1999 PLP 1396 (CLC)

‑‑‑‑S: 172‑‑‑Civil Courts, jurisdiction of‑‑‑Revenue Courts have hierarchy of their own and until and unless their orders are not found to be passed without lawful authority and jurisdiction, the Civil Court has no jurisdiction to interfere. Abdul Sadiq Chaudhry for Petitioners The instant Civil Revision challenges the judgment and decree, dated 15‑12‑1998 by virtue of which the application under Order VII, Rule 11, C.P.C. was accepted resulting in rejection of plaint. An appeal was preferred against the said order which was heard and dismissed vide judgment and decree, dated 27‑1‑1999.

2. Brief facts of the instant Civil Revision are that a suit for declaration challenging the order, dated 16‑4.‑1994 passed by the Assistant Commissioner being ineffective upon the rights of the petitioners, was filed. The averments in the plaint were that the plaintiffs moved an application to the Irrigation Department for the transfer of a pond existing in Square No. 28, Killas Nos. 19 and 20 to Square No.29, Killa No.l which was transferred to Square No.29 Killa No.

1. The plaintiffs filled the pond with earth, started residing there after constructing houses thereon and deposited Rs.1,533, 10,200 and 1,888 on 22‑2‑1990 and filed a suit for declaration that the plaintiffs Nos.1 to 5 are in possession of 2 Kanals and 11 Marlas, plaintiffs Nos. 6 to 9, 1 Kanal, 11 Marlas and plaintiffs Nos. 10 to 14, 7 Kanlas and 6 Sarsahis situated in Chak No.65/JB, Tehsil and District Faisalabad and have the possessory rights of the disputed property. The suit was contested by the respondents/defendants Nos.l to

3. They averred in their written statement that Square No.29 Killa No. l according to the Revenue Record is reserved number of Abadi Deh and in Ihata No. l there is a reserved pond for the cattle in Square No.28, Killas Nos. 19 and 20 exists a pond. The Consolidation Department in the year 1965‑66 consolidated Square No.28, Killa No.19 and declared it as "Ghair Mumkan Talab" and gave it Khasra No.89 and extended this pond after giving 1 Kanal, 6 Marlas of land situated in Killa No.20 and gave it Khasra No.88 whereas the remaining land measuring 7 Kanals, 2 Marlas was left in Killa No.20. They also contended that the amount was deposited without any valid order of any competent Authority and, therefore, the Assistant Commissioner proceeded against the plaintiffs under sections 32 and 34 of the Colonization of Government Lands Act. The defendant No.3 in preliminary objections stated that earlier a suit for declaration was filed which was withdrawn by the plaintiff on 21‑9‑1994 to file a fresh suit and the plaintiffs have not mentioned the same in their plaint and that the property in dispute is situated in Square No. 28 Killas Nos. 19 and

20. The Province of Punjab is the owner of the property and since it is reserved for pond it cannot be allotted to any one. A case under section 188, P.P.C. is registered against the plaintiffs and the proceedings were conducted under sections 32 and 34 of the Colonization of Government Lands Act, 1912. An appeal was filed against the same which was dismissed by the Additional Commissioner (Revenue) on 11‑8‑1994 and the instant suit is incompetent. As earlier the defendant No.3 filed a suit for permanent injunction to restrain the plaintiffs from filling the pond and keeping the same under their possession. The stay order was issued by the same Court but the plaintiffs did not file an appeal under the provision of C.P.C. against that order and filed the instant suit which is incompetent. The order, dated 11‑8‑1994 passed by the Additional Commissioner (Revenue) was to be assailed before the Board of Revenue and they did not assail the same, therefore, they cannot file a suit which is within the hierarchy of Revenue Courts. An application under Order VII, Rule 11, C.P.C. was also filed for‑dismissal of the suit. The following preliminary issues were formulated:‑‑ (1) Whether the plaint of the suit is devoid of cause of action, hence liable to be rejected? O.P.D. (2) Relief.

3. The learned Civil Court treated Issue No.1 as legal and held that no legal right existed to the plaintiffs to retain the possession over the suit property which was "Ghair Mumkan Talab" and as their basic entry into the suit land was unauthorised, therefore, no declaration can be sought against the proceedings under sections 32 and 34 of the Colonization of Government Land Act. The application under Order VII, Rule 11, C.P.C. was accepted and the suit of the plaintiffs was dismissed. The appeal against this order was also dismissed by the learned Appellate Court on this score that the order of the Additional Commissioner, dated 11‑8‑1994 was not challenged in the instant suit and no perpetual injunction can be granted to restrain the respondents Nos. l and 2 from performing their public duties under the Colonization of Government Lands Act, 1912. The possession of the plaintiffs being unauthorised occupants of the land in the pond itself is an admission and the Civil Court has no jurisdiction to direct the Provincial Government to confer rights of ownership on the appellants and dismissed the appeal.

4. Learned counsel for the petitioner submitted that a suit cannot be dismissed under Order VII, Rule 11, C.P.C. and only the plaint can be rejected. This contention of the learned counsel for the petitioner is right. The Civil Court while considering an application under Order VII, Rule 11, C.P.C. can reject the plaint while considering the material available in plaint within the purview of the aforesaid provision.

5. Undoubtedly, it is mentioned in the Revenue Record that the disputed property under possession of the plaintiffs is a pond existing in "Charagah" which according to Colonization of Government Lands Act, 1912 cannot be allotted under any of the scheme prescribed by the said Act. As the land is included in "Charagah" and it is reserved for pond and the plaintiffs have no locus standi to fill the same and construct their houses over there and then come for seeking perpetual injunction from a Court of general jurisdiction. It is also admitted that the process under sections 32 and 34 of the Colonization of Government Lands Act was initiated against the petitioners/plaintiffs having an unauthorised possession of the pond and the appeal against the same was dismissed vide order, 'dated 11‑8‑1994 passed by the Additional Commissioner (Revenue). The same was not appealed before the Board of Revenue. The Revenue Courts have hierarchy of their own and until and unless their orders are not seen to be passed without lawful authority and jurisdiction, the Civil Courtje has no jurisdiction to interfere the same. Moreover, the property which is reserved for public purposes and is a "Charagah" or a pond meant for drinking water to the cattle cannot be allotted and no proprietary rights can be conferred upon the unauthorised occupants of the property. Therefore, the judgment of the learned trial Court and that of the Appellate Court rejecting the plaint of the petitioners are unexceptional.

6. In view of what has been stated above the judgment of the learned trial Court stands modified to the extent "that plaint is hereby rejected" (instead of suit is dismissed). Q.M.H./M.A.K./S‑307/L Order accordingly.