1998 PLP 1241 (SCMR)

IRSHAD HASAN KHAN, J.

This judgment will dispose of Civil Appeals Nos.42-Q to 52-Q of 1994, as all of them are directed against the consolidated order of the learned Chief Justice of the High Court of Balochistan, Quetta dated 20-5-1993, passed in Civil Revisions Nos.293 of 1993 to 306 of 1993.

2. Brief facts are that the appellants, claiming to be the owners of the suit agricultural land filed suits for declaration and permanent injunction, in the Court of Qazi Karan. The suits were resisted by the private respondents, who are the legal representatives of late Nawab Mir Habib Ullah Khan, ex-Ruler of Kharan State, on the ground that the appellants were Bazgars and used to pay share from the produce and that the jurisdiction of the Civil Court was barred to entertain the suits in view of Article 7 of the President Order No.12 of 1961 (hereinafter referred to as the Order).

3. The Courts below rejected the appellants, suits for lack of jurisdiction in view of the provision contained in Articles 3, 4 and 7 of the Order.

4. Leave to appeal was granted to consider whether the dispute of the) nature involved in the suits was covered by Articles 3, 4 and 7 of the Order?

5. It would be advantageous to reproduce Articles 3, 4 and 7 of the order, which read thus:- "

3. Where any question arises directly or indirectly between persons claiming to be the heirs and successors of the Ruler" of a State of claiming to succeed to the State, concerning the devolution and distribution of any property of that State or of the Ruler, the question shall be decided by an order of the Central Government.

4. A question whether any disposition of property, whether purporting to be the property of the State or of the Ruler, has been made in the due exercise of power to make it or ought for any reason to be undone shall be deemed to be a question filing under the preceding Article.

5. No Court shall have jurisdiction to entertain any such question as is referred to in Article 3, and no Court shall call in question any order of the Central Government made under that Article or Article 5 or any proceedings connected therewith. "

6. We have heard the learned counsel for the parties and the learned Advocate-General, appearing on behalf of respondent No. 1 and have perused the material available on record. .

7. A bare reading of the aforesaid provisions would show that Article 3 deals with question concerning devolution and distribution of the property of a Ruler on his death when there is a dispute between the persons claiming to be heirs and successors of the Ruler. When such a dispute arises it is for the Federal Government to determine entitlement and extent of share in the property of the claimants inter se. Questions falling for determination within the ambit of Article 3 ibid ex facie involve rights over property devolving on the claimants by inheritance, which is not the case here. In the instant case, admittedly, there is no dispute between the heirs of the Ruler of Kharan State concerning devolution and distribution of the property. Here the suits had been filed by the appellants for declaration and permanent injunction that they were cultivating the land in dispute being owners from the time of their forefathers before the Settlement of the land and that entries in the Revenue Record .had been incorrectly recorded. The Courts below were, therefore, not right in holding that the suits were barred by Article 7 of the Order.

8. In view of the foregoing discussion, we are clearly of the view that the nature of the dispute involved therein, was not covered by the above provisions of the Order. Needless to observe, that the dispute raised herein relates to a question of fact as to whether or not the appellants are owners of the suit land. I Such a dispute has to be decided by a competent Count, after recording evidence of the parties in the light of their respective pleadings and the issues framed thereunder.

9. Resultantly, the impugned judgments of all the Courts below are set aside. The appeals are allowed and the suits are remanded to the Court of Qazi Kharan for disposal on merits and in accordance with law. There shall, however, be no order as to costs. A.A./M-129/S Appeals accepted.