1986 PLP 1301 (CLC)

(e) Civil Procedure Code (V of 1908)‑‑ ‑‑‑S. 9‑‑Suit for possession‑‑Plaintiff stating in his pleading that he was dispossessed by defendant a year earlier to institution of suit‑ Plaintiff in answer to a question in cross‑examination, admitted that defendant was in possession of suit land 3/4 years earlier to institution of suit‑‑Testimony of plaintiff not supported by other witnesses‑ Record‑of‑rights reflecting that survey in dispute was in possession of defendant which was duly allotted to him by Rehabilitation authorities‑ District Judge decreeing suit of plaintiff, against order of trial Court misreading and misconstruing evidence‑‑Findings of District Judge set aside and suit dismissed. Raja Muhammad Hanif Khan for Appellant. Manzoor‑ul‑Hassan Gilani for Respondents. Date of institution: 13th February., 1985. Muhammad Yusuf filed a suit for possession of the suit land measuring 18 Kanals 8 Marlas, comprising Survey Number 842/387,situate in village Maira‑Bakot, Tehsil Hattian. It was averred that the plaintiff acquired proprietary rights in the suit land in the light of Council Order No.282/57 read with the provisions of the Azad Jammu and Kashmir Regularization of Nautors and Grant of Khalsa Land Ordinance, 1974. The title of the plaintiff was affirmed subsequently by a decree of the civil Court passed on May, 8, 1977 and reaffirmed on dismissal of review petition on May 31, 1977. It was alleged that Zohr Ali Khan, with the assistance of Ilam Din and Muhammad Din, dispossessed the plaintiff out of 8 Kanals of the suit land, a year prior to the institution of the suit. The claim of the plaintiff was repudiated, including his title in the suit land, in addition to an objection to jurisdiction of the civil Court. The trial Court dismissed the suit, among others, on the ground of jurisdiction. In appeal, the learned District Judge recorded his disagreement with the finding of the trial Court and decreed the suit for possession.

2. The parties are in agreement that the subject of dispute is Crown land. The plaintiff‑respondent acquired his title in the land by virtue of Mutation No.274 attested in favour of Saida, his father, on whose death, the plaintiff, alongwith the co‑defendant‑respondents, acquired the said title. During the pendency of the suit, the Revenue authorities, on reconsideration of the point at issue, cancelled the mutation. The learned Financial Commissioner finally rejected the claim of the plaintiff and co‑defendant‑respondents through his order passed on March, 14, 1983. The relevant law applicable to Khalsa (Crown) land is the Council Order No.282/57 and a subsequent law known as the Azad Jammu and Kashmir Regularization of Nautors and Grant of Khalsa Land Ordinance, 1974. Under the law, a Revenue Officer and the Collector of the District is authorised to inquire into a claim for grant of Khalsa land to such claimants. Section 3 of the Ordinance prescribed various conditions as well as the scale of land likely to be granted to the qualified claimants. Section 10 of the Ordinance provides that no civil Court shall have jurisdiction on any matter which the Government or any other Revenue Officer is competent to dispose of under the Ordinance and shall not take cognizance of the matter in which the Government or any Revenue Officer exercises any powers vested in it or him by the Ordinance. It further barred the jurisdiction of civil Court to issue a temporary injunction in respect of any such matter.

3. A reading of the provisions of the Ordinance and the Council Order reveals that a claim to Khalsa land by virtue of the qualifications "enumerated in section 3 of the Ordinance is exclusively determinable by a Revenue Officer, including the Collector of the District, and the Government. The jurisdiction of civil Courts in such matters is expressly barred; Section 9 of the Civil Procedure Code postulates that the Courts shall have jurisdiction to try all suits of a civil nature except such suits, the cognizance of which is either expressly or impliedly barred. Civil Courts are vested with jurisdiction to try all suits of civil nature unless such a suit is excluded from their jurisdiction by an express or implied provision of law. On this premises, the concensus is that all disputes of civil nature are triable by civil Courts unless the jurisdiction is ousted expressly or impliedly. The provisions relating to ouster of jurisdiction are strictly construed in order to jealously safeguard and protect the jurisdiction of civil Courts. Again, it was held that a civil Court was competent even to examine the finding of a tribunal to ascertain that such finding was recorded in strict compliance with the statutory provisions applicable to a special case. In Abdur Rehman Shah's case, P L D 1975 Lah. 954, as land revenue, by Collector of Attock District, Mr. Justice Zaki‑ud‑Din Pal expressed the following view:‑‑ "It is now well‑settled law that jurisdiction of the Court is not ousted in any manner unless there is express enactment to that effect by the Legislature or the result follows as a necessary intendment of the law. An order passed by a tribunal would only by sacrosanct if it is passed with jurisdiction. In that case only the correctness of the order cannot be impeached in the civil Courts. It has been held in Ch. Barkat Ali v. West Punjab Province (P L D 1952 Lah. 200) that there is no doubt that clause (xiv) of subsection (2) of section 158 of the Punjab Land Revenue Act bars the jurisdiction of the civil Court with respect to any claim connected with or arising out of the calculation by Government, or the enforcement by the Government of any process for the recovery of land revenue; or any sum recoverable a5 an arrear of land revenue, however. if the person connected sets up a case that the sum in question is neither land revenue nor a sum recoverable as an arrear of land revenue, then the suit will be within the competence of the ordinary civil Courts. In that case the Revenue Officer or Courts would have no jurisdiction and ordinary civil Courts can declare accordingly. It has further been held that in that case the decision of the civil Court would not amount to an encroachment on the special rights of the Revenue Officers or Courts."

