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2006 C L C 1028

[Lahore]

Before Muhammad Muzammal Khan, J

KHIZAR HAYAT and another----Petitioners

Versus

PAKISTAN RAILWAY through Chairman, Pakistan Railway, Lahore and 2


others----Respondents

Civil Revisions Nos.2047, 2048 and 2049 of 2004, heard on 24th March, 2006.

West Pakistan Land Revenue Act (XVII of 1967)---

----S. 3---Specific Relief Act (I of 1877), S.42---Civil Procedure Code (V of 1908),


O.XXVI, R.9---Demarcation of land occupied and used as a building site---Jurisdiction
of Revenue Authorities---Scope---Section 3, West Pakistan Land Revenue Act, 1967
provided that except for certain restricted physical purposes nothing in the said Act
would apply to land which was kept/used as a building site---Undisputedly suit
properties were no more agricultural land and were building sites, located within the
municipal limits hence demarcation reports of such properties by the officials working
in revenue hierarchy under West Pakistan Land Revenue Act, 1967, were prepared
unauthorizedly---Said reports produced by parties did not resolve the controversy as to
whether the suit properties were owned by plaintiffs according to their claim or had
been encroached upon by plaintiffs as per assertions of defendants---Reports of Local
Commissioner relied upon by Trial Court prepared about nine years earlier to the
institution of suit without associating the adversaries on the day of demarcation, had no
legal sanctity and could not be based for settlement of dispute inter parties in just
manner---Court should have deputed Local Commissioner for demarcating land in
dispute but same was neither adverted to nor was resorted by any of the two Courts
below---Impugned judgments and decrees passed by Courts below having tainted with
material illegalities and irregularities were set aside and case was remanded with
direction to decide the suits afresh after having fresh demarcation through some senior
revenue experts in accordance with law.

Ghulam Rasul v. Ikram Ullah and another PLD 1965 (W.P.) Lah. 429; Tahir Hanif v.
Member, Board of Revenue and others 1982 CLC 1732; Syed Aslam Shah and 3 others
v. Mst. Sakina and another 1988 MLD 1596 and Pervez Ahmed Khan Burki and 3
others v. Assistant Commissioner, Lahore Cantt. and 2 others PLD 1999 Lah. 31 ref.

Sh. Naveed Shaharyar for Petitioners.

Irfan Masood Sheikh for Respondents Nos.1 and 2.

Muhammad Ilyas Khan and Abdul Rauf Patwaris, Khushab for Respondent No.3.

Date of hearing: 24th March, 2006.

JUDGMENT

MUHAMMAD MUZAMMAL KHAN, J.--- This judgment proposes to decide three


civil revisions, one in hand and the other Civil Revision No.2048 of 2004 and Civil
Revision No.2049 of 2004, as all these raise similar questions of law/facts, require
determination of alike dispute and are directed against same set of respondents. All these
petitions challenged appellate judgments/decrees dated 7-7-2004 passed by the learned
District Judge, Khushab, whereby three appeals of the respondents were accepted and
three suits filed by the revision petitioners were dismissed, reversing judgments/decrees
of the trial Court dated 8-11-2003.

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2. Precisely, relevant facts for disposal of these revision petitions are that all the revision
petitioners filed three distinct suits for declaration with permanent injunction, averring
that they were owners in possession of properties, as claimed in their respective plaints
(i.e. Shops Nos.4239/B/1/1 and 4239/B/1/2 situated in Khasra No.4981/3211 in Civil
Revision No.2047 of 2004, House No.4239-B/1/A in Civil Revision No.2048 of 2004 and
House No.4235A/RN in Civil Revision No.2049 of 2004, all located within the municipal
limits of Khushab) and the respondents had no right, title or interest therein, thus, they
may be declared owners. Petitioners also prayed, by way of consequential relief that
respondents may be restrained through decrees for permanent injunction from interfering
in their lawful possession over the shops/houses.

3. Respondents being defendants in all the three suits, contested the same by filing their
written statements, wherein certain preliminary objections regarding lack of jurisdiction
of Civil Court and incorrect description of suit properties were raised besides challenging
locus standi of the petitioners to file their suits. On merits, respondents pleaded that
petitioners have encroached upon the land owned by Railway Department and they have
no right to remain in possession thereof. Controversial pleadings of the parties
necessitated framing of issues and recording of evidence. Learned Civil Judge, seized of
the matters, after doing the needful, decreed all the three suits vide his judgments/decrees
dated 8-11-2003.

4. Respondents being aggrieved of the decision by the trial Court filed three different
appeals before the learned District Judge, Khushab, where they succeeded as the same
were accepted and by reversing judgments/decrees of the trial Court all the three suits of
the petitioners were dismissed with no order as to costs, vide appellate judgments/
decrees dated 7-7-2004. Petitioners thereafter filed above noted three revision petitions
and respondents in response to notice by this Court appeared and were represented
through their counsel.

5. I have heard the learned counsel for the parties and have examined the record,
appended with all the three revision petitions. Petitioners had produced voluminous
documentary evidence to prove their ownership in Khasra No.4976/4981/3211 of Khewat
No.1029 vide Jamabandi for the year 1989-90 and report of Naib Tehsildar, Khushab
dated 12-6-1983 (Exh.P.4) showing demarcation of suit property on their application.
Similarly, respondents had also produced a demarcation report dated 20-3-1995
(Exh.D.6) prepared by Tehsildar, Khushab on application of the respondents. Minute
examination of both these demarcation reports revealed that suit property being located
within the municipal limits of Khushab was demarcated by two Revenue Officers under
the provisions of West Pakistan Land Revenue Act, 1967, without putting to rest the
controversy between the parties, whereunder their respective claimed Khasra numbers
were undeniably adjacent to each other because none of these reports gave any clear
verdict of overlapping of properties allegedly raised by the petitioners through
encroachment as per claim of the respondents. Both the Khasra numbers, the one 3211
claimed to be owned by the petitioners and the other 3192 alleged to have been
encroached by them, as per assertions of the respondents, are adjacent to each other and
are abutting a metalled road as per Shajra Akse produced by the Revenue Patwari of the
Circle. It is not disputed between the parties that suit properties are no more agricultural
land and are building sites, located within the municipal limits of Khushab. Such
properties could not have been demarcated by the officials working in revenue hierarchy
under West Pakistan Land Revenue Act, 1967, as its section 3, excluded land kept as site
of a town or village from its operation. Language of the provision of law, under
discussion, accepts no ambiguity that demarcation of land kept/used as a building site
could not have been done under the provisions of Act of 1967, which was A subject to
their process only for certain restricted physical purposes like recovery of land revenue
etc. In forming this view, I have to my credit a chain of judgments including the cases of
Ghulam Rasul v. Ikram Ullah and another PLD 1965 (W,P.) Lah. 429; Tahir Hanif v.
Member, Board of Revenue and others 1982 CLC 1732; Syed Aslam Shah and 3 others v.
Mst. Sakina and another 1988 MLD 1596 and Pervez Ahmed Khan Burki and 3 others v.
Assistant Commissioner, Lahore Cantt. and 2 others PLD 1999 Lah. 31.

6. I feel no hesitation to hold that both the demarcation reports produced by the parties
i.e. Exh.P.4 and Exh.D.6, besides the fact that those do not resolve controversy between
the parties, were unauthorizedly prepared by the Revenue Officers. Report of the Local
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Commissioner (Exh.P.4) was prepared as far back as on 12-6-1984 i.e. about nine years
earlier to the institution of the suits, which were filed in the year 1993 and report Exh.D.6
was got prepared by the respondents on 20-3-1995, pending suit, and in none of those,
their adversaries were associated. Report Exh.P.4 did recite that notice to Director, Land
Management Railway Department was issued but it is silent as to whether service of any
of the concerned employee was effected because the learned Local Commissioner did not
mark presence of any of the respondents on the day of demarcation. Be that as it may, the
report B prepared nine years earlier to the institution of suit could not be based for
settlement of dispute inter parties in a just/fair manner.

7. From the above resume of facts since both the reports of the Local Commissioners
above discussed, had no legal sanctity, being prepared unauthorizedly, for just decision of
the case and to resolve controversy between the parties for all times to come, by resort to
provisions of Order XXVI, rules 9 and 10, C.P.C., which equipped the Courts below to
have site inspection/demarcation under their mandate from some expert revenue official,
had to be made but both the Courts below being oblivious of their jurisdiction,
erroneously attempted to decide the dispute relying on illegal reports of the Local
Commissioners. Scan of appellate judgment revealed that no finding with clarity could be
given by the learned District Judge with regard to Shops bearing Nos.4239-B/1/1-2 and
houses were really located in Khasra No.4988/3211, as there was no such evidence on the
file. Learned counsel for the parties especially for the respondents could not satisfy my
judicial conscience that dispute can really be resolved by excluding both the above
referred reports of the Local Commissioners and according to my humble view the only
viable way out was to have report under rule 9 of Order XXVI, of C.P.C., which was
neither adverted nor was resorted C by any of the two Courts below. Since I intend to
remand all the three cases for fresh decision after demarcation under the orders of trial
Court, I avoided to discuss merits/demerits of the cases of the parties lest the same may
not prejudice minds of the Courts below where the cases will again go for determination.

8. For the reasons noted above, the judgments/decrees dated 8-11-2003 and 7-7-2004
passed by the learned Civil Judge and learned District Judge, Khushab, in all the three
suits of the revision petitioners are set aside, being tainted with material illegalities and
irregularities and all the three cases are remanded back to the trial Court with a direction
to decide all the three suits afresh after having fresh demarcation of both the Khasra
numbers of the parties through some senior revenue expert, at the joint expense of the
parties to be shared by them equally, in accordance with law, on the basis of evidence
available on the record. Parties are directed to appear before the learned District Judge,
Khushab on 24-4-2006 for onward entrustment and the learned Civil Judge will decide
the matters, in terms above narrated, within a period of six months, from the date of
taking cognizance thereof. There will be no order as to costs.

F.B./K-20/L Petitions disposed of

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2007 Y L R 2206

[Lahore]

Before Muhammad Muzammal Khan, J

ABDUL SATTAR---Petitioner

Versus

ABDUL GHAFOOR through Legal Heirs---Respondents

Civil Revisions Nos.847 and 849 of 2006, heard on 10th April, 2007.

Civil Procedure Code (V of 1908)---

----O. XXVI, R.10(3)---High Court (Lahore) Rules and Orders, Vol.1, Part M(i)---
Report of Local Commissioner prepared without actual measurements at the spot---
Validity---Trial Court appointed Naib Tehsildar as Local Commissioner for
demarcation of land of Khasra in question---Report of Local Commissioner on record
revealed that though the Local Commissioner had reported to have undertaken some
measurements at the spot but how and in what manner said exercise was taken, was
not reflected in the report---Procedure/method to be followed by Revenue Officers
had been prescribed by Authorities had also been incorporated in High Court (Lahore)
Rules and Orders---Revenue Officer was, thus, legally obliged to first trace some
permanent point like road, canal; well or some other permanent structure wherefrom
he was supposed to undertake the measurements by erecting each of Khasra numbers
intervening the place which was to be demarcated by him---Local Commissioner was
also under obligation to counter check by bringing his measurements from other side
of the Khasra number to be demarcated but no such exercise was undertaken or
mentioned in the report---Local commissioner even did not consult revenue record
and a site sketch of khasra in question was prepared by Patwari concerned without
scale---Measurements done at the site and acts performed by local commissioner
should have been mentioned in the report but report was absolutely silent about
reasons for holding that suit shop was located in a certain part of Khasra which was to
be demarcated---Held, such report was not worth reliance as it did not resolve the
controversy inter parties---Concurrent decree having been based on said report was
not sustainable, and was set aside by High Court.

Muhammad Bakhsh v. Nizam Din PLD 1978 Lah. 31 ref.

M.D. Chaudhry for Petitioner.

Mian Mahboob Alam Bhutta for Respondents.

Date of hearing: 10th April, 2007.

JUDGMENT

MUHAMMAD MUZAMMAL KHAN, J.---This judgment proposes to decide two


civil revisions (Civil Revisions Nos.847 of 2006 and 849 of 2006) as those raise
similar questions of law/facts; are directed against consolidated judgments, require
similar determination and are between the same parties. Both these petitions assailed
judgments/decrees dated 29-9-2001 and 22-3-2006 passed by the learned Civil
Judge and learned Additional District Judge, Chunian, District Kasur, whereby suit
for declaration filed by Abdul Sattar petitioner was concurrently dismissed, whereas
suit for possession by Abdul Ghafoor etc. was concurrently decreed, respectively.

2. Precisely, relevant facts are that Abdul Sattar petitioner filed a suit for declaration
with permanent injunction, as consequential relief to the effect that property built on
plot measuring 3 Sarsahi situated in Kanganpur, Tehsil Chunian was purchased by

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him from Khasiyat Ali allottee through Mutation No.2832 dated 12-1-1971 for a
consideration of Rs.1500. He pleaded that Khasiyat Ali became owner of the said land
by virtue of order dated 8-7-1967 by Tehsildar/Additional Settlement Commissioner,
Chunian, leading to sanctioning of Mutation No.2831 dated 12-1-1971. Petitioner
further asserted that at the time of sale in his favour, he was handed over possession
of the land sold but Abdul Ghafoor respondent attempted to interfere in his
possession, on the basis of his purchase from Mubarak Ali Shah to whom, some shop
was allotted by Advocate Supreme Court, Chunian, on 2-5-1968. According to him
Mubarak Ali Shah had no right, title or interest in the property in dispute nor had he
any locus standi to transfer it, in favour of Abdul Ghafoor respondent. Abdul Ghafoor
on the other hand, filed a suit for possession against Abdul Sattar with the averments
that he is owner of land measuring 3 Sarsahi, out of Khasra No.3975/1 of Khatoni
No.1911 as per Jamabandi for the year 1994-95 of village Kanganpur, Tehsil Chunian,
on the basis of purchase from Mubarak Ali Shah but Abdul Sattar petitioner forcibly
occupied the same grading it as the property allotted to Khasiyat Ali. Initially
Khasiyat Ali and Mubarak Ali Shah were impleaded to the suits but were deleted by
the trial Court on 24-10-1995. Record revealed that subsequently on death of the
deleted defendants, their successors were impleaded.

3. Both the suits filed by the parties were contested by filing the written statements
and after consolidation of those, consolidated issues were framed by the trial Court,
parties led their respective evidence and on the conclusion of the trial, suit filed by
Abdul Sattar was dismissed, whereas the other filed by Abdul Ghafoor was decreed
vide consolidated judgment/decrees dated 29-9-2001.

