2026 PLP 344 (CLC)

MUHAMMAD AYUB KHAN TAREEN, J.

This common order shall dispose of Constitutional Petition No.478/2024 and Civil Revision Petition No.210/2022, as in both these petitions, subject matter is the same.

2. The petitioner in Constitutional Petition No.478/2024 has sought the following relief: It is, therefore, respectfully prayed that the impugned order dated 28.03.2024 passed by respondent No.1 and re-demarcation report dated 22.10.2021 are not sustainable in the eyes of law and same are liable to be set aside, in the interest of justice, equity and fairplay and demarcation/report which was carried on 15.03.1980 in respect of land including land in question Khasra No.260/2 be declared as valid demarcation as the map has duly been prepared in pursuance of said demarcation the petitioner being owner of the property under Khasra No.260/2 is in peaceful possession of his land. Any other relief which this Hon ble deem fit and proper be awarded to petitioner.

3. Facts of the case in Constitutional Petition are that the petitioner filed a Civil Revision Petition No. 126/2021/S.MBR against the official respondents and private respondent Shaheryar Khan Durrani with the averments that initially a land was required to Fauji Foundation of setting up a poly propylene bagging plant from Government of Balochistan, at Mouza Berrot, District Lasbela. After agreeing upon the rate, the Fauji Foundation wrote a letter to the Deputy Commissioner Lasbela on 10th December 1979 for demarcation of said land, in response a report dated 18th February 1980 was prepared by concerned Patwari wherein the correct measurement of Khasra No.260/2 was also shown. After demarcation, a letter was written to Fauji Foundation on 7th April 1980 for handing over physical possession after demarcation and accordingly on 24th April 1980 possession of the above land was given to the Fauji Foundation. Further on 8th May 1980, the purchased land of Fauji Foundation measuring 40-3-34 acres under survey No.260/2, 364/2, 250/1 and 390/1 in Mouza Berrot, Tehsil Hub was handed over to Fauji Foundation. On 31st May 1980 a letter was issued for allotment of land upon the name of Fauji Foundation in the above said area followed by transfer of the land from the name of Provincial Government on the name of Industries Department Balochistan through mutation No.304 and thereafter through mutation No.305 the land was transferred in the name of Fauji Foundation on 2nd June 1980. Thereafter, through sale deed dated 28th April 2003, the petitioner purchased a piece of land measuring almost 5 acres 18 poles under Khasra No.364/2 situated at Mouza Berrot, Pirkas Road, Tehsil Hub, District Lasbela including factory building from Fauji Foundation, and possession was handed over to the petitioner. Subsequently, in June 2006 another piece of land was also purchased by the petitioner from Fauji Foundation measuring 35-3-15 acres falling under Khasra Nos.250/1, 260/2, 364/2 and 390/1, situated at Mauza Berrot, Tehsil Hub, District Lasbela, vide sale deed dated 26th June 2006 and possession of the same was also handed over to the petitioner by Fauji Foundation. Meaning thereby the petitioner purchased total land measuring 40-3-34 acres and since then the purchased land is in possession of the petitioner without any interference from any corner. In December 2017, the petitioner sold out a piece of land measuring 22-1-31 acres under Khasra No.364/2 and 390/1 through mutation No.16126 to one Zia-ur-Rahman Mengal and the possession was also handed over at the time of sale, out of which remaining land left to the petitioner measuring 18-2-3 acres even in the said land no one raised any objection from any corner as the petitioner is in possession of the same since its purchase. It is the case of petitioner that initially respondent Altaf Hussain Agha filed a suit against the petitioner and Fauji Foundation claiming to be in possession of the land-in-question falling under Khasra No.260/2 with the averments that the same is located in Khasra No.260; however, Altaf Hussain Agha withdrawn his suit in January 2021 and during pendency of litigation, he sold out his property to respondent Shaheryar Khan Durrani, who in connivance of revenue staff managed a demarcation in his favour on 28th January 2021. The petitioner challenged the said demarcation; as a result the Commissioner, Kalat at Khuzdar constituted a team for the proper demarcation of petitioner s piece of land bearing survey No.260/2, Mauza Berrot, Tehsil Hub measuring around 12 acres, as there was no dispute of the ownership between the stake holders. It is the petitioner s stance that the demarcation process was in progress, suddenly the Naib Tehsildar Khuzdar and his team members vanished, in this respect, the petitioner lodged a complaint against the Naib Tehsildar. Meanwhile the petitioner came to know about demarcation report dated 22nd October 2021. Feeling aggrieved the petitioner filed a revision petition, but his petition was dismissed, vide order dated 28th March 2024, passed by the learned Senior Member Board of Revenue Balochistan, Quetta. Hence, this Constitutional petition with the prayer mentioned above.

