2017 PLP 155 (YLRN)

IKRAMULLAH KHAN, J.

This revision petition is directed against the judgments and decrees of learned Additional District Judge-I/Izafi Zillah Qazi Swat dated 25.7.2006 and that of learned Civil Judge-III/Maga Qazi, Swat dated 28.4.2005, vide which, suit of petitioners was concurrently dismissed by both the lower courts.

2. Compendium of facts leading to the filing of instant petition is that plaintiffs/ petitioners filed a suit for declaration against the defendants/ respondents to the effect that they are owners and in possession of the suit land, fully described in the heading of the plaint and attestation of mutation in respect of the suit land in the name of respondents is illegal and liable to be cancelled and the revenue record to this effect be also corrected. They further prayed for permanent and perpetual injunction to the effect that respondents be restrained not to interfere in their lawful possession and ownership, on the basis of impugned directions rendered by respondents on different dates as well as on the basis of impugned mutation.

3. Defendants/respondents in their written statement vehemently controverted the stance of the plaintiffs/petitioners, which resulted into framing of issues, on which both the parties led their respective evidence as they wished. On conclusion of trial, suit of the plaintiffs/petitioners was dismissed and the appeal filed also met the same fate, hence the instant revision petition. 4. 1 have heard the arguments advanced by learned counsel for the parties and have also gone through the record with their valuable assistance.

5. The perusal of record reveals that petitioner had claimed 4/9 shares in the suit property being ancestral property coming straight since their forefathers in their possession. The petitioners themselves examined the revenue officials, who had placed on record the revenue papers. According to the revenue papers, the suit property was originally owned by ex. Ruler of Swat, known as Bacha Sahib, Swat. After merger of erstwhile set-up of State of Swat, the Government of Pakistan in order to distinguish and determine the State properties as well as the personal properties of ex- Ruler of Swat promulgated Martial Law Regulation No.

122. For the said purpose, the Dir-Swat Land Disputes Enquiry Commission (Commission) was constituted vide Notification No.66 dated 8th October, 1970. The Commission inquired in respect of two sets of lands, one owned by the State while the other by ex-Ruler of Swat. In this respect a Notification No.10/16-SOTA-II/HD/72-1525 dated 29th September, 1972 was issued and the properties owned by the ex-Ruler of Swat was out-rightly mentioned in Appendix 'B' Schedules I, II and III. The suit property is mentioned at Part 'C' of the said Appendix. According to the said Schedule of the properties bounded at North Village Batura, South Village Supal Banday and Village Murghazar, East Village Islampur and Village Supal Banday, West Village Maniar, Village Ghaligay, Pani Dal, were declared to be the personal properties of ex-Ruler of Swat with exception to those properties, particularly and specifically mentioned in the said notification itself.

6. The Government of Pakistan simultaneously also issued another Martial Law Regulation No.123 on 12.4.1972, wherein, the Commission constituted under Notification No.66 dated 8th October, 1972 was conferred with the jurisdiction to dispose of, all the disputes relating to the ownership of, or any right or interest in, any immovable property in the former States of Dir and Swat to which any of the following persons are parties:- (a) the tenants and ex-Rulers of the said former States or their respectively heirs; or (b) claimant landlords and the ex-Rulers of the said former States or their respective heirs; or (c) the landlords and tenants.

7. The record depicts that the respondents approached the concerned Dir-Swat Land Disputes Enquiry Commission (Commission), whereby, the suit property was claimed by the respondents. The Commission, after proper inquiry, rendered its order in respect of the suit property in favour of the respondents vide its order dated 6.10.1972. The ex-Ruler of Swat time and again under the provisions of Martial Law Regulation No.123 filed his appeals, revisions and review petitions before the concerned Authorities mentioned in the M.L.R. No.123 but the direction / order of the Commission was stood intact. In pursuance of the direction / order, which is commonly known as decree, the symbolic possession of the suit land was handed over to the respondents by the concerned revenue Tehsildar, Tehsil Babuzai, Swat on 1.9.1975.

8. It is admitted fact that the settlement operation was not enforced in district Swat, which was brought under operation in the year, 1984 and was completed on 31.12.1986. During the course of settlement, the suit property was preliminary entered in the name of Land Commission because all the properties owned by the ex-Ruler of Swat was provisionally resumed by the Land Commission constituted under Martial Law Regulation No.115, but later on, the respondents filed an application in order to give effect to the decrees / orders / directions rendered by the Commission constituted vide Notification No.66 of 1972. The suit property was entered in the name of respondents, accordingly.

