2001 PLP 279 (MLD)

MUHAMMAD YUNUS SURAKHVI, J.‑‑‑This appeal, by way of leave of the Court, has been preferred against the judgment of the High Court passed on 9‑6‑1999, whereby the writ petition filed by the appellants, herein, was dismissed.

2. The necessary facts, giving rise to the present appeal, are that the appellants herein filed a writ petition in the High Court challenging the order of Tehsildar Mirpur and Board of Revenue who have been arrayed as respondents Nos. 13 and 15 in the writ petition as well as in the memorandum of appeal before this Court. The appellants averred in the writ petition that the respondent Lal Khan and others have filed a civil suit which was pending in the trial Court when an application was moved before Tehsildar Mirpur, who proceeded with the same. The appellants herein raised an objection that respondents could not seek remedy before two forums i.e. by filing a civil suit and at the same time agitating the matter in the Revenue Courts, but their objection was overruled. They filed a writ petition in the High Court which, after taking the necessary proceedings in the case and hearing the arguments, was dismissed by observing that the matter which was being agitated by some of the respondents before the Tehsildar was different from the one which was sub‑judice before the Civil Court and that even otherwise there was no bar for the Revenue Courts to decide the controversy between the parties.

3. Arguing the case on behalf of appellants Mr. Muhammad Yunus Arvi, the learned counsel, has argued that the findings of the High Court that matter pursued in the Civil Court was different from one which was pending before the Revenue Court is not tenable. He has argued that the High Court has committed error in holding that the matters being different in both the forums can be challenged in the respective forums and that even otherwise no writ lies restraining the Revenue Courts to entertain the matter.

4. On the other hand, Mr. M. Yunus Tahir, the learned counsel for the respondents, vehemently urged that the matter pending before the Revenue Court was pertaining to Khasra Nos. 1256 and 1278, which do not form the part of the suit filed by Lai Khan and others respondents. Khasra No. 1256 is claimed by respondents to be in their ownership out of which on a piece of land of one Kanal, the appellants, therein, were trying to occupy the same by force and had blocked their passage. Similarly Khasra No. 1278 is claimed by respondent as their "Abadi Deh" which they had given to their niece but the appellants were trying to occupy the same and were allegedly committing reach of peace. As regards Khasra No. 1420, it was contended by Mr. M. Yunus Tahir, the learned counsel for respondents, that this Khasra number though as a whole is shown as the suit land in the plaint filed by them in the Civil Court but their case before the .Tehsildar is that out of this land on a piece of land of 1 Kanal, 10 Marlas the appellants, three or four months prior to filing of their application, are trying to occupy the same and have raised the construction of an unmettled house. Therefore, according to the learned counsel for the respondents even with regard to Khasra No. 1420 the Revenue Court had the jurisdiction to dispossess the appellants from the piece of land of 1 Kanal, 10 Marlas.

5. After hearing the respective contentions of the learned counsel for the parties, it may be stated that an application was moved by respondent Lal Khan before the Tehsildar Mirpur to proceed against appellants with regard to three Khasrai numbers, i.e. 1256,, 1278 and 1420. So far as Khasra Nos. 1256 and 1278 are concerned, they are not included in the suit filed by Lal Khan before the Civil Court. The above stated two Khasra numbers, being not part of the suit land which is in dispute between the parties, the Revenue Courts are at liberty to proceed against the appellants regarding the said Khasra numbers. As regards Khasra No. 1420 which is the subject of controversy between the parties in the Civil Court, it is alleged by respondent Lal Khan in the application which was moved before the Tehsildar on 25‑3‑1995, that three or four months prior to the filing of application on a piece of land measuring 1 Kanal, 10 Marlas the appellants have forcibly constructed an unmettled house. The suit was filed by respondent Lal Khan in the Civil Court on 22‑11‑1994. Thus, it is apparent that during the pendency of the civil suit the appellants as alleged to have forcibly occupied the piece of land measuring 1 Kanal, 10 Marlas, out of Khasra No. 1420 and have constructed a "Kacha" house. On our query we I were informed by the learned counsel for the respondents that on the suit filed by Lal Khan in the Civil Court the temporary stay order till the disposal of suit had been issued by the civil Court restraining the defendants appellants from interfering into the possession of respondents in the suit land. The proper remedy for the respondents was to move the Civil Court for proceedings against the appellants for violation of stay order by the Civil Court instead of approaching the Revenue Court.

6. For the aforesaid reasons we partly accept the appeal in terms that the Civil Court shall proceed with the suit filed by respondent with regard to Khasra No. 1420 and respondent Lal Khan will be at liberty to move against the appellants for violation of temporary injunction issued by the Trial Court as the appellants have allegedly forcibly occupied a piece of land of I Kanal, 10 Marlas, out of the aforesaid Khasra number. So far as Khasra Nos. 1256 and 1278 are concerned, they being not included in the civil suit filed by respondent Lal Khan, the Revenue Courts will be at liberty to proceed against the appellants and may grant the appropriate relief to respondent if he is otherwise entitled to it under law. The appeal filed by the appellants with regard to Khasra Nos. 1256 and 1278, thus, stands dismissed without any order as to costs. H. B. T. / 126/SC(A1&K) Appeal dismissed.