2016 PLP 600 (CLC)

MALIK MANZOOR HUSSAIN, J.

This revision petition has been preferred against the judgment dated 29-10-2001 passed by the Additional District Judge/Izafi Zila Qazi-II, Swat, whereby appeal filed by the petitioners was dismissed and judgment and decree dated 29-9-1999 passed by the learned Senior Civil Judge/A' ala Illaqa Qazi, Swat was maintained.

2. Briefly stated the facts giving rise to the instant petition are that the predecessor-in-interest of the respondents filed a suit for declaration and permanent injunction on the basis of registered sale deeds executed on 21-01-1963, 9-2-1963, 11-3-1964 and 19-2-1966. The suit was contested by the respondents and after recording pro and contra evidence, the learned trial Court decreed the suit through judgment dated 29-9-1999. Feeling dissatisfied, the petitioners preferred an appeal, which was also dismissed through impugned judgment dated 29-10-2001.

3. Mr. Rahimullah, Assistant Advocate General, appearing on behalf of the petitioners contended that the suit property was ownership of the Provincial Government, as the same was declared by the Provincial Land Commission as State property. It was further contended that the respondents failed to establish the fact that the suit property was not the State land but was the ownership of the respondents through registered sale deeds. He further contended that the sale deeds were not registered as per requirement of law, therefore, no decree could be passed on the basis of these deeds. He lastly argued with vehemence that learned Courts below have got no jurisdiction to entertain the suit with regard to resumption of land and their jurisdiction was specifically ousted by law.

4. Conversely, Mr. Sher Muhammad Khan, A.S.C., the learned counsel appearing on behalf of the respondents argued that the suit property was purchased by the predecessor of respondents through registered sale deeds and thereafter those properties were gifted to the respondents and from that time they are in possession of the same. Further contended that the revenue entries were wrongly made in favour of the Land Commission, therefore, the civil Court of preliminary jurisdiction has the powers to declare such entries as illegal, ineffective upon rights of respondents and make correction of the same.

5. Arguments of Mr. Rahimullah, learned Assistant Advocate General and learned counsel for the respondents were heard and record thoroughly perused with their able assistance.

6. There is no denial of the fact that through Notification No. 10/16-SOTA-11/HD/72-1525, certain properties were resumed, which were originally ownership of late Ruler of Swat, Bacha Sahib. Through Serial No.112 of the Notification dated 20th of September, 1972 was referred by the learned Assistant Advocate General, whereby the property known as "Wand Damanai" at serial number 122 was resumed by the Provincial Government. As per contention of learned Assistant Advocate General, the property in dispute is situated in "Wand Damanai", thus, the same is State property.

7. There is no denial of the fact that the suit properties bearing khasra Nos.714, 683, 723 and 717 were purchased through registered deeds bearing No.573 dated 21-01-1963, No.594 dated 9-2-1963, No.37 dated 11-3-1964 and No.728 dated 19-2-1966 and later on these properties were gifted to the respondents being sons of the vendees. A perusal of the revenue record reveals that those four (4) khasra numbers do not lie in "Wand Damanai", rather the "Fard Jamabandi" depicts the fact that those properties lies in "Wand Kas", Muza Mingora. As per APW-1, Afzal Khan, Halqa Patwari, Mingora "Wand Damanai" and "Wand Kas" are two different properties, which are situated at some distance from each other. It was further clarified by this witness that the suit property is situated in "Wand Kas" thus, have got no concern with the properties situated in "Wand Damanai". Once it was established that the suit property was not the ownership of Bacha Sahib at the time of resumption, but was the purchase or gifted property then the application of Martial Law Regulations 122, 123 and 115 of the year 1972 do not apply to this property. All the registered deeds depicts the fact that the property was purchased in between January, 1963 to February, 1966, thus when the regime of Bacha Sahib resumed and Regulation was promulgated in the year 1972, this property was not included in the ownership of Bacha Sahib, rather the properties resumed were those properties, which were in the ownership of Bacha Sahib and were declared as such vide Notification issued on 29th September, 1972.

8. This was the fact which prevailed upon the Land Dispute Inquiry Commission that this property namely "Wand Kas" was not included in the properties indentified by the Commission, rather the property known as "Wand Damanai" was included in the Notification. The suit of the respondents was confined only for correction of wrong entries, thus, this Court does not agree with the contention of learned Assistant Advocate General that civil Court has got no jurisdiction to entertain the suit.

9. It is well settled by now that immunity does not attach to the orders, which were made without jurisdiction or in violation of any provision of taw, whenever, there is violation, the Court of justice came to their rescue and save citizens from arbitrary and capricious actions of the State functionaries and save them from unlawful proceedings. Immunity under paragraph 26 of Land Reforms Regulation, 1972 was available only to those orders which had been competently passed under the Regulation. In such, eventuality civil Court as Court of plenary jurisdiction is competent to assume initial jurisdiction as to examine whether a Tribunal of special jurisdiction had acted within the limits set out by the Statute creating it. The clause ousting jurisdiction of civil Court would become operative only if order brought under challenge passed within the four corners of the Statute and in case of absence or excess of authority, the order passed by a functionary could hardly said to have been passed to claim blanket protection. Similarly, special Tribunals or even government functionaries are vested with the powers to act in accordance with law and if they failed to do so, the order would become, order without jurisdiction and that can be set aside by a Court.

10. Both the learned Courts below have properly examined the material available before them in true perspective and have ultimately decided the matter concurrently on pure question of law and facts, which does not call for interference under the limited jurisdiction of this Court unless and until it came to surface that the impugned orders were perverse or without jurisdiction. In view of what has been observed above, the instant petition being bereft of merits is dismissed with no order as to costs. ZC/146/P Revision dismissed.