2016 PLP 1 (YLRN)

S. 26

Land reforms

Suit for declaration

Bar of jurisdiction

Dispute with regard to acquisition of ownership on the basis of occupancy tenancy

Occupancy tenants

Applicability of Land Reforms Regulation, 1972

Scope

Trial Court decreed the suit partially but same was dismissed by the Appellate Court

Validity

Plaintiffs were occupancy tenants to the extent of 9/14th share right from 1904-05

Property measuring 21 kanals and 09 marlas transferred from occupancy tenants had to be taken into account with regard to their share and ownership

Occupancy tenancy were given less share as claimed by the plaintiffs and proved on the record

Plaintiffs were entitled to be compensated for less share given to them by reversing the entries in mutation and revenue record to the extent of land measuring 10 kanals and 07 marlas

Findings of Trial Court were sustainable to such extent and that of Appellate Court were reverseable

Suit was to be returned due to lack of jurisdiction and had been wrongly dismissed and to such extent judgment was modified

Trial Court had jurisdiction to entertain the suit as neither the provisions of Land Reforms Regulation, 1972 were questioned nor any transaction had been sought to be annulled rather correction of share and resumption of share of occupancy tenants instead of owners was questioned in the present case

Provisions of Land Reforms Regulation, 1972 had no application to the rights of occupancy tenants

Controversy between occupancy tenants and owners had nothing to do with the said provisions--Bar of jurisdiction did not attract in the present case

Functionaries of Land Commission were not arrayed as party to the suit and no relief had been sought against them nor any order passed by them had been challenged

Right from 1950 till 1990 extension were given to occupancy tenancy for deposit of compensation or those for entitled for consideration to get the occupancy tenancy converted into ownership but plaintiffs had not made efforts for the same

Conduct of plaintiffs would not allow them to get occupancy tenancy into ownership at such belated stage

Plaintiffs were not entitled for decree to such extent

Judgment and decree passed by the Appellate Court were set aside and that of Trial Court were restored to the extent of land measuring 10 kanals and 17 marlas and rest of suit of plaintiffs was dismissed

Revision was accepted in circumstances. [Paras. 9, 13 and 14 of the judgment] Hakim Khan's case PLD 1983 Pesh. 44 and Sardar Muhammad Yousaf and others v. Govt. of Pakistan PLD 1991 SC 760 rel. (b) Land Reforms Regulation, 1972 [MLR No.115]

S. 26

Bar of jurisdiction

Scope

If order passed by the Land Commission was found perverse in nature and such would defeat the object of Regulation, then same would not be immune to be challenge. [Para. 10 of the judgment] JUDGMENT ABDUL LATIF KHAN J.

Through the instant petition, the petitioners have called in question the judgment and decree dated 25.7.2011 of the learned Additional District Judge-VI, D.I.Khan vide which he accepted the appeal of respondent Nos.1 and reversed the judgment and decree of the learned trial court.

2. Short facts of the instant revision petition are that the plaintiffs filed a suit for declaration along with permanent mandatory injunction in respect of property detailed in the heading of the plaint. The defendants appeared before the learned trial court and filed their written statement. The learned trial court after framing issues, recorded evidence of the parties and hearing arguments of the learned counsel for the parties, partially decreed the suit of the plaintiffs vide judgment and decree dated 30.7.2010. Separate appeals preferred by both the parties against the judgment and decree of the learned trial court, the appeal of the petitioners was dismissed and accepted the appeal filed by the respondent No.1 by the learned appellate court vide common judgment and decree dated 25.7.2010, hence the present revision petition.

3. Learned counsel for the petitioners contended that predecessor of the plaintiffs and proforrna defendants were entered as occupancy tenants having 9/14 share in khata Nos.96 and 21 kanals and 09 marlas was taken from khasra No.952 of the occupancy tenants. It was contended that misl-i-hakiat for the year 1967-68 in respect of impugned khata No.96, is clear to this extent which is Ex:PW1/3 and Ex:PW1/14 and the revenue record produced by the patwari halqa and ADK reveals that plaintiffs were transferred the landed property due to occupancy tenants having 9/14 share as per mutations Nos.71 and

74. It was contended that property measuring 21 kanals 9 marlas assumed from Muhammad Aslam original owner includes 13 and 10 which is the occupancy of the petitioners and cannot be resumed as land requirements are not attracted to occupancy tenants. It was argued that khata No.88 measuring 314 kanals as per register haqdaran zamin for the year 1901-02, after deduction and erosion etc was reduced to 259 kanals and 19 marlas wherein the original owners were given share to the extent of 95 kanals 11 marlas and Dakhelkaran were given 142 kanals 19 marlas whereas they were entitled for 153 kanals and as such 10 kanals were given less to the occupancy tenant of petitioner and they are entitled for it.

