment of the plaint and not on the everment contained in the written statement. For the purpose of determining the jurisdiction, the Court has to look into the cause of action and nature of claim brought before him by the plaintiffs. As it is well‑settled principle of law that cause of action can duly be looked into on the basis of the matter contained in the plaint and it does not depend upon what the defendants have alleged or what they want to assert. That question whether the Civil Court has jurisdiction or its jurisdiction is barred depends upon the construction of the plaint and does not depend upon what the defendants have asserted in the written statement. This view finds support fro 1987 CLC 2461(2466) which reads as under: ‑‑‑ '' "While determining the jurisdiction of a Civil Court to entertain and decide upon a cause of action, the nature of the claim put forward by the plaintiff as his cause of action is to be looked into and the matter involved does not depend upon what the defendant may assert or asserts by way of defence aid it would not matter‑if it turns out at the trial that the subject of contest between the plaintiff and defendant is not properly represented by the forum which the plaintiff has chosen." The same view also finds support from PLD 1966 Lah. 1050(1052?1053), which reads as under: ‑‑ "It is a well‑established principle that the nature of a suit for the purpose of determining jurisdiction has to be decided on the basis of the averments in the plaint and not on the basis of any defence that may be taken up." The aforesaid view also finds support from AIR 1926 Mad. 37 and AIR 1954 All. 171.

9. Now the question arises that what has been alleged in the instant plaint, and whether the jurisdiction of the Civil Court has been barred expressly or impliedly on the facts alleged in the plaint, or the facts alleged in the plaint can only be looked into by the Civil Court? In the instant plaint it has been alleged that three ancestors of the plaintiffs and defendants were equally entitled to one share and it has been recorded so in the Revenue Record but in Jamabandi of 1994‑95 Bk, both Faqeer Jee and Rusul Jee have been deprived of their right of one share which they were possessing as it may be corrected. Now the next question arises that whereby an entry of the Revenue Record a person feels himself aggrieved pertaining to any right, which he was possessing then whether the matter is cognizable by the Civil Court or not? Section 53 of the Land Revenue Act is very much clear on the point. It suggests that a person feeling himself aggrieved by an entry of the revenue record about his right which he was possessing can initiate the matter before the Civil Court, so the facts alleged in the present plaint are cognizable by the Civil Court as laid down in section 53 of the Land Revenue Act. Section 172 has no bearing on the facts alleged in the instant plaint. Section 172 is meant for different eventuality, it deals with the mere correction of entry alleged to be wrong by the Revenue Officers. Where the Revenue Officers have passed same order pertaining to some entry, then it bars the jurisdiction of Civil Court pertaining to the validity of that order. It has no bearing on a suit under section E 53 of the Land Revenue Act.

10. It is a well‑established principle of law, that long‑standing entries in the revenue record are not to be altered in a summary manner through a mutation. It may be stated that the mutation proceedings arc of the summary in nature. Right of the parties cannot be determined through the mutation proceedings because no plaint or written statement are filed and no issues are framed. No witnesses are examined and cross‑examined. It would be usually injudicious for Revenue Officers to take the function of the Civil Court. Right of the parties can only be determined after obtaining the claim of the both the parties in the shape of plaint and written statement, then forming dispute points in the shape of issue between the parties and then recording tic evidence. Right of the parties could not be determined in summon to proceedings. Wherever, a person feels himself aggrieved to his some right; in which he has been deprived through an entry ins the revenue record then he can only approach the Civil Court and the Civil Court is only competent to determine such a right after following the prescribed procedure. This view finds support from PLD 1963 W.P. (Rev.) 16(17) which reads as under: ‑‑‑ "The question whether there is prima facie justification for a change in the entries is not under consideration but whether entries of long?standing should be altered in the summary manner provided by mutation proceedings is a matter open to very serious objections. 1t may briefly be said that mutation proceedings are very summary in character. They do not determine the rights of parties. No plaints or written statements are filed, no issues are framed no witnesses are examined and cross‑examined. It would thus he highly injudicious for Revenue Officers to take on the functions of Civil Courts without following the procedure laid down by the C.P.C. If the petitioner feels aggrieved by these entries, and prima facie there may be justification for his grievance, the proper remedy for him is to approach a competent Court of civil jurisdiction and not have the matter determined by the summary proceedings of a mutation."

