2026 PLP 659 (CLC)

DR. KHURSHID IQBAL, J.

This petition, filed under section 115 of the Code of Civil Procedure, 1908 (C.P.C), is directed against the judgment and decree dated 24.03.2012, rendered by the learned Additional District Judge-IV, Swat, whereby appeal of the petitioners against the judgment and decree dated 14.12.2010, passed by the learned Civil Judge-IV, Swat, dismissing their suit, was dismissed.

2. The petitioners filed a suit against the respondents seeking a declaration to the effect that the suit property known as a cement godown and a vacant plot comprised in khasra Nos. 1487 and 1488, respectively, situated in the revenue estate of Saidu Sharif, Tehsil Babozai, District Swat, is their joint ownership with defendant No.

11. Their claim is based upon Notification No. 10/16-SOTA-II-HD/72-1523 (Notification No.1523), dated 15.09.1972, and the subsequent decision dated 31.07.1982, rendered by the Chairman, Review Tribunal, Land Disputes Inquiry Commission under the provisions of the MLR-123. They asserted that the revenue entries reflecting the provincial government as owner of the disputed property are incorrect, contrary to record, and ineffective upon their proprietary rights, and thus liable to rectification. It was further pleaded that no tenancy agreement has ever been executed in respect of the disputed property with the respondents. Therefore, the possession of the respondents over the disputed property is illegal. The petitioners claimed status as legal heirs of the former Ruler of Swat, namely, Miangul Shahzada Abdul Wadood (Badshah Sahib), contending that the property in dispute had been declared his exclusive ownership under the aforementioned Notification No. 1523. Now, the petitioners, as a result of a private partition, are owners of the disputed property. The said defendants have no right either to deny the ownership of the petitioners or to interfere in the property through any means. Reliefs of perpetual injunction and recovery of possession were also sought.

3. The respondents, on their appearance before the learned trial Court, filed a detailed written statement, controverting the petitioners' claim. They contended that the property is the ownership of the Provincial Government by virtue of Notification No. 10/16-SOTA-II-HD/72-1524 (Notification No. 1524), dated 29.09.1972. It was averred that not only the amount, as specified in the Notification, has been expended on its construction but during the settlement process in the year 1981-82, the property has also been recorded in the name of the Provincial Government, which has since remained in ownership and possession thereof. The learned trial Court framed issues arising from the divergent pleadings of the parties. Key issues are relating to jurisdiction of the civil Court, limitation, estoppel, and title of the parties. After recording evidence, the suit was dismissed by the learned trial Court vide judgment and decree dated 14.12.2010. The appellate Court, upheld the findings of the trial Court while dismissing the petitioners' appeal vide its judgment and decree dated 24.03.2012. Hence, the instant petition.

4. Arguments heard. Record perused.

5. The petitioners belong to the royal family of Swat. They are the legal heirs of the former Ruler of Swat, namely Miangul Shahzada Sir Abdul Wadud, K.B.E., commonly known as Badshah Sahib. They assert that after the merger of the former State of Swat into Pakistan in 1969, the Devolution and Distribution of Property (Dir and Swat) Regulation (Martial Law Regulation No. 122) was promulgated. In pursuance thereof, through Notification No. 1523, dated 15.09.1972, the properties specified in Columns Nos. 2 and 3 of Schedule-I were declared the exclusive ownership of Badshaa Sahib, the predecessor-in-interest of the petitioners, subject to final determination of disputes under Martial Law Regulation No.

123. Subsequently, the Land Disputes Inquiry Commission constituted under the MLR-123, decided the claim in favour of Badshah Sahib vide judgment dated 31.07.1982, rendered by the worthy Chairman, Review Tribunal. In Schedule-I to Notification No. 1523, at serial No. 7, at page No. 271, the cement godown built during the time of Badshah Sahib was mentioned under the headnote-B: "The following houses and buildings situated in Saidu Sharif are the personal property of Badshah Sahib and the land covered by them also belongs to Badshah Sahib." The petitioners contend that despite this declaration, the suit property was wrongly recorded in the name of the Provincial Government, during settlement proceedings, without lawful proof of its ownership. A Notification No. 1524 was issued on 29.09.1972, in continuation of Notification No.10/16-SOTA-II/72-1521 (Notification No.1521), dated 15.09.1972, declaring that the properties mentioned in its attached schedule shall be the property of the former State of Swat. In that schedule, at serial No. 24, the disputed cement store was mentioned as State Property. However, Notification No. 1524 was, in fact, a continuation of Notification No. 1521. In Appendix-D of Notification No. 1521, it was clearly mentioned that while the buildings were owned by the State of Swat, the land beneath them was the exclusive ownership of Badshah Sahib. At serial No. 151 of Appendix-D, the disputed cement godown at Mohallah Barkaly was specifically mentioned, as the ownership of Badshah Sahib. Nisar Ahmad, the general attorney of the petitioners (PW-1), though under his cross-examination, admitted that in the schedule to Notification No. 1524, at serial No. 24, the cement godown was shown as State property. However, he in categoric terms deposed so as to clarify that under Notification No. 1521, read with Appendix-D, the land beneath the structure was declared the ownership of Badshah Sahib. This statement was consistent with the spirit and scheme of the above-referred notifications.

