1968 SCMR 262 (PLP)

CORNELIUS, C. J.-This appeal by special leave involves determination of the question whether a suit brought to call in question the correctness of an entry in the Revenue records concerning the proprietorship of the land in dispute was competent after an authority under Martial 1aw Regulation No. 64 (Land Reforms) namely, the Deputy Land Commissioner had made an order in respect of such land. The facts are simple. The land is part of the Upper Tanawal tract regarding the proprietorship of which there was at one time a dispute between the Government and the Nawab of Amb. Overruling the Nawab's objections, the Provincial Government had brought the land under settlement, as property of the Provincial Government. The records prepared on the 7th February 1959, showed the Provincial Government as the proprietor. The Nawab of Amb had, however, continued to press his claim and on the 16th April 1959, by letter, the West Pakistan Government recognised him as the owner of theland claimed by him in Upper 1 anawal. This was done at a time subsequent to the proclamation of Martial Law Regulation No. 64, which took place on the 3rd March 1959. By this Regulation, a ceiling was placed upon proprietor ship of laud by the citizens of Pakistan, which applied equally to the Nawab and he accordingly filed the requisite forms indicating what land he would retain within the prescribed limits for himself and his heirs and dependents. This was on the 21st April 1960. A few days later, that is on the 30th April 1960, on a motion made by one M. Afzal Khan whose legal representatives are the respondents in the present appeal, and who is said to have been guzarakhor under the Nawab, the land was mutated in favour of M. Afzal Khan as proprietor by order of Revenue authority. Accordingly, by virtue of a notification dated the 5th September 1959, issued under Martial Law Regulation No. 64, M. Afzal Khan became the "existing owner" for the purposes of the Regulation, whose provisions thereupon became applicable to the land as the property of 'M. Afzal Khan. This being directly contrary to the interests of the Nawab of Amb, he filed a suit on the 21st June 1961, (sic) for correction of the entry. It was possible for the Nawab also to have moved the higher Revenue authorities by way of appeal for correction of the entry, but any orders made in such appeal or further proceeding under the Revenue Law would be subject to determination in a civil suit, since title was involved, and accordingly, the failure to move such appeals is without effect upon the present case. The suit was resisted on the ground that in the face of an order passed by the Deputy Land Commissioner in respect of this land on the 6th October 1960, the suit was not competent, and reliance was placed on paragraph 27 of the Martial Law Regula tion. The relevant passage in the order of the Deputy Land Commissioner reads as follows:- "The learned counsel for the declarant stated that the declarant had lodged a declaratory suit for establishing his rights over the to forest land in question. As the rights of the declarant have to be verified from the existing revenue record, it is outside my jurisdiction to investigate the dispute that has arisen over the ownership of the forest land in question. The entries in the "Fard Badar" prepared by the revenue staff are, therefore, upheld." This was said at the conclusion of paragraph 4 of the order in which paragraph the Deputy Land Commissioner had set out the nature of the dispute between the parties, and the substance of certain evidence led in favour of the claim of M. Afzal Khan. The question for decision in this appeal is whether the order of the Deputy Land Commissioner quoted above is to be read as an order which attracts the bar of jurisdiction of civil Courts set out in paragraph 27 of Martial Law Regulation No. 64, which reads as follows :- "