11. Functions of the Revenue Courts are to prepare the Revenue Record in the light of the evidence regarding one's title or interest. Such right if disputed, order of Civil Court will be a final order. Section 53 of the Land Revenue Act, confers a right in favour of an aggrieved person to have "recourse" to the Civil Court for declaration of his right under section 42 of the Specific Relief Act. Section 172 of the Land Revenue Act is entirely different; it only excludes the Civil Court from laying its hands on the functions assigned to the Revenue Court. Section 172 has no concern pertaining to the dispute arising about the title from an entry of the Revenue Record. Wherever there will be a dispute pertaining to the title and the dispute has arisen due to some entry made in the Revenue Record by the Revenue Authorities then only course to the Civil Court can be made, this view finds support from PLD 1983 Quetta 52(56) which reads as under: ‑‑‑ "The functions of the Revenue Courts is to prepare the revenue records in the light of the evidence with regard to one's title or interest, but the finality is attached to the orders of the Civil Courts who shall determine such rights if any dispute arose in that regard. The view of the Senior Civil Judge was erroneous and was rightly set aside by the District Judge."

12. It is almost established principle of law that long‑standing entries in the Revenue Record can only be corrected through a suit under section 42 of tire Specific Relief ` Act because the Civil Court can decide the complicated questions of facts and law and the Revenue Courts could not decide the complicated questions of law and facts.

13. It is settled principle of law that the entry the Revenue Record pertaining to the right of a person can only be challenged in the Civil Court, thus the contention raised by the learned counsel for the appellants has no substance because according to the facts contained in the plaint the matter is only cognizable by the Civil Court.

14. The case‑law referred by the learned counsel for the appellants is distinguishable because in the reports 1980 CLC 520, PLD 1964 Lah. 324 and 1984 CLC 3156, the entries of the Khasra Girdawari were challenged and the Court held that the Civil Court has no jurisdiction to amend the entries of the Khasra Girdawari thus the case‑law cited by the learned counsel for the appellant has no bearing on the facts of the present case.

15. Assuming for the sake of arguments that on the one hand section 112 of West Pakistan Land Revenue Act bars the jurisdiction of the Civil Court, even in respect of the matters pertaining to the correction of an entry of Jamabandi regarding the title and on the other hand section 53 of the West Pakistan Land Revenue Act confers the jurisdiction on the same matter to the Civil Court then which one will prevail. Under section 9 of the C.P.C., the Civil Courts have jurisdiction to try all the suits except those in respect of which the jurisdiction of the Civil Courts have been expressly or impliedly barred. Now the question arises that whether here the jurisdiction has been expressly barred in the presence of the both of the aforesaid provisions and if both are read together. As a general principle every presumption should be made in favour of jurisdiction of the Civil Courts and it is well known principle of interpretation of law that all laws trenching upon the usual jurisdiction of Civil Court should be construed strictly. Ouster of the jurisdiction of the Civil Court is not to be inferred until and unless the words used in the statute make it clear that the intention was to take away the jurisdiction. This view finds support from PLD 1960 Dacca 555 and PLD 1959 Azad J&K

61. The jurisdiction vested in the Civil Court by virtue of section 9 of the C.P.C., could only be restricted or ousted by the legislature either by express legislation or by necessary in tenement. But as stated above, the law which encroaches upon the rights of the citizen to have recourse to a Civil Court is to be construed strictly. F This view also finds support from 1980 CLC 713.

16. There is a plethora of case‑law laying down that despite a clear ouster of the jurisdiction of a Civil Court in a particular law there are situations in which even then the jurisdiction can be exercised. This view finds support from PLD 1983 Lah.

294. The jurisdiction of the Civil Court cannot be barred until and unless the statute contained the words clearly evidencing the intention of legislature to exclude the jurisdiction of the Civil Court. The object or purpose of all construction or interpretation is to ascertain the basic intention of the law‑maker. Now here the question arises that whether in the instant case, the basic intention of the legislature was to exclude the jurisdiction of the Civil Court pertaining to the correction of the entries of the Revenue Record or not? Although in section 172 of the West Pakistan Land Revenue Act, it has been laid down that the Civil Court has no jurisdiction pertaining to the framing of the record of rights or periodical record preparation, signing, attestation of any document including a such like but at the same time, in section 53, it has been provided that any person feeling himself aggrieved by an entry in a record of rights or in a periodical record as to any right of which he is in possession may institute a suit for declaration of his right under Chapter VI of the Specific Relief Act. Now when there are two provisions of law one barring the jurisdiction of Civil Court, and the other conferring the jurisdiction upon the Civil Court then in the light of aforesaid principle of interpretation of law, it cannot be said that the provision barring the jurisdiction will prevail but the provision conferring the jurisdiction will not prevail. The nutshell of the above discussion is that finding no force in this appeal, it is hereby dismissed. A.A./529/H.C.A.??????????????????? ??????????????????????? ??????????????????????? ??????????? Appeal dismissed.