2017 PLP 18 (YLRN)

AMIN-UD-DIN KHAN, J.

Through this civil revision, the petitioners have challenged the judgment and decree passed by learned Addl. District Judge, Lodhran dated 30.06.1998 whereby an appeal filed by the plaintiff/respondent was accepted and the judgment and decree dated 06.02.1998 passed by learned Civil Judge, Lodhran dismissing the suit was set-aside.

2. Brief facts of the case are that the plaintiff/respondent, on 29.09.1991 filed a suit for declaration that he is owner in possession of the suit property and challenged the order of Addl. Deputy Commissioner (Consolidation) Multan and on the basis of order of consolidation authorities challenged mutation No.49 attested on 21.09.1968. The written statement was filed by the defendants/petitioners and suit was contested. The learned trial Court framed issues inviting the parties to adduce their evidence. Both the parties produced oral as well as documentary evidence. Vide judgment and decree dated 06.02.1998, the learned trial Court was pleased to dismiss the suit. An appeal was preferred by the plaintiff/respondent which was accepted and the suit was decreed in favour of plaintiff/respondent. Hence, instant civil revision by the judgment-debtors/ defendants.

3. No one appeared on behalf of the respondent, therefore, he is proceeded against ex parte.

4. Learned counsel for the petitioners while relying on case "Nawab v. Ghulab etc." (2004 SCMR 1833) argues that the suit was absolutely not competent and barred because the order of consolidation authorities could not be challenged and further suit was clearly barred by time and further that plaintiff/respondent has not challenged the order of the Addl. Deputy Commissioner (Consolidation) before the higher forum upto the Board of Revenue. On this score alone, suit was not maintainable. Further states that when the order of Addl. Deputy Commissioner has been challenged, the Addl. Deputy Commissioner (Consolidation) or the Province of Punjab has not been impleaded as party in the suit.

5. I have heard the learned counsel for the petitioners and gone through the pleadings, evidence of the parties and the findings recorded by both the courts below.

6. The contention of learned counsel for the petitioners that suit was not competent in the light of judgment reported supra, I agree that the august Supreme Court of Pakistan has laid the dictum that under section 26 of the West Pakistan Consolidation of Holdings Ordinance, 1960, the jurisdiction of civil court is barred in the consolidation matter, therefore, saying that the civil court has plenary jurisdiction, is not correct in the circumstances of this case. I am clear in my mind that if the order is passed with jurisdiction when a clause in the state is available barring jurisdiction of civil court, then certainly civil court has no jurisdiction. If the order is without jurisdiction despite the fact that the barring clause is available, then certainly civil court has jurisdiction. In this case, when the Addl. Deputy Commissioner (Consolidation) whose order has been challenged in the suit, has not been arrayed as defendant and it has not been shown that how order is without jurisdiction, therefore in the light of the judgment of august Supreme Court of Pakistan reported as "Nawah v. Ghulab etc." (2004 SCMR 183), for taking light, I quote paragraph from the judgment:- "Learned counsel for the petitioner when confronted with the order of Additional Commissioner and the proposition that the petitioner instead of invoking the jurisdiction of Board of Revenue, in the matter arising out of the consolidation, filed civil suit, submitted that the land subject of suit was not connected with the consolidation and the order of Collector (Consolidation) and Additional Commissioner (Consolidation) related to different land. We are afraid, the learned counsel has not been able to show us any evidence on record in support of the contention that the dispute between the parties arising out of consolidation, related to a different land. The petitioner has neither taken such a plea before the subordinate Courts and the High Court at any stage nor the learned counsel has been able to show us from the record that the dispute between the parties in the civil suit pertained to a land which was not subject-matter of litigation between them before the Revenue Authorities."

7. The civil court was having no jurisdiction to entertain and try the suit and further that when the order of Addl. Deputy Commissioner (Consolidation) was challenged and without impleading the Addl. Deputy Commissioner (Consolidation) as defendant, even Province of Punjab has not been impleaded as defendant, the suit was not proceedable and further that when the mutation was attested on 21.09.1968 on the basis of order passed by the Addl. Deputy Commissioner (Consolidation) dated 13.02.1967 which is available as Ex.P3 (impugned mutation) and even when the order of the Addl. Deputy Commissioner (Consolidation) has not been challenged Specifically, the suit was certainly time barred and not maintainable. In this view of the matter, I accept the instant civil revision and set aside the impugned judgment and decree dated 30.06.1998 passed by learned first appellated Court. The result would be that the suit filed by plaintiff/respondent stands dismissed. ZC/M-274/L Revision allowed.