4. Abdul Sattar petitioner being aggrieved of decision of the trial Court, filed two
distinct appeals before the learned Additional District Judge but remained
unsuccessful, as the same were dismissed through consolidated judgment/decrees
dated 22-3-2006. He, thereafter, filed these petitions for adjudgment of concurrent
judgments/decrees of the two Courts below. Respondents in response to notice by this
Court appeared and were represented through their counsel.

5. I have heard the learned counsel for the parties and have examined the record,
appended herewith. Both Abdul Sattar and Abdul Ghafoor set up their respective title
to the one and the same place measuring 3 Sarsahi which is in possession of the
petitioner. Petitioner claimed that he is in possession of the shop allotted to him by
ASC(L) vide order dated 8-2-1967. His possession is not denied by Abdul Ghafoor
respondent as he filed a suit for possession against him. Allotment order in favour of
vendor of Abdul Sattar is Exh.D.2, which shows that shop owned by non-Muslim
evacuee Kartar Singh situated in village Kanganpur, Tehsil Chunian was allotted to
Khasiyat Ali son of Hakim Ali on 8-7-1967. On the basis of this allotment Mutation
No.2831 was sanctioned on 12-1-1971 out of Khasra No.3975/4. Another shop of
non-Muslim evacuees was allotted to Mubarak Ali Shah by ASC, Chunian on 2-5-
1968 vide allotment order Exh.D.1 and a corresponding Mutation No.2361 was
sanctioned in his name on 19-11-1969 out of Khasra No.3975/1. These documents
besides other documentary proof on the file, revealed that both the properties allotted
to parties were absolutely distinct to each other and question which hinges for
determination is as to whether shop in possession of Abdul Sattar petitioner bears
Khasra No.3975/1 or 3975/4. The controversy could only be resolved through
demarcation and fixing of both parts of Khasra No.3975. For this purpose, trial Court
had appointed Naib Tehsildar Chunian as local commissioner, who submitted his
report dated 24-9-2001 and according to this report shop in question is located in
Khasra No.3975/1. The local commissioner also prepared a site sketch of Khasra
No.3975 but without scale. Report of the local commissioner is available on record as
Mark-A, whereas the site sketch prepared by him is Mark-B. Both the Courts below
have discussed and relied on the report of the local commissioner but its examination
revealed that though the local commissioner reported to have undertaken some
measurements at the spot but how and in what manner the same were done, is not
reflected in the report. In demarcation (Hadbrari) cases, Financial Commissioner
Punjab and prescribed procedure/method to be followed by the revenue officers.
Those instructions were adopted by this Court, as contained in High Court Rules and
Orders Vol-1, Part M(i). The Revenue Officer was legally obliged to first trace some
permanent point like road, canal, well or some other permanent structure wherefrom
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he was supposed to undertake the measurements by erecting each of Khasra numbers,
intervening the place which is to be demarcated by him. The local commissioner was
also under obligation to counter check by bringing his measurements from other side
of the Khasra number to be located/demarcated but no such exercise was undertaken
or mentioned in the report Mark-A. The local commissioner was examined as D.W.3
and he admitted in his cross-examination that he did not consult the Revenue Record.
He could not deny that Mark-B was prepared by the Patwari and at the same time, he
did not utter a word about his manner of measurements done at the site. This Court
had earlier held in the case of Muhammad Bakhsh v. Nizam Din (PLD 1978 Lahore
31) that the acts done by the local commissioner should be mentioned in the report.
Mark-A is absolutely silent about the reasons for holding that suit shop is located in
Khasra No.3975/4, in absence of which the report was not worth reliance as it did not
resolve the controversy inter parties.

6. Since the respective properties allotted to the parties were not correctly demarcated
and there is no other evidence on the file to decide the lis for all times to come, I am
left with no other option except to set aside the judgments/decrees of the two Courts
below as those were based on a sketchy/unreasoned report of the local commissioner,
prepared without actual measurement at the spot. Report dated 24-9-2001 prepared by
Farooq Ahmed Qureshi, Naib Tehsildar, Chunian, is accordingly declared as void and
in light of the provisions of Order XXVI, rule 10(3), C.P.C., fresh spot
inspection/demarcation is inevitable, hence the same is required to be done by the trial
Court in accordance with law.

7. For the reasons noted above, both the revision petitions are accepted and impugned
judgments/decrees dated 29-9-2001 and 22-3-2006 are set aside and case is .remanded
to the trial Court for fresh appointment of some revenue expert as local commissioner
for demarcation of both the properties of the 'parties and then to decide their cases
afresh. Parties are directed to appear before the learned District Judge, Kasur on 27-4-
2007 for onward entrustment of cases to any learned Civil Judge for decision, as
noted above. There will be no order as to costs as far as these revision petitions are
concerned.

F.B./A-111/L Case remanded.

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2005 C L C 1884

[Lahore]

Before Muhammad Jehangir Arshad, J

Dr. GHULAM DASTIGIR and others---Applicants

Versus

ABDUL GHANI and others---Respondents

Civil Miscellaneous Nos.75 of 1994 and 218 of 1993 in Writ Petition No. 566/R of 1970,
decided on 11th March, 2005.

Civil Procedure Code (V of 1908)---

----S. 12(2)---West Pakistan Land Revenue Act (XVII of 1967), 5.7---West Pakistan Land
Revenue Rules, 1968, R.67-A---Challenging order of demarcation of property in
application under S.12(2), C.P.C.---High Court vide impugned order directed Deputy
Commissioner/District Collector concerned to demarcate property in question---
Applicants who claimed to be transferees from joint property in question challenged
order of demarcation alleging that it had been passed without impleading them as party,
without any notice to them and without affording opportunity of hearing to them---
Impugned order was passed in Constitutional petition, despite question of demarcation
was not subject-matter of said Constitutional petition---Applicants, who were necessary
party, should have been impleaded and High Court could not order/direct demarcation to
the extent of share of Constitutional petitioners only in joint property in absence of other
sharers and bona fide purchases therefrom without notice to them as well as without
affording them opportunity of hearing---Even otherwise demarcation conducted by
Revenue Authorities in compliance with said order of High Court, did not appear to be a
fair exercise, but same seemed to have been done just to avoid consequences of non-
compliances of order of the Court---Demarcation proceedings were not conducted
independently or under provisions of Land Revenue Act, 1967---Order of demarcation
passed by High Court in Constitutional petition was without jurisdiction for the reasons;
that no prayer was made in Constitutional petition for demarcation of property in dispute
and High Court, while sitting in Constitutional jurisdiction, could not sit over jurisdiction
of a competent forum i.e. either under Land Revenue Act, 1967 or Civil Court; that
property in dispute being joint property, each co-sharer was necessary party and without
joining them and without affording them reasonable opportunity of hearing, same could
not be demarcated just at the desire of some of the co-sharers; that demarcation
proceedings were not conducted strictly in accordance with law; and that factum of
pendency of partition suit before Civil Court with regard to joint property was not
brought to the notice of High Court by parties in Constitutional petition and obtained
order for demarcation of their shares which amounted to playing fraud on High Court---
Applications under S.12(2), C.P.C. were accepted and impugned order was declared as
without jurisdiction based on fraud and demarcation proceedings conducted by Revenue
Authorities on basis of said order were declared as without lawful authority and of no
legal effect.

Province of Punjab through Collector Sialkot v. Muhammad Irshad Bajwa 1999 SCMR
1555; Secretary, Ministry of Religious Affairs and Minorities and 2 others v. Syed Abdul
Majid 1993 SCMR 1171; Allah Wasaya and 5 others v. Irshad Ahmad and 4 others 1992
SCMR 2184; Riyaz Qasim v. Messrs A.M.A. (Pvt.) Ltd. 1999 CLC 445 and Pakistan and
others v. Public-at-large and others PLD 1987 SC 304 ref.

Ch. Naseer Ahmad and Ch. Muhammad Shafi Meo for Applicants.

M.M. Bhatti for Respondents.

Date of hearing: 8th March, 2005.

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JUDGMENT

Though the above mentioned civil miscellaneous applications have been separately filed
under section 12(2), C.P.C., but both these petitions call in question the same order, dated
27-6-1990 passed by this Court in Writ Petition No.566/R of 1970 titled "Abdul Ghani
and others v. Khan Abdul Hameed Khan Niazi and others", hence are being disposed of
by means of this single order.

2. It would be relevant to point out here that earlier under the orders of the Honourable
Chief Justice these petitions were placed at the roster of my learned brother Syed Sakhi
Hussain Bokhari, J. for disposal. But during the availability of my said learned brother at
this Bench, these petitions could not be finally disposed of, therefore, on subsequent
noting by the office, the Honourable Chief Justice has been pleased to nominate me to
decide the above mentioned two petitions.

3. The facts briefly stated are that Abdul Ghani, etc. filed the titled Writ Petition
No.556/R of 1970, seeking following declarations:--

"(i) That the order of respondent No.1 dated 11-2-1970 is without lawful authority and of
no legal effect.

(ii) That the allotment of the joint Khata made in favour of respondent No.3 is without
lawful authority and of no legal effect.

(iii) That the payment of compensation by respondent No.2 to respondent No.3 is without
lawful authority and of no legal effect.

(iv) That the transfer of Bungalow No.1-A/7 Rahim Yar Khan with an area of 13878 sq.
lt. as per P.T.D. dated 5-6-1962 issued in v favour of Ch. Abdul Hameed, deceased,
predecessor-in-interest of the petitioners is not affected by illegal order of respondents
Nos. 1 and 2.

(v) 'That respondents Nos.2 and 4 to 10 may be directed to restore the total area
measuring 13878 sq.ft. to the petitioner and pay Rs.4,70,000 as cost of the material and
he may also be proceeded for contempt of Court because he had violated order dated 26-
5-1970.

The writ petition came up for hearing before my learned brother Mian Allah Nawaz, J.
(as his Lordship then was), on 27-6-1990 and the learned Judge in Chamber, alter hearing
the parties decided the said writ petition with the following order:--

"With the consent of the parties this petition is accepted, the impugned order is set
aside. The requested relief is allowed in favour of the petitioners. The Deputy
Commissioner/District Collector, Rahim Yar Khan is directed to demarcate the
property of the petitioners in accordance with the property fully described in
permanent transfer deed and the supplementary order noted above within two
months of the receipt of the order. The petitioners so shall be able to get the
property identified in demarcation proceedings. This order shall not prejudice the
right of petitioners to institute suit for damages. There shall be no order as costs."

As the Revenue Authorities failed to implement the above mentioned order of this Court,
hence Mst. Akhtar Begum widow of Abdul Hameed (deceased writ petitioner), Faiz
Rasool son of Abdul Ghani (not party to the writ petition) and Hamid Khan son of
Ghulam Muhammad (deceased writ petitioner) filed another Writ Petition No.1437 of
1993 with the prayer that Assistant Commissioner, Rahim Yar Khan and Deputy
Commissioner/Collector, Rahim Yar Khan be directed to complete the demarcation of the
property in terms of this Court order dated 27-6-1990 passed in Writ Petition No.566/R
1970. When summoned in Writ Petition No.1437 of 1993, Rizwan Ahmad, Assistant
Commissioner entered appearance and submitted that order of this Court dated 27-6-1990
had been complied with demarcation proceedings had been completed and a report had
been prepared by the concerned Assistant Collector-I, wherein the property transferred to
the petitioners had been clearly identified. He further submitted that number of persons

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had filed appeals against the demarcation proceedings/report made by the Assistant
Commissioner-I in the Court of Collector, Rahim Yar Khan which were pending and
some of the parties had gone to seek redressal of their grievances in Civil Court.
resultantly, the Writ Petition No.1437 of 1993 was disposed of having been rendered
unnecessary on account of compliance made by the concerned Authorities, vide order,
dated 13-7-1993 passed by my learned brother Mian Allah Nawaz, J. (as his Lordship
then was). Before proceedings further it would not be out of place to mention here that in
Writ Petition No.1437 of 1993, Qazi Abdul Rehman (applicant in C.M. No.218 of 1993)
filed an application claiming that he being a transferee in possession of certain area of
land situated in the same Khata, hence, be impleaded as party. But as the writ petition
was being disposed of in the light of the statement of the Assistant Commissioner,
therefore, said application was refused and Qazi Abdul Rehman was not allowed to be
impleaded as party to the said writ petition, rather he was directed to avail the remedy
whatever available to him under the law before the forum of competent jurisdiction,
against the demarcation proceedings and the competent Authority will determine his
entitlement strictly in accordance with law. In the light of the above mentioned
observations of my learned brother Mian Allah Nawaz J. Qazi Abdul Rehman filed
appeal in the Court of Assistant Commissioner/Collector Sub-Division, Rahim Yar Khan,
against the order of Tehsildar/Assistant Collector-I dated 4-1-1993, regarding
demarcation of Bungalow No.1-A/7, Tehsil Rahim Yar Khan (hereinafter to be referred as
property in dispute). But the same was disposed of by the Collector vide order, dated 21-
7-1993 due to want of jurisdiction, as according to the said Revenue Officer the disputed
demarcation was carried out under the direction of this Court. In the above mentioned
background, Qazi Abdul Rehman has approached this Court by way of filing application
under section 12(2), C.P.C. (C.M. No.218 of 1993), with the prayer that the said order, so
for it relates to the proceedings and demarcation of property in dispute, be recalled/set
aside having been passed without impleading him as party, without any notice or
affording opportunity of hearing, as he is transferee of 3 A Kanals, 4 Marlas out of the
disputed property vide order, dated 12-10-1970 passed by the Additional Settlement
Commissioner, Multan and Bahawalpur Division (Annexure "B" with this C.M.) and also
through Permanent Transfer Deed, dated 12-3-1971 (Annexure "C" with C.M.) issued in
his favour, hence, he was condemned unheard.

