1989 PLP 1771 (CLC)

5. The contention of the petitioners prevailed and the petition was allowed observing that the Tribunal had no jurisdiction to review the order of the Federal Land Commission which stood merged with the order of the High Court. Accordingly, the Tribunal's order was set aside.

6. Against the order, the respondents filed an appeal before the Supreme Court which accepting the same by order dated 16‑3‑1987 directed disposal of the writ petition on merits.

7. The question if the order of Land Commission had merged with that of the High Court passed in Writ Petition No.518 of 1975 and as such stood precluded from being examined in the instant petition, though clearly determined in the order of the Supreme Court, was again raised by the learned counsel for the petitioners, contending that the order dated 29‑5‑1973 of the learned Member Federal Land Commission was not reviewable by the Chairman, Land Disputes Tribunal as an order endorsing it had been made subsequently by the High Court.

8. Next he contended that even otherwise the order of the Federal Land Commission deserved to be maintained, proceeding as it did on detailed examination of the evidence on record, with reference to the relevant documents which the learned Chairman, Land Disputes Tribunal had ignored to consider.

9. He also contended that apart from the overwhelming evidence establishing long‑standing and uninterrupted possession of the petitioners over the land, it was also admitted by the respondents that they had held the land for more than 200 years. The possession was without payment of rent, he added.

10. The objection on the basis of merger of the order of Member, Land Commission dated 29‑5‑1973 with that of the High Court seems not tenable to us. It has been dealt with and settled by the Supreme Court after reviewing the entire situation in the light of earlier pronouncements. The relevant part of the Supreme Court's judgment is set out below:‑ "Our perusal of the judgment of the High Court shows that no decision was rendered on the merits of the case. On the other hand, it was found that the order of the Federal Land Commission was not without jurisdiction, thus not without lawful authority. Therefore, right or wrong, it was not considered necessary to interfere with it in the Constitutional jurisdiction of the High Court. That being so, in the circumstances of this case, the forum constituted under the new law (Presidential Order No.13) was, regardless of any other consideration, competent to review the order of the Federal Land Commission. It would not in any case, amount to the review of or interference with the High Court judgment. If, however, the review would not have been permitted by a statute, we might have examined further implications of the High Court judgment."

11. Accordingly, it is permissible to see if the order of the Land Commission had been reviewed on adequate grounds.

12. In coming to find that the petitioners are holding the land as owners and were not tenants under the respondents, the Land Commission appears to have relied on the documents referred to in the order as Exh.DA., Exh.DA./1, Exh.DA./2, Exh.D.A./3, Exh.D.A./4, Exh.D.A./5, Exh.D.A./6 and Exh.D.D./1. On the basis of these documents the Commission held the petitioners to have proved their stand of being owners of the Land. Copies of these documents have not been placed before us so that after a look at them we could have formed our own view with regard to their impact in proof of the fact that the petitioners had been holding the land as owners and never shared its produce with the respondents. These documents have also not been individually referred to by the Chairman, Land Disputes Tribunal, in order to discard the same. However, from the observations of the Federal Land Commission recorded in relation to them it can be seen that most of these documents were applications made by the petitioners and they were not in the nature of documents which prove the right of ownership.

13. That apart, they appear to have acknowledge while recording evidence before the Enquiry Commission that the Ex‑Ruler had directed them to leave the land to Miangans, i.e. the respondents and also forced them to pay `Ijara' to them. It can also be discerned that they had never dealt with the land in the manner as owners do, selling or mortgaging the land. It is really strange that during the long period of 200/250 years they never felt the need to sell, mortgage or lease any portion of the land. It was not a small area that they were holding. It was as such as one‑sixth of the total. At least some portion thereof should have been dealt with by owners, making sale, mortgage or exchange thereof. Nothing of the sort ever happened.

14. We also observe that documents Exh.DA. to Exh.D.D. on which the Federal Land Commission placed reliance as proof of the petitioners' claim had been seen by the Chairman, Land Disputes Tribunal. Though he did not. discuss them individually, yet he did examine them and found them falling short of the requisite standard of proof‑Besides the Tribunal also had seen orders of the Ex Ruler treating the Miangans as owners and the Kasswals as their tenants. The report of Enquiry Commission, Annexure A on the file, also mentions the various documents examined by them.

15. Accordingly, we are of the view that preponderance of the evidence is on the side of the respondents and they are the owners of the land: The petitioners have been in possession of the land for over two centuries but not as owners but as tenants. Possession as tenant whatever its duration and not the holder an owner. As such, we maintain the order of Land Disputes Tribunal and dismiss the constitutional petition but leave the parties to bear their own costs. AA.784/P Petition dismissed.