4. As against that learned counsel for the respondents contended that petitioners failed to prove the entitlement of the suit property. It was contended that civil court has no jurisdiction to entertain the suit as specifically barred by section 26 L.R Ord:. It was argued that after cut date given by the Honourable Supreme Court, no right can be claimed by the petitioners as occupancy tenant is no longer existed. It was contended that plaintiffs failed to prove the case through cogent evidence. He supported the judgment impugned herein and prayed for the dismissal of instant petition.

5. I have heard the arguments of the learned counsel for the parties and perused the record with their valuable assistance.

6. The careful perusal of record reveals that plaintiffs, as averred in Paras 3 and 4 of their plaint, claimed that their predecessors were in possession of the property in khata No.50 measuring 314 kanals as occupancy tenants under section 8 of Act 16 of 1887, since 1904-05 uptill 1960-61, then falling in khata No.88, the quantum of property reduced to 259 kanals 19 marlas during the subsequent settlement of District D.I.Khan, carried out in the year 1966-67. Vide mutation No.59 entered on 01.4.1973 on the basis of order/letter No.424/DLC issued by DLC on 21.2.1973, property owned by original owners was resumed in favour of Provincial Government through Land Commission, including property 21 kanals 09 marlas out of 259 kanals 19 marlas, on 12.5.1973. Khasra No.1/952 measuring 21 kanals 09 marlas was transferred in the name of Provincial Government by dint of mutation No.67 entered, on the basis of order dated 30.5.1973 issued by Assistant Commissioner, empowered as Assistant Land Commissioner, in file No.114 regarding partition of land in favour of Provincial Government through Land Commission, in khata No.96, vide Dak Bhai No.58/AC dated 02.6.1973. The plaintiffs felt themselves aggrieved of the transfer of 21 kanals 09 marlas to the extent of their due share 9/14, comes out to 13 kanals 16 marlas, as illegally and malafidely mutated and seeks its reversal through cancellation of mutation, as occupancy tenants.

7. Moreover, the other part of claim of the plaintiffs, hinges upon the claim of 10 kanals 07 marlas, wrongly calculated as 9/14 share, out of 2038 kanals 10 marlas, the remaining property after deducting 21 kanals 09 marlas out of 259 kanals 19 marlas, should have been given 142 kanals 19 marlas as 9/14 shares, whereas they were entitled to 153 kanals 06 marlas and as such reduced their due share to the extent of 10 kanals 07 marlas and are entitled to get the above referred remaining share.

8. The defendants comprising on two sets, filed separate written statements have not rebutted specifically both the claims of plaintiffs and pro forma defendants on factual aspect, however, raised the plea of jurisdiction of civil court and cut date of 23.3.1990 and 07.5.1991 given through judgment passed by august Supreme Court, Appellate Shariat Bench regarding rights of occupancy tenancy, were relied upon for refusal of claim of plaintiffs and pro forma defendants.