4. Similarly, the facts giving rise to the filing of C.M. No.75 of 1994 are that out of the
disputed property an area measuring 4 Kanals, B 11-1/2 Marlas was allegedly allotted to
one Munshi Khan by the Settlement Authorities. This allotment in his favour was
challenged by one Malik Nisar Ahmad through Writ Petition No.39/R of 1977 but the
same was dismissed for non-prosecution on 11-4-1994, meaning thereby that allotment in
favour of Munshi Khan deceased, attained finality. The heirs of Munshi Khan deceased
sold an area measuring 2 Kanals, 9 Marlas out of property in dispute through registered
sale-deeds dated 16-4-1994, 18-4-1994 and 11-4-1994 to Dr. Ghulam Dastigir, etc.
(applicants) and Dr. Ghulam Dastigir, etc. after getting their site plans sanctioned from
Municipal Committee raised construction over there and are now in possession of the
same. They have filed C.M. No.75 of 1994 on the ground that they being bona fide
purchasers out of the disputed property and in possession of the same were necessary
party and the order of demarcation of joint Khata was passed by this Court on 27-6-1990
in Writ Petition No.566/R of 1970 which was violative of principles of natural justice
having been passed in their absence.

5. Chaudhry Naseer Ahmad, Advocate learned counsel representing Qazi Abdul Rehman
(applicant in C.M. No.218 of 1993) has argued that as the portion of the property in
dispute stood validly transferred to Qazi Abdul Rehman through order, dated 12-10-1970
(Annexure "B") and Permanent Transfer Order dated 12-3-1971 (Annexure "C"), hence
Qazi Abdul Rehman was a necessary party in the writ petition but the order of
demarcation of the property has been passed by this Court in his absence, without notice
and affording him opportunity. It is further argued that in the main writ petition neither
there was any prayer for demarcating the property, in dispute nor this Court had
jurisdiction to direct demarcation of the disputed property or to order the separation of
shares of writ petitioners, in the absence of all the co-sharers and also without notice or
hearing them, hence the order passed by this Court on 27-6-1990 to the extent, it directed
the conduct of demarcation and separation of shares of writ petitioners was without
jurisdiction having been passed in-violation of principles of natural justice and also
condemning the applicant unheard. The learned counsel further contends that much
9 of 58
earlier to the passing of the impugned order, dated 27-6-1990, Asad Ullah one of the co-
sharers of the property in dispute had already filed a suit for partition against all the co-
sharers including the writ petitioners and Qazi Abdul Rehman applicant. Copy of plaint in
the said suit is placed on record. In the plaint the writ petitioners have been arrayed as
defendants but the writ petitioners without bringing the facts of pendency of the suit to
the notice of this Court, obtained the order on 27-6-1990 in their favour which amounts to
practising fraud on the Court. Learned counsel has also pointed out that pursuant to this
Court order dated 27-6-1990, the demarcation was conducted by the Tehsildar and in
consequence thereof site Dan was prepared by him showing the possession of different
persons on the property in dispute including writ petitioners as well as Qazi Abdul
Rehman, which also indicates that applicant Qazi Abdul Rehman was in possession of a
part of the property in dispute hence, no partition could be ordered without his
impleadment in the writ petition and after giving him notice and affording him
opportunity of being heard. The site plan prepared by the Tehsildar while conducting
demarcation proceedings pursuant to this Court order dated 27-6-1990, is Annexure "O"
to this C.M. It is argued that nature of the property in dispute is such that same could not
be partitioned /demarcated by the Revenue Authorities and the same could only be done
by the Civil Court in the suit for partition already filed. The learned counsel concluded
his arguments with the prayer that as the order-of this Court dated 27-6-1990 directing
partition/demarcation of the disputed property was passed without hearing the applicant
Qazi Abtlul Rehman and also without any law conferring power on this Court to order
demarcation, hence, the said order is liable to be set aside, in exercise of powers under
section 12(2), C..P.C. To support his contention that this Court can exercise jurisdiction
under section 12(2), C.P.C., reliance has been placed on the case Province of Punjab
through Collector Sialkot v. Muhammad Irshad Bajwa 1999 SCMR 1555 and Secretary,
Ministry of Religious Affairs and Minorities and 2 others v. Syed Abdul Majid 1993
SCMR 1171.

6. Chaudhry Muhammad Shafi Meo, Advocate appearing on behalf of applicant in C.M.


No.75 of 1994 besides adopting the arguments of Chaudhry Naseer Ahmad, Advocate,
has also argued that as the applicants were in possession of part of the disputed property
in their own rights and had construed residential houses on the area purchased by them,
hence the order of this Court could not have been passed in their absence and without
notice or affording them opportunity of hearing.

7. On the other hand, Mr. M.M. Bhatti, Advocate learned counsel appearing for the
respondents /writ petitioners has not only vehemently opposed both these C.Ms. but has
also argued that the alleged transfer of disputed property in favour of Qazi Abdul
Rehman as well as Munshi Khan predecessor-in-interest of Dr. Ghulam Dastigir, etc.
applicants, was bogus and that demarcation order in favour of the writ petitioners was
rightly passed by this Court in order to put the litigation between the writ petitioners
and the respondents in the writ petition, to an end. He has also argued that applicants
have failed to make out a case for invoking the provisions of section 12(2), C.P.C. by
placing reliance on the case of Allah Wasaya and 5 others v. Irshad Ahmad and 4
others 1992 SCMR 2184 and Riynz Qasim v. Messrs A.M.A. (Pvt.) Ltd. 1999 CLC
445.

8. I have considered the arguments of learned counsel for the respective parties,
perused the record and also gone through the judgments cited from both the sides.

9. To start with, it is to be seen whether there was any prayer in the main Writ Petition
No.556/R of 1970 for undertaking demarcation of the property. I have gone through
the certified copy of said writ petition (Annexure "A"), wherein no such prayer has
been made. So, there is substance in the contention of learned counsel for the
applicants that the order for demarcation/partition was passed by this Court, without
the same being in question or subject-matter of the said writ petition. It is C also not
denied by the learned counsel for the respondents/writ petitioners that
transfer/allotment in favour of the writ petitioners was out of a joint Khata/property
and this fact is admitted by the writ petitioners in para. 10 of the writ petition in the
following words:--

"It may be submitted that this allotment was absolutely illegal and
unwarranted for the reasons firstly that without partitioning the Khata no
10 of 58
allotment could have been made and second the area allotted to the allottees
included some of the land which was under the bungalow confirmed 'and
transferred to Ch. Abdul Hameed (writ petitioner) and without issuing a notice
to the petitioner the allotment could not have been made."

The fact that Qazi Abdul. Rehman was transferred area of 3 Kanals, 4 Marlas from the
property in dispute vide order, dated 12-10-1970 and Permanent Transfer Deed dated
12-3-1971 is not denied nor the same was challenged in the said writ petition for the
obvious reason that the writ petitioners were themselves claiming area measuring 2
Kanals, 11 Marlas out of the total area of the property in dispute measuring 14
Kanals, 5 Marlas. Similarly, Munshi Khan predecessor-in-interest of the vendors
(applicants in C.M. No.75 of 1994), is also proved to be joint owner in the disputed
property to the extent of 91-1/2 share out of total shares of 285 which is evident from
the copy of Register Haqdaran Zameen for the years 1981 (Annexure "M" to the
C.M.).

10. The narration of above facts lead me to the conclusion that at least applicants in
both these C.Ms. were necessary party and they should have been impleaded and this
Court could not order/direct demarcation or partition of the property to the extent of share
of the writ petitioners only, in the absence of Qazi Abdul Rehman and Dr. Dastigir, etc.
and without notice as well affording them opportunity of hearing and the said D-order
dated 27-6-1990 was passed by this Court by condemning them unheard, which is
violative of principles of natural justice, as held by the Honourable Supreme Court of
Pakistan in the case Pakistan and others v. Public-at-Large and others PLD 1987 SC 304
ordaining that due notice of action proposed to be taken and opportunity of showing
cause against such action is Constitutional right of every citizen.

11. Prima facie the applicants in both the C. Ms. had no concern with the area measuring
2 Kanals, 11 Marlas allotted to Abdul Hameed, etc., writ petitioners and about the
determination of their entitlement qua the respondents in the writ petition and to that
extent the impugned order passed by this Court has neither been challenged in these
C.Ms. nor any prayer for its recall or setting aside has been made to that extent. However,
the applicants in both the C.Ms. are well within their right to challenge the order of this
Court dated 2-6-1990 to the extent it relates to the demarcation/partition of the property
forming part of joint Khata in their absence. I have not been able to find out any authority
conferred on this Court to order demarcation/partition of property, after it was jointly
allotted to the persons and also in the absence of all the co-sharers of' the joint Khata by
ordering partition or demarcation of the same on the request of few share-holders. At the
time of passing of the impugned order of this Court, a regular suit for partition was also
pending before the Civil Court, in which at least the writ petitioners were party and they
had been summoned. The plaintiff in that suit had therefore, chosen the right forum for
having the property in dispute partitioned and the Civil Court was the only forum to
decide such suit after full-fledge trial whereas this Court while sitting in Constitutional
jurisdiction could not go into such exercise involving questions of fact in partition
proceedings. Even otherwise, the partition/demarcation conducted by the Revenue
Authorities in compliance with order passed by this Court in Writ Petition No. 1437 of
1993 also does not appear to be a fair exercise but the same seems to have been done just
to avoid consequences of non-compliance of this Court order passed on 27-6-1990 in
Writ Petition No.566/R of 1990. The demarcation proceedings, copy of which- is
Annexure "H" in C.M. No.75 of 1994, itself indicate that despite complaints of several
persons in possession, that they were not served with any notice, the Revenue Authorities
proceeded to demarcate the property in compliance with this Court order dated 27-6-
1990. No indication is made out from the demarcation proceedings, that while proceeding
to demarcate the property in dispute, the relevant rules relating to demarcation framed
under the Land Revenue Rules, were complied with and it is also not clear whether the
Collector confirmed the demarcation proceedings after hearing all the effected persons.
Legal efficacy of the demarcation also falls on the ground, as the Collector refused to
decide the appeal of Qazi Abdul Rehman applicant in C.M. No.218 of 1993 through his
order dated 21-7-1993 (Annexure "I") by holding that as the demarcation proceedings
were conducted under the direction of this Court, hence, he had no jurisdiction to hear
the. said appeal, notwithstanding the fact that this Court in subsequent order dated 13-7-
1993 passed in Writ Petition No.1437 of 1993 had specifically directed that the parties
feeling aggrieved against the demarcation proceedings, may avail or the remedy available
11 of 58
to him under the law before a forum of competent jurisdiction which will determine the
same strictly in accordance with law. The order passed by the Collector, Rahim Yar 'Khan
dated 21-7-1993 also indicates that demarcation proceedings were not conducted
independently or under the provisions of Land Revenue Act but under the direction of
this Court which compelled the Collector to dismiss the appeal of Qazi Abdul Rehman,
though on an erroneous assumption of facts and law.

12. The, case-law relied upon by Mr. M.M. Bhatti, Advocate learned counsel for the
respondents writ petitioners is of no help to him for the reason that in 1992 SCMR 2184,
it was held that as the decree in question having been passed by the Court after contest on
the basis of admissions-and concessions made by the respective parties, the same would
not amount to decree on the basis of compromise, hence, such decree could not be
assailed under provisions of section:12(2), C.P.C. Similarly, 1999 CLC 444 governs quite
a different situation, as in the said case the dispute between the parties was with regard to
decision of certain application under Order VII, rule 11, C.P.C. and decree passed under
Order IX, rule 13, C.P.C. and it was held that as no fraud or misrepresentation was
practised or committed by the respondents in procuring the judgment and decree, hence,
application under section 12(2), C.P.C. was not competent. But in the instant case, not
only the order in question is without jurisdiction, having been passed in violation of
principles of natural justice as well as concealing the factuin' of pendency of a suit for
partition before the Civil Court which amounts to committing fraud on the Court.

13. The upshot of above discussion is that, the order passed by this Court on 27-6-1990 in
Writ Petition No.556/R of 1970 is without jurisdiction, to the extent it relates to
demarcation/partition of the H property in dispute, for the following reasons:--

(I) There was neither any prayer in the writ petition for the demarcation of the property in
dispute nor this Court while sitting in Constitutional jurisdiction, sit over the jurisdiction
of a competent forum i.e. either under the Land Revenue Act or that of Civil Court;

(II) the property in dispute was and is admittedly a joint property and it is established
principle of law that each co-sharer in the joint property is necessary party and without
joining, giving notice or affording reasonable opportunity of hearing to all the co-sharers,
no joint property can be demarcated or partitioned just at the desire of some of the co-
sharers and also qua them only. But in this case neither other co-sharers including
applicants in both the C.Ms. were impleaded as party nor they were given any notice or
afforded opportunity of hearing who were thus condemned unheard which is against the
principles of natural justice;

(III) the demarcation/partition proceedings conducted by the Revenue Officer in


compliance with this Court order dated 27-6-1990 as well as 13-7-1993 in second Writ
Petition No. 1437 of 1993, were not conducted strictly in accordance with law, especially
demarcation Rules framed under the Land Revenue Act nor the report of demarcation
proceedings was finally approved by the Collector of the area as required under Rules 67-
A and 67-B of Punjab Land Revenue Rules, issued by Punjab Notification No.2313-
37/629/LR-I dated 23-11-1973;

(IV) that the parties before this Court in the writ petition did not bring to the notice of this
Court the factum of pendency of partition suit before the Civil Court and thus, obtained
the order, dated 27-6-1990 for demarcation of writ petitioners share, which amounts to
playing fraud on this Court. Otherwise, this Court would have been hesitant in ordering
demarcation/partition of the property while sitting over the jurisdiction of Civil Court
which in fact is the Court of competent jurisdiction to decide such matters in terms of
section 9, C.P.C.

14. Resultantly, both the C.Ms. are accepted and the order of this Court dated 27-6-1990
passed in Writ Petition No.556/R of 1970 (para. H) to the extent of direction to the Deputy
Commissioner/District Collector, Rahim Yar Khan to demarcate the property of the writ
petitioners in accordance with the property fully described in the Permanent Transfer Deed,
is declared as without jurisdiction and based on fraud. Consequently the demarcation
proceedings conducted by the Revenue Authorities on the basis of above mentioned order
of this Court are declared as without lawful authority and of no legal effect and the
observations of this Court recorded in this aspect in subsequent order dated 13-7-1993
12 of 58
passed in Writ Petition No.1437 of 1993 declaring demarcation proceedings as complete,
are also inconsequential, hence, recalled. The obvious result of this direction is that
allotment/transfer in favour of respective parties by the Settlement Author tics, shay.
remain as it is unless decided otherwise by any Court of competent jurisdiction and that
the parties on the basis of their respective allotments/transfers shall be at liberty to seek
demarcation/partition by way of availing any remedy available to them under the law,
including partition quit mentioned above, if still pending.

