1999 PLP 2612 (MLD)

2. Brief facts of the case are that petitioners filed a suit for permanent injunction against the respondents that they have constructed their residential deras, mosque, primary school, houses and installed a tube-well on land measuring 8 Kanals and 8 Marlas hearing Khewat No.290, Khasra No. 1494 and they have no lawful authority to serve upon them a notice to dispossess them or assert any right over the suit land. The suit was resisted by the respondents with the contention that the suit land was property of Irrigation Department which was acquired through Notification No.39193/CN/459/39, dated 31-11-1945 for construction of canal thereon and petitioners claim on it was mala fide and imaginary. It was also asserted that the Civil Court has no jurisdiction to adjudicate upon the matter particularly when respondents were proceedings against the petitioners to dispossess them from unauthorized possession of suit land under the provisions of the West Pakistan Government Land Buildings (Recovery of Possession) Ordinance, 1996.

3. The learned trial Judge framed the following issues on the pleadings of the parties:-- (1) Whether this Court lacks jurisdiction? OPD (2) Whether the plaintiffs have encroached upon the land belonging to the defendants? If so to what extent ? OPD (3) Whether the plaintiffs are entitled for injunction prayed for ? OPP (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 and decree.

4. Learned counsel contends that the petitioners were owner of 76 Kanals 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 Ghair Mumkin bann (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 tubewell. 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. The 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 belonging to Irrigation Department as it 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.I, 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 b, Muhammad Shamim Jehangir, Settlement Tehsildar Jauharabad and instead Colony Naib Tehsildar, Qaidabad. Since the demarcation done by Colony Naib Tehsildar, earlier was not acceptable, to them, it was again a futile exercise bi the same Officer. It was further stated in the said letter that the demarcatiot proceedings undertaken by him on 26-4-1981 have not been accepted by Subdivisional Officer, Qaidabad and Deputy Collector, Khushab Division. I was reiterated that fresh demarcation may be arranged through aforementioned Settlement Tehsildar, Jauharabad before the next date of hearing in the Civil Sui 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 s report on 4-8-1981 wherein he stated that the disputed houses are situate 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 SDO, Qazi Mushtaq Ahmed Zaildar, Zafar Hussain S.D.R. and others official of Canal Department, vide Exh. P.3 which also indicates that no enhancement 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 Gunjan were found correct. It was also observed that there was no enhancement by Irrigatior 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 Marlas of land including and F Kanals 8 Marlas disputed land as Ghairmumkin Bhan and remaining 68 kanals a: Nehri under cultivation. Copy of Khasragirdawari Exh.P.5 and site-plan Exh.P.6 also lend support to the plea of the petitione. The demarcatior proceedings carried out vide Exh.P.3 were entered in Rozeuamcha Waqiati vidc 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 o1 the petitioners, the respondents have relied upon Exh.D.1 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 beer prepared by the Irrigation Department which does not reconcile with the Revenue Record. Exh.D3 is copy of Notification, dated 21-5-1945, whereby according to the respondents the dispute 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 Roznamcha 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 Lands 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 title 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 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 finding 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. Q.M.H./M-941/L Revision accepted.