27. Bar of Jurisdiction.-(1) No provision of this Regula tion or of any rules or orders made thereunder shall be called in question in any Court including the High Court and the Supreme Court, or before any authority other than an authority appointed under this Regulation, and no such Court or authority shall have jurisdiction in respect of any matter which the Commission or an officer acting under the authority of the Commission is empowered to determine. (2) No such Court or authority as aforesaid shall be competent to grant any injunction or other order in relation to any proceeding before the Commission or before any officer erasing any power or discharging any function under this regulation or the rules or orders made thereunder, orin relation to anything done or intended to be done by or at the instance of the Commission or such officer." The trial Judge dealt with the matter in a passage quoted in the judgment of the learned Single Judge of the High Court, now under appeal before this Court on the motion of Nawab Muhammad Farid Khan, the appellant, which reads as under :- "In view of such position, the contention of the learned counsel for the defendant Kazi Asadul Haq Sahib was that the property in suit stood finally disposed of under para graphs 15, 16 and 17, read with para. 27 of the Martial Law Regulation No. 64, and therefore, the jurisdiction of this Court was barred to reopen that question, and in any case the transferees of portions of the property in dispute having become_the owners of this property, would be necessary or at least proper parties to the suit, and therefore, they be impleaded as parties to the suit. I hat claim of finality of the disposition of, the pwerty would not be well-founded, in view of the fact that a tftte with respect to the same, was pending, and its ai0oial occurred during the pendency of the same, and in fact, as referred to above, the Deputy Land Commissioner to his orders (Exhs. P. X. and D. D.) took note of this suit, auCpithiequently, by implication, treated the defendant as owner of the same subject to this suit, and so the subsequent dispoSsition of the same by resumption, in favour of the Government; and retention of part of it in favour of defendant himself, and transfer in favour of the donees named above, was subject, to such incidents. In fact Notification No. ASP-202-60/ 15/19-LC, dated 3rd March 1960, under the Regulation 64, para. 12(a) supports such view of mine," On this view, the trial Judge held that the suit was competent. The matter was taken up in revision before the High Court by M. Afzal Khan and a learned Single Judge reversed the decision of the trial Judge on the following grounds. Firstly, he held that the wording of the order of the Deputy Land Commissioner did not point to the conclusion that he was making an order, which was not final, but was merely provisional. The Deputy Land Commissioner had not in clear terms said that he was making a provisional order. The mere reference in his order to the pendency of a civil suit on the point of title "would not, by any stretch of imagination, be considered as amounting to an order of the Deputy Land Commissioner being that of a provisional nature". The learned Single Judge further pointed out that according to paragraph 3 of Martial Law Regulation No. 64, any decree passed by the civil Court "could also be ignored by the Land Reforms Authorities." He accordingly concluded that the civil Court had no jurisdiction to adjudicate upon the title of the parties to the land in dispute. Leave was granted to the appellant to examine whether this view was correct. We have heard Mr. Ghias Muhammad in support of the appeal and Mr. A. H. Najafi and Mr. Asadul Haq have replied on behalf of the respondent. For a proper understanding of the order of the Deputy Land Commissioner, it is necessary to refer to certain instructions issued by the West Pakistan Land Commission on the 3rd March 1960, and in particular to paragraph 12(a), which reads as follows :- "Where any land is the subject-matter of civil litigation, the surplus area shall be provisionally resumed but shall not be disposed of under paragraph 19 of the said Regulation until the decision of the civil suit," The rest of this paragraph in the instructions contains directions as to the recognition by the Land Commission of the tenants of such land and as to the holding of the rent paid by them for disbursement in accordance with the final decision in the matter. For a proper understanding of this instruction, reference may be made to paragraph 50 in the Land Reforms Manual published by the West Pakistan Government, Volume I, which reads as under:- "

50. Representations were received from certain declarants in respect of the land which was under litigation and the decision of these cases was likely to take a long time. It was requested that till the decision of these cases, their holdings should not be determined. It was decided that in such cases the declarants could not be allowed to retain more than the prescribed area but the land should be resumed on provisional basis until the final adjudication of the rights of the litigants: The Commission examined this question on more than one occasion and decided that in respect of all cases which were the subject-matter of civil litigation, the following action should be taken. (i) Surplus area should be provisionally resumed bUt not disposed of under paragraph 19 of the Regulation till the decision of the civil suits instituted before the promulgation of the Regulation As has been said already, the Land Commission Authorities were bound to recognise any person entered as a proprietor in the Revenue records as the "existing owner" of the land, but at the same time, the instructions that were issued clearly showed that the Land Commission did not propose to ignore the result of any decision given in civil suits where the proprietorship so recorded was challenged. Not only was this possibility recognised, but the instructions issued under sub-paragraph (5) of paragraph 4 of the Regulation, which have effect as if they were part of the Regulation itself, provided a mschinery by which the decisions of the. Land Commission could be adapted to the final decision in such civil litigations regarding titles. It was expressly stated that in such cases the resumption of the land would be provisional. That position is by no means to be regarded as having been negatived by the circumstance that under Martial Law Regula tion No. 64, the Land Commission Authorities were entitled to ignore decisions given by Civil Courts. I hey had equal power to accept those decisions. On this point, the view of the learned Single Judge cannot be supported. It is in the light of the instructions mentioned above that the decision taken by the Deputy Land Commissioner in the passage quoted above must be interpreted. He was aware that a declaratory suit had been filed for determination of title in respect of the land in dispute. Certain salient features of the dispute had been placed before him, which are set out in paragraph 4 of his order, and it is with reference to the pendency of the suit for final decision of this dispute, that Deputy. Land Commissioners observed that "it is outside my jurisdiction to investigate the dispute that has arisen over the ownership of the forest land in question." It is true that when he decided to follow the Revenue entries, he did not say that he was doing so provisionally, but his order read as a whole cannot be understood in any sense other than that the action to follow thereon was to be in the nature of a provisional resumption. The view expressed by the learned Single Judge to the contrary is not in our view, speaking with respect, capable of being sustained. In the circumstances, we consider that the suit was clearly competent, and was not barred by anything contained in Martial Law Regulation No.

64. We consider that the opinion expressed c on the question in the judgment of the trial Judge was entirel correct and we accordingly allow this appeal and reversing the order of the learned Single Judge hold that the suit was competent and that it should be allowed to proceed before the trial Court. In the circumstances of the case, we make no order as to costs. Appeal accepted.