15. As the order passed by this Court dated 27-6-1990 in Writ Petition.No.556/R of 1970
has been declared as without jurisdiction and based on fraud in exercise of jurisdiction
under section 17(2), C.P.C. no purpose would be served by restoring the writ petition and
deriding it afresh, by involving the parties to the writ petition to another round of
litigation. The findings recorded by this Court to the extent of entitlement of the parties
qua the writ petitioners in the above mentioned order, except to the extent of demarcation
shall remain intact and shall be binding on them. There would no order as to costs.

H.B.T./G-126/L Applications allowed.

13 of 58
2005 M L D 814

[Lahore]

Before Muhammad Muzammal Khan, J

Dr. JALAL KHAN---Petitioner

versus

Qazi NASEER AHMED, DISTRICT DEPUTY OFFICER, (REVENUE),


KHARIAN, DISTRICT GUJRAT and 6 others---Respondents

W.P. No.3354 of 2004, heard on 9th December, 2004.

(a) West Pakistan Land Revenue Act (XVII of 1967)---

----S.3---Building site---Land which was kept as a site of Town or village and was not
assessed to land revenue---Such land had been excluded under S.3 of West Pakistan
Land Revenue Act, 1967, from operation of West Pakistan Land Revenue Act, 1967.

(b) West Pakistan Land Revenue Act (XVII of 1967)---

----Ss.3, 117, 121 & 122---West Pakistan Land Revenue Rules, 1968, R.67-A---Civil
Procedure Code (V of 1908), O.XXVI, R.9---Constitution of Pakistan (1973),
Art.199---Constitutional petition---Demarcation of building site---Jurisdiction of
revenue authorities---Scope---Disputed piece of land was declared as urban building
site and was not included in any revenue Estate---Petitioner being aggrieved of
encroachments on his land by respondents, moved application for demarcation of land
to revenue authorities and sought recovery of possession---Plea raised by the
petitioner was that Collector by virtue of his powers under S.122 of the West Pakistan
Land Revenue Act, 1967 could order dispossession of persons in wrongful possession
of any land and revenue authorities were bound to remove the encroachments in light
of demarcation report---Validity---Property subject of dispute being part of site of
Town, provisions of West Pakistan Land Revenue Act, 1967, were not applicable to it
and thus resort to its provisions for demarcation thereof was not permissible---
Petitioner himself moved for demarcation of a part of site of Town under S.117 of
West Pakistan Land Revenue Act, 1967, which had equipped a revenue officer to
define the limits of any estate or of any holding, field or other portion of an estate but
could not be extended for such purpose, to the land not falling in any estate---If the
land subject of dispute would have been part of any estate, the revenue officer could
have proceeded to demarcate it under S.117(1) of West Pakistan Land Revenue Act,
1967, but he could not have undertaken any such activity about the land falling
outside the limits of the estate of any village---Collector by virtue of his powers under
S.122 of West Pakistan Land Revenue Act, 1967, could not order dispossession of
persons in wrongful possession of any land---Such power of Collector had to be read
in conjunction with the provisions of S.121 of West Pakistan Land Revenue Act,
1967, which related to the manner of fixing boundaries of all or any of the estate in
any local area under the Rules framed by Board of Revenue---Power of revenue
authorities to remove persons in wrongful possession of the land was conferred on
him for erecting boundaries of an estate and not for any part thereof especially when
some private individual asserted encroachment by his adjoining owner or someone
else---Petitioner instead of insisting possession through officials in revenue hierarchy
out of summary proceedings, should have filed a suit for possession against
respondents where his property was to be demarcated under the orders of Civil Court
under the provisions of O.XXVI, R.9 C.P.C.---Illegal order by revenue authorities
could not be ordered to be implemented without adjudication regarding ownership of
the land subject of dispute or without proper fixation of its boundaries---
Petition was dismissed in circumstances.

(c) West Pakistan Land Revenue Act (XVII of 1967)---

14 of 58
----S.117---West Pakistan Land Revenue Rules, 1968, R.67-A---Demarcation of
land---Object and scope---Demarcation of land in terms of S.177 of West Pakistan
Land Revenue Act, 1967, has to be done under R.67-A of West Pakistan Land
Revenue Rules, 1968, which refers to defining the limits of an estate, a holding, a
field or any portion thereof---Revenue officer designated under West Pakistan Land
Revenue Act, 1967 cannot demarcate any urban property falling within the limits of
Town Committee especially that, which has gained the character of building site.

(d) High Court (Lahore) Rules and Orders---

----Vol.-V, Chap. 1-D---Financial Commissioner's Instructions of demarcation---


Demarcation proceedings---Procedure---Financial Commissioner's instructions of
demarcation have been adopted by High Court in Vol.-V, Chap. 1-D of High Court
(Lahore) Rules and Orders---Demarcating Officer is required to measure the
properties subject of demarcation from three permanent places and he is required to
show such measurement in his report by erecting boundaries of each Khasra number
intervening---Measurements shown in demarcation report have to be made
according to 'Shajra Aks' or 'Masavi' without which the demarcating officer
cannot find out at the spot, whether the measurement done by him is according to
the revenue record or not.

(e) Specific Relief Act (I of 1877)---

----S.8---Suit for recovery of possession of immovable property---Necessary


requirements---Plaintiff is required to prove his title to the property in
possession of defendant through some lawful/cogent evidence---In absence of
such proof, his suit cannot be decreed.

Liaqat Ali Butt for Petitioner.

Ch. Muhammad Nasrullah Khan for Respondents.

Date of hearing: 9th December, 2004.

JUDGMENT

This Constitutional petition seeks a direction to respondent No.1 to implement


his own order dated 26-2-2000 and by demolishing the encroachments made by
respondents Nos. 5 to 7, possession of the encroached land be handed over to him by
declaring the petitioner as owner of the land encroached.

2. Precisely, relevant facts are that petitioner claimed that he along with his
daughter and son-in-law purchased land measuring 3 Kanals, 11 Marlas vide two
registered sale-deeds, falling in Khasra Nos.43, 46 and 50 of Khewat numbers
detailed in the petition situated within the limits of Town Committee, Kharian,
District Gujrat. According to him, respondents Nos.5 to 7 constructed a veranda over
10 Marlas of land bearing Khasra No.50 owned by the petitioner. He aggrieved of the
alleged illegal action of respondents Nos.5 to 7 filed a suit for permanent injunction
against them where they made a statement that they would not make any construction
over the land owned by the petitioner and in view of this statement, the suit was
disposed of, having become in-fructuous. Thereafter, petitioner moved an application
to DDO(R), Kharian for demarcation of his land in Khasra No.50. Under the order of
DDO(R) respondent No.2 Tehsildar Kharian, demarcated land and submitted his
report on 12-2-2000 finding that respondents Nos.5 to 7 have constructed veranda
over land of the petitioner falling in Khasra No.50. DDO(R) on receipt of report of
the Tehsildar, directed demolition of illegal constructions/encroachments by
respondents Nos.5 to 7 vide his order dated 26-2-2000. Respondent No.2 issued
notice to respondents Nos.5 to 7 for removal of illegal constructions and vacation of
the land which necessitated filing of suit for declaration with consequential relief by
them, but the same was dismissed and appeal there against failed on 30-1-2003.
Petitioner has now come up in Constitutional jurisdiction for the relief noted above.

15 of 58
3. Learned counsel for the petitioner submitted that respondents Nos.1 and 2
were legally bound to implement order dated 26-2-2000 by removing the illegal
constructions from the land encroached and to hand over its possession to the
petitioner, but they are avoiding to discharge their statutory obligation, thus writ as
prayed may be issued against them. He further submitted that the only course for the
present deprivation of his property out of encroachment was to proceed for
demarcation under section 117 of the Land Revenue Act, 1967 read with rule 67-A of
West Pakistan Land Revenue Rules, 1968 and in result thereof, the Collector was
competent to remove encroachment under his powers conferred by section 122 of the
Act (ibid.).

4. Learned counsel appearing on behalf of the respondents opposed the assertions


of the petitioner and submitted that the Collector has no objection to the removal of
encroachments under the orders of this Court. He further contended that powers
vesting in revenue officials in terms of section 122 of the Land Revenue Act, 1967
can be utilized to the advantage of the person deprived of his property.

5. I have minutely considered the respective arguments of the learned counsel for
the parties and have examined the record, appended herewith. Before proceeding with
the determination of the controversy, it has to be kept in mind that property subject of
dispute is located within limits of Town Committee, Kharian, and is not only urban in
nature but has also been converted into building site. For examination whether such
property could be demarcated by respondent No.2 (Tehsildar/Revenue Officer) under
the provisions of Land Revenue Act, 1967, we will have to see provisions of section 3
thereof, which excludes certain land from operation of the Act. This provision of law
clearly excludes the land which is kept as a site of Town or village and is not assessed
to land revenue. The property subject of dispute being part of site of the Town
provisions of the Act (ibid) were not applicable to it and thus resort to its provisions
for demarcation thereof was not permissible. Petitioner himself moved for
demarcation of a part of site of the Town under section 117 of the said Act, which
equips a revenue officer to define the limits of any estate or of any holding, field or
other portion of an estate but cannot be extended for this purpose, to the land not
falling in any Estate. Had the land subject of dispute been part of any estate, the
revenue officer could have proceeded to demarcate it under section 117(1) of the Act,
but he could not undertake any such activity about the land falling outside the limits
of the estate of any village. Demarcation in terms of section 177 of the Land Revenue
Act, 1967 has to be done under rule 67-A of the West Pakistan Land Revenue Rules,
1968, which as well, refers to defining the limits of an estate, a holding, a field or any
portion thereof. In view of this clear provision, there is no ambiguity that a Revenue
Officer designated under the Land Revenue Act, 1967 could not demarcate any urban
property falling within the limits of Town Committee especially that, which has
gained the character of building site.

6. Tehsildar/Revenue Officer (respondent No.2) in his report dated 12-2-2000


alleged to have demarcated Khasra No.50, in possession of respondents Nos.5 to 7 by
fixing North-Eastern corner of Khasra No.58 as permanent point. It is not clear from
his report that how this corner of Khasra No.58 was taken as permanent point, without
bringing measurement from any Pakka point fixed during last settlement or like road,
canal, well etc. Under the Financial Commissioner's instructions of demarcation
which were adopted by this Court in High Court Rules and Orders, Volume-V,
Chapter 1-D, the demarcating officer was required to measure the properties subject
of demarcation from three permanent places and he was required to show this
measurement in his report by erecting boundaries of each Khasra number intervening,
but no such step was taken. Report of Tehsildar reveals that he was aware of the
instructions of the Financial Commissioner and he attempted to justify his report
through fake fixation of Khasra Nos.43, 46, 51 and 58. The measurements shown in
the report were not made according to "Shajra Aks" or "Masavi" without which he
could not find out at the spot, whether the measurement done by him is according to
the Revenue Record or not.

16 of 58
7. Properties of parties were, undeniably urban even at the time of allotment by
Deputy Settlement and Rehabilitation Commissioner, for this reason as well, Revenue
Officer was not competent to undertake the exercise of demarcation. Under law, the
Revenue Officer could only demarcate boundaries of any estate or any part thereof,
under the provisions already discussed. Predecessor of the respondents, who was
plaintiff, was required to prove his title to property in possession of the petitioners
through some lawful/cogent evidence, in absence of which his suit could not have
been decreed. Even otherwise, since there was the only dispute of demarcation which
could have resolved the controversy for all times to come, the trial Court should have
invoked its own jurisdiction in this behalf, in spite of report Exh.P.1, but both the
Courts below, being oblivious of their jurisdiction under Order XXVI, rule 9, C.P.C.
proceeded to decide the lis without adverting to legality or otherwise of the said
report.

8. Besides the fact that report was not prepared according to law, encroachments
shown therein could not have been removed by the Revenue officials because no such
power vested in them for granting a decree for possession in summary proceedings
and that too on the basis of an unauthorized and illegal demarcation report. Emphasis
of the learned counsel for the petitioner that Collector by virtue of his powers under
section 122 of the Land Revenue Act, 1967 could order dispossession of persons in
wrongful possession of any land, is absolutely misplaced. This section has to be read
in conjunction with preceding section i.e. 121 which relates to the manner of fixing
boundaries of all or any of the estate in any local area under the Rules framed by the
Board of Revenue. Power of Collector to remove persons in wrongful possession of
the land is conferred on him for erecting boundaries of an estate and not for any part
thereof especially when some private individual asserted encroachment by his
adjoining owner or someone else. Petitioner instead of insisting possession through
officials in revenue hierarchy out of summary proceedings, should have filed a suit
for possession against respondents Nos.5 to 7 where his property was to be
demarcated under the orders of the Civil Court under the provisions of Order XXVI,
rule 9, C.P.C.

9. For the reasons noted above, an illegal order by respondent No.1 dated 26-2-
2000 cannot be ordered to be implemented without adjudication regarding ownership
of the land subject of dispute or without proper fixation of its boundaries. The prayer
made is untenable, hence this petition has no substance in it and is accordingly
dismissed with no order as to costs.

M.H./J-57/L Petition dismissed.

17 of 58
2005 M L D 592

[Lahore]

Before Muhammad Muzammal Khan, J

Mst. HAJRAN BEGUM---Petitioner

versus

Kh. MUHAMMAD YOUSAF and Legal Heirs---Respondents

Civil Revisions Nos.2125 and 2126 of 1995, heard on 26th November, 2004.

(a) High Court (Lahore) Rules and Orders---

----Vol. V, Chap. 1-D---Demarcation of land---Procedure---Fixing of boundaries of Killa


in question by measurements of surrounding land/properties is necessary and mandatory
for local commissioner at the time of demarcation.

