1979 PLP 104 (CLC)

2. Precisely put, the facts of this case are that respondent No. 1, purchased land measuring 49 kanals and 10 marlas situate in Village Musakhel, Tehsil and District Mianwaii, through a registered sale deed 'dated 1-9-1973 from appellant No.

1. It appears that before the sale-deed could be acted upon in the revenue record, appellant No. 2 who is son of appellant No. 1 filed an application before respondent No. 2 alleging therein that the sale transaction evidenced by the sale-deed was in con travention of M. L R.

115. This application was disposed of by respondent No. 2, presumably acting as Deputy Land Commissioner, by his order dated 4-4-1975, wherein he made observations that the mutation would be entered by the revenue patwari on the basis of the sale-deed, which ultimately would come under review at the time of preparation of quadren nial jamabandi and that the review proceedings could be persued by the applicant then. He was of the opinion that the vendor owned land measuring 100 kanals and 4 marlas out of which alienation of land measur ing 49 kanals and 10 marlas by him in favour of respondent No, 1 was in contravention of M. L.-R. 1.15.

3. Respondent No. 1 filed a suit for declaration than he was owner in possession of: the suit land and that the order passed by respondent No 2 was illegal, void and ineffective on his rights in the suit land. Grant of permanent injunction was also prayed for. The appellants contested the suit and inter alia also questioned the competence of the civil Court to hear the suit on the ground that the matter exclusively fell within the jurisdiction of the Land Commission. The submission made by the appellants found favour with the learned Civil Judge who by his order dated 22-4-1976 returned the plaint to respondent No. 1 and held that the suit was not competent before the civil Court.

4. Dissatisfied with the order passed by the learned trial Court respondent No. 1 filed an appeal which was accepted by the learned Additional District Judge, Mianwali, by his order dated 6-10-1976, which has been impugned through this appeal.

5. Learned counsel for the appellants has argued that respondents' remedy lay in filing an appeal and revision under the Land Reforms Rules of 1972, and that further revision could be filed before the Federal Land Commission under. Para. 29 of M. L. R.

115. In support of his submis sions, the learned counsel cited Naseer Ahmad v. Ismat Jehan (1968 S C M R 667 ) to urge that respondent No. 1 could not approach the civil Court without first exhausting his remedies by way of appeal and revision before the authori ties under the Land Reforms Regulation, 1972, As regards the civil suit, the learned counsel relied on paras. 3 and 4 of the Regulation and submitted that the matter could be agitated and the orders of the Land Commission authorities challenged before the civil Court only if such orders were without jurisdiction. It was vehemently argued that Respondent's order dated 4-4-1975 was passed with lawful authority and was therefore, immune from challenge before the civil Court.

6. The learned counsel for respondent No. 1 argued that the vendor was owner of land less than the subsistence holding and that, therefore, under para. 24 (4) of the Regulation there was no bar on his alienation of the land in favour of respondent No. 1, who was an owner in the village. It was asserted that respondent No. 2 misdirected himself in holding that the vendor was an owner of 100 kanals and 4 marlas. He referred to Muhammad Jamil Asghar v. Improvement Trust (P L D 1965 S C 698) to submit that though the Special Tribunals are given jurisdiction to determine certain facts but they are not the final judges of the facts which are foundation of their jurisdiction and the civil Court will have jurisdiction in the matter. Elaborating his submissions the learned counsel contended that the question falling for determination before the civil Court was the ascertainment of the basis fact as to whether or not the vendor was possessed of land less than the subsistence holding and such determination was not violative of any of the provisions of the Regulation. He argued if as a matter of fact it was found that the vendor's holding was less than subsistence holding then alienation of part of such holding was clearly saved by para. 24 (4) of the Regulation.

7. I have perused the record and given my anxious consideration to the submissions made by the learned counsel for the parties. The sole point involved in this appeal is as to whether or not the subject-matter of the suit is justiciable before the civil Court. It is evident from the plaint that the respondent filed a suit for declaration that he is owner in posses sion of the land measuring 49 kanals 10 marlas. It has been disclosed in the plaint that Appellant No. 1 was owner of the land measuring 49 kanals 10 marlas as per jamabandi for the year 1968-69 appended with the plaint and appellant No. 2 obtained order from respondent No. 2 on the basis of incorrect facts. Although, an averment was made in the plaint that the transaction was-not violative of any of the provisions of the Land Reforms Regulation, 1971, yet the relief sought merely was a declaration that on the strength of the sale-deed dated 1-9-1973 he was owner in possession of the suit land and that the order passed by respondent No. 2 on 4-4-1975 was illegal and void. An injunction as observed above was also prayed for.

8. It is well established that the nature of the suit for the purposes of the jurisdiction of the Court has to be ascertained on the averments made in the plaint and in this respect the plea raised by a defendant in the written statement is not relevant. It is also settled that a Court is competent to entertain a plea raised in defence when the determination of that question is necessary for decision of the suit itself, which is within its exclusive jurisdiction. The examination of the plaint in the light of these principles regulating the jurisdiction of the civil Court, does not depict that the subject matter of the suit is indicative of the ouster of the jurisdiction of the civil Court.