4. In Civil Revision Petition No.210/2022, the petitioner seeks the following prayer: It is, therefore, respectfully prayed that the impugned order-decree/impugned judgment decree dated 18th of February 2022 and 15th of April 2022 passed by learned Senior Civil Judge, Hub and learned District Judge, Hub respectively, be set aside and matter be send back to learned trial court to decide the matter on merits as prayed for, in the interest of justice, equity and fairplay.

5. Facts of the Civil Revision Petition are that the petitioner filed a Civil Suit No.10/2021 against respondents for declaration, injunction, cancellation and damages with the averments that the petitioner is a limited company incorporated under Companies Ordinance and is exclusive and undisputed owner of a piece of land bearing survey No.260/2, measuring 12-0-34 acres situated at Mauza Berrot, Tehsil Hub (hereafter the land-in-question), which was purchased from Fauji Foundation and peaceful possession of the same was handed over to the petitioner with proper demarcation identified by virtue of boundary marks placed by Fauji Foundation. But respondent Altaf Hussain proprietor of Abbas Spinning and Weaving Mills claims to be the owner of Khasra No.260 measuring around 60 acres in same Mouza adjacent to the petitioner s land on the strength of a sale agreement, in this respect Altaf Hussain also instituted a civil suit against the petitioner with ulterior motives. The main suit was accompanied with an application under Order XXXIX Rules 1 and 2, C.P.C.

6. On service of notice, the respondents (defendants) filed their respective written statements. Out of the pleadings of the parties, the learned trial court (Senior Civil Judge, Hub) instead of framing issues, entertained the application under Order VII Rule 11, C.P.C. filed by respondent Altaf Hussain; meanwhile the petitioner also filed an application under Order XIII Rule 2, C.P.C.

7. The learned trial court fixed the applications filed, under Order XXXIX Rules 1 and 2 C.P.C., under Order VII Rule 11, C.P.C. and under Order XIII Rule 2 C.P.C., but opt to decide the application filed by respondent-Altaf Hussain and rejected the petitioner s suit under Order VII Rule 11, C.P.C., for having no cause of action and barred by law, vide order and decree dated 18th February 2022. Assailed in Civil Appeal No. 02/2022, but dismissed, vide judgment and decree dated 15th April 2022, passed by the learned appellate court (District Judge Lasbela). Hence, this revision petition with the prayer mentioned above.

8. Learned counsel of the petitioner contended that the trial court without framing issues and providing opportunity to lead evidence to the respective parties, rejected the suit under Order VII Rule 11, C.P.C. That the private respondents started interference in the property-in-question, therefore, the petitioner rightly approached the trial court seeking declaration and permanent injunction; such relief cannot be granted by the revenue hierarchy. Besides, instead of rejecting the plaint for want of jurisdiction, the learned trial court should had returned the plaint under Order VII Rule 10, C.P.C. to the petitioner with further direction to approach the competent forum. Moreover, if the trial court had no jurisdiction, then there was no need to discuss the documents, annexure maps etc while rejecting the suit, but this aspect of the matter escaped notice of both the courts below, which has caused miscarriage of justice. It was lastly contended that the concurrent findings of the courts below are based on misreading and misappriciation of the evidence; thus, the same are required to be interfered by this Court in revisional jurisdiction.

9. On the other-hand, the respondents (defendants) opposed the petition and supported the impugned order, judgment and decrees rendered by the courts below.

