1986 PLP 1394 (CLC)

Dates of hearing: 11th and 12th February, 1985. This .Civil Revision Application is filed by the petitioners to challenge the two concurrent judgments of the Courts below dismissing the suit of plaintiff on the ground that civil Court had no jurisdiction to entertain the suit. Before considering the contentions raised in this petition, the following facts may be stated which are not in dispute:‑‑ The land claimed by the petitioners situated in Deh Mubarak and Kak of Taluka Mirpurkhas was part of a 'Jagir' of Late Mir Haji Hussain Bux Khan Talpur (I will hereinafter refer him as the 'Jagirdar' only for the sake of convenience). It appears that‑the predecessors‑in interest of the present petitioners claimed that they had Mukhdami rights in the land while Jagirdar had only Jagirdari rights in respect thereof. This dispute between the predecessor‑in‑title of petitioner and the 'Jagirdar' was accordingly referred to then Deputy Commissioner and Collector of Tharparkar in the year 1932 who by his award, dated 23‑6‑1932 held that the predecessors‑in‑interest of the present petitioners had Mukhdami rights in respect of the land in suit. The Jagirdar filed Suit No. 57/1932 in the Court of Civil Judge, Hyderabad, challenging the award of Deputy Commissioner and Collector Tharparkar, which was dismissed on 29‑1‑1935. Against the decision in suit, the Jagirdar preferred an appeal before the Court of Judicial Commissioner, Sind, which was allowed and the‑award, dated 23‑6‑1932 was set aside on the ground that it was based on the material in a file which was summoned by the Collector from the office of the then Commissioner and was perused by him in the absence of the parties. Thereafter, no further step was taken by the parties and they continued in the position which existed before the award. It appears that on promulgation of M.L.R. 64 the Jagirdar filed a deleglaration before the West Pakistan Land Commission in which he purportedly surrendered the land in possession of petitioners and in pursuance thereof the land Commission Authority threatened to dispossess the petitioners from the land and demanded lease money for the same ok the ground that it has been resumed under M.L.R.

