1992 PLP 2170 (MLD)

In Pathana v. District Judge, Montgomery P L D 1975 Lah. 588, it was held that a dispute which falls under section 77(3)(2)(1) of Tenancy Act is exclusively triable by a Revenue Court and the provisions contained under section 3 of Conciliation Courts Ordinance do not override the provisions of section 77 of the Tenancy Act. It was observed that a decree passed by the Chairman, Conciliation Court was liable to be quashed as being without jurisdiction. In Shafiq Ahmad v. Malik Wazir P L D 1991 Pesh. 76, although no issue was framed on the question of jurisdiction of the trial Court nor the question was dilated upon by the appellate Court, yet it was opined that the trial Court and the appellate Court had no jurisdiction to grant declaration to the effect that the transaction in question was violative of Martial Law Regulation

64. Thus, the judgments and decrees of the lower forum were set aside so far as the grant of relevant declaration was concerned; as being without jurisdiction; the plaintiffs were directed to approach the proper forum for adjudication of their claim so far as it pertained to declaration. In Muhammad Hussain Khan v. Muhammad Din 1987 C L C 2461 (Supreme Court AJ&K), it was held that while determining the question of jurisdiction of a Civil Court, the plaint is to be looked into irrespective of the fact‑as to what the defendant may assert or asserts by way of defence. The nature of a suit for the purpose of jurisdiction would be determined by resorting to the averments made in the plaint and not on the basis of defence that may be taken up. In Suleman v. Khurshid 1982 C L C 2511 (Supreme Court AJ&K), it was opined that when a Court suffers from inherent want of jurisdiction, no amount of consent or participation in the proceedings, or absence of objection to jurisdiction can invest such Court with the jurisdiction. The question of waiver or estoppel in that case would not arise; however, where there is a question of irregular exercise of the jurisdiction then the participation in the proceedings without any objection to irregular exercise of jurisdiction would estop the party from raising the same afterwards. In Sultan Ali v. Khushi Muhammad P L D 1983 SC 243, it was held that total absence of jurisdiction cannot be waived by a party nor such irregularity can be cured by the consent of a party. In Haji Abdul Sattar v. Additional District Judge, Rawalpindi 1984 SCMR 925, it was observed that objection to jurisdiction of a tribunal or Court may be taken in writ jurisdiction despite the fact that the same was not taken before the relevant tribunal or appellate Court whose decision is under challenge. In Sardar Muhammad Ibrahim Khan v. Azad Jammu and Kashmir Government P L D 1990 SC (AJ&K) 23, it was observed that a point of law which was not taken before the High Court can be raised before the Supreme Court with the permission of the Court. In Haji Abdullah Khan v. Nisar Muhammad Khan P L D 1965 SC 690, it was held that a pure question of law can be raised for the first time in the Supreme Court, despite the fact that the High Court had observed that to allow the question of law to be raised for the first time would clearly prejudice the other party and, thus, defeat the ends of justice. It was held that it is the duty of the Court to apply correct law. Where a law becomes applicable to admitted or proved facts, the same should be given effect whether or not it was relied upon by a party. In Mst. Hafizan v. Muhammad Yasin 1985 C L C 1448, it was held that the jurisdiction vested in a Court or tribunal should be first exercised by such Court or tribunal before the same is exercised by any higher forum. In Pakistan v. Messrs Agro Marketing Corp. 1981 C L C 443, it was observed that it is the duty of the Court to apply correct law irrespective of the contentions of the parties. It may be stated here that in the interim order, dated 14‑11‑1973, it is clearly recorded by the trial Court that the statements of the two witnesses for the defendants have been recorded and that the counsel for the defendants has also placed on record twelve sheets of attested copies of the documents; it is further recorded that the counsel for the defendants also got summoned the files of the proceedings before S.A.L.C. Thus, it is evident from the interim order, dated 14‑11‑1973 that the attested copies particularly that of the statement of Manga, appellant, the order of S.A.L.C., the statement of Hassan, the predecessor‑in‑interest of the respondents, and the attested copies of the Mutations Nos.539 and 540 were brought on record as evidence by the counsel for the defendants‑respondents. The authorities referred to above,‑clearly lay down that an objection to total absence of jurisdiction can be raised at any ,p stage by a party and the same can be even sue motu gone into by the Court. itself. Thus, the contention