2002 PLP 2636 (YLR)

Nemo for Respondents. Date of hearing: 13th August, 2001. On 24‑9‑1988, the respondents filed a suit for possession of land measuring 29 Kanals, 4 Marlas comprising Khasra Nos.293, 57, 66, 85, 86 and 1385 in village Bhaidiyan, Tehsil and District Attock. According to the plaint the respondents purchased the land measuring 35 Kanals comprising Khasra Nos. 24, 32,33, 34, 35 & 38 in the said village from the predecessor‑in- interest of the petitioners vide Mutation No.2668 dated 12‑10‑1964. This. Mutation was, however, not incorporated in the Revenue Record. The result was that the land so purchased remained in the name of the petitioners and when the consolidation proceedings commenced, the suit‑land stood allotted to the petitioners in lieu of land purchased by the respondents. An appeal was filed which was dismissed on 16‑3‑1987 as barred by time while an application given on the revenue side to the Collector for incorporation of the mutation in the record was also dismissed on 14‑1‑1988. In the written statement the petitioners objected that Civil Court has no jurisdiction in the matter. On merits evasive reply was given and the reliance was on the said objection. Issues were framed and evidence of the parties was recorded. The learned trial Court held as a fact that the suit‑land in fact had been sold by Ghulam Khan the predecessor‑in‑interest of the petitioners to the predecessor‑in‑interest of the respondents. In fact the basis of this findings was admission made by Muhammad Sadiq petitioner while appearing as D.W.1. The learned trial Court, however, found that it has no jurisdiction because of the bar contained in section 26 of the Consolidation of Holdings Ordinance, 1961. Reliance was placed on the case of Mst. Begum Jan and others v. Attique Ahmad and another (1979 C.L.C. 426). The suit was accordingly dismissed vide judgment and decree dated 25‑4‑1991. Feeling aggrieved the respondents filed an appeal which was heard by learned District Judge, Attock who reversed the said findings of the learned trial Court and accordingly allowed, the appeal and decreed the suit of the respondents on 2‑7‑1991. Learned counsel for the petitioners does not question the said findings on merits that the land in tact has, been sold by the predecessor‑in interest of the petitioner, to the respondents. He, however, reiterates the objection to the jurisdiction of the Civil Court and relies on the said ease of Mst. Begum Jan and others v. Attiqde Ahmad and another. No one has turned up for the respondents.

2. I have given some thought to the said contention of learned counsel for petitioners and have also examined the said judgment being relied upon by the learned counsel. Now in the said judgment the plea raised was that the consolidation proceedings are void as the petitioner/plaintiff had not been heard. Mr. Justice Aftab Hussain relying upon a Division Bench judgment of this Court in the case of Waris Khan and another v. Muhammad Aslant Khan and others (PLD 1966 Lahore 342) found that the matter was not such as could not be rectified by Board of Revenue in exercise of revisional jurisdiction vesting in it under the said Ordinance; while in the said Division, Bench judgment, the objection was raised by mortgagees that they had not been heard during the consolidation proceedings while inferior quality land was allotted to mortgagor in lieu of the land mortgaged. The learned Division Bench observed that the error could be rectified in proceedings under the said Ordinance.

3. In the present case a pure and simple question of title has been raised. It stands admitted and it is finding of both Courts below that the land in lieu whereof suit land was allotted to the petitioners had been sold by them to the respondents. Similar matter came up for consideration before a Full Bench of this Court in the case of Muhammad Shaffi v. Ahmad Din (PLD 1961 Lahore 183) requiring interpretation of section 22 of the Punjab Consolidation of .Holding Act, 1936 which is in pari materia with section 26 of the said Ordinance. Chief Justice M.R. Kayani in the leading opinion thus observed in para. 6 of the report appearing at page 189 thereof:‑ "The second consideration, however, is more decisive in the present case. This relates to the defendant's contentions in the trial Court, that he was in adverse possession. Now since, the decision of the question of adverse possession amounts to a decision of a question of title, a question which the Consolidation Officer was not empowered to decide, the matter falls out of the limitation of section 22 of the Act, and the Civil Court's normal jurisdiction asserts itself."

4. For all that has been discussed above, the question raised in the suit being a question of title could have only been decided by a Civil Court. So far as the matter of delivery of possession is concerned the same is to follow the said title declared by the learned Courts below and otherwise admitted. The impugned judgment of the District Judge, Attock, thus does not call for any interference within the four corner of section 115 of C.P.C. This Civil Revision is accordingly dismissed, leaving the patties to bear their own‑costs. Q.M.H./M.A.K./M-931/L Order accordingly.