P L D 2017 Peshawar 70 (PLP)

ROOH-UL-AMIN KHAN, J.--Through the instant petition under Article-199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioners have questioned the validity and legality of impugned judgment dated 4.1.2014, passed by learned Additional District Judge, Peshawar, whereby civil revision preferred against the judgment dated 14.2.2013, passed by the learned Civil Judge, Peshawar was allowed and the application filed by respondents under Order VII, Rule 11, Civil Procedure Code, 1908 was accepted and the plaint was ordered to be returned to the petitioners.

2. Briefly stating the fact of the present matter are that, petitioners. in the first round of litigation, instituted a suit for possession through partition, against the respondents to the effect that they are owners in possession of suit land measuring 33 kanals comprised in Khasra No.6060, 27 kanals and 11 marlas bearing Khasra No.6062 and 55 kanals 4 marlas comprising khasra No. 6063 respectively, situated at Moza Surezai Payan, Peshawar and the respondents have got no concern with the ownership and peaceful possession of the petitioners, have no right to disturb the said ownership and possession of the petitioners in any manners, hence may be permanently restrained from any interference therein. The respondents/defendants contested the suit by filing written statement. Along with the written statement they also filed an application for rejection of the plaint under Order VII, Rule 11, Civil Procedure Code, 1908, which was allowed vide order dated 26.9.2011 and the suit was dismissed on the ground that the civil Court having no jurisdiction to carryout demarcation of the property as it is the job of Revenue authorities under section 117 of the Land Revenue Act, 1967. The petitioners were directed to petitioners to approach the revenue authorities for the purpose and if any illegality, threat or interference was found, then they may knock the door of civil Court. Doing so, the petitioners put their claim before the Revenue authorities, who found encroachment on the part of defendants/respondents. Pursuant to the above, the petitioners instituted the instant suit for permanent injunction, possession of the encroached land, by including the prayer for declaration, in respect of the suit property as mentioned above. The respondents contested the suit, filed written statement and also dismissal of the suit through an application filed under Order VII, Rule 11, Civil Procedure Code, 1908. After contest, the said application was dismissed vide order dated 14.2.2013 by the learned Civil Judge, Peshawar. Having felt aggrieved, the respondents filed civil revision before the Additional District Judge, Peshawar which was accepted vide the impugned judgment dated 4.1.2014, thereby setting aside the order passed by learned Civil Judge, Peshawar dated 14.2.2013. Hence this writ petition. 3 Having heard learned counsel for the parties, perusal of record would reveal that the petitioners have earlier filed a suit for possession through partition which was disposed of on an application filed by respondents under Order VII, Rule 11, Civil Procedure Code, 1908 ,vide order dated 26.9.2011. consequently the petitioners filed an application before the revenue authorities for demarcation of the boundaries of land compromised in Khasra Nos.6060, 6061, 6062 and 6063, wherein certain area was found encroached by the respondents. Ultimately the petitioners filed a suit before the learned Civil Judge, Peshawar for declaration, permanent injunction and possession of property allegedly encroached by the respondents. Undoubtedly, in the matter of demarcation of boundaries jurisdiction of civil Court is barred under section 172(2)(XIII) of the West Pakistan Land Revenue Act, 1967, however, in the case in hand the demarcation proceedings has already been conducted by the revenue authorities according to which, the respondents have been found in possession of excessive land being encroached by them. From the above it is manifest that the petitioners have sought the possession of property which is in unauthorized occupation of the respondents being encroached by them. The petitioners have also prayed for declaration and permanent injunction, thus in such an eventuality a suit is necessarily to be, filed in a civil Court, validly triable under section 9 of the Civil Procedure Code, 1908.

4. As observed above, it is correct that the matter of demarcation of boundaries of agricultural land exclusively fall in the domain of revenue authorities and jurisdiction of civil Courts are explicitly barred under section 172 of the Land Revenue Act, 1967, but in case where a claim is laid for declaration, permanent injunction and possession of the area demarcated by the revenue authorities and found encroached upon by someone, a suit must lie before the civil Court. In this respect reliance may be placed on case titled Mehram Khan and others v. Fateh Khan and others (1983 SCMR 366). No doubt section 67 (B) of West Pakistan Land Revenue Rules, 1968 provides an exhaustive procedure of execution of an order for demarcation and eviction of unauthorized land owner, but simultaneously it place no embargo on filing a suit for possession before the civil Court, thus the suit would be triable by the civil Court. Under section 172 West Pakistan Land Revenue Act, 1967, the jurisdiction of civil Court is excluded only to the extent of taking function in the hand of Revenue authorities, specifically been mentioned in section ibid. Likewise, the provisions of section 117 of the Act ibid authorized the Revenue officer to define boundaries and limits of any estate or any holding on application of any person. Though Rule 67-B of the West Pakistan Land Revenue Rules, 1968, provide methodology for eviction of unauthorized land owner. but it only prescribed a remedy to enforce right of an applicant to dispossess the unauthorized occupant of land, without ousting the general jurisdiction of civil Court. It is settled law that the civil Courts, under section 9 Civil Procedure Code, 1908 are Courts of ultimate jurisdiction and shall continue to assume jurisdiction in respect of all civil matters, unless the same is expressly barred. In such a satiation the choice is vested in the aggrieved person to choose the forum in Revenue hierarchy under Rule 67-B of the West Pakistan Land Revenue Rules, 1968, or remedy under section 9 Civil Procedure Code, 1908 however, after selecting one remedy the other would become completely barred. Learned Additional District Judge, Peshawar while accepting the application under Order VII, rule 11, Civil Procedure Code, 1908 has oversighted the contents of the plaint and has not appreciated the application of Order VII, rule 10, Civil Procedure Code, 1908 in its true perspective, thus has landed in the field of error. This petition is allowed, resultantly, the impugned judgment dated 4.1.2014 is set aside while that of the learned Civil Judge, Peshawar dated 14.2.2013 is restored. ZC/15/P Petition allowe