10. We have carefully considered the respective arguments of the learned counsel for the parties and have examined the record, which is appended herewith. The dispute between the private parties concerns property under Khasra No. 260/2, measuring 12 acres, 0 rods, 34 poles, located in Mouza Berrot, Tehsil Hub. The petitioner accuses Shaheryar Khan Durrani (respondent No. 5 in C.P. and respondent No.3 in Civil Revision) of illegal interference with his property, while said respondent claims rightful possession of the neighboring lands, identified as Khasra Nos. 260, 256, 257, and 259, collectively covering 70 acres. To resolve the boundary dispute, respondent Shaheryar Khan Durrani initially requested the Deputy Commissioner of Lasbela (respondent No.3 in C.P. and respondent No.5 in Civil Revision) to demarcate the boundary lines related to the petitioner's claim in December 2020. This request resulted in a report by revenue officials on 28th January 2021. Dissatisfied with the report, the petitioner filed a review application for re-demarcation; the subsequent report dated 24th February 2021, which reaffirmed the previous report. The petitioner also filed a revision before Senior Member Board of Revenue Balochistan, Quetta (respondent No.1 in C.P.), which was dismissed, upholding the decision of the lower authorities.

11. In the meanwhile, the petitioner also filed a civil suit before the Court of Senior Civil Judge Hub for declaration, injunction, cancellation, and damages, and after filing written statement by the defendants in the suit, an application under Order-VII Rule 11, C.P.C. was also filed, and after hearing the arguments, the application filed by the defendants was allowed, vide order dated 18th February 2022, with the following observations:

12. The case in hand is not a case of Had-Shikni but demarcation and demarcation is the domain of Revenue authorities. If the parties have issues with demarcation, they may seek remedy within the hierarchy of Revenue. Plaint is not liable to be rejected in the circumstances. The suit is barred by law under section 172 (2) (i) of Land Revenue Act and thus hit by Order VII, Rule 11, C.P.C. The petitioner filed an appeal, and the learned appellate court also upheld the order and decree passed by the trial court.

12. The primary questions before us are, first, whether the revenue authorities, under the provisions of the Land Revenue Act, 1967, have the jurisdiction to carry out the demarcation of the disputed land? Second, whether the trial court correctly dismissed the suit for lack of jurisdiction? and whether the appellate court rightly upheld it? To address the first question, the record shows that the disputed property is located within Hub City and is urban in nature. It includes the Industrial Department of the Government, as well as private buildings, factories, and a rest-house, which the petitioner claims to have purchased from Ex-Fauji Polypropylene Products (Fauji Foundation). The property is located along Metal Road, near the Hub, and the seller also mentions a rest-house and various other items. For examination of whether the revenue officials could demarcate such property under the provisions of the Land Revenue Act, 1967, we will have to see the provisions of section 3 thereof, which provides:

3. Exclusion of certain land from operation of this Act. (1) Except so far as may be necessary for the record, recovery and administration of village cess, or for purposes of survey, nothing in this Act applies to land which is occupied as the site of a town or village, and is not assessed to land revenue. A plain reading of this provision clearly excludes land that is maintained as a town or village and is not assessed for land revenue. The disputed property is part of the town's site, as outlined in the Land Revenue Act. Therefore, the provisions of the Land Revenue Act did not apply to it, and accordingly, resorting to its provisions for demarcation was not permissible. The applications filed for demarcation of part of the town site were made under section 117 of the said Act, which authorizes a revenue officer to define the boundaries of any estate, holding, field, or other portion of an estate. However, this section cannot be extended to land that does not fall within any estate. Demarcation must be carried out under Rule 67-A of the West Pakistan Land Revenue Rules, 1968, which also pertains to defining the limits of an estate, holding, field, or any part thereof. Reliance is also placed on the case of Dr. Jalal Khan v. Qazi Naseer Ahmed, District Deputy Officer (Revenue), Kharian District Gujrat and 6 others (2005 MLD 814), in which it was held:

