2015 PLP 53 (YLR)

SARDAR ABDUL HAMEED KHAN, J.

This appeal has been filed against the judgment and decree of Additional District Judge Dudyal Camp Mirpur dated 5-9-2007, whereby the appeal filed by the present appellant was dismissed and the order of Civil Judge Mirpur dated 27-3-2006 was upheld. The precise facts culminating into the instant appeal are, that the present appellant filed a suit for declaration for correction of entries of revenue record. According to the averments made in the plaint, the plaintiff and pro forma-respondents Nos. 7 to 73 and 76 to 78 are the owners of land comprising Khasra No. 1064-old, measuring 5 kanals and 2 Marlas, situated in Village Sahng Tehsil Mirpur. It is further averred that during the recent settlement 1994-95, the Revenue Authorities made the above said Khasra number into three new Khasra numbers i.e. 3319, measuring 3 kanals, 3320, 1 kanal 8 Marlas and 3321, measuring 11 Marlas. It is alleged that during the settlement, the revenue authorities excluded the land measuring 11 Marlas from Khasra No. 3320 and also excluded the same land from the ownership of plaintiff and pro forma-respondents Nos. 7 to 73 and 76 to

78. The plaintiff stated that the total land of Shamlat deh comprising Khasra No.1149-old was 129 kanals and 16 Marlas, while the authorities in the recent settlement with the connivance of defendants Nos. 2 to 20, recorded as 144 kanals 13 Marlas. In this way, the authority included the land measuring 15 kanals 13 as extra land in shamlat deh land. The plaintiff claimed that the defendants Nos. 2 to 20 with the connivance of revenue authorities the subject land measuring 11 Marlas, which was in the ownership of the appellant and pro forma-respondents by altering the entries of revenue record was included in the Shamlat deh land, which is illegal, against the facts and rights of the plaintiff and pro forma respondents. The plaintiff prayed that a decree for declaration against the defendants may be passed, declaring that the Khasra No.3321-new, measuring 11 marlas is the part of Khasra No.3220-new (Khasra No. 1064-old), situated in Village Sahng Tehsil Mirpur with the prayer for possession of the said land as consequential relief. After hearing the parties, the learned Civil Judge dismissed the suit on 27-3-2006, declaring the plaintiff, that he has no cause of action to file the instant suit and, for want of jurisdiction too. Feeling aggrieved from the said judgment of learned Civil Judge, Mirpur, the appellant filed an appeal in the Court of Additional District Judge Dudyal Camp Mirpur, which also met the same fate, hence this appeal. Arguments have been heard. Mr. Manzoor Hussain Advocate, the learned counsel for appellant Maqsood Kausar argued, that the instant appeal merits acceptance, on the following law points:-- (1) That whether under section 172 of West Pakistan Land Revenue Act, 1967 as adapted and enforced in Azad Jammu and Kashmir, by the AJK Adaptation of Laws Act, 1988 the jurisdiction of Civil Court is ousted to entertain suit for correction of entries of Revenue Record? As per stand of the appellant, the Civil Courts have the jurisdiction to decide and pass a declaratory decree to the effect of entries of Revenue Record. (2) That section 172, when read with section 53 of Land Revenue Act and in the light of Chapter VI of Specific Relief Act, then the impugned judgments and decrees of both the learned Courts below should be set at naught. (3) That the word "possession" used in section 53 of West Pakistan Land Revenue Act, 1967 denotes the possession of a right and not the physical possession of land in dispute, that the Civil Court possesses the jurisdiction to decide the matter on merits, and thus the dismissal of appellant's suit on the point of jurisdiction is nullity in the eyes of law. (4) That in the light of above point of jurisdiction the issue of cause of action was subject to proof and the matter should have been decided after recording the evidence of the parties. The learned counsel for appellant Mr. Manzoor Hussain Advocate, also argued that as a consequential relief the appellant is entitled to possession of 11 Marlas subject land. The learned counsel further argued that contents of memoran-dum of appeal of the appellant may be considered as integral part of his arguments. The learned counsel placed his reliance on the following case-law:- (1) Ghulam Muhammad and others v. Samundar Khan and others (AIR 1936 Lahore-37). (2) An unreported case titled "Abdul Aziz v. Muhammad Rashid and others" (Civil Revision No. 10 of 1998 decided on 18-2-1999 by this Court). (3) An unreported case titled. M. Rashid v. Abdul Aziz (Civil Appeal No. 94 of 1998 decided by Apex Court of AJK on 3-12-1999). On the other hand, the learned counsel representing the respondents Nos. 10, 12 to 15, 18 and 19, Raja Hassan Akhtar, while defending the impugned decree and judgment of trial Court dated 27-3-2006 and that of First Appellate Court dated 5-9-2007, argued that this is a case of concurrent findings of both the Courts below, thus, no interference by this Court is warranted. He further agitated that the issues of jurisdiction and cause of action have very rightly been decided by the trial Court as well as by the First Appellate Court, because basically the suit of the appellant was for correction of entries of Revenue Record and it is obvious that the appellant is not in possession of the disputed land, hence according to the facts and circum-stances of the case as well as in the light of entries in Revenue Record, the suit was rightly dismissed by the trial Court, and the impugned judgment of the First Appellate Court upholding the order of trial Court is well in accordance with law on all four corners. It was further argued that the disputed land is "SHAMLAT DEH' which is in possession of respondents and suit for possession of Shamlat could not be instituted in Civil Court; as per bar of jurisdiction under the provisions of The AJ&K Grant of Khalsa Waste Land as Shamlat Deh Act, 1966. It was forcefully argued by the learned counsel that the points now agitated by the counsel for appellant were not taken before the Courts below, thus the appellant is estopped to agitate new points before this Court. The learned counsel referred the case titled "Sardar Khan v. Ghulam Hussain" (2003 YLR 1788) and lastly prayed for the dismissal of appeal with special costs. I have heard the learned counsel for the parties, gone through the record of the case as well as the impugned decrees and judgments of both the lower Courts. As the case has been decided on legal issues at earlier stage and no evidence has been recorded, thus detailed facts of the case need not to be repeated. After the institution of suit and filing of written statements by the respondents/defendants, the Civil Judge Mirpur framed the following six issues:-- On 23-2-2006, the learned Civil Judge Mirpur decided to hear the parties on legal issues i.e. issues Nos. 3 and 5 regarding jurisdiction and cause of action respectively, whereby the trial Court decided the issue No. 3 (Jurisdiction) against the appellant/plaintiff and resolved that firstly from the contents of the plaint the plaintiff prima facie has no cause of action and even otherwise as the case cannot be decided by the Civil Court, thus the issue No. 5 for cause of action was also decided against the appellant. Resultantly, the suit of the plaintiff/appellant was dismissed. The learned District Judge through his judgment and decree kept intact the judgment and decree of trial Court. As the law point regarding the sections 53 and 172 of West Pakistan Land Revenue Act, 1967, read with Chapter VI of Specific Relief Act, 1877 is agitated by the learned counsel for the appellant, hence it is proper to reproduce the relevant provisions of relevant law. Sections 53 and 172 subsection 2 (clause vi) of the Land Revenue Act reads as follows:-- "