of the learned counsel for the appellant that the attested copies of the documents could not be read into evidence because the same were not formally tendered in evidence by exhibiting the same has no force and is hereby repelled. So far as the objection regarding the jurisdiction is concerned, it may be stated that sections 25 and 32 of the Azad Jammu and Kashmir Land Reforms Act, 1960, read together, clearly lay down that the question as to whether an occupancy tenant was in possession of land as such on the date of the promulgation of the Land Reforms Act is within exclusive jurisdiction of the authorities empowered under the Land Reforms Act and no other Court or authority has jurisdiction to give findings on any of the matters which fall within the jurisdiction of such Court or authority. For the sake of convenience, sections 25 and 32 of the Land Reforms Act are reproduced as under:‑‑ "25.‑‑‑(1) Notwithstanding anything contained in any law for the time being in force, including the law relating to tenancies or any rule having the force of law or any agreement between the parties or persons claiming through them or any custom or usage, no person shall, after the 4th day of September, 1954, acquire or have occupancy rights or be deemed to have acquired or to have had occupancy rights in any land under any enactment or contract or any decree or order of any Court or other authority and the existing occupancy rights in respect of all lands, other than lands owned by Government, shall be extinguished and shall be deemed to have been extinguished, and the land comprised in a tenancy so extinguished shall vest as .hereinafter provided. (2) An occupancy tenant, who at the time of the coming into force of this Act, occupies any land as such shall become owner as under:‑‑ (a) of the entire land comprised in his tenancy without payment of any compensation where he pays no rent therefor beyond the amount of the land revenue, and rates and cesses for the time being chargeable therefor; (b) of such portion of land comprised in his tenancy without payment of any compensation as corresponds to his share of the produce, where he pays rent in the form of a share of the produce; and of the remaining portion on payment of compensation by him to the landlord at eighty times the land revenue of the said remaining portion of the tenancy; (c) of the entire land comprised in his tenancy on payment of compensation to the landlord at 20 times the annual rent including land revenue and rates and cesses within one year from the date of commencement of this Act, where he pays rent only in cash; (d) of the entire land comprised in his tenancy on payment. of compensation to the landlord at 20 times the annual rent (consolidated cash rent plus produce rent) including the land revenue, and rates and cesses within one year from the date of commencement of this Act, where he pays rent partly in cash and partly in kind. Explanation.‑‑ Produce rent shall be commuted into cash rent on the basis of the yearly average of previous five years' produce of that kind of land in the assessment circle in which the land is situated, multiplied by the average price of each type of produce for the same period. (3) Any occupancy tenant acquiring land in accordance with the provisions of subsection (2) , shall acquire . it free from any encumbrance created in respect of that land by the landlord, and, notwithstanding any provision of any law for the time being in force to the contrary, such encumbrance shall become the exclusive liability of the landlord. (4) If a tenant fails to pay the compensation to the landlord within the period of one year as prescribed in clauses (c) and (d) of subsection (2) of this section, the rights of occupancy on payment of such compensation by the landlord to the tenant, shall be extinguished and shall vest in the landlord and he shall be entitled to the possession thereof free from any encumbrance or lease created by the tenant. (5) In the case of an occupancy tenant falling under clause (b) of subsection (2) of this section, if the tenant fails to pay the compensation to the landlord within one year from the date of the commencement of this Act the right of occupancy shall be extinguished with respect to that portion of the tenancy which shall vest in the landlord without any compensation and he shall be entitled to the possession thereof free from any encumbrance or lease created by the tenant. (6) The amount of compensation to be paid by a tenant to the landlord in accordance with the provisions of this section shall be paid in lump sum within the prescribed period by a deposit in the Government treasury under the head `Land Revenue Compensation', and on receipt of the amount of compensation the Commission shall get the, necessary mutations effected through the concerned revenue officers and allow the landlord to draw the amount.

