1979 PLP 192 (CLC)

"(1)Whether the jurisdiction of the civil Court is barred ? (2) Relief."

4. The learned trial Court found this issue in favour of the appellants by order dated 3-6-1969, whereupon the respondents filed a revision in this Court (Civil Revision No. 616 of 1969) which was accepted by judgment dated 4-7-1972 delivered by my learned brother Aftab Hussain, J. The case was remanded to the trial Court for adjudication of the matter afresh on the question of jurisdiction according to law.

5. On remand the learned trial Court recorded findings on the issue in question against the appellants and by its order dated 31-5-1973 dismissed their suit. Feeling aggrieved the appellants took an appeal to the learned District Judge, Sheikhupura, but the appeal was also dismissed by judgment and decree dated 30-5-1975. Hence this second appeal.

6. The learned counsel for the appellants contended firstly, that it had been wrongly presumed by the Courts below that at the time of sale on 27-1-1966 the consolidation proceedings had commenced; secondly, that the finding that the sale in question was hit by section 24 of the Consolida tion of Holdings Ordinance, 1960, was erroneous; and thirdly that application made by the appellants for amendment in plaint to allege mala fides against the Consolidation Officer was not disposed of by the trial Court before deciding the suit.

7. On the other hand the learned counsel for respondent No. submitted that the fact that the consolidation proceedings had commenced when the sale in question was made by respondent No. 2 in favour of the appellants stands conclusively determined by the decision in Civil Revision No. 616/1969 and that there being also a concurrent finding or this question of fact even after remand by both the Courts below, the contention cannot be permitted to be raised in a second appeal.

8. He further submitted that the appellants did not question this finding as arrived at in the civil Revision aforementioned and thus now stand precluded from raising it afresh. The next contention raised by the learned counsel for respondent No. 1 was that a reading of the plaint clearly shows that the grievance which is sought to be redressed in effect is that inferior land had been allotted to the appellants instead of the superior purchased and held by them before the process of consolidation. He submitted that such relief cannot be granted by the civil Courts as there is a bar of jurisdiction under section 26 of the Consolidation of Holdings Ordinance, 1960.

9. He also submitted that the only remedy With the appellants in this regard was as provided by section 12 of the Ordinance by claiming compensation if they felt aggrieved that the land allotted to them in lieu of the one earlier held by them was inferior.

10. The last contention raised by the learned counsel was that the claim in the suit as to appellants being owners of 136 kanals and 18 marlas, is otherwise not disputed by respondent No. 1 and as such no cause of action had arisen to the appellants-plaintiffs. He, however, submitted that the appellants cannot lay claim for a specific area in the consolidation proceedings and it is in the exclusive jurisdiction of the hierarchy under the relevant Ordinance to decide matters in that regard. lf. The learned counsel appearing on behalf of respondent No. 2 only submitted that a sale had been made by respondent No. 2 in respect of 136 kanals and 18 marlas of land.

12. The learned counsel for the appellants in reply submitted that onus of proof as to ouster of jurisdiction of the civil Court was on the respondent which onus had not been discharged.

13. The first contention raised by the learned counsel for the appellants is devoid of force, in that there is a finding recorded by the trial Court on the basis of the evidence that the sale-deed was executed and got registered by respondent No. 2 in favour of the appellants after commence ment of consolidation proceedings, without sanction of the Consolidation Officer. This finding has not been assailed by the appellants before the lower Appellate Court as is apparent from the grounds of appeal wherein no ground has been taken alleging that the finding was based on no evidence. The lower Appellate Court has also held in this respect as under "the facts of the case as narrated above clearly go to show that the plaintiffs had purchased the land in dispute from Ghulam Shabbir Shah, defendant No. 2 and the sale-deed was executed on 26-1-1966. The sale deed was registered on the following day, i.e. 27-1-1966. Since the consolidation proceedings in the village had commenced in the meantime no mutation was sanctioned in regard to this sale with the result that both the defendants Karam Din and Ghulam Shabbir continued to be shown as owners in the ownership column of the jamabandi. On the part of the plaintiffs they failed to get it incorporated in the Revenue record." Now there is a document produced by the appellants themselves Exh. P W 1/2 Mauza Murtaza, Tehsil Nankana, District Sheikhupura for 1962. This shows that consolidation proceedings of the village in question had commenced as far back as 1962. It cannot therefore be said that the finding of the Courts below that the consolidation proceeding had already commenced before the sale in favour of the appellants was made, is based on presumption.

14. In view of the above position that the sale had been effected during the consolidation proceedings section 24 of the Ordinance, was very much attracted and it has been rightly held by the Courts below that by virtue of section 24 of the Ordinance read with rule 27 of the West Pakistan Consolidation of Holdings Rules, 1960, the sale-deed was rightly not considered by the Consolidation Officer during the consolidations proceedings. The second contention also therefore fails.

15. The last contention of the learned counsel for appellants that the application for amendment was not adjudicated -upon before the decision in the suit is also not well founded as it appears, the said application was not pressed for before the trial Court. The bar of jurisdiction being manifestly applicable to the case in hand, the allowing of the application otherwise also would not have made any material difference.

16. In addition to the above position the contention raised by the learned counsel for the contesting respondent that section 26 of the Ordinance creates a bar for civil Courts to entertain a suit in respect of the matters which could be decided under the Ordinance is also well founded.

17. It has also been rightly urged on behalf of respondent No. 1 that the grievance of the appellants mainly was that they had been given inferior land in place of the superior held by them, which grievance could only be got remedied in the hierarchy under the West Pakistan Consolidation of Holdings Ordinance, 1960 as the matter fell within the purview of section 12 of the Ordinance.

18. In view of the foregoing discussion I find no merit in this appeal which is dismissed. There will. however, be no order as to costs. M. A. K. Appeal dismissed.