53. Suit for declaratory decrees by persons aggrieved by an entry in a record--If any person considers himself aggrieved by an entry in a record-of-rights or in a periodical record as to any right of which he is in possession, he may institute a suit for a declaration of his right under Chapter VI of the Specific Relief Act, 1877 (Act I of 1877)" "172 Exclusion of jurisdiction of civil Courts in matters within the jurisdiction of Revenue officers:

(1) Except as otherwise provided by this Act, no Civil Court shall have jurisdiction in any matter which Government, the Board of Revenue, or any Revenue officer, is empowered by this Act to dispose of or take cognizance of matter in which Government, the Board of Revenue or any Revenue officer exercises any powers vested in it or him by or under this Act.

2. Without prejudice to the generality of the provisions of subsection (1), a civil Court shall not exercise jurisdiction over any of the following matters namely:- (i) xxxxx (ii) xxxxx (iii) xxxxx (iv) xxxxx (v) xxxxx (vi) the correction of any entry in a record of rights, periodical record or register of mutations; Chapter VI of Specific Relief Act consists of two Sections which read as under:-- "

42. Discretion of Court as to declaration of status or right--Any person entitled to any legal character or to right as to any property, may institute a suit against any person denying or interested to deny, his title to such character or right and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief". "

43. Effect of declaration

A declaration under this Chapter is binding only on the parties to the suit, persons claiming through them respectively, and, where any of the parties are trustees, on the persons for whom, if in existence at the date of the declaration, such parties would be trustees". Taking into consideration all the facts and averments made in the pleadings by the parties, the plaintiff/appellant's claim is that in the disputed revenue record, he falls short of 14 marlas of land, whereas he has prayed for possession of 11 marlas out of specific Khasra number which is Shamlat Deh as per entries made in the revenue record and no mention in the plaint about remaining 3 marlas, thus it is obvious that the appellant is not clear about his actual cause/relief claimed, and the matter pertains to correction of entries of Revenue Record i.e. record of rights and periodical for the year 1994-95 and 2002-2003 specifically. Moreover, the disputed land is Shamlat-Deh as per contents of para 3 of plaint, for which suit for possession cannot be instituted in Civil Court. It is also crystal clear from the prayer clause of the suit of appellant, which is reproduced hereunder:-- Following the case-law as laid down in Sardar Khan's case 2003 YLR 1788 regard-ing section 172 of Land Revenue Act read with section 53 and Chapter VI of Specific Relief Act which reads as follows:? "

Under section 172

The jurisdiction of civil Courts in cases where the correction of any entry in the record of rights or in the periodical record or register of mutations is concerned has been excluded

These matters are within exclusive competence of the revenue officers

Held: the suit filed by appellant was not maintainable before a civil Court." The case is being the case of concurrent findings of two Courts below. In view of following the dictum laid down by the apex Court in Fazal Karim's case reported as 1997 MLD 2867. It is practically a settled law that concurrent findings of fact recorded by the trial Court and the First Appellate Court cannot be disturbed by High Court, howsoever erroneous they may be. In the instant case the findings recorded by the Courts below cannot be termed as erroneous. Moreover, the law point involved, as agitated by the learned counsel for the appellant stood resolved in the light of the observation of apex Court made in Sardar Khan's case 2003 YLR 788, therefore, I have reached the conclusion after perusal of the judgments of Courts below, that both the Courts below have properly attended the points in controversy between the parties and recorded the correct and legal conclusion, which warrants no interference by this Court. In view of the above, finding no force in this appeal, it is hereby dismissed with no order as to costs. AG/3-HC(AJ&K) Appeal dismissed.