P L D 2004 Supreme Court 682 (PLP)

Muhammad Jamil Khan, Advocate Supreme Court and S.M, Muhammad, Advocate‑on‑Record for Respondents Nos. 1 and

2. Date of hearing: 12th February, 2004. MIAN MUHAMMAD AJMAL, J.‑‑‑Leave to appeal is sought against the judgment of the Peshawar High Court, Peshawar dated 30‑10‑2003, whereby Writ Petition No.820 of 2003 of the petitioners was dismissed in limine.

2. Brief facts are that respondents Nos.1 and 2 instituted a suit against the petitioners before the Tribunal constituted under section 12 of the N.W.F.P. , Public Property (Removal of Encroachment) Act, 1977 (hereinafter to be called the Act), seeking declaration that they are owners in possession of plot measuring 9‑1/2 Marlas out of Khasra No.1338/1059/11, Khata No.74/190, situated in Tukra No.3 outside Kohati Gate, Peshawar City, on the basis of Mutation No. 13140 attested on 7‑7‑1993, that the petitioners have no concern with their plot and they have no lawful right or authority to interfere with their possession. The petitioners resisted the suit by filing their written statement. On divergent pleadings of the parties, the learned Tribunal framed issues, recorded evidence of the parties and after hearing the learned counsel decreed the suit vide its judgment dated 28‑3‑2003 whereby it was held that the suit property is situated in Khasra No.1338/1059/11 and is owned and possessed by the plaintiffs/respondents and defendants/petitioners have no concern therewith who were directed to restrain interference therein.

3. Feeling aggrieved with the said judgment and decree the petitioners approached the Peshawar High Court, Peshawar in its Constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan through Writ Petition No.820 of 2003 which was dismissed in limine by the learned Division Bench of the High Court vide its judgment dated 30‑10‑2003 impugned herein, the operative paragraphs therefrom are as under:‑ "Sardar Shaukat Hayat, the learned Additional Advocate General representing the petitioners argued that respondent No.3 was vested with very limited jurisdiction and the learned Court below had no jurisdiction to determine the rights between the parties and declare the respondent No. 1 as owner of the property in dispute. The argument of the learned counsel for the petitioners, we are afraid, has no force. Under section 13 of the N.W.F.P., Public Property (Removal of Encroachment) Act, 1977, the Tribunal has the exclusive jurisdiction to adjudicate upon dispute that any property is not a public property or that any lease or licence in respect of such public property has not been determined. Likewise under sub section (2) of section 14 ibid Act an order made by the Tribunal which conclusively determined the rights of the parties with regard to all or any of the matter in controversy under this Act would be final and binding on the parties. The perusal of the above mentioned provisions shows that the Tribunal could riot only declare that a property which was in dispute was not public property but it could also decide and conclusively determine the rights of the parties with regard to all or any of the matter in controversy. In the case in hand the respondents Nos.1 and 2 sought declaration that property in dispute was not public property but was owned and possessed by them on the basis of Mutation No.13140 attested on 7‑7‑1993. The Tribunal has correctly passed decree prayed for in favour of respondents Nos. 1 and

2. We have not been able to find out any illegality warranting interference in exercise of our Constitutional jurisdiction. Resultantly, the writ petition is dismissed in limine."

4. The learned Additional Advocate General reiterated the same arguments as were addressed before the High Court contending that the Tribunal constituted under the Act was not a civil Court and thus had no jurisdiction to adjudicate the suit, wherein declaration had been sought that the plot in dispute belonged to the respondents and the same was not a public property, as such, the entire proceedings in the suit which was not maintainable and the judgment/decree passed therein by the Tribunal was without lawful authority. He further contended that the plot in dispute was a public property which was unlawfully claimed by the respondents to be their property, therefore, a complaint was lodged with the Canal Magistrate against the respondents for interfering with the plot and creating hindrance in their official work. He submitted that the report of the Local Commissioner, who was appointed by the Tribunal for the demarcation of plot in dispute, was vague and ambiguous therefore, suit could not be decreed on the basis of such a report.