32. Bar of jurisdiction.‑‑‑ (I) No provision of this Act or of any rules or orders made thereunder shall be called in any Court including the High Court or before any authority other than an authority appointed under this Act, and no such Court or authority shall hav6 jurisdiction in respect of any matter which the Commission or an officer acting under the‑ authority of the Commission is empowered to determine. (2) No such Court or authority as aforesaid shall be competent to grant any injunction or other order in relation to any proceeding before the Commission or before any officer exercising any power or discharging any function under this Act or the rules or orders thereunder, or. In relation to anything done or intended to be done by or at the instance of the Commission or such officer." It is evident from subsection (2) of section 25 of the Land Reforms Act that the question whether a person was occupying the land as occupancy tenant on 22‑3‑1960, the date on which the Land Reforms Act was promulgated, is within exclusive jurisdiction of the authorities empowered under the provisions of the Land Reforms Act and not the Civil Court, until and unless a case of mala fides or total absence of the jurisdiction of the authority empowered under the provisions of the said Act is shown to exist. The matter came up for consideration before this Court in a case reported as Sher Muhammad Khan v. Muhammad Aslam khan 1979 C L C 857, wherein the scope of sections 25 and 32 of the Azad Jammu and Kashmir Land Reforms Act was considered and it was observed as under:‑ "There is no doubt that the plenary jurisdiction to decide civil rights vests in the Civil Courts under section 9 of the C.P.C. But where certain rights and obligations are created under a special Act, as distinct from rights in common law, and special authority is also created for deciding such rights and obligations, it is that authority alone which has the jurisdiction to adjudicate upon them. It is more so when such an Act, in unequivocal terms, bars the jurisdiction of the Civil Courts for deciding the disputes arising under such an, Act. Of course, if under the cloak of such powers, the authority so created, travels beyond its jurisdiction or usurps the powers of Civil Courts, which are the principle Courts, such an order can be struck down as without jurisdiction. But so long as an authority created under a special Act, is found to be legally invested with the powers to decide the rights created. under the Act and special machinery is also created under the Act to challenge the order of such an authority by way of appeal, revision or review, the jurisdiction of the Civil Courts is ousted by virtue of the ouster section even if the order passed by the authority is erroneous. There is a very fine, though subtle, distinction between the lack of jurisdiction and its wrong exercise. In the former case, the order passed will be a nullity in the eyes of law but not so in the later one‑as it could be rectified by the hierarchy of the authorities created by the Act. Because the mere error of judgment by a specially created authority or tribunal under a statute does not render such a judgment as without jurisdiction or mala fide. The reason is that the authority which has the jurisdiction to adjudicate upon rights and obligations created under the Act, has also the jurisdiction to decide rightly as well as wrongly. So even if the impugned order is presumed to be erroneous or not strictly in accordance with the provisions of a section of the Act, it does not ipso facto render such an order as without jurisdiction much less a `fraud on the Act', or mala fide as held by the learned single Judge." The attested copy of the statement made by Manga before the S.A:L.C. clearly shows that he admitted before the S.A.L.C. that he had not. been in possession of the suit land since long. Manga had not put himself in the witness‑box and denied that he did not make any such statement before the S.A.L.C. It may be stated here that in the mutation attested in favour of Hassan, the owner of the suit land, there is clear reference to the decision of the S.A.L.C.; similarly, in the copy of the Mutation No.539 the occupancy rights E of Manga were declared to have been ceased. Both these copies were filed by Manga, plaintiff‑appellant, alongwith the plaint but no averment was made in the plaint that he was not aware of any decision of SA.L.C. The perusal of the statement of one of the pro forma defendants, Ismail, shows that he and Manga, appellant, had appeared before Tehsildar (who was also designated as S.A.L.C.) in the proceedings under the Land Reforms Act, which implies that the said proceedings were, at least, in the knowledge of Manga, appellant. Therefore, the contention of the learned counsel for the appellant that Manga was not aware of any such proceedings nor he made any statement before the S.A.L.C., is not tenable, especially so when Manga did not put himself in the witness‑box to rebut the said facts. In the light of what has been stated above, finding no force in this appeal it is hereby dismissed with costs. This judgment, alongwith file, shall be transmitted to Branch Registry, Mirpur, and the same shall be announced by the Acting Deputy Registrar after giving notices to the counsel for the parties. AA./349/SCA Appeal dismissed.