9. The scanning of evidence brought on file would suggest that revenue record speaks about the entries of the predecessor of the plaintiffs and pro forma defendants as occupancy tenants under section 7 of Act 16 of 1887 to the extent of 9/14 share, right from 1904-05 and property measuring 21 kanals 09 marlas was transferred from occupancy tenants in khasra No.952. Ex:PW1/3 has to be taken into account regarding the due share of occupancy tenant and owner respectively, wherein break up has been given regarding shares as 9/14 and 5/14 which comes out to 167 kanals 02 marlas and 92 kanals 17 marlas out of total 259 kanals 19 marlas. It is not disputed that occupancy tenancy were given less share as claimed by the plaintiffs and proved on the record. Mutations Nos.71 and 74 were entered and attested on the basis of "Tabdeeli Haqooq Dakhelkari" vide order/letter No.24845-50/XVL/236 dated 02.10.1952 on the touchstone of 9/14 and 5/14 shares respectively but lesser share given to plaintiffs and pro forma defendants, hence are entitled to be compensated by reversing the entries in mutation and revenue record to the extent of 10 kanals 07 marlas. The findings of the learned trial court are sustained to this extent and that of learned appeal court are reversed, however, the relief Para/ operating Para of the judgment of the learned trial court seems to be inadvertently find mention the measurement of property as 13 kanals 16 marlas instead of 10 kanals 07 marlas and vice virsa, which did not coincide with the findings arrived at in the judgment by the learned trial court and as such modified to the extent that decree granted for 10 kanals 07 marlas. Moreover, the suit has to be returned due to lack of jurisdiction and has been wrongly dismissed and to that extent judgment is modified, however, findings on additional issue of jurisdiction duly affirmed by learned appellate court are not in line with law and are reversed, as the civil court has got the jurisdiction to entertain the suit in the instant, with special reference to peculiar circumstances of the case, as neither the provisions of M.L.R are questioned, nor any transaction has been sought to be annulled rather correction of share and resumption of share of occupancy tenant instead of owners was questioned, as provisions of M.L.R has no application to the rights of occupancy tenants and are related to owners and as such it is controversy in between occupancy tenant and owners and has nothing to do with provisions of M.L.R and bar of jurisdiction as such not attracted. The perusal of plaint would reveals that functionaries of Land Commission are not arrayed as party to the suit and no relief has been sought against them nor any order passed by them has been challenged in the instant suit. Reliance is placed on Hakim Khan s case reported in PLD 1983 Pesh. 44. "It is obvious that in the present suit none of the orders passed by the Land Commission under MLR 115 have been challenged nor is there any thing in the said Regulation empowering the Commission to determine the question presently in dispute and that the provisions of para 26 of MLR 115 would not bar the jurisdiction of Civil Court".

26. Bar or jurisdiction. (1) No provision of this Regulation or of any rules or orders made thereunder shall be called in question in any Court, including the High Court and the Supreme Court, or before any authority other than an authority appointed under this Regulation, and no such Court or authority shall have jurisdiction in respect of any matter which the Commission is empowered to determine. (2) No such Court or authority as aforesaid shall be competent to grant any jurisdiction or other order in relation to any proceeding before the Commission or before any officer exercising any power or discharging any function under this Regulation or the Rules or orders made thereunder, or in relation to anything done or inten-ded to be done by or at the instance of the Commission or such officer".

10. A look of the referred provisions qua facts of the instant case suggest that as none of the order passed challenged. Needless to mention that if an order passed by the Land Commission found perverse in nature and defeats the object of regulation, the same would not be immuned to be challenged, but in the instant case, no such controversy is involved.

12. Much emphasis laid on last condition of the operative part of the judgment but the vital issue to be resolved to get out of the embargo laid down is as to whether any "determination of rights of occupancy Tenants" at any stage by any forum has been made, the plain reply would be in negative. The august Supreme Court has mentioned with clarity that only those declared as occupancy tenants under section 5(1)(C) of Punjab Tenancy Act, 1887 would not hit under by the Target date and can be held entitled even after cut date, but this clause would in no way benefit the plaintiffs as neither they were declared as occupancy tenants nor the tenants under section 5(1)(C) Act 1887, hence they are not exonerated in the situation.

13. Quite apart from this, right from 1950 till 1990, repeatedly extension were given to occupancy tenancy for deposit of compensation or those entitled for, without consideration to get the occupancy tenancy converted into ownership but record is silent to the effect that plaintiffs have ever tried for get it declared or made any serious effort, though they were recorded as occupancy tenants in the revenue record, and their conduct would not allow them to get it converted into ownership at such belated stage, when much water has flown beneath the bridges, and as such plaintiffs are not entitled to the decree to this extent. The learned trial court has refused this relief albeit on different ground, however, learned appellate court has not taken pain to look into the matter and perform the duty entrusted to it by the legislature and has chosen easy path to non-suit the plaintiffs with aid of a summary order based on technicalities, which is not sustainable.

14. For the aforementioned reasons, I allow the instant petition, set aside the judgment and decree of the learned appellate Court and partially restore that of learned trial Court to the extent of property measuring 10 kanals 17 marlas and dismiss the rest suit of the plaintiffs with no order as to costs. ZC/45/P Revision accepted.