5. On the other hand, learned counsel for the respondents contended that the petitioners could not argue the case on factual side on two‑fold grounds, firstly that it has attained finality under section 14 (2) of the Act and is binding on the parties, secondly they did not question the factual aspect of the case before the High Court but only urged that the Tribunal had no jurisdiction to determine the rights of the parties to declare the respondents to be the owners of the property. He added that as per report of the Local Commissioner the property in dispute is situated in Khasra No.1338/1059/11 and not in Khasra No.54. He referred to the statement of Syed Mehmood Shah, Revenue Circle Girdawar, the Local Commissioner CW 1 and submitted that he visited the spot on 15‑9‑1999 alongwith Patwari Halqa and Patwari Irrigation, demarcated the land in presence of the parties and submitted his report Exh.CW1/3 alongwith site plan Exh.CW1/4.‑He stated that according to the record the canal is situated in Khasra No.54 while the suit property is situated in Khasra No.11. He with reference to the statement of Muhammad Ajmal Khan Canal Magistrate RW1, asserted that the Local Commissioner visited the spot in presence of the said Canal Magistrate, Saif Ullah Khan Sub‑Engineer. Abdul Samad, Canal Inspector and Jalaluddin, Vernacular Clerk and carried out the measurements in their presence. He stated that Khasra No.54 measuring 31 Kanals, 2 Marlas is situated in Mauza Tukra No.3, out of which 29 Kanals, 2 Marlas consist of canal and 2 Kanals is Banjar Qadeem on which two primary schools and office of Irrigation Department have been constructed. The witness again said that out of 2 Kanals, 10 Marlas are lying vacant. In cross examination he stated that he did not know the exact area of the two primary schools and the office of Irrigation Department. He admitted that there is a metalled road between the canal and the disputed plot and further admitted that there are houses owned by the people adjacent to the suit plot. He admitted that Primary Schools and the plot in dispute are situated on one side while Irrigation Office is situated on the other bank of the canal. If one has to go to the office from the plot in dispute he ‑has to cross over the canal. He admitted that measurement given by him was provided to him by the Patwari concerned and he had not measured the area himself. Learned counsel in support of the impugned judgment submitted that the respondents are owners in possession of the plot on the basis of Mutation No.13140 sanctioned on 7‑7‑1993 and the petitioners have no right whatsoever to usurp the respondents property and they should be restrained from harassing the respondents by malicious and mala fide actions.