64. The petitioners thereupon made a representation to the‑ West Pakistan Land Commission alleging that they hold Zamindari rights in the‑suit and, therefore, their threatened dispossession from the land and. demand of lease money in respect thereof was wholly without jurisdiction. The Commission forwarded the representation of the petitioners to the Deputy Land Commissioner Sind for determining the rights of the petitioners. The Deputy Land Commissioner in turn assigned the same to the Assistant Land Commissioner for holding enquiry into the claim of petitioner and submit a report thereon. The Assistant Land Commissioner in compliance with the order of the Deputy Land Commissioner held enquiry into the matter and in his report stated that the petitioners did have Zamindari rights in the suit land. The Deputy Land Commissioner, however, took the view that as the award given by the Collector, Tharparkar, in the year 1932 in favour of petitioner was set aside by the Judicial Commissioner, Sind, in appeal, therefore, the matter stood concluded finally and no further action is necessary. This recommendation of the Deputy Land Commissioner was accepted by the Land Commissioner and the matter was accordingly closed. The petitioners thereafter, filed Writ Petition No. 308/65 in the then High Court of West Pakistan but withdrew the same on 11‑11‑1965 with permission to file a fresh petition. Thereafter, instead of filing constitution petition they instituted Suit No. 66/66 on 6‑7‑1966 claiming relief of declaration and permanent injunction. The declaration sought by the petitioners in the above suit was to the effect that they may be declared to have 'Zamindari' rights in the suit land and that the acts and orders of the Land Commission Authority in respect of the suit land resuming it and demanding lease money from them is wholly inoperative being void ab initio. The suit was contested by the Land Commissioner and on the basis of controversy between the parties following issues were framed in the suit:‑‑ "(1) Whether the orders of the defendants resuming to suit land demanding the lease money from the plaintiffs and taking any other action in respect of land in suit, are ab initio, void and without jurisdiction? (2) Whether the plaintiffs have Zamindari rights in the land in suit? (3) Whether this Court has no jurisdiction to try this suit in view of the provisions as mentioned in paragraph. 27 read with paragraph 3 of the West Pakistan Land Reforms Regulation, ‑1959? (4) What should the decree be? On issue No. 2 which related to the claim of the plaintiff /petitioners with regard to their alleged Zamindari rights in the suit land the trial Court gave a categorical finding that on the basis of evidence and material on record the petitioner did succeed in establishing that they had Zamindari rights in respect of the land in ‑suit and that their title to the land was perfected by means of adverse possession long before coming into force of M.L.R. 64 which was promulgated in the year 1969. This finding of the trial Court on issue No. 2 has been confirmed by the First Appellate Court in appeal. The suit was, however, dismissed by the learned trial Judge and the dismissal has been upheld in appeal by the First Appellate Court on the ground that the jurisdiction of the civil Court is barred under paragraph 27 of M.L.R. 64 r/w paragraph 3 of the said Regulation. To support its conclusion the learned trial Judge referred to the cases of Hajiani v. West Pakistan Land Commissioner P L D 1966 S C 114, Jhamandas v. Chief Land Commissioner P L D 1966 S C 229 and Khair Muhammad Khan v. State P L D 1966 S C 604 which were also relied by the applicants' counsel. In‑addition to above noted reported cases the learned counsel for the applicants also relied before the trial Court two unreported decisions, of Supreme Court in Civil Appeal No. K‑43 of 1963 and civil petition jror leave to Appeal No. K‑7 of 1960 but they were distinguished by the learned trial 'Judge as not applicable to the facts of the present case. The learned First Appellate Court while maintaining the order of dismissal of Civil Suit by the trial Court for want of jurisdiction apart from the cases noticed by the trial Judge also referred to the case of Qaimuddin v. Province of West Pakistan P L D 1968 Kar. 64.7. The extent of jurisdiction of civil Court to examine the legality of the orders passed by the Land Commission under the provisions of M.L.R. 64 after enforcement of Constitution of 1962 was examined in the case of Khair Muhammad v. State P L D 1966 S C 604, and following observations made at page 611 of the report may be reproduced herewith advantage:‑‑ "As a result of the above discussion, we are satisfied that the order of Mr. I. U. Khan is not one than can be made within the powers given by the Regulation. By paragraph 27 of that Regulation, it is provided that no order made thereunder shall be called in question in any Court including the High Court and the Supreme Court. The words are not "any order purporting to be made", but "any order made" and, therefore, the requirement is that any order in respect of which immunity may be claimed under paragraph 27 must be an order made in accordance with the Regulation in its relevant provisions. Before the 7th June, 1962, there were in force certain Martial Law Regulations which had effect to save actions of e.g. the Land Commission Authorities, which merely purported to be made under the Regulation, even though not in compliance with its relevant provisions, but these Regulations ceased to have force on the promulgation of the present Constitution, and the bar of jurisdiction under paragraph 27 was limited thereafter, to orders which were in substance and form made in compliance with the Regulation. Therefore, the High Court had jurisdiction under Article 98 of the Constitution to declare that the order of Mr. I. U . Khan was made without lawful authority and was, therefore, of no effect." It is quite clear from the above‑quoted passage that the immunity conferred on the orders of Land Commission Authorities by virtue of paragraph 27 of M.L.R. 64 from being questioned in any other Court extended only to those orders which were made by the Authorities in accordance with the Regulation. An order passed by the Authority which did not fall under any of the provisions of Regulation or which was in excess of the Authority conferred on the commission by virtue of various provisions of the Regulation was not protected from being attacked in a civil Court. It is also clear from the above‑quoted passage that the immunity provided to the orders of Land Commission Authority by virtue of, M.L.Rs. 89 and 93 ceased to exist after 7th of June, 1962 upon enforcement of the Constitution of 1962. The case of Qaimuddin v. Province of Sind referred in the order of learned First Appellate Court proceeded on the assumption that the cummulative effect of M. L.Rs. 88 and 93 was that there was a total bar on the jurisdiction of the civil Court with regard to the matters decided by the Land Commission or any other Martial Authorities, but as the decision in Khair Muhammad's case which was not only decided earlier but held the field on the date of decision in Qaimuddin's case, was not brought to the notice of learned Judge, who decided Qaimuddin's case, the decision in Qaimuddin's case should be read as limited in its application only to cases which were decided by the Law Commission before coming into force of the Constitution of 1962 in view of the pronouncement of Supreme Court in, Khair Muhammad's case. In the case of Muhammad Khizar Hayat Khan v. Chief Land Commissioner P L D 1968 Lah. 1145, a question arose before a Division Bench of the then High Court of West Pakistan, Lahore Bench, with regard to the scope of the authority of the civil Court to go into the question of legality of the order passed by the Land Commission in exercise of the powers conferred on it by virtue of M.L.R.

64. The learned Judges of Division relying on two decisions of Supreme Court in case of Mst. Bibi Ayesha v. Chief Land Commission P L D 1966 S C 84 and Mst. Hajiani v. West Pakistan Land Commission Lahore P L D 1966 S C 114 observed as follows at p. 1150 of the report:‑‑ "