4. In the present case, it is noticed that the proposition under consideration does not relate to grant of Khalsa land to either of the parties or, in order to judge their suitability, examination of various qualifications listed under section 3 of the Ordinance, but it is simply restricted to the question of illegal dispossession of the plaintiff from the suit land and its restoration to him. The matter, therefore, is within the scope of jurisdiction of civil Court. The learned Sub‑Judge misconstrued the provisions relating to exclusion of jurisdiction as he' was not asked to determine suitability of the plaintiff in order to grant Khalsa land to him. The trial Court was approached to restore the status ante by passing a decree for possession in favour of the plaintiff.

5. The next contending point raised by the defendant‑appellant was that the plaintiff had no locus standi to seek the requisite relief. This was so as, according to the defendant‑appellant, the title acquired by the plaintiff was lost in due course of time by an order of competent authority. In other words, the mutation, by virtue of which the plaintiff asked the requisite relief, was cancelled by the revenue authorities and it was finally affirmed by the Financial Commissioner. This position was even accepted by the plaintiff, Muhammad Yusuf plaintiff conceded that the mutation was cancelled and the Financial Commissioner had finally decided the case against him. It is accepted rule that where a plaintiff seeks a decree for possession on the strength of his title and such title disappears during the proceedings, unless he seeks a declaration of his title, he cannot succeed to get the relief of possession. This view finds support from Ahmad's case, 1981 C L C 43, wherein Mr. Justice Muhammad Afzal Lone, while deciding the proposition of validity of the gift by a widow, observed:‑‑-- "It may be observed that where a plaintiff sues for possession, on the strength of his title, but an intermediate transaction in respect of the property claimed by him, throws a cloud over his title, he must seek a declaration of his rights, before he can get a relief of possession."

6. Apart from the aforesaid legal difficulty faced by the plaintiff, his suit is likely to fail on other grounds as well.

7. It is a basic rule of pleadings, as contemplated under Order VI of the Code of Civil Procedure, that in a suit for possession of immovable property, the plaintiff must set the details and particulars of the property in his pleadings for the purpose of its ascertainment and identification. This is so, as in absence of definite particulars showing the nature and dimension of immovable property, the decree ultimately passed in his favour is not likely to be executed. A decree unable to be executed is seldom allowed. Courts do not pass decree in vacuum as it is jealously watched that a decree of the Court is executed in its true letter and spirit. In the present case, survey number 842/387 is described as 18 Kanals, out of which the plaintiff claims to have been dispossessed by the defendant to the extent of only 8 Kanals. The plaintiff to describe in his pleading, the particular direction from which he was dispossessed.' In absence of the requisite details, a decree cannot be passed in his favour.

8. In his pleadings, the plaintiff averred that he was dispossessed by the defendant‑appellant a year earlier to the institution of the suit. The suit was instituted on October 3, 1978. He appeared as a witness in the case on April 23, 1984. In answer to a question in cross-examination, he admitted that the defendant was in possession of the suit land in the year 1974‑

75. It was categorically stated that the defendant was in possession of the suit land much earlier to the institution of the previous suit and decree of the Court. The testimony of the plaintiff was not supported by the other witnesses. Apart from that, the Record‑of‑Rights produced by the parties reflects that Survey No. 842/387 was in possession of the plaintiff and the defendant‑appellant was in possession of Survey number 789/387 which was duly allotted to him by the Rehabilitation authorities. The learned District Judge misread and misconstrued the evidence and thereby fell in error to pass a decree for possession in favour of the plaintiff‑respondent. The trial Court rightly appreciated the evidence and arrived at the conclusion that, on facts, the plaintiff failed to discharge the onus in order to seek the requisite relief. In view of the reasons listed above, the findings of the learned District Judge, Muzaffarabad are hereby set aside. The plaintiff‑respondent has failed to prove his case. The suit is, therefore, dismissed with costs. M . Y . H . Appeal accepted.