6. We have heard the learned counsel for the parties at length and have gone through the record of the case. It would be pertinent to first refer to the definition of 'public property' which has been defined in clause (h) of section 2 of the Act as ' a building, land, place or premises, which vests in, or is in the possession or under the management or control of Government, Local Council, autonomous body, or such other authority' and the" unauthorized occupant" has been defined in clause (j) of the said Section which means ' a person who has made encroachment on, or is in occupation of, any public property without the express permission or authority of a competent authority and includes a lessee or licensee who after the expiry of the period of lease or licence or on determination of such lease or licence, continues to remain in occupation of any public property; a person inducted into any public property by the lessee or licensee thereof; and every member of the lessee's or licensee's family who remains in occupation of any public property after the expiry of the period of lease or licence or after the determination of the lease or licence in respect of the same.' In the present case the respondents' claim is that they are owners in possession of the plot measuring 9‑1/2 Marlas bearing Khasra No.1338/1059/11 on the basis of Mutation No.13140 attested on 7‑7‑1993 and is not a public property whereas the petitioners claim it to be a public property being situated in Khasra No.54 which belongs to Government of N.‑W.F.P. The plaintiffs /respondents appeared as PWs, 1 and 2, who stated that they purchased the suit property vide Mutation No. 13140 attested on 7‑7‑1993 and the same is not situated in Khasra No.54. The petitioners interfered with their possession claiming it to be a public property, therefore, they filed a suit being the owners in possession of the disputed land which was not a public property. The trial Court appointed a Revenue‑Officer as Local Commissioner to demarcate the disputed land in presence of the parties. Syed Mehmood Shah, Local Commissioner appeared as CW 1 who stated that he visited the spot on 15‑9‑1999 alongwith Patwri Halqa and Patwari Irrigation, inspected the spot and demarcated the plot in presence of the parties. The statements of both the parties were recorded vide Exh.CW1/2, and the report Exh.CWI/3 and site plan Exh.CW1/4 were prepared. According to the record, the canal is situated in Khasra No. 54 while the suit property is situated in a separate Khasra No. 11 and there is about 12 feet Kacha Road in between the plot in dispute and the canal. The Local Commissioner (CW1) has unambiguously stated that the plot in dispute, is situated in Khasra NO. 11 and not in Khasra No. 54, he was not cross‑examined on the above vital points and the aforesaid A statement remained un‑challenged, hence the facts given in examination in‑chief would be deemed to be admitted and accepted by the petitioners to be correct,. Reference can be made to Waqar v. Faqir Ali (1969 SCMR 189). The petitioners' witness Muhammad Ajmal Khari, Canal Magistrate (RW1) admitted that the Local Commissioner visited the spot in his presence and he carried out the measurements, and apart from him, Saifullah Khan Sub‑Engineer, Abdul Samad Canal Inspector and Jalauddin Vernacular Clerk were also present at that time. He stated that Khasra No.54 measuring 31 Kanals, 2 Marlas is situated in Muaza Tukra No.3. out of 31 Kanals, 2 Marlas, 29 Kanals, 2 Marlas consists of canal while 2 kanals is 'Banjar Qadeem', On this 2 Kanals of area Education Department has constructed two Primary Schools and there is also an office of Irrigation Department. Again said that out of 2 Kanals, an area of 10 Marlas is lying vacant which is disputed. In cross‑examination he stated that he did not know the exact area on which two Primary Schools and office of Irrigation Department have been constructed. He admitted that there is a metalled road between the canal and disputed plot and according to the record road is part of the canal. He also admitted that there are houses owned by the people adjacent to the suit plot. He admitted that they had not raised any objection on the permanent spots for the purpose of measurement at the time of inspection. He admitted that Primary Schools and plot in dispute are situated on one side while the Irrigation Office is situated on the other bank of the canal and one has to cross over the canal if he goes to the office from the plot. He stated that he cannot produce any document which can show that how much area was given by the Irrigation Department for the construction of schools. He admitted that the measurements given by him were provided to him by the Patwari concerned and that he had not measured the area himself. Jalauddin Vernacular Clerk (RW2) produced ' Naqsha Tasweeri' in respect of Khasra No.54 Exh.RW2/1 (subject to objection) which was prepared by him at his own and Fard Jamabandi' Exh.RW2/2. He admitted that neither Exh.RW2/1 was prepared according to the established principles nor the same was prepared in presence of the plaintiffs/respondents nor it was signed by any higher authority. He denied his presence at the time when Local Commissioner inspected the spot whereas RW/1 has mentioned his presence. Saifullah Sub‑Engineer (RW3) stated that Khasra No.54 measuring 31 Kanals, 2 Marlas situated in Mauza Tukra No.3 belongs to Irrigation Department, out of which canal is situated on 29 Kanals, 2 Marlas and on remaining 2 Kanals two primary schools and office of Irrigation Department are situated and are of 10 Marlas is lying vacant. In cross‑examination, he stated that he was in the knowledge of the fact that the Local Commissioner was appointed by the Court for demarcation of Khasra No .1338/1059/11 and Khasra No.54 but he was not associated with the demarcation proceedings whereas RW1 has stated that he was present at the time when the Local Commissioner inspected and made measurements at the spot. He also stated that he cannot say about the area over which two schools have been constructed. The evidence of RW2 and RW3 is not confidence inspiring as they have denied their presence at the time of inspection of the plot by the Local Commissioner whereas Canal Magistrate RW 1 has categorically stated that when measurements were carried out by the Local Commissioner, he alongwith Saifullah Khan Sub‑engineer, Abdul Samad Canal Inspector and Jalaluddin Vernacular Clerk was present at the spot. The site plan Exh.RW2/1 which was placed on record under objection was an inadmissible document as it was prepared by RW2 at his own without notice to the respondents and without any authority from his superior officers. The petitioners' case is that according to record canal is situated over an area of 29 Kanals, 2 Marlas and piece. of 2 Kanals is Banjar Qadeem whereupon two primary schools and office of Irrigation Department have been constructed and a plot of 10 Marlas is lying vacant. None of the petitioners' witnesses could give the exact area over which two primary schools and office of Irrigation Department have been constructed. It appears that they have deliberately suppressed this fact and as such presumption can be drawn against them that the area on which two schools and office of Irrigation Department have been constructed, would in any case not be less than 2 Kanals and this fact came out from the mouth of RW 1 who later on departed from his words. It is also notable that the width of the canal varies at different places and the area of 19 feet wide road has also has not been given by any of the witnesses. This all goes to show that the cannal, road, two schools and the office have covered the total area of 31 Kanals, 2 Marlas and the petitioners attempted to unauthorisedly occupy the respondent's plot. It has been admitted by the petitioners' witnesses that the plot in dispute is situated adjacent to private houses which according to the Local Commissioner was demarcated and found to be situated in Khasra No. 11 which has been purchased by the plaintiffs/respondents through a mutation and as such, they were rightly declared to be its lawful owners by the Tribunal whose decision was final and binding on the parties. The argument of the learned Additional Advocate General that the Tribunal had no jurisdiction to declare the plot to be the property of the plaintiffs/respondents, has no force, for, section, 13 of the Act provides that the Tribunal has exclusive jurisdiction to adjudicate upon a dispute that whether any property is not a public property and for that purpose the plaintiffs/ respondents invoked the jurisdiction of the Tribunal. Section 11 of the Act imposes a bar on the civil Courts to entertain any proceedings, grant any injunction or make any order in relation to a dispute that any property is not a public property, therefore, in view of 11 bar of jurisdiction of the civil Court, no Court except for the Tribunal has the jurisdiction to adjudicate upon a dispute that any property is not a public property. The Tribunal on assessment of the evidence on record both oral and documentary, held the property to be not a public property and declared it to be owned and possessed by the respondents, as such, the decision rendered by it, whereby the rights of the parties with regard f to the controversy were conclusively determined under the Act which attained finality and was binding on the parties under section 14(1) and; (2) of the Act, could not be questioned. The Tribunal by adjudicating the controversy between the parties and declaring the plot to be property of the respondents and not a public property, has exercised its lawful jurisdiction vested in it by virtue of section 13 of‑the Act and the High Court has rightly upheld its judgment being legal, proper and in accordance with law. This petition is accordingly dismissed and leave; refused. M.H./C‑3/S Petition dismissed.