1999 PLP 603 (CLC)

(1) Whether this Court lacks jurisdiction? O.P.D. (2) Whether the plaintiffs have encroached upon the land belonging to the defendants? If so to what extent? O. P. D. (3) Whether the plaintiffs are entitled for injunction prayed for? O.P.P. (4) Relief. The learned Civil Judge after recording evidence. of the parties and hearing their learned counsel decreed the suit on 4‑12‑1984, against which, the appeal of the respondents was accepted by the learned Additional District Judge vide impugned judgment and decree.

4. Learned counsel contends that the petitioners were owner of 76 Kanals and 8 Marlas of land bearing Khasra No. 1494 out of which 68 Kanals of land is under cultivation and remaining 8 Kanals and 8 Marlas is Ghairmumkin Banna (Dera). The dispute is only in respect of 8 Kanals and 8 Marlas of land of Khasra No.1494, which is admittedly in possession of petitioners where they have constructed, Dera, mosque, school and installed a tube‑well. The Revenue Record, the demarcation proceedings and the evidence produced by the petitioner fully establish their claim. On the question of jurisdiction, learned counsel submits that where there is a dispute about the title of the property, it is the Civil Court which has general jurisdiction to resolve the same. Toe Bar of section 10 of above referred Ordinance is not attracted to the facts and circumstances of the case.

5. Learned counsel for the respondents on the other hand submits that in view of documentary evidence consisting of Exhs.D.1 to D.3 the disputed land belong to Irrigation Department as this was acquired as back as in 1945, therefore, the claim of the petitioners that it was a part of Khasra No. 1494 and belongs to them is unjustified. He has supported the impugned judgment.

6. I have heard the learned counsel for the parties and gone through the record. The document placed on record by the petitioner, Exh.P.1, a letter written by the Executive Engineer, Khushab Division, Mianwali to the Settlement Officer, Thal, Bhakkar, dated 27‑4‑1989 shows that the Canal Department raised a claim that the demarcation has not been done by Muhammad Shamim Jahangir, Settlement Tehsildar Jauharabad and instead by Colony Naib‑Tehsildar, Qaidabad. Since the demarcation done by Colony Naib Tehsildar earlier was not acceptable, to them, it was again a futile exercise by the same Officer. It was further stated in the said letter that the demarcation proceedings undertaken by him on 26‑4‑1981 have not been accepted by Sub- Divisional Officer, Qaidabad and Deputy Collector, Khushab Division. It was reiterated that fresh demarcation may be arranged through aforementioned Settlement Tehsildar, Jauharabad before the next date of hearing in the Civil Suit pending between the parties. This document indicates that the dispute regarding correctness of demarcation was also under consideration. The demarcation was conducted by Colony Naib‑Tehsildar, Qaidabad vide Exh.P.2, who submitted a report on 4‑8‑1981 wherein he stated that the disputed houses are situated A outside the boundary of Irrigation Department and belong to petitioners/ plaintiffs. He affirmed the previous demarcation proceedings dated 1‑4‑1981. The third demarcation was conducted by Malik Abdul Hameed, Deputy Collector, Khushab Division accompanied by Malik Ali Muhammad Girdawar Halqa, Munshi Muhammad Azeem, Patwari, Ch. Muhammad Akram, S.D.O., Qazi Mushtaq Ahmad, Zaildar, Zafar Hussain, S.D.R. and other officials of Canal Department, vide Exh.P.3. which also indicates that no encroachment was found at the spot and both the parties agreed with the demarcation proceedings without any objection. The demarcation proceedings with regard to Khasras Nos. 1492, 1493, 1494 and 1727 of Village Gunjian were found correct. It was also observed that there was no encroachment by Irrigation Department also. Copy of the demarcation proceedings was handed over to the Patwari Halqa for its incorporation in the Rozenamcha Waqiati. Similarly Exh.P.4. is copy of Jamabandi of the year 1976‑77 of Khasra No. 1494 indicating ownership of the petitioners of 76 Kanals and 8 Malras of land including 8 Kanals and 8 Marlas disputed land as Ghairmumkin Bhan and remaining 68 Kanals as Nehri under cultivation. Copy of Khasra Girdawari Exh.P.5. and site plan Exh.P.6 also lend support to the plea of the petitioners. The demarcation proceedings carried out vide Exh.P.3 were entered in Rozenamcha Waqiati vide Rapt No.486, dated 10‑6‑1981, Exh.P.7. Exh.P.2 depicts the report Rozenamcha Waqiat No.374, dated 1‑4‑1981 in pursuance to the demarcation proceedings, dated 1‑4‑1981. As against the aforesaid documentary evidence of the petitioners, the respondents have relied upon Exh.D.l. site plan without any reference to the Khasra number of the property. This document does not link the disputed property with the Department. Similarly Exh.P.2. is also a sketch which does not depict the Khasra No. of the disputed property. This document has been prepared by the Irrigation Department which does not reconcile with the Revenue Record. Exh.D.3 is copy of Notification, dated 21‑5‑1945, whereby according to the respondents the disputed land was acquired alongwith other land by the Irrigation Department but this document too does not refer the Khasra number of the disputed property anywhere. This notification is not incorporated in the Revenue Record. The Revenue Record shows the status of the properties and rights of the individuals thereon. If the disputed property was ever acquired by the Irrigation Department, why it was not incorporated in the Revenue Record? If it is so incorporated why the relevant record has not been produced by the respondents?

7. The analysis of the evidence produced by the petitioners inspires confidence, which leads to an irresistible conclusion that the petitioners are owners of the disputed property. The demarcation proceedings were carried out three times in presence of the Senior Officers of the Irrigation Department. No objection was raised by the representatives of the Irrigation Department to the demarcation proceedings carried out on 10‑6‑1981 vide Exh.P.3, rather they agreed to the correctness of the demarcation proceedings and put their signatures under the report which was duly incorporated in the Rozenamcha Waqiati vide Exh.P.7. The Revenue Record 'clearly proves the claim of the petitioners over the land in dispute. Learned Additional District Judge failed to appreciate the evidence placed on the record in its true perspective, thus, the impugned judgment suffers from material illegality and is unsustainable.

8. Now coming to the contention of learned counsel for the respondents that the Civil Court has no jurisdiction to adjudicate upon the matter in view of the bar contained in section 10 of the West Pakistan Government Land and Buildings (Recovery of Possession) Ordinance, 1966, same has no force. Provisions of section 10 reads as under:‑‑ "No Civil Court shall pass an order in any suit or proceedings granting a temporary or interim injunction restraining Government or any Authority of Officer authorized by it from taking possession of any land or building under this Ordinance." The disputes regarding ownership and titled over the properties can only be resolved by the Civil Court. This section does not debar the jurisdiction of the Civil Courts to entertain a suit involving questions of ownership and titled over the property. It only provides that the Civil Court shall not pass an interim order restraining the Government from taking possession of any land or building under t this Ordinance. Its purpose is limited. The Civil Court has got jurisdiction to resolve the controversies regarding ownership and title of the individuals over the properties. The findings of learned Civil Court on this issue is upheld.

9. For the foregoing reasons, the impugned judgment and decree of the learned Additional District Judge is set aside and that of the learned Civil Judge is restored. The parties shall bear their own costs. H.B.T./A‑24/L Petition accepted.