5. I have minutely considered the respective arguments of the learned counsel for the parties and have examined the record, appended herewith. Before proceeding with the determination of the controversy, it has to be kept in mind that property subject of dispute is located within limits of Town Committee, Kharian, and is not only urban in nature but has also been converted into building site. For examination whether such property could be demarcated by respondent No.2 (Tehsildar/Revenue Officer) under the provisions of Land Revenue Act, 1967, we will have to see provisions of section 3 thereof, which excludes certain land from operation of the Act. This provision of law clearly excludes the land which is kept as a site of Town or village and is not assessed to land revenue. The property subject of dispute being part of site of the Town provisions of the Act (ibid) were not applicable to it and thus resort to its provisions for demarcation thereof was not permissible. Petitioner himself moved for demarcation of a part of site of the Town under section 117 of the said Act, which equips a revenue officer to define the limits of any estate or of any holding, field or other portion of an estate but cannot be extended for this purpose, to the land not falling in any Estate. Had the land subject of dispute been part of any estate, the revenue officer could have proceeded to de marcate it under section 117(1) of the Act, but he could not undertake any such activity about the land falling outside the limits of the estate of any village. Demarcation in terms of section 177 of the Land Revenue Act, 1967 has to be done under rule 67-A of the West Pakistan Land Revenue Rules, 1968, which as well, refers to defining the limits of an estate, a holding, a field or any portion thereof. In view of this clear provision, there is no ambiguity that a Revenue Officer designated under the Land Revenue Act, 1967 could not demarcate any urban property falling within the limits of Town Committee especially that, which has gained the character of building site.

6. Tehsildar/Revenue Officer (respondent No.2) in his report dated 12-2-2000 alleged to have demarcated Khasra No.50, in possession of respondents Nos.5 to 7 by fixing North-Eastern corner of Khasra No.58 as permanent point. It is not clear from his report that how this corner of Khasra No.58 was taken as permanent point, without bringing measurement from any Pakka point fixed during last settlement or like road, canal, well etc. Under the Financial Commissioner's instructions of demarcation which were adopted by this Court in High Court Rules and Orders, Volume-V, Chapter 1-D, the demarcating officer was required to measure the properties subject of demarcation from three permanent places and he was required to show this measurement in his report by erecting boundaries of each Khasra number intervening, but no such step was taken. Report of Tehsildar reveals that he was aware of the instructions of the Financial Commissioner and he attempted to justify his report through fake fixation of Khasra Nos.43, 46, 51 and

58. The measurements shown in the report were not made according to "Shajra Aks" or "Masavi" without which he could not find out at the spot, whether the measurement done by him is according to the Revenue Record or not. In the case of Khizar Hayat and another v. Pakistan Railways through Chairman, Pakistan Railway, Lahore and 2 others (2006 CLC 1028), it was held:

5. I have heard the learned counsel for the parties and have examined the record, appended with all the three revision petitions. Petitioners had produced voluminous documentary evidence to prove their ownership in Khasra No.4976/4981/3211 of Khewat No.1029 vide Jamabandi for the year 1989-90 and report of Naib Tehsildar, Khushab dated 12-6-1983 (Exh.P.4) showing demarcation of suit property on their application. Similarly, respondents had also produced a demarcation report dated 20-3-1995 (Exh.D.6) prepared by Tehsildar, Khushab on application of the respondents. Minute examination of both these demarcation reports revealed that suit property being located within the municipal limits of Khushab was demarcated by two Revenue Officers under the provisions of West Pakistan Land Revenue Act, 1967, without putting to rest the controversy between the parties, whereunder their respective claimed Khasra numbers were undeniably adjacent to each other because none of these reports gave any clear verdict of overlapping of properties allegedly raised by the petitioners through encroachment as per claim of the respondents. Both the Khasra numbers, the one 3211 claimed to be owned by the petitioners and the other 3192 alleged to have been encroached by them, as per assertions of the respondents, are adjacent to each other and are abutting a metalled road as per Shajra Akse produced by the Revenue Patwari of the Circle. It is not disputed between the parties that suit properties are no more agricultural land and are building sites, located within the municipal limits of Khushab. Such properties could not have been demarcated by the officials working in revenue hierarchy under West Pakistan Land Revenue Act, 1967, as its section 3, excluded land kept as site of a town or village from its operation. Language of the provision of law, under discussion, accepts no ambiguity that demarcation of land kept/used as a building site could not have been done under the provisions of Act of 1967, which was A subject to their process only for certain restricted physical purposes like recovery of land revenue etc. In forming this view, I have to my credit a chain of judgments including the cases of Ghulam Rasul v. Ikram Ullah and another PLD 1965 (W,P.) Lah. 429; Tahir Hanif v. Member, Board of Revenue and others 1982 CLC 1732; Syed Aslam Shah and 3 others v. Mst. Sakina and another 1988 MLD 1596 and Pervez Ahmed Khan Burki and 3 others v. Assistant Commissioner, Lahore Cantt. and 2 others PLD 1999 Lah.