5. A plain reading of para. 27 shows that if the question involved in the case is not covered by the various provisions of the Regulation, it is not a matter falling for determination by the Land Commission and, therefore, despite the overriding nature of the Regulation as contained in para. 3 or para. 4(6) or the exclusion of powers of the civil Court, the High Court and the Supreme Court, the matter will be determinable by the civil court, which is a Court of general jurisdiction. The mere fact that a person is a declarant and does make a declaration as an owner does not empower the Land Commission to give a existing verdict in respect of the title of that person. Cases may be visualised where entries in the name of the existing owner of the land, legally belonging to persons other than the declarant exist in the revenue record. In such cases the mere fact that the declarant does declare all those lands as his and such a declaration is accepted by the Land Commission will not clothe the declarant with title in that property, nor will the acceptance of that declaration by the Land Commission deprive the real .owners of the land to agitate their rights in respect of that before the civil Court. If the interpretation, as suggested land learned counsel for the petitioner, is placed on these provisions by of law, it will mean negation of the rights of real owners of the land, who will be considered to have been condemned unheard by the Land Commission merely on the declaration filed by the rant purporting to be an 'existing owner' of the said land. No doubt, the questions of right made by donors to defeat the of the Martial Law Regulation were invariably gone provisions into by the Land Commission , the reverse proposition of going into the title of the donor claiming to be the existing owner was not determined by the Land Commission and from that angle also the acceptance of the declaration by the Land Commission as entered by the petitioner in Forms L. C . I and L. C . Il does not oust the jurisdiction of the civil court to determine the legality or validity of the alleged transaction of gift challenged by the minor children of the donor before the civil court. Following with respect the law laid down in Nawab Muhammad Fared Khan v. Muhammad Afzal Khan which case is directly in point, we hold that the decree of the civil Court is not without jurisdiction and as the petitioner has not assailed the same before any. Higher forum, he cannot challenge it before this Court writ jurisdiction." The above‑quoted Court but was distinguished on the ground that the dispute learned trial 'n the suit was not between Jagirdar and a third person now raised third person and Land Commission and, therefore, the but between a d no jurisdiction to excuse the same. With due deference civil Court ha the learned Courts below the above‑cited case could not be to on that account. The two Courts below had categorically distinguished reached the conclusion on issue No. 2 in the suit that the petitioners ad Zamindariright in the land in suit. In view of the above conclusion Courts below on issue No. 2, the question for determination before was, whether in these circumstances, the land could be surrendered them the 'Jagirdar' and resumed by the land Commission under paragraph by or under any other provisions of M.L.R.

64. It cannot be disputed 21 t under M.L.R. 64 only these rights of Jagirdar were affected and that would be resumed by the Commission, which the Jagirdar had or enjoyed we respect of the land. If the Jagirdar had no title to the land which in sled in some one else, then neither such land could be surrendered vested Ja irdar under M.L.R. 64 nor the Commission could resume such by lands. In the case of Mst. Hamida Begum v~ Murad Begum P L D 1975 S C 625, the following observations are made with regard to the scope of authority of a civil Court to examine the vires of the order passed by Land Commission Authority under M.L.R. 64:‑‑ "The correct position in law thus appears to be that under paragraphs 3, 4 and 27 of the Regulation, the ordinary Courts are barred from the questioning the validity of any provisions of the‑Regulation as well as any rule or order made thereunder, that all disputes arising in connection with the implementation of the provisions of this Regulation are to be finally decided by the Land Commission, and no. Court or Authority has jurisdiction in respect of any matter which the Commissioner or an Officer acting under the authority of the Commission is empowered to determine. If any matter or dispute falls outside the ambit of the Regulation, or raises a question as to the jurisdiction of the Land Commission itself, then the jurisdiction of the civil Courts to deal with such matter or dispute is not barred. The Land Commission is not the final Judge of facts and circumstances constituting the foundation of its jurisdiction, although it has necessarily to decide such questions for the purpose of administering the Regulation. Its decisions on such jurisdictional facts are open to challenge in the ordinary‑ Courts, and in any case there does not appear to be any provision in the Regulation empowering the Land Commission to give binding decisions on questions of title and personal status like legitimacy and inheritance. That jurisdiction continues to remain with the civil Courts in terms of section 9 of the Code of Civil Procedure read with section 42 of the Specific Relief Act." A careful reading of the above passage will show that the immunity extended to the orders passed by the Land Commission under M.L.R. 64 is extended under paragraphs 3, 4 and 27 of the Regulation only to those orders which are validly made under any of the provisions of the Regulation and the rules or orders made thereunder. Also protected under these provisions are the determination of disputes in connection with the implementation of the provisions of the Regulation. However, the above immunity provided to the orders of Commission under the Regulation does not extend to any matter or dispute which is shown to be outside the ambit of the Regulation or which raises a question as to the jurisdiction of the Land Commission itself. I am in no doubt after reading the above passage that in so far the decision of the Commission on the jurisdictional fact on which the jurisdiction of the Commission itself depended, the same were not protected under the Regulation from being challenged before a civil Court. Reverting now to the facts of the present case the land in dispute was allegedly resumed by the Land Commission on the ground that the Jagirdari rights stood extinguished under paragraph 21 of the Regulation. The Courts below, however, categorically reached the conclusion on issue No. 2 in the suit that the title in the land vested in the petitioner and that this title perfected in their favour long before coming into force of M.L.R.

64. This being the position the suit filed by the petitioners for declaration with regard to their titles was not hit by the provisions of M.L.R.

64. Since the suit was dismissed by the trial Court as well as by the First Appellate Court solely on the ground that the civil Court has no jurisdiction in the matter. I reverse the judgment and decree of the Courts below and grant they declaration prayed for in the suit on the basis of concurrent findings of Courts below on Issue No

2. I will make no order as to costs in the circumstances of the case. A . A . Revision allowed.