6. Similarly, in the decision, dated 31.07.1982, both Notifications Nos. 1521 and 1524 were thoroughly examined by the worthy Chairman of the Review Tribunal Constituted under MLR-123 . The former related to the properties of Badshah Sahib, while the latter was in respect of the State properties. After detailed discussion, it was held that the building of the Cement Store mentioned, at serial No. 151 of Notification No. 1521, and at serial No. 24 of Notification No. 1524, has rightly been notified as personal property of Badshah Sahib under Notification No. 1523. It was further held that the disputed property could not be treated as State property. In this view of the matter, the disputed property, among others, was directed to be deleted from Notification No. 1524, on the basis of which, the Provincial Government claimed its ownership. Rather, effect was given to the entry at serial No. 7, at page No. 271 of Notification No. 1523, wherein the disputed cement godown was declared the personal property of Badshah Sahib. The said decision has already attained finality. In this respect, it was specifically brought by the respondents under the cross-examination of PW-1 that no appeal or revision was filed against the decision dated 31.07.1982 before any competent forum.

7. It is also an admitted position that possession of the property was with the Provincial Government through its Construction Department. However, in view of Appendix-D of Notification No. 1521, which clarified that the building may belong to the State but the land underneath was the exclusive ownership of Badshah Sahib, as such, the mere possession as a licensee could not be considered as a proof of ownership of the Provincial Government. No cogent or reliable evidence was produced by the respondents to establish lawful acquisition of the disputed property. Although, the respondents relied upon entries made during the first-ever settlement completed in 1986, and the subsequent revenue record, including Jamabandies and Aks Shajra Kishtwar. However, such entries, by themselves, did not confer title. The respondents were required to justify the correctness of the revenue record through independent and reliable evidence, but they failed to produce any record of lawful acquisition of the suit property. In these circumstances, the petitioners successfully rebutted the long-standing revenue entries, including those of the first settlement of 1986, not only through reliable documentary but also through their oral evidence. In Government of Khyber Pakhtunkhwa through Secretary Home and TAs and others v. Noorani Gul through LRs (2022 SCMR 1428), an appeal of the provincial government, in an identical Matter, was dismissed, holding that in case of claim of ownership of property, the government is equally responsible to show that the property has either been acquired through due process of law, or it has become its owner, in respect of a property, which has no rightful owner provided by Article 172 of the Constitution. It was further held that under said provision of the Constitution, the government has the right to take ownership of an unclaimed or ownerless property. It occurs that when an individual dies or disappears with no will and no heirs and his property remained unclaimed for a considerable prolonged period of time.

8. In the matter in hand, the petitioners have asserted ownership of the disputed property on the strength of the official Gazette Notification No. 1523. Their claim is supported by the scheme of Notifications Nos. 1521 and 1523. Under these notifications, although the structure was constructed and utilized by the Provincial Government, such possession was conditional and confined to use of the building as licensee. The schedule appended to Notification No. 1523, particularly at serial No.7, declares that the houses and buildings situated in Saidu Sharif, including the disputed cement godown, are the personal property of Badshah Sahib. It is further clarified therein that the land covered by those buildings also belongs to Badshah Sahib. This categorical declaration establishes the proprietary title of the petitioners as legal heirs of Badshah Sahib. The respondents failed to produce any cogent evidence to substantiate their plea of estoppel.

9. As discussed earlier, litigation regarding the same property before the competent forum i.e., the Land Disputes Inquiry Commission constituted under MLR-123, has already been concluded in favour of the petitioners. Through the present suit, the petitioners did not open that controversy, but they merely challenged the correctness of the revenue entries, whereby the disputed property was recorded in the name of the Provincial Government. They sought a declaration of their ownership with consequential correction of the revenue record. Such relief squarely falls within the ambit of Section 42 of the Specific Relief Act, 1877. The matter, therefore, lies within the exclusive jurisdiction of the Civil Court. Hence, the objection raised by the respondents regarding lack of jurisdiction is misconceived and without substance.