9. It is evident from the record that none of the parties herein are in actual possession of the suit land. However, the suit land is in possession of various persons, who are cultivating and in possession of the same and recorded as tenant at will in the revenue record. The petitioners have not examined a single person during trial, recorded as tenant at will in the revenue record of the suit property to confirm that the produce of the suit property was receiving by the petitioners. While the Khasra Girdawari produced and placed on record did not show that the petitioners were in actual possession of the suit land because on one hand, the petitioners had failed to prove their possession over the suit land while on the other hand, they did not place on record any conceivable, cogent and documentary evidence that the suit property had ever remained either in their possession or in their ownership. However, the petitioners had placed on record Deed No.517 registered on 3.9.1975 but none of the attesting witnesses have been produced as PWs in order to prove the same in terms of Article 79 of the Qanun-e-Shahadat Order, 1984 or any other enabling provisions of the same Order. It is apparent from the record that petitioners had instituted the instant suit in the year 1994 while the Deed, on which, the petitioners had placed their reliance was allegedly executed in the year 1975 but in the interregnum period from 1975 to 1994, the petitioners had kept mum and no plausible explanation furnished by them in respect of long delay in lodging of the suit, which is beyond the prescribed period of limitation provided under Article 120 of the Limitation Act.

10. The petitioners had placed on record Deed No.517 dated 3.9.1975, although as mentioned hereinabove, the attesting witnesses of the same were not produced during evidence, even if the same is admitted as correct, the properties mentioned therein well recognized by names and admitted to be the ownership of petitioners but they failed to substantiate and prove that infact the properties mentioned in the said deed were the suit properties. The petitioners were required to place on record some documentary evidence in the shape of Aaks Shajer-i-Kistwar of the suit properties as well as Fard Jamma Bandis, to prove that the properties mentioned in Deed No.517 were included in the suit properties. The revenue papers placed on file do not support the version of the petitioners, however, only similarity of names of the land could not be treated to be the properties given to the petitioners through the aforesaid deed.

11. The contention of learned Counsel for respondents that since the subject matter of the suit had already been decided by a competent forum / Commission, as such, the Civil Court has got no jurisdiction is concerned. No doubt, in view of Paragraph-6 of the Martial Law Regulation No.123, no court or other authority shall call in question, or permit to be called in question, any action or decision taken or order passed under this Regulation but where any person impugned any wrong entry in the record of rights, which is the result of orders/directions of the Commission during settlement operation in Swat, such dispute of a claimant shall be entertained and adjudicated by the Civil Courts having plenary jurisdiction in terms of Section 9 of the C.P.C. The Sub-Para (I) of Paragraph-3 of the Martial Law Regulation No.123 only empowered the Commission to take cognizance of disputes of the persons mentioned hereinabove in Paragraph-6 of this judgment. So the persons, who were not mentioned in Sub-Para-1 of Paragraph 3 of the ibid Regulation, could not approach the Commission. Apart from the above, the Commission was authorized only to determine and take cognizance of disputes, which were mentioned in Paragraph-2 (b) of the Martial Law Regulation No.123, which read as:- "Dispute" means a dispute inquired into by the Commission and for the determination whereof it has made a recommendation in its report."

12. In view of aforesaid meaning of dispute, it is crystal clear that the Commission was not empowered to adjudicate upon and rendered its orders in respect of all kinds of disputes regarding land in ex-state of Swat but only a specific dispute which had already inquired by the Commission had to take cognizance.

13. As already discussed hereinabove, prior to the year 1986 the settlement record was not maintained in district Swat, so the lands were recognized by specific names and boundaries and as such, the properties which were declared to be the ownership of either ex-Ruler of Swat or private persons duly mentioned in both the Notifications issued under the Martial Law Regulation Nos.122 and 123 recognizable by names only without specifying the measurement of the area. During the course of settlement operation at Swat in the year 1986, a good number of civil disputes arisen because some properties which were declared to be the ownership of ex-Ruler of Swat under Martial Law Regulation No.122 and the some were declared to be the ownership of the claimants / landlords under the Martial Law Regulation No.123 and in the garb of these orders, the adjacent properties, to one mentioned in these orders, were also entered in the name of either Commission or claimant/landlord popularly known as decree-holder. Likewise, in a estate / mouza, several areas were known by a common name, so the decree-holder/claimant/landlord while taking benefit of orders/directions rendered by the Commission under the Martial Law Regulation No.123 picked and chose valuable properties in view of similarity of names within a particular estate/mouza. So, these cases shall be distinguished from the one in which a specific order has been rendered by the Commission, due to which, the jurisdiction of Civil Courts is barred to take cognizance in terms of Paragraph-6 of the Martial Law Regulation No.123. However, the cases which were brought before the Civil Court after completion of the revenue record, wherein, any person challenging the wrong entries in the record of rights, which are the result of either notification issued under the Martial Law Regulation Nos.122 and 123 or on the basis of order / direction / decree rendered by the Commission, shall be entertained and the court shall afford an opportunity to such claimant / litigant to prove its assertion and at the end of trial, if the Trial Court arrived at a conclusion that the disputed land was one which was brought under consideration and inquired by the Commission then such like suits are to be rejected in terms of Order VII, Rule 11, C.P.C. and if the conclusion of Trial Court is otherwise then the Civil Court could not be restricted to pass an appropriate order in strive of fair justice.

14. For what has been discussed above, I could not find any illegality or material irregularity in the impugned judgments nor any jurisdictional defect. This court normally does not interfere with the concurrent findings of facts of two courts below unless there is misreading of evidence or any patent illegality in the impugned judgments. Hence finding no merit, this petition is dismissed with no order as to costs. ZC/77/P Revision dismissed.