9. In case the land owned by appellant No. 1 in the revenue estate in question was really less than the subsistence holding, there was no bar on the sale of the whole of such land or a part thereof, provided the sale was made to other owners of the same village. Such a transaction is covered by the proviso to sub-pare. 4 of para. 24 of the Land Reforms Regulation, which runs as under :- "Provided that he may alienate his entire holding or, in the case of a holding which is less than a subsistence holding sell any part of his holding to other owners of the same village, deh or mauza." In this view of the matter if the submissions made in the plaint are found to be correct and it is proved that the land owned by appellant No. 1 in the village Musa Khail was equivalent to or short .of subsistence holding, the sale transaction evidenced by sale-deed, would be immune from attack under any of the provisions of the Land Reforms Regulation. Ex facie respondent No. 2 while passing the order dated 4-4-1975 neither held any inquiry in the matter nor did he seriously advert to this crucial point. The civil Court would obviously be a proper forum to decide this issue. As the respondent's ownership is the suit land was denied by the appellants, the respondent was well within his rights to have his title established through a declaration by the civil Court under section 42 o the Specific Relief Act. The plea regarding ouster of jurisdiction was raised in the written statement. In Fahmida Bibi v. Mukhtar Ahmad (1968 S C M R 667) it has been laid down :- "It is one thing to say that a Court has no jurisdiction to entertain a suit in respect of a particular matter and quite another that he cannot in respect of that matter raise a plea in defence in a suit which is within the competence of the Court. It is well settled in law that though a Court may not have jurisdiction to entertain a suit in respect of a certain matter, yet it is competent for the Court to entertain a plea based on that in defence, when the determination of that question is necessary for the decision of the suit itself which is within its exclusive jurisdiction."

10. To plead ouster of the civil Courts' jurisdiction, the learned counsel for the appellants relied on Nasir 4hmad Khan v. Mst. Ismat Jehan Begum. In this case the appellant was owner of the land measuring 383 kanals 14 marlas ; out of which he alienated land measuring 280 kanals in favour of the respondent in lieu of dower. This transaction was hit by para. 25 of M. L. R. No. 64 of 1959, inasmuch as it reduced the appellant's holding to less than subsistence holding. In the first instance the mutation was sanctioned in favour of the respondent, but eventually the Revenue authorities set it aside on the ground that it was repugnant to para.

25. The respondent filed a suit that she was owner of the disputed land under the dower deed and that the order regarding cancellation of the mutation was ineffective on her rights. The suit was decreed by the trial Court on the ground that the appellant could not be permitted to plead that the dower deed was a fictitious document. The High Court affirmed the findings of the learned lower Court and further came to the conclusion that the transaction was not contrary to the provisions of M. L. R.

64. In appeal the Supreme Court held that :- "Paragraph 27 bars the jurisdiction of all Courts including the High Court and the Supreme Court or of any other authority, other than an authority appointed under the Regulation, in respect of any matter which the Commission or an officer acting under the authority of the commission, is empowered to determine. It would thus appear that the question whether para. 25 invalidates the transaction or not is one falling within the exclusive functions of the Commission or of the Chief Land Commissioner who are charged with the duty of implementing the provisions of the Regulation." In this respect there were certain admitted facts, namely, that the appellant was owner of 383 kanals, and alienation of the land under dower deed had reduced his holding less than subsistence holding which was violative of provisions of paragraph 25 of the Regulation. The observations made by their Lordships of the Supreme Court in this case are qualified by the facts found therein.

11. No such undisputed facts obtained in the case in hand. The jurisdiction of respondent No. 3 was dependent on whether or not the vendor's holding was equal to or less than the subsistence holding. As a tribunal of limited jurisdiction, respondent No. 3 prima facie assumed jurisdiction without properly ascertaining the jurisdictional facts. A tribunal of limited jurisdiction cannot confer jurisdiction on itself by a wrong decision that a certain state of facts exists, upon which the limits of its jurisdiction depends even though its decision is declared final by the Statute, on the subject falling within the exclusive jurisdiction. In Muhammad Jamll Asghar v. The Improvement Trust, Rawalpindi (P L D 1965 S C 698) the Supreme Court observed : - " . . . . A purely Administrative Officer who is empowered to pass an order if certain circumstances exist has no jurisdiction to determine those circumstances and the objective existence of those circumstances is an essential condition of the validity of his order. In respect of every order passed by him the Court can make an enquiry and if it finds that all the circumstances needed for passing the order were not present it will declare the order to be void." It is to be noticed if an authority clothed with exclusive powers in a particular matter does not act within the four corners of the statute, the order passed by such an authority will not be exempt from attack before the civil Court. Reference in this respect may be made to Muhammad Yar and 2 others v. Chief Land Commissioner, West Pakistan and 2 others (P L D 1971 Lah. 879) wherein the orders passed by the Chief Land Commissioner not being in conformity with para. 19 of the Land Reforms Regulation, 1959, were struck down by Division Bench of this Court.

12. The view taken by the learned District Judge is thus in conformity with law. The learned trial Court was clearly in error in returning the plaint to the respondent for presentation before the proper forum on the ground that the civil Court lacked jurisdiction.

13. For the foregoing reasons, the impugned order is affirmed and the appeal is dismissed leaving the parties to bear their own costs, as a difficult question of law was involved in the appeal. Appeal dismissed.