31. In the case of Pervez Ahmed Khan Burki and 3 others v. Assistant Commissioner Lahore Cantt and 2 others (PLD 1999 Lahore 31), it was held:

4. Having heard the learned counsel for the parties and perused the record, I am of the view that the contentions raised on behalf of the petitioners are unexceptionable. Undoubtedly respondents Nos.2 and 3 are functionaries appointed under the Punjab Land Revenue Act, 1967 to carry out the purposes of the aforesaid Act. The preamble to the Act recites that it was being framed to consolidate and amend the law relating to the making and maintenance of records-of-rights, the assessment and collection of land revenue, the appointment and functions of revenue officers and other matters connected therewith. According to section 3 of the Act, except for certain fiscal purposes, nothing in the Act applies to land which is occupied as a building site or such land on which permanent structures have been raised; it loses all characteristics of. A agriculture land and the dispute as regards the partition of such land has to be resolved through the Civil Court and not by Revenue Court. No detailed discussion on the subject is necessary in view of the judgment of this Court in Ghulam Rasool v. Ikram Ullah and others PLD 1965 (W.P.) Lahore 429 whereafter exhaustive discussion on the subject it was held that a Revenue Officer does not have any jurisdiction to entertain an application for the partition of the properties which have ceased to be land notwithstanding the fact they continue to be assessed to land revenue. The land involved' in the present case is on much better footing inasmuch as the land does not pay any land revenue. The same view was taken in Syed Aslam Shah and 3 others v. Mst. Sakina and another 1988 MLD 1596. So far as the judgment relied upon by the learned counsel for the respondents is concerned, it is clearly distinguishable inasmuch as it related to demarcation of open plots of land. Similar views were taken in the cases of Muhammad Sadiq and another v. Abdul Aziz and another (1990 CLC 1387) and Abdul Majeed v. Province of the Punjab and others (PLD 2006 Lahore 741).

13. In view of this explicit provision, there is no ambiguity that a revenue officer/official designated under the Land Revenue Act, 1967, could not demarcate any urban property or property that has gained the character of a building site.

14. The learned trial court, while rejecting the petitioner s (plaintiff's) claim as barred under Section 172 of the Land Revenue Act, 1967, upheld it on appeal by the appellate court, which dismissed the petitioner's appeal, mainly relying on Section 172 of the Act. However, they failed to consider the provisions of section 3 of the same Act, which exclude the jurisdiction of the revenue authorities. Section 172 of the Act excludes the jurisdiction of a civil court in matters that are solely within the authority of revenue officers. As discussed above, the current matter was outside the jurisdiction of the revenue authorities, and the suit was properly filed before the civil court. The civil court is the most appropriate forum to resolve the dispute between the parties permanently by following the provisions of Order XXVI, Rules 9 and 10 C.P.C., or Order XXVI, Rule 18, enabling the trial court to conduct site inspection/demarcations under its authority, with the assistance of some expert revenue officials. However, the learned courts below, being unaware of their jurisdiction as provided by law, proceeded to decide the matter without considering its legality. Reliance is further placed on the case of Dr. Jalal Khan v. Qazi Naseer Ahmed, District Deputy Officer (Revenue), Kharian District Gujrat and 6 others (2005 MLD 814), wherein it was held:

7. Properties of parties were, undeniably urban even at the time of allotment by Deputy Settlement and Rehabilitation Commissioner, for this reason as well, Revenue Officer was not competent to undertake the exercise of demarcation. Under law, the Revenue Officer could only demarcate boundaries of any estate or any part thereof, under the provisions already discussed. Predecessor of the respondents, who was plaintiff, was required to prove his title to property in possession of the petitioners through some lawful/cogent evidence, in absence of which his suit could not have been decreed. Even otherwise, since there was the only dispute of demarcation which could have resolved the controversy for all times to come, the trial Court should have invoked its own jurisdiction in this behalf, in spite of report Exh.P.1, but both the Courts below, being oblivious of their jurisdiction under Order XXVI, Rule 9, C.P.C. proceeded to decide the lis without adverting to legality or otherwise of the said report.