(b) West Pakistan Land Revenue Act (XVII of 1967)---

----S.117---West Pakistan Land Revenue Rules, 1968, Rr.4(c)(v) & 67-A ---Civil
Procedure Code (V of 1908), S.115 & O.XXVI, R.9---Specific Relief Act (I of 1877),
S.8---Recovery of possession---Demarcation of land---Necessary steps---Plaintiffs
claimed recovery of possession of suit land from defendants---Plaintiffs relied upon a
demarcation report prepared by revenue authorities whereby certain portion of land
owned by plaintiffs was encroached upon by the defendants---Trial Court decreed the suit
in favour of the plaintiffs and judgment and decree passed by Trial Court was maintained
by Appellate Court---Plea raised by the defendants was that the demarcation proceedings
were not conducted under the rules---Validity---Whenever application for demarcation of
land was made to revenue officer under S.117 of West Pakistan Land Revenue Act, 1967,
the same was to be dealt with under R.67-A of West Pakistan Land Revenue Rules,
1968---Revenue officer was bound to cause notice in Form 33-P to be issued in duplicate
to any person whose presence at the time of demarcation of the boundaries was
considered to be necessary or expedient for the revenue officer---After completion, the
entries should be made in the register maintained for such purpose in the office---
Evidence on record established that report of local commissioner was presumptive and
was not worth reliance because he assumed that property of plaintiffs was surrounded on
three sides by road Rajbah and permanent building, thus according to him, there was no
question of any encroachment from those three sides---Finding of the local commissioner
was that the defendants being on fourth side must have encroached over the property
subject of demarcation---Such imaginary way of locating some property was not
permissible under law---Report of local commissioner and site plan/list of encroachers
did not reflect correct position at the spot and did not furnish lawful basis for the
decision---Such facts escaped notice of the two Courts below at the time of decision of
the lis, hence those being suffering with material irregularity could not be allowed to be
maintained---Judgments and decrees passed by both the Courts below were set aside and
the case was remanded to Trial Court for taking legal action under O.XXVI, R.9 C.P.C.---
High Court directed the Trial Court to determine the properties after confirmation of
report obtained through local commissioner and to decide the suit afresh---Revision
was allowed accordingly.

Muhammad Suleman and another v. Abdul Rashid and 6 others PLD 1975 Lah. 42
ref.

(c) Specific Relief Act (I of 1877)---

----S.8---Recovery of possession---Proof of ownership---Plaintiff in such suit is required


to prove his title to property in possession of defendant through lawful/cogent evidence---
In absence of such proof, suit for recovery of possession cannot be decreed.

18 of 58
S.M. Masud for Petitioner.

Ijaz Feroze for Respondents.

Date of hearing: 26th November, 2004.

JUDGMENT

This judgment proposes to decide two civil revisions, one in hand and the other
C.R. No.2126 of 1995, as both these raising similar questions of law and facts, are
directed against the same set of respondents, arising out of two different suits but in the
like circumstances. Both the revision petitions are directed against the judgment and
decrees dated 20-7-1989 passed by the learned Civil Judge and dated 19-9-1995 and 13-
9-1995 by the learned Additional District Judge, Faisalabad, whereby two independent
suits for possession through ejectment of the revision petitions were decreed and two
independent appeals of the revision petitioners were dismissed, respectively.

2. Precisely, relevant facts deciphered1 from plaints of the respondents are that Khawaja
Muhammad Subhan grandfather of the respondents was allotted Manmohan Engineering
Works over land measuring 3 Kanals 12 Marlas located in Killa No.6, Square No.90,
Khewat No.5304, Khatoni No.6030 situated in Chak No.220/RB Jamalpur Harcharnpura,
Faisalabad and consequent to this allotment Mutation No.17793 was sanctioned in his
favour, which was reflected in Jamabandi for the year 1983-84. The allottee filed an
application for demarcation of his allotted property on 26-6-1987, on which demarcation
was carried by Tehsildar Faisalabad (Lyallpur) and the demarcating officer besides
preparing hand drawn site-plan, prepared a list of encroachers of the property of the
allottee in terms of his report dated 26-6-1987. According to the list of the local
commissioner petitioners were in possession of part of property of the predecessors of the
respondents. Mst. Hajran Begum the revision petitioner was shown in possession of 1
Marla, 3 Sarsahis, whereas Muhammad Ali predecessor of revision petitioner in Civil
Revision No.2126 of 1995 was shown in possession of 1 Marla, 2 Sarsahis. On the basis
of this report of the Local Commissioner, Khawaja Muhammad Subhan the allottee
filed two suits for possession through ejectment of the revision petitioners.

3. Petitioners being defendants in the suits contested those by filing their respective
written statements wherein they raised certain preliminary objections regarding locus
standi of the original plaintiff to maintain the suit etc. On merits they pleaded that
premises of Manmohan Engineering was allotted to Khawaja Muhammad Subhan
without any Khasra or Square number and since the petitioners were transferees of Plot
No.218 Square No.90, Killa No.6 of Chak No.220/RB, they were not occupying any
part of his property thus suits were claimed to be baseless and frivolous.
Controversial pleadings of the parties necessitated framing of issues and recording
of evidence. The learned Civil Judge, seized of the suits, after doing the needful
vide his judgment and decree dated 20-7-1989 on the basis of his appraisal of evidence
decreed both the suits of the respondents. Pending those suits, original allottee Khawaja
Muhammad Subhan died and Muhammad Yousaf his son was substituted in his place
heir/legal representative.

4. Petitioners aggrieved of the decision of the trial Court in both the suits dated 20-7-
1989 filed two independent appeals, pending which Muhammad Ali one of the appellants
died and his legal representatives who are revision petitioners in Civil Revision No.2126
of 1995 were brought on record as appellants. The Appellate Court after hearing the
parties dismissed both the appeals confirming the findings of the trial Court, vide
judgment and decrees dated 13-9-1995 and 19-9-1995. Thereafter above noted two
revision petitions were filed, which were admitted to regular hearing and after completion
of record have now been placed for final determination.

5. Learned counsel for the petitioners submitted that the sole basis of claim of the
predecessor of the respondents regarding land in their possession was demarcation report
dated 27-6-1987 obtained by him earlier to filing of his suits, which was prepared without
site inspection and measurements in accordance with law, at the back of the petitioners,

1
Make out, work out, read, interpret.
19 of 58
thus the same did not furnish any lawful basis for the decrees impugned. He further
submitted that demarcation proceedings were absolutely illegal and contrary to Financial
Commissioner's instructions on the subject and thus those were not worth reliance but a
contrary decision by the two Courts below negatively reflects on their judgments. He
further elaborated his arguments by urging that on the face of the report of the local
commissioner and site-plan, it is evident that neither the property of the respondents was
earmarked by fixing boundaries out of the measurements from any of its three sides, as
required by law. According to him, the report of the local commissioner cannot be
justified by any canon known for administration of justice and in case this piece of
evidence is excluded from consideration there is not an iota of evidence on the file to
show that petitioners are occupying parts of property of the respondents. It was also
emphasized that petitioners are not encroachers but they are living in their houses raised
over land lawfully purchased by them in open auction held by the Settlement Department
regarding which PTD were issued in their favour as far back as in the year 1970.
Referring to transfer orders of the predecessor of the respondents, it was submitted that it
contained no details of land beneath Manmohan Engineering which, according to him,
did not at all exist, as is evident from the report of the local commissioner (Exh.P.1) and
site-plan (Exh.P.2). Learned counsel for the petitioners also argued that though the
petitioners are not in possession of any part of the property of the respondents, yet if it be
proved that land beneath their house measuring 27 x 9 feet was part of the same, suits
against them could not have been decreed as this land was auctioned by the Settlement
Department earlier to issuance of transfer order in favour of Khawaja Muhammad
Subhan. Judgments of the two Courts below were claimed to be tainted with illegality of
misreading of evidence on the file and thus were said to be not sustainable.

6. Learned counsel appearing on behalf of the respondents opposed the arguments of


the petitioners and supporting the concurrent judgments of the two Courts below,
supported the demarcation proceedings and submitted that all the illegal occupants of
property of the respondents, whose list was prepared by the local commissioner, were
required to join proceedings of measurements at the spot and few of those after
measurements signed the report Exh.P.1 and in this manner an attempt was made to built
the case that petitioners were also given notice of demarcation proceedings. Learned
counsel for the respondents referring to PTD of the petitioners (Exh.D.7) submitted that
no particulars of land allotted to them were mentioned therein, hence on the basis of it
they could not defend the suit. It was also argued that petitioners earlier filed a suit
challenging demarcation report, which was dismissed thus it is not open for them to raise
any kind of objection to the report of the local commissioner. Learned counsel for the
respondents further argued that concurrent findings of facts returned by two Courts
below, after due appraisal of evidence on the file, are not open to challenge in revisional
jurisdiction of this Court, unless some misreading and non-reading of evidence on the file
is established. He emphasized that the findings impugned being immune from
interference by this Court may be maintained.

7. I have minutely considered the respective arguments of the learned counsel for the
parties and have examined the record, appended herewith. Primarily, controversy which
hinges for determination is whether petitioners were really in possession of land forming
part of allotment of the predecessor of the respondents i.e. Khawaja Muhammad Subhan.
In order to establish this fact, respondents mainly relied on report of the local
commissioner Exh.P.1. A bare perusal of report dated 27-6-1987 shows that no actual
measurements were carried by the local commissioner at the spot and if at all those were
taken such action was not reflected therein. Local Commissioner on pointing out of
predecessor of the respondents Muhammad Yousaf assumed the land shown by him as
Killa No.6 of Square No.90, because it was not fixed by erecting boundaries by him
bringing measurements from any permanent place like road, well etc. The report simply
recites that Killa No.6 is surrounded on its north Rajbah Sarwala and road track, whereas
on its southern side there is Makhdoom Road and on its other two sides there are
buildings. The local commissioner while appearing in the witness-box as P.W.2 did not
detail his actions of measurements at the site which, as a matter of fact, were not taken by
him. Non-mentioning of such acts in the report was fatal to it, as earlier decided by this
Court in the case of Muhammad Suleman and another v. Abdul Rashid and 6 others (PLD
1975 Lahore 42). Fixing of boundaries of Killa in question by measurements of
surrounding land/properties was necessary and mandatory for the local commissioner in
terms of Financial Commissioner's instructions as adopted by this Court in High Court
20 of 58
Rules and Orders Volume-V Chapter 1-D. The local commissioner did not issue any
notice to the petitioners, Patwari concerned for production of record at the time of
demarcation and he was not equipped with any "Tatimma" or "Sawas". He during his
cross-examination stated that the measurements was done according to site-plan of
Settlement Department, but neither its copy was appended with the report nor any
reference thereto was made by him in the report. Whenever an application for
demarcation of the land is made to the revenue officer under section 117 of the Land
Revenue Act, 1967, the same is to be dealt with under rule 67-A of the Land Revenue
Rules, 1968. This rule in depth enumerates the steps to be taken by the revenue in dealing
with such application under sub rule 4(c)(v). Revenue officer is bound to cause a notice
in Form-33-P to be issued in duplicate to any person whose presence at the time of
demarcation of the boundaries was considered to be necessary or expedient for the
revenue officer. The rule also lays down that after completion the entries in the register
maintained for this purpose in the office shall be made, but none of these steps was taken
and entries as required were not made. Examination of Exh.P.1 to Exh.P.3 in the light of
statements of P.W.2 and P.W.3 establishes that report of the local commissioner dated 27-
6-1987 was presumptive and was not worth reliance because he assumed that property of
the respondents is surrounded on three sides by road Rajbah and permanent building, thus
according to him, there was no question of any encroachment from these sides. His
finding was that petitioners being on western side must have encroached over the
property subject of demarcation, but this imaginary way of locating some property was
not permissible under law. Besides all this, petitioners also produced demarcation report
carried on application of Khawaja Muhammad Subhan on 30-6-1959 as Exh.D.1 which
also shows some encroachment by the persons, whose list was attached thereto as
Exh.D.3, but names of the petitioners were not mentioned therein. This report has
material changes as compared to report Exh.P.1, negatively reflecting on it.

8. No doubt, petitioners had earlier filed a suit for declaration with permanent
injunction on the basis of their permanent transfer deeds with the prayer that respondents
should not evict them wherein they also challenged demarcation report dated 27-6-1987,
which was dismissed, but dismissal does not make the report Exh.P.1 as lawful.
Properties of parties were, undeniably urban even at the time of allotment by Deputy
Settlement and Rehabilitation Commissioner, for this reason as well, Revenue Officer
was not competent to undertake the exercise of demarcation. Under law, the Revenue
Officer could only demarcate boundaries of any estate or any part thereof, under the
provisions already discussed. Predecessor of the respondents, who was plaintiff, was
required to prove his title to property in possession of the petitioners through some
lawful/cogent evidence in absence of which his suit could not have been decreed. Even
otherwise, since there was the only dispute of demarcation which could have resolved the
controversy for all times to come, the trial Court should have invoked its own jurisdiction
in this behalf, inspite of report Exh.P.1, but both the Courts below being oblivious of their
jurisdiction under Order XXVI, rule 9, C.P.C. proceeded to decide the lis without
adverting to legality or otherwise of the said report.

9. For the reasons noted above, I have no hesitation to hold that report of the local
commissioner and site-plan/list of encroachers there-along, do not reflect correct position
at the spot and did not furnish lawful basis for the decision impugned. The above noted
factors escaped notice of the two Courts below at the time of decision of the lis, hence
those being suffered with material irregularity cannot be allowed to be maintained, with
the result that judgments on the basis thereof, deserve to be reversed. Both the revision
petitions consequently are accepted and judgment and decrees impugned are set aside and
the case is remitted back to the trial Court for taking legal action in terms of Order XXVI,
rule 9, C.P.C. and after site inspection to determine whether properties of the parties
overlap each other or not and after confirmation of the report obtained through local
commissioner, to decide the suit afresh in accordance with law. Parties are directed to
appear before the trial Court on 16-12-2004. There will be no order as to costs.

M.H./H-51/L Case remanded.

21 of 58
2004 C L C 1320

[Lahore]

Before Syed Jamshed Ali, J

Mian MUHAMMAD ASLAM and another---Petitioners

Versus

SHER AFGAN, ADDITIONAL DEPUTY COMMISSIONER GENERAL


COLLECTOR (CITY), LAHORE and 5 others---Respondents

Writ petition No.7140 of 2001, heard on 5th March, 2004.

(a) West Pakistan Land Revenue Rules, 1968---

----Rr. 67-A & 67-B---Constitution of Pakistan (1973), Art.199--Constitutional


petition---Demarcation of land---Decree for possession--Revenue Officer, jurisdiction
of---Grievance of petitioners was that the Revenue Authorities after conducting
demarcation of land, passed a decree for possession and directed the petitioners to deliver
the possession to the respondent---Validity---Revenue Authorities, while exercising
summary jurisdiction under West Pakistan Land Revenue Rules, 1968, could not direct
eviction of the petitioners---While exercising jurisdiction under West Pakistan Land
Revenue Rules, 1968, the Revenue Authorities had exercised the jurisdiction of Civil
Court by granting a decree for possession to the respondent which could not at all be
done---Respondent should have been left to seek, appropriate remedy from the Court of
competent jurisdiction---Although the respondent had purchased a plot described only by
boundaries, yet the mutation sanctioned in her favour only reflected transfer of 10/308
share--Demarcation under West Pakistan Land Revenue Rules, 1968, could only be done
on the basis of the entries in the Revenue Record---According to such record, no specific
area of Khasra number was purchased by the respondent, therefore, the Revenue
Authorities had no jurisdiction because share of Khasra number could not be demarcated
nor it was capable of actual physical possession except through partition---Orders of
Revenue Authorities were without lawful authority and the same were set aside---High
Court directed the Revenue Authorities to restore the possession of the petitioners from
which they were evicted---Petition was allowed accordingly.