10. Admittedly, during the first-ever settlement completed in 1986, the property was entered in the name of the Provincial Government. The said entry also continued in subsequent record of rights. In the revenue papers, the disputed property is described as ghair mumkin godown in possession of the Deputy Commissioner through the Construction Department, while the other property as banjar qadeem. This description, in fact, supports the case of the petitioners. The suit was instituted in 2010, almost two decades after the settlement. However, the respondents were in possession only in the capacity of licensee on behalf of Badshah Sahib, the predecessor-in-interest of the petitioners. Thus, in the peculiar circumstances of the case, the mere possession did not confer title, when the respondents failed to rebut the ownership of the petitioners through cogent and reliable evidence. More-so, at the time of settlement proceedings in 1981, the respondents were fully aware of the notifications of 1972, declaring the property as personal ownership of Badshah Sahib, but despite such knowledge, they could not produce any evidence of lawful acquisition or transfer of the disputed property in favour of the Provincial Government. Had the petitioners been in possession at the time of settlement then they would have been informed by the settlement authorities and would have produced the decision dated 31.07.1982 before the Settlement Officer. The learned Appellate Court non-suited the petitioners mainly on the ground of delay in filing the suit, whereas the learned trial Court did not make any discussion on the issue. In Government of Khyber Pakhtunkhwa through Secretary Home and Tribal Affairs and others, (supra), the Hon'ble Supreme Court, while upholding the concurrent findings of the Courts below in favour of a private party, declared the settlement record of 1986 in favour of the Provincial Government to be incorrect and without lawful basis. It was held as under: Admittedly, the government did not acquire the property in question through sale, gift, or exchange, nor had ever claimed its rights of escheat. Simply because the land in question was unsettled, when the first settlement was started, cannot be used to term it as unclaimed or ownerless property. Since the respondent was claiming to be its rightful owner before the preparation of record during settlement proceedings of the year 1986 and also proved his possession over the land in question, his claim was superior than that of the government. In the matter in hand, the petitioners produced reliable and convincing documentary evidence to establish their ownership of the disputed property long before the commencement of settlement proceedings under the Land Revenue Act, 1967, whereas the entries in the revenue record in favour of the Provincial Government are not supported by any credible evidence on the record. In other words, the petitioners not only have the cause of action to institute the lis, but also successfully established their claim on the touchstone of preponderance of evidence in accordance with law. The respondents failed to adduce any material evidence.to discharge the burden of proving their plea of estoppel, particularly regarding the alleged knowledge of the petitioners about the incorrect revenue entries. The contention of the learned A.A.G. that the petitioners were engaged in other litigations and therefore ought to have filed the present suit within time could not, in the peculiar facts and circumstances of the case, determine the question of limitation. Hence, mere reliance on long-standing revenue entries is of no avail to the respondents when they have failed to establish the correctness and legality of those entries through independent, cogent, and unimpeachable evidence. In the case Muhammad Rasheed v. Muhammad Ismail (2024 CLC 1451), it was held that fraud vitiate the most solemn proceedings and, thus, period of limitation would not be an embargo upon a justifiable claim directed against fraud. In Mst. Nawab Bibi through LRs v. Hakim Ali and others (2024 CLC 895, Lahore), when the very foundational transaction is based on fraud and mala fide, the subsequent superstructure built thereon cannot be allowed to stand and ultimately collapses.

11. Though, there are concurrent findings of the learned Courts below, but when the same, as discussed above, are based on erroneous conclusion as a result of misreading and non-reading of evidence, then this Court under section 115 C.P.C. has got ample powers to upset concurrent findings in view of the principle laid down by the apex Court in Nazim ud Din and others v. Sh. Zia ul Qamar and others (2016 SCMR 24).

12. The learned A.A.G. could not to defend the impugned judgments and decrees to be in accordance with the evidence available on the record. Rather, the same suffer from misreading and non-reading of material evidence. So, the concurrent findings recorded by the learned Courts below are not sustainable in the eye of law. Accordingly, the instant petition is allowed. The impugned judgments and decrees of the learned Courts below are set aside. Resultantly, the suit of the petitioners is decreed as prayed for. No order as to costs. UN/78/P Petition allowed.