8. Besides the fact that report was not prepared according to law, encroachments shown therein could not have been removed by the Revenue officials because no such power vested in them for granting a decree for possession in summary proceedings and that too on the basis of an unauthorized and illegal demarcation report. Emphasis of the learned counsel for the petitioner that Collector by virtue of his powers under section 122 of the Land Revenue Act, 1967 could order dispossession of persons in wrongful possession of any land, is absolutely misplaced. This section has to be read in conjunction with preceding section i.e. 121 which relates to the manner of fixing boundaries of all or any of the estate in any local area under the Rules framed by the Board of Revenue. Power of Collector to remove persons in wrongful possession of the land is conferred on him for erecting boundaries of an estate and not for any part thereof especially when some private individual asserted encroachment by his adjoining owner or someone else. Petitioner instead of insisting possession through officials in revenue hierarchy out of summary proceedings, should have filed a suit for possession against respondents Nos.5 to 7 where his property was to be demarcated under the orders of the Civil Court under the provisions of Order XXVI, Rule 9, C.P.C. In the case of Abdul Majeed v. Province of the Punjab and others (PLD 2006 Lahore 741), it was held that the court has full authority to appoint any person for local inspection, including revenue officials. The relevant part mentioned in paragraph 12 of the said judgment is reproduced below:

12. Similarly, there is no force in the contention of learned counsel for the petitioner that as in terms of Rule 67-A of the Land Revenue Rules relating to demarcation of land it is mandatory requirement that only the Revenue Officer can hold demarcation as such appointment of Patwari for holding demarcation was illegal and without lawful authority. I am afraid such objection of the learned counsel for the petitioner has got any legal force for the simple reasons that Rule 67-A of the Land Revenue Rules refers to demarcation of agricultural land only and not to property other than agricultural land and the same is evident from provisions of section 3 of the Land Revenue Act which expressly excludes the land not assessed to land revenue from the operation of Land Revenue Act, 1967. Further since Commission for holding demarcation was appointed by the Court and not in pursuance of the said Rules, therefore, the Court was fully competent to appoint any person for this purpose and thus the appointment of Manzoor Hussian and demarcation proceedings conducted by him were neither illegal nor without jurisdiction and thus the objection of the learned counsel for the petitioner to this effect is also not valid in the eyes-of law.

15. In view of the above, the Constitutional Petition No. 478/2024 filed by the petitioner is allowed. It is declared that the demarcation dated 22nd October 2022 conducted by the revenue authorities is illegal and lacking lawful authority. Therefore, the order dated 28th March 2024, rendered by the Senior Member, Board of Revenue Balochistan in its revisional jurisdiction based on the said demarcation, is overturned.

16. Corollary, the Civil Revision Petition No. 210/2022 is also allowed. The impugned order and decree dated 18th February 2022, passed by the Senior Civil Judge, Hub, which rejected the suit filed by the petitioner under Order VII Rule 11 of the C.P.C., is set aside. Likewise, the judgment and decree dated 15th April 2022, passed by District Judge Lasbela, dismissing the appeal filed by the petitioner, is also set aside due to material illegalities and irregularities. The case is remanded to the trial court, i.e. Senior Civil Judge, Hub, with the directions to decide the suit after appointing a Local Commission preferably an Advocate, who shall be assisted by senior Revenue staff in order to determine the boundaries of the property-in-question and decide the case on its own merits. The trial court is also directed to base its decision on the evidence available on record and the evidence, if any, produced by the parties. Parties must appear before the trial court on the date it sets, as soon as they receive the case file and this court's order. Since the matter dates back to 2022 and valuable rights of the parties are involved, the trial court is directed to expedite proceedings and resolve the case as soon as possible. MH/146/Bal Case remanded.