Allah Bakhsh and another v. Muhammad Ismail and others 1987 SCMR 810 ref.

(b) West Pakistan Land Revenue Act (XVII of 1967)---

----S. 53---Constitution of Pakistan (1973), Art.199---Constitutional petition---


Maintainability---Alternate remedy---Plea raised by the respondent was that the
petitioners had alternate remedy available to them---Validity---Revenue Authorities had
usurped the jurisdiction of Civil Court, thus, it was a case of total absence of
jurisdiction---In such case availability of alternate remedy or pendency of civil suit filed
by the parties did not stand in the way of High Court to exercise discretionary
Constitutional jurisdiction and thereby rectifying patent injustice done to the
petitioners---Petition was maintainable in circumstances.

Ijaz Ahmed Khan for Petitioners.

Amir Rehman, Addl. A.G. for Respondent.

Mian Javed Iqbal Arain for Respondent No.3.

Date of hearing: 5th March, 2004,

JUDGMENT

22 of 58
The orders dated 18-5-1999 passed by the Additional Deputy Commissioner
(General)/Collector, Lahore City has been assailed in this Constitutional petition which
arises out of the following circumstances.

2. The two petitioners herein purchased total land measuring 5 Marlas each through two
sale-deeds out of Khasra No.2020/691 and 1063/696 registered on 25-5-1999 and
28-5-1999 respectively from Mian Mehmoodur Rashid and Mst. Nasreen Gul followed
by Mutations Nos.8580-8581, 8582 and 8583 attested on 26-7-1999. The dispute in this
case relates to land in Khasra No.1063/696 out of which the petitioners had purchased 7
Marlas of land. Their case is that they had raised construction of one room, one shop, a
kitchen and bath room on the aforesaid land.

3. Meanwhile on 3-3-1997 and 16-1-1996 Mst. Nasreen Gul respondent No.5 made
applications before the D.C./Collector, Lahore for demarcation of her plot. According to
the first demarcation report, dated 16-12-1996, on the plot of respondent No.5 one Mst.
Fozia Saleemi wife of Nazir Ahmed was in possession who was owner of land measuring
3 Kanals. This demarcation report remained in conducive. According to the second
demarcation dated 5-3-1997 it was reported that no area of Khasra No.1063/696 was
vacant, the vendees were in possession of some area while a part of it was under the
streets. Another demarcation was done by a retired (Naib Tehsildar) as Local
Commission. According to his report, dated 23-5-1997, no area/plot was vacant on the
spot. The last demarcation was conducted by Naib Tehsildar City on 26-2-1999.
According to this report one Muhammad Rafique Shad, was in possession of the land of
respondent No.5. It was recommended that possession of the said land should be
delivered to respondent No.5 under Rule 67-B of the Punjab Land Revenue Rules. The
Tehsildar, Lahore City, vide order, dated 6-3-1999 consigned the file to the record room
with the observation that the demarcation had already been done. Based on the aforesaid
order, the learned Additional Deputy Commissioner (General)/Collector, vide order, dated
18-5-1999, directed Muhammad Rafique Shad to deliver possession to her within a
period of 30 days. However, on 26-6-1999, the petitioners were ejected by the Revenue
Officer. The petitioners filed an appeal against the order, dated 18-5-1099 which was
dismissed by the learned Additional Commissioner vide order, dated 28-12-1999.

4. The primary contention of the learned counsel for the petitioners is that the Revenue
Authorities had no jurisdiction to direct ejectment of the petitioner from the disputed
property because according to the demarcation reports, the entire area had been built
upon and thus, had ceased to be "land" for the purpose of the Punjab Land Revenue Act",
and section 3 thereof excludes applicability of the said Act to such an area. 1t is next
submitted that perusal of various demarcations reports show that seriously disputed
questions of fact were involved for which summary jurisdiction of ejectment of the
petitioners could not at all be exercised by the learned Collector. It is further submitted
that Mst. Nasreen Gul had only purchased 10/308 share in Khasra No.1063/696 and, was,
thus, not entitled to possession of specific area without getting specific area, determined
in a partition suit. He next maintains that the land owner from whom the petitioners had
purchased the land i.e. Mst. Nasreen Begum was the prior vendee than Mst. Nasreen Gul,
respondent No.5, who derived title through a subsequent vendee.

5. The learned counsel for respondent No.5, submits that even according to the
application dated 31-3-2000 filed by Rehmat Ali petitioner, he was defrauded by Mst.
Nasreen Begum, and a prayer was made to the Deputy Commissioner for restoration of
the plot or the price thereof. This application did not refer to the construction allegedly
made by the petitioners on the spot. It is next maintained that respondent No.5 has
already filed suit for perpetual injunction while the petitioners have also filed suit for
prohibitory injunction and, therefore, the writ petition is not maintainable as the
resolution of the controversy involves factual inquiry which can more appropriately be
done by the Civil Court. As to the jurisdiction of the Revenue Authorities for conducting
demarcation under Rule 67-A of the Punjab Land Revenue Rules, he maintained that
during pendency of this writ petition the petitioners also got the plot demarcated by
getting an ex parte report from the Revenue Agency against which the said respondent
has filed an appeal. He next submitted that the basic order was passed by the Additional
Deputy Commissioner on 18-5-1999 whereas the petitioners had purchased the land in
dispute on 25-5-1999 and 28-5-1999. Therefore, on the date of the aforesaid order, the
petitioners were not necessary party to the applications brought by respondent No.5
23 of 58
before the learned Collector. He maintains that against the order, dated 28-12-1999 of the
learned Additional Commissioner, the petitioners should have approached the Board of
Revenue instead of resorting to the Constitutional jurisdiction of this Court. Reliance was
placed on Allah Bakhsh and another v. Muhammad Ismail and others 1987 SCMR 810.

6. I have considered the submissions made by the learned counsel for the parties and have
perused the record. Vide order, dated 1-10-2001, the District Officer Revenue, Lahore
was directed to produce the record. On 10-6-2003 detailed separate statements of the
transactions made from Khasra Nos.1063/696 and 2020/691 have been placed on the
record. A perusal thereof shows that one Din Muhammad had purchased the entire area
measuring 15 Kanals, 8 Marlas of the Khasra Number 1063/696 from one Karamat Ali on
19-4-1961 through a registered sale deed on which Mutation No.706 was attested in his
favour on 23-11-1962. From 19-8-1981, onwards said Din Muhammad starred making
alienations from the aforesaid Khasra number which included sale of 17 Marlas in favour
of Mst. Nasreen Begum on 19-8-1981 and 24 Marlas in favour of Mst. Jamila Begum on
10-11-1981, both through registered sale-deeds. On 14-7-1982 Mst. Jamila Begum sold
21 Marlas to Muhammad Usman and on 13-8-1986, vide registered sale-deed, said
Muhammad Usman sold land measuring 10 Marlas in favour of Mst. Nasreen Gul,
respondent No.5 followed by Mutation No.6559 attested on 11-10-1986. Nasreen Begum
sold land measuring 3-1/2 Marlas each to the two petitioners from Khasra No.1063/696
vide registered sale-deeds dated 25-5-1999 and 28-5-1999. As far as Mehmood Rashid,
the other vendor from whom the petitioners had purchased the land is concerned, Jhandoo
etc. had, vide registered sale-deed, dated 8-5-1990, sold an area measuring 13 Marlas
from Khasra No.2020/691 to Mehmood-ur-Rashid who had sold one and half Marla each
from the said Khasra number in favour of the two petitioners. As noted above, land of
Khasra No.2020/691 is not in dispute.

7. Perusal of the statement in respect of Khasra No.1063/696 shows that till 10-11-1981
Din Muhammad, the first vendee from Karamat Ali had already sold an area measuring
15 Kanals, 18 Marlas (as against his title to 15 Kanals, 8 Marlas) in favour of different
vendees, including Mst. Nasreen Begum and one Jamila Begum. However, as noted
above registered sale-deed dated 10-11-1981 in favour of Jamila Begum was later in
point of time than the registered sale-deed dated 19-8-1981 in favour of Mst. Nasreen
Begum. The petitioners derived title to the land in Khasra No.1063/696 through Mst.
Nasreen Begum while Mst. Nasreen Gul-respondent No.5 claimed through Mst. Jamila
Begum. Mst. Nasreen Begum was the prior vendee than Mst. Jamila Begum as far as the
land in Khasra No.1063/696 is concerned. On this score alone the Revenue Officer had
no jurisdiction to eject the petitioners. The matter does not end here.

8. According to the certified copy of the report of demarcation 16-12-1996 Mst. Nasreen
Gul had purchased a plot of 10 Marlas which was described by boundaries. However,
according of Mutation No.6298, 10/308, share of the land in Khasra No.1063/696 was
transferred in favour of Mst. Nasreen Gul, who had never entered into possession of the
plot purchased by her, the entire area was built upon, and according to the boundaries
given in the registered sale-deed plot of respondent No.5 was situated on the edge of the
Nullah which was in possession of one Mst. Fozia Saleemi. It may be noted that said Mst.
Fozia Saleemi had purchased an area measuring 1 Kanal from the aforesaid Khasra
number from one Muhammad Iqbal through registered sale-deed dated 17-7-1983 while
Muhammad Iqbal had purchased the area of one Kanal from Din Muhammad, through
registered sale-deed dated 14-9-1981. Mst. Fozia aforesaid had purchased another area
measuring 2 Kanals through registered sale-deed dated 11-7-1988 from Shaukat Ali who
had purchased it from Din Muhammad vide registered sale-deed, dated 14-9-1981.

9. According to the demarcation report, dated 5-3-1997 of the Naib Tehsildar, the
applicant (Nasreen Gul) may contact her vendor to get the land measuring 10 Marlas
from his remaining holding or to take appropriate proceedings before the Court and that
the application may be consigned to the record. On this report, the learned Collector,
directed Revenue Officer to conduct another demarcation. The order, dated 7-5-1997 of
the Tehsildar, Lahore City, shows that with the consent of respondent No.5, Barkat Ali
retired Naib Tehsildar was appointed as Local Commission. According to his report dated
23-5-1997, the plot of respondent No.5 was towards the Nullah as identified by her, there
was a boundary wall constructed by Mst. Fozia Saleemi and adjacent to it one Ch.
Rehmat Ali, property dealer, was in possession of land measuring 10 Marlas who had
24 of 58
also constructed a boundary wall. He also reported that land from Khasra No.1063/696
was covered either by boundary walls or the houses. On this report the Revenue Officer
i.e. the Tehsildar on 9-9-1997, directed that demarcation should be carried out' in
accordance with the boundaries i.e. given in the sale-deed or the "Tattima Shajra".
Thereafter respondent No.5 could have recourse to the appropriate proceedings for
recovery of possession.

10. This time the demarcation was conducted by Naib Tehsildar City; Lahore. According
to his report dated 26-2-1999, a vacant plot of land in the aforesaid Khasra No. was in
possession of Abdul Ghafoor son of Rehmat Ali. For the first time before him, it was
stated that one Rafique Shad was in possession of the plot of respondent No.5. He was
summoned by the Naib Tehsildar but he did not appear before him. This report was
placed before the Tehsildar, Lahore City on 6-3-1999 on which the order passed was that
demarcation has been done and the file be consigned to the record. On the basis of the
said demarcation, the learned ADQ(G)/Collector, Lahore City passed the order, dated
18-5-1999 under Rule 67-B of the Punjab Land Revenue Rules, 1968. Perusal of the
report dated 23-5-1997 of the retired Naib Tehsildar (Local Commission) shows that Mst.
Nasreen Gul had pointed out the plot which was in possession of Mrs. Fozia Saleemi and
it was on the basis of the oral assertion of some persons who appeared before the
Naib Tehsildar in the last demarcation proceedings came to the conclusion that
Muhammad Rafique Shad was in possession of the plot of respondent No.5. The oral
assertion before the Naib Tehsildar is inconsistent with the earlier reports of demarcation.
In any case the question was whether in the facts and circumstances of the case the
Revenue Officer, while exercising summary jurisdiction under the Punjab Land Revenue
Rules, could at all direct eviction of the petitioners. The plain answer is in the negative. In
fact, it is a case in which Revenue Officer, while exercising summary jurisdiction under
the Punjab Land Revenue Rules, exercised the jurisdiction of a Civil Court by granting to
respondent No.5, a decree for possession which could not at all be done and as recorded
in the order, dated 9-9-1997 of the Revenue Officer, respondent No.5 should have been
left to seek appropriate remedy from the Court of competent jurisdiction.

11. The perusal of the record shows that although Mst. Nasreen Gul, respondent No.5,
had purchased a plot described only by the boundaries yet, the mutation sanctioned in her
favour only reflected transfer of 10/308 share. Demarcation under the Punjab Land
Revenue Rules, 1968 could only be done on the basis of the entries in the Revenue
Record. According to the Revenue Record no specific area of Khasra No.1063/696 was
purchased by respondent No. 5, therefore, the Revenue Authorities had no jurisdiction
because a share of a Khasra number could not be demarcated nor it is capable of actual
physical possession except through partition.

12. The objections of the learned counsel for the contesting respondent have been
considered. In fact the learned A.D.C.(G)/ Collector usurped 1 the jurisdiction of the Civil
Court. Thus, it is a case of total absence of jurisdiction and in such a case availability of
alternate remedy or pendency of civil suits filed by the parties does not stand in the way
of this Court to exercise discretionary Constitutional jurisdiction and thereby rectifying
patent injustice done to the petitioners.

13. Accordingly, this writ petition is allowed. The impugned orders of the Collector and
Additional Commissioner are declared as without lawful authority and the successor in
office of the A.D.C.(G)/Collector City, Lahore is directed to restore possession of the area
to the petitioners from which they were evicted under the order dated 18-5-1999.

M.H./M-172/L Petition allowed.

1
Seek, take over, grab, assume, appropriate.
25 of 58
2003 S C M R 1045

[Supreme Court of Pakistan]

Present: Rana Bhagwandas, Sardar Muhammad Raza Khan and Muhammad


Nawaz Abbasi, JJ

NOOR ELAHI and others---Petitioners

Versus

MEMBER, BOARD OF REVENUE and others---Respondents

Civil Petition No. 124 of 2003, decided 6th February, 2003.

(On appeal from the judgment of Lahore High Court, Lahore, Rawalpindi Bench dated
19-11-2001 passed in W. P. No. 1147 of 2001).

Constitution of Pakistan (1973)---


----Art. 199---Constitutional petition-Maintainability---Matter relating to title and
possession of land had been finally settled by Supreme Court judgment---Petitioners,
through Constitutional petition, sought the demarcation of the land with the intervention
of the High Court, to avoid any threat to their title and possession without raising any
objection to the settlement---Petitioners conceded that matter relating to the demarcation
of land was never in issue before the High Court or Board of Revenue at any stage and
the Constitutional petition was filed for the reason that Revenue Authorities would not be
prepared to accept petitioners demand of demarcation of land without the intervention of
Court---Validity---High Court, in circumstances, could not proceed in the matter in
conflict to the judgment of Supreme Court and permit reopening of the past and closed
transactions---Interference of the High Court in the matter would amount to allowing use
of remedy of Constitutional petition as a mischief against the State Functionaries to
compel them to act and proceed against the mandate of law.

Ibad ur Rehman Lodhi, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-
on-Record for Petitioners.

Nasir Saeed Shaikh, Advocate Supreme Court and M. A. Zaidi, Advocate-on-Record for
Respondents.

Date of hearing: 6th February, 2003.

JUDGMENT

MUHAMMAD NAWAZ ABBASI, J.--This petition under Article 185(3) of the


Constitution of the Islamic Republic of Pakistan, 1973, has been preferred against the
judgment, dated 19-11-2002 passed by a learned Single Judge of the Lahore High Court,
Rawalpindi Bench, Rawalpindi in Writ Petition No. 1147 of 2001 wherein the petitioners
sought direction for demarcation of land subject-matter of the litigation.

2. Messrs Wattan Cotton Mills Limited was established on the land measuring 96 Kanals,
9 Marlas acquired by the Government of Punjab in the revenue estate of Chuhar Harpal,
Tehsil and District Rawalpindi. Subsequent to the establishment of mills, Government of
Punjab on the request of the owner of the mills, acquired another area of 76 Kanals and 4
Marlas of land for construction of a labour colony for the mills but no such labour colony
was constructed and Government of Punjab vide notification, dated 18-11-1986 resumed
the land. Messrs Wattan Cotton Mills committed default in payment of income-tax
whereupon the Income-tax Department initiated proceedings against the mills and in
consequence thereto assets and properties of the Mills including the land, were put to
auction which were purchased by Messrs Sattar Textile Mills Limited. However, out of

26 of 58
total area of land measuring 96 Kanals, 9 Marlas belonging to mills, an area measuring
44 Kanals, 9 Marlas being in possession of Wattan Woolen Mills, a sister concern of
Wattan Cotton Mills, therefore, in lieu thereof on the request of Income-tax Department,
the Government of Punjab agreed, to hand over the possession of 44 Kanals and 9 Marlas
of land to the auction-purchaser from the resumed land. The two sister Companies being
aggrieved of the above arrangement, invoked the Constitutional jurisdiction of the Lahore
High Court, at Rawalpindi Bench, in the matter and ultimately the dispute was finally
settled by this Court in Civil Appeals Nos.1128 and 1129 of 1997, decided by this Court
vide judgment, dated 1-12-1998. The operative part of the judgment is reproduced
hereunder:--

"The learned counsel for Messrs Wattan Cotton Mills Ltd., Messrs Wattan
Woollen Mills Ltd. and Messrs Sattar Textile Mills Ltd., jointly stated before us
that they would be satisfied if a direction is issued to the Government of Punjab to
hand over 44 Kanals, 9 Marlas of land out of the remaining land available with
them. The Punjab Government has all along shown its willingness to hand over 44
Kanals, 9 Marlas of land to the purchaser Messrs Sattar Textile Mills Ltd., out of
76 Kanals of land which was acquired for the purpose of construction of. labour
colony and which was later resumed by the Punjab Government. We, accordingly,
modify the order passed by the High Court to the extent that out of the remaining
65 Kanals of land which is still vesting with the Punjab Government Messrs
Sattar Textile Mills Ltd., be given 44 Kanals, 9 Marlas of land. The two appeals
are disposed of accordingly, with no order as to costs. "

3. Prior to the disposal of above appeal, these two Companies filed a civil suit wherein
the notification, dated 18-11-19$6 relating to the resumption of the land by the
Government of Punjab was challenged. The suit was dismissed by the trial Court vide
judgment, dated 5-7-1994 and appeal preferred by them against the dismissal of suit also
met the same fate. However, in the civil revision filed by them in the Lahore High Court
Rawalpindi Bench, against the concurrent dismissal of suit, a learned Single Judge vide
judgment, dated 10-3-1996 by reversing the findings of the two Courts on the pivotal
questions involved in the suit held that the findings of the two Courts on the privotal
question involved in the suit held that the land on resumption, would be reverted to the
original owners and could not be given to Messrs Sattar Textile Mills. The learned Judge
while disposing of an application under Order 1, rule 10, C.P.C. filed by the original
landowners for impleading them as party., in civil revision made certain observations
regarding their rights in the resumed land. In the light of the said observations the said
land-owners filed separate writ petitions in the Lahore High Court, Rawalpindi Bench,
seeking direction for return of the resumed land to them and a learned Single Judge
disposed of all these petitions through a consolidated judgment, dated 21-9-1999 passed
in Writ Petition No.35 of 1999. The operative part of the judgment is read as under:--

"In the facts and circumstances of the present case, as there is already the order of
the Board of Revenue to return the land to the original owners, thus, after
complying with the orders of the Honourable Supreme Court in adjusting the land
to Messrs Sattar Textile Mills and Muhammad Bashir Malik the remaining land
should be given to the petitioners or any other landowner who has already applied
to the Board of Revenue and is also in possession thereof. It may be pertinent to
state here that surplus land may not be fully available to adjust the claim of each
claimant according to the land acquired from him, consequently, the Board of
Revenue is directed to distribute the land proportionately considering the claims
and also hearing the parties concerned. It may also be mentioned that the price for
the retransfer of the land shall be according to the determination of the District
Price Committee as mentioned by the learned A.A.-G. It may also be pertinent to
state that during the course of these petitions a local commission was appointed
who has submitted his report. The Board of Revenue may consider if the report be
of some value in determining the entitlement of the parties before me. "

4. The present petitioners are successors-in-interest of some of the original owners of the
land which was acquired by the Government of Punjab for construction of labour colony.
The petitioners being in physical possession of a portion of the resumed land, filed a
Constitution. Petition bearing No.1147 of 2001 in the Lahore High Court, Rawalpindi
Bench wherein they sought direction to the Revenue Authorities for demarcation of the
27 of 58
land given to Messrs Sattar Textile Mills to protect their possession on a part of the
resumed land. The writ petition was dismissed by a learned Single Judge with the
observation that interference in the matter would amount to nullify the judgment of
Supreme Court in C.As. Nos. 1128 and 1129 of 1997.

5. The learned counsel for the petitioners has contended that the petitioners being
successors-in-interest of the original owner were holding the possession of the land of
their share before its acquisition and after resumption of the land by the Government of
Punjab they would be entitled to retain possession of land with its title. The learned
counsel submitted that the right of ownership of the petitioners after resumption of land
was also acknowledged by the Board of Revenue which was later affirmed by the High
Court in its judgment, dated 10-3-1996 passed in the civil revision and yet in a
subsequent judgment, dated 21-9-1999 passed in Writ Petition 35. of 1999 but the
Revenue Authorities have taken no steps for implementation of the order of the Board of
Revenue and the judgments of the High Court, Learned counsel, however, submitted that
the petitioners were not aggrieved of the settlement arrived at between the parties in C.
As. Nos. 1128 and 1129 of 1997 and with the exclusion of an area of 44 Kanals, 9 Marla
and 11 Kanals given to Messrs Sattar Textile Mills and one Allah Ditta they would be
entitled to retain possession of remaining land as owners, therefore, the demarcation of
the land was necessary to protect their rights in the land.

6. The learned counsel representing Sattar Textile Mills on the other hand, has raised
serious objection to the maintainability of writ petition on the ground that after final
settlement of the matter in C.As. Nos. 1128 and 1129 of 1997 before this Court, the same
was being reopened before the High Court in its Constitutional jurisdiction on the pretext
of demarcation of land and factually the petitioners with a view to frustrate the judgment
of this Court, started litigation to prolong their unauthorized possession on the land
owned by Messrs Sattar Textile Mills.

7. The Government of Punjab on resumption of land treating it as Government property


did not return the same to the original owners, and thus they would not be the necessary
party in the proceedings, which culminated in the two civil appeals disposed of by this
Court vide judgment, dated 1-12-1998 and consequently they would have no locus standi
to question the validity of settlement made by the parties in C.As. Nos.1128 and 1129 of
1997 before this Court. Subsequently, the petitioners taking benefit of the judgments of
the High Court referred to above and the order of the Board of Revenue sought the
demarcation of the land with the intervention of High Court without raising any objection
to the settlement made by the Government of Punjab with Messrs Sattar Textile Mills.
Learned counsel for the petitioners when confronted that the judgments of the High Court
and order of Board of Revenue could not be implemented in departure to the judgment of
this Court in C. As. Nos. 1128 and 1129 of 1997 effecting the rights of parties in the said
appeals and the original owner could not assert their title in the land subject-matter of
dispute in the above appeals, he submitted that the petitioners without disputing the rights
of the respondents in the land, were seeking demarcation of the land to avoid any threat
to their title and possession. We have not been able to understand that how the High
Court in the given situation could proceed in the matter in conflict to the judgment of this
Court and permit re-opening of the past and closed transactions. The learned counsel
conceded before us that the matter relating to the demarcation of land was never in issue
either before the Revenue Authorities or any Court at any stage and the writ petition was
filed for the reason that Revenue Authorities would not be prepared to accept their
demand of demarcation of land without the intervention of the Court. We are afraid, the
interference of the High Court in the matter would amount to allowing use of remedy of
writ petition as a mischief against the State functionaries to compel them to act and
proceed against the mandate of law. We, therefore, without taking any exception to the
judgment impugned, dismiss this petition. Leave is refused.

M.B.A./N-122/S Petition dismissed

28 of 58
2002 Y L R 2471

[Lahore]

Before Jawwad S. Khawaja and Abdul Shakoor Paracha, JJ

AL-GHAZI TRACTORS LIMITED through Managing Director---Appellant

Versus

ILYAS HUSSAIN ---Respondent

Regular First Appeal No.72 of 1992, heard on 16th January, 2002.

(a) Limitation Act (IX of 1908)---

----S.28 & Art. 144---Adverse possession--Limitation---Plaintiff's suit would only be


time-barred, and as a consequence his title in suit land would be extinguished if it was
proved that the defendant had been in adverse possession of the land for a period of
twelve years.

(b) Adverse possession---

----Establishing adverse possession---Prerequisites---Person claiming such possession has


to specify the date of possession, circumstances in which such possession was acquired
and the overt1 act committed by him to show open and hostile possession as of right
against the legal owner of the land.

(c) Specific Relief Act (I of 1877)---

----S.54---Adverse possession ---Proof--Demarcation of suit land---Mistaken possession--


Plaintiff, on the basis of demarcation by Revenue Authorities, claimed to be the owner of
the suit laid in possession of the defendant---Defendant asserted that 100 Kanals of land
was purchased vide three separate sale-deeds and the suit land had been in its occupation
since 1968 which was enclosed within a boundary wall constructed by the
predecessors-in-interest of defendant--Plea raised by the defendant was that as a result of
adverse possession over the suit land, the title of plaintiff stood extinguished and he had
no right over the same---Trial Court decreed the suit in favour of the plaintiff and title of
the plaintiff was established over the suit land ---Validity--Even if the suit land was
enclosed within a boundary wall constructed by predecessor-in-interest of the defendant,
such possession and construction was the result of mutual mistake resulting from a lack
of proper demarcation---Such possession could not be treated as adverse
possession---Plaintiff failed to produce on record any open and hostile act on its part
which would show that the defendant was conscious that the suit land was owned by the
plaintiff---Defendant and its predecessor-in-interest had occupied the suit land in
mistaken belief that the land was part and parcel of land comprised in sale deeds through
which they acquired title in the adjoining land---Where demarcation had not taken place
td define boundaries of respective areas owned by adjoining landowners, a right to claim
adverse possession could not be established or asserted---Only demarcation of the land
respectively owned by the parties was available on record which was produced by the
plaintiff---Defendant did not adduce any evidence to show a prior demarcation which
could have constituted the basis of its claim that it was in adverse possession of the suit
land as opposed to mere mistaken possession---Trial Court had rightly decreed the suit in
favour of the plaintiff and High Court declined to interfere with the judgment and decree
passed by the Court.

Zaman Mahndi and another v. Salehun 1987 CLC 2494 and Maqbool Ahmed v.
Government of Pakistan 1991 SCMR 2063 ref.

Muhammad Din v. Nazir Ahmed and 2 others 1994 SCMR 109 fol.
1
Open, clean, plain, obvious, evident, unconcealed.
29 of 58
Aamer Raza A. Khan for Appellant.

Syed M. Kaleem Ahmad Khurshid for Respondent.

Dates of hearing: 15th and 16th January, 2002.

JUDGMENT
JAWWAD S. KHAWAJA, J.---This first appeal impugns the judgment and decree dated
1-4-1992 passed by the learned Civil Judge 1st Class, Ferozewala. The dispute between
the parties relates to land measuring 2 Kanals, 8 Marlas comprised in Mouza Baddo,
Tehsil Ferozewala. Ilyas Hussain plaintiff/respondent tiled a suit for possession of the
aforesaid land. It was asserted by the plaintiff that he was owner of the suit land, which
had been illegally occupied by Al-Ghazi Tractors Ltd. defendant/appellant. According to
the contents of the plaint the plaintiff had obtained a demarcation through the Revenue
Staff on 7-10-1986, which reconfirmed his assertion that the defendant/appellant was in
illegal occupation of the suit land.

2. The suit was resisted by the defendant/appellant. The stance of the defendant as
reflected in the written statement was that the plaintiff was neither owner of the suit land
nor was he in possession of the same. It was also asserted by the defendant that since
1968 the suit land had been enclosed by a boundary wall and had remained in the
possession of the defendant and its predecessors-in-interest for an uninterrupted period.
The defendant, therefore, claimed that the title of the plaintiff Ilyas Hussain stood
extinguished as a result of the adverse possession of the defendant over the suit land.

3. Based on the pleadings, the learned trial Court framed ten issues, out of which
arguments before us were confined to Issues Nos. 1, 7 and 8 only the said issues are
reproduced as under:--

(1) Whether the suit is barred by time? OPD

(7) Whether the defendant has become owner of the suit land through adverse
possession? OPD

(8) Whether the plaintiff is owner of the suit land and is entitled to its possession?
OPD

4. Issue No.8 was taken up first by the learned trial Court. We also propose to decide the
same first. The plaintiff has produced on record Exh.P2, which is a copy of the
Jamabandi for the year 1981-82. This document shows Ilyas Hussain plaintiff as the
owner of the suit land. One Hamid Azam is shown as a tenant in occupation of the said
land and the land itself is described as Ghair Mumkin Karkhana. The plaintiff, as his own
witness, has also asserted title to the suit land. On the other hand, he defendant/ appellant
has not brought on record any evidence to show that Ilyas Hussain plaintiff was not the
owner of the suit land. Learned counsel for the appellant was also unable to show from
the record any reason as to why the plaintiff should not be treated as owner of the suit
land considering the evidence on record. We, therefore, confirm the findings of the
learned trial Court that the plaintiff has succeeded in establishing his title to the suit land.

5. The entitlement of the plaintiff to possession of the suit land, which is the second part
of Issue No.8, is dependent upon the decision of Issues Nos.1 and 7, which are discussed
below.

6. The onus of proving Issues Nos. 1 and 7 was on the defendant. The learned trial Court
has held that Issues Nos. 1 and 7 were not pressed by learned counsel for the defendant
during arguments before the said Court. In respect of Issue No.7 it was also observed by
the learned trial Court that the defendant had not produced any evidence on this issue.

7. At the outset, therefore, learned counsel for the plaintiff/respondent argued that the said
issues could not be pressed by the defendant in appeal. Learned counsel for the

30 of 58
defendant/appellant, however, contended that the main thrust of the written statement
filed by the defendant/appellant as well as extensive documentary evidence produced on
its behalf was to establish that the defendant had become entitled to the suit land through
adverse possession. He, therefore, stated that the-observation of the learned trial Court in
respect of Issues Nos. 1 and 7 was factually incorrect. In response learned counsel for the
plaintiff/respondent argued that a presumption of correctness is attached to the
observation made any the learned trial Court, particularly when there was nothing on the
record to prove the contrary and there was not even an affidavit submitted by learned
counsel who had represented the defendant before the learned trial Court to depose that
the aforesaid issues had been pressed before the learned trial Court. He also referred to
the case titled, Zaman Mahndi and another v. Salehun 1987 CLC 2494, to contend that
the defendant/appellant should not be allowed to address arguments on the aforesaid
issues. It was suggested by learned counsel for the plaintiff/respondent that Issues Nos.1
and 7 were conceded by the defendant/appellant as a result of the judgment of the
Honourable Supreme Court in the titled Maqbool Ahmed v. Government of Pakistan
(1991 SCMR 2063), wherein it was held that extinguishment of title as a result of adverse
possession as envisaged under section 28 of the Limitation Act was un-Islamic.

8. We have considered the above submissions of learned counsel. Although there is


weight in the submissions made by learned counsel for the plaintiff, we have allowed
learned counsel for the defendant/appellant to argue the said Issues Nos. 1 and 7 because,
as noted above, the case of the appellant is almost entirely based on adverse possession.
It, therefore, does not appeal to reason that the appellant would intentionally and
consciously concede Issues Nos. 1 and 7. Furthermore, the failure of the defendant's
counsel to press Issues Nos. 1 and 7 before the learned trial Court appears to have been
based on a misconstruction of the decision of the Honourable Supreme Court in the case
titled Maqbool Ahmed v. Government of Pakistan, referred to above. The said precedent
was to have prospective effect and did not in any manner effect the rights of parties
which had matured prior to 31-8-1991, which was the date from which the law
enunciated by the Honourable Supreme Court in the aforesaid precedent was to take
effect.

9. Before discussing Issues Nos. 1 and 7, we find it useful to reproduce section 28 and
Item 144 of the First Schedule to the Limitation Act as under:---

"28. At the determination of the period hereby limited to any person for instituting
a suit for possession of any property, his right to such property shall be
extinguished."

"144. For possession of (Twelve years) When the possession of the


immovable property or any defendant becomes adverse to
interest therein not hereby the plaintiff."
otherwise specifically
provided for.

10. From the above noted statutory provisions it is clear that the plaintiff's suite would
only be time-barred, and as consequence, his title in the land extinguished if it is proved
on record that the defendant/appellant had been in adverse possession of the suit land for
a period or twelve years.

11. The case of the defendant/appellant; at best, is that the suit land has been in
continuous possession of the defendant and its predecessors-in-interest for a continuous
period 'of more than twenty years starting from 1968.

12. Learned counsel for the appellant drew our attention to Exh.D-2 to Exh.D-10. These
documents are sale-deeds starting from Exh.D-10, which is a sale-deed dated 10-1-1967
in favour of one Ch. Arshad Sated. The land comprised in the sale-deed Exh.D-10 was
conveyed by means of subsequent sale-deeds, in favour of various persons and finally
vide Exh. D-2 dated 21-2-1984 one Haji Suleman, who was at that time vested with title,
conveyed the same to the defendant/appellant. From the contents of the aforesaid
documents Exh. D-2 to Exh.D-10, learned counsel for the appellant pointed out that the
land comprised in the said sale-deeds was initially purchased for the construction of a

31 of 58
factory and was enclosed within a boundary wall, which finds mention in the sale-deeds
Exh.D-8 and Exh.D-9 respectively dated 27-8-1968 and 26-8-1968.

13. It is to be noted that the suit land was not comprised in any of the aforesaid
sale-deeds. This fact is not disputed and has in fact been admitted by D.W.2 namely,
Muhammad Latif, Assistant Manager of the defendant, who appeared as a witness in the
case.

14. Learned counsel for the appellant argued that even though the suit land was not
conveyed to the defendant or to its predecessors-in-interest, it was nevertheless enclosed
within the boundary wall referred to above and was in the possession of the defendant
and its predecessors-in-interest at least since, 1968. According to learned counsel this fact
by itself was sufficient to establish that the defendant and its predecessors-in-interest had
been in adverse possession of the suit land since 1968. Therefore, according to him the
present suit filed by the plaintiff on 4-11-1986 was time-barred.

15. The plaintiff/respondent has denied the fact that the suit land was enclosed within the
boundary wall referred to in Exh.D-8 and Exh.D-9. It is his contention, as set out in the
plaint, that the appellant illegally occupied the suit land and built a boundary wall in April
1984. For reasons discussed bellow we do not consider it necessary to decide if the
boundary wall was constructed in 1968 or in 1984.

16. Even if it is accepted, as asserted by the defendant/appellant, that the snit land was in
the continuous possession of the defendant and its predecessors-in-interest since 1968,
this fact by itself is not sufficient to establish that the defendant/appellant was in adverse
possession of the same. It is by now well-settled that in order to establish adverse
possession the person claiming such possession has to specify the date of possession, the
nature in which such possession was acquired and the overt act committed by him to
show open and hostile possession as of right, against the legal owner of the land. In the
present case, proceeding on the assumption that the facts asserted by the
defendant/appellant are correct, we find that no overt act of the aforesaid nature has been
pleaded in the written statement or brought on record, through testimony of witnesses.
What is clear, from the record is that prior to 1968 the area in which the suit land is
located was agricultural and un-constructed. This, much has been acknowledged by the
defendant itself in para. 8(iii) of the written statement, wherein it is averred that since
before 1968 a vast area including the disputed land ceased to be agricultural land. The
plaintiff has deposed in his testimony that he had purchased 100 Kanals of land through
three separate transactions, one of which included the suit land. From these facts, it is
clear that even if the defendant and its predecessors-in-interest have been in occupation
of the suit land since 1968 and even if the suit land was encloses within a boundary wall
constructed by the predecessors-in-interest of the defendant, such possession and the
construction of such boundary wall was a result of a mutual mistake resulting from a lack
of proper demarcation. Such possession cannot by any stretch of reasoning be treated as
adverse possession. As noted above, there is no evidence on record of any open and
hostile act on the part of the defendant which would show that the defendant was
conscious that the suit land was owned by the plaintiff. The defendant and its
predecessors-in-interest clearly occupied the suit land in the mistaken belief that it was
part and parcel of the land comprised in the sale-deeds through which they acquired title
in the adjoining land.

17. In the case title Muhammad Din v. Nazir Ahmed and 2 others (1994 SCMR 109) the
Honourable. Supreme Court has held that where demarcation has not taken place to
define boundaries of the respective areas owned by adjoining landowners, a right to claim
adverse possession cannot be established or asserted. The ratio of the aforesaid precedent
is squarely applicable to the circumstances of this case. The first and only demarcation of
the boundary between the land respectively owned by the parties available on record is
reflected in Exh.P1 which is an extract from the Roznmacha Waqiati dated 7-10-1986.
The appellant/defendant did not adduce any evidence to show a prior demarcation which
could have constituted the basis of its claim that it was in adverse possession of the suit
land, as opposed to mere mistaken possession.

32 of 58
18. In these circumstances, we find that the defendant has not succeeded in discharging
the onus placed on it in respect of Issues Nos.1 and 7. The said two issues are, therefore,
decided in the negative against the defendant.

19. In view of the foregoing discussion, this appeal is dismissed plaintiff/respondent shall
also be entitled its costs throughout.

Appeal dismissed.

Q.M.H./M.A.K./A-496

33 of 58
2001 Y L R 1484

[Lahore]

Before Ijaz Ahmad Chaudhry, J

NUR MUHAMMAD through Special Attorney Muhammad Nadeem Noor--


Petitioner

versus

ADDITIONAL SESSIONS JUDGE, SAMUNDRI and 7 others---Respondents

Writ Petition No. 12230 of 1992, heard on 22nd June, 2001.

Criminal Procedure Code (V of 1898)---

----S.145---Constitution of Pakistan (1973), Art. 199---Constitutional petition--Magistrate


had failed to properly appreciate the documents produced by the petitioner and he
misunderstood that the possession of the shop in dispute had been delivered to the
petitioner in demarcation proceedings by the Revenue Authorities---Sessions Court had,
however, rightly discussed all the evidence produced by both the parties and had come to
a definite conclusion that the respondent was in possession of the shop when it was
sealed---Judgment of Sessions Court was fully supported by the evidence on the record---
Respondent being a tenant in the shop in dispute and having not been evicted therefrom
through process of law, could not be deprived of his possession through the proceedings
under S.145, Cr. P. C.---Documents relied upon by the petitioner, on the other hand, did
not establish his possession on the shop when the same was sealed--Constitutional
petition was dismissed in circumstances.

A. Karim Malik for Petitioner.

Farooq Amjad Mir for Respondents.

Date of hearing: 22nd June, 2001.

JUDGMENT
Through this Constitutional petition the petitioner seeks the setting aside of the order of
the learned Additional Sessions Judge, Samundari, dated 2-12-1992 and for restoration of
the order, dated 14-4-1991 passed by the learned Magistrate 1st Class, Samundari.

2. The brief facts of the case are that Muhammad Din and Noor Muhammad real brothers,
were allotted an Ihata No.47/10/35 situate in Chak No.509/GB Tehsil Samundari, District
Faisalabad in equal shares. Half of the share in possession of Muhammad Din
predecessor-in-interest of respondents Nos.4 to 7 was given to respondent No.3
Muhammad Yaqoob. According to the learned counsel for the petitioner this Ihata was
residential but subsequently its nature was changed into shops. The shop in possession of
Muhammad Din was given to Muhammad Yaqoob but Muhammad Aslam respondent
No.4 forcibly and deceitfully took over the possession of the entire shop on the ground
that the shop was exclusively owned by his father. The litigation started between
respondents Nos.4 to 7 and the petitioner up to the Board of Revenue and finally it was
decided that both the brothers are allotted shops in equal shares. The Additional
Commissioner (Revenue) on 30-5-1991 passed the order in this regard. Muhammad
Aslam, according to the petitioner, rented out the entire shop to Muhammad Yaqoob
respondent No.3. The petitioner moved an application for the demarcation of the property
and on the direction of Assistant Commissioner, Halqa Girdawar, on 16-1-1991, went to
the place and made the demarcation and Mutation No. 1821 was attested on 16-1-1991
Muhammad Yaqoob respondent No.3 got registered a case against the petitioner vide
F.I.R. No.22 of 1992 at Police Station Mamukanjan. The police assuming the breach of

34 of 58
peace sealed the shop and initiated proceedings against the parties under section 145,
Cr.P.C. However, the learned Magistrate 1st Class, Samundari desealed the premises vide
his order, dated 14-4-1991 and found that there was no breach of peace and also held that
as the possession was delivered to Noor Muhammad petitioner and interference has been
made after giving the possession to him. Feeling aggrieved by this order Muhammad
Yaqoob filed revision petition against the petitioner and Muhammad Aslam and other
legal heirs of Muhammad Din. The learned Additional Sessions Judge, after hearing both
the parties vide his judgment, dated 2-12-1992 accepted the revision and held that the
order of the learned Magistrate under section 145, Cr.P.C. is not sustainable. The revision
petition was accepted through the impugned order and file was sent back to the learned
Magistrate to restore the possession of respondent Muhammad Yaqoob within . the four
corners of section 145, Cr.P.C. The parties were directed to appear before the learned
Magistrate on 22-12-1995. Hence this writ petition.

3. Learned counsel for the petitioner contends that the proceedings of demarcation which
are Annexure 'C' of this petition shows that the Patwari on the direction of the Assistant
Commissioner had gone to the spot and has given the possession to the petitioner. Then
he has drawn my attention to the document Annexure 'B' which according to him is
sufficient to prove that the two brothers, namely, Noor Muhammad and Muhammad Din
were allotted the said Ahata in equal share. He has also drawn my attention to the
cancellation report of case F.I.R. No.22 of 1991 in which the police found the version of
respondent No.3 as false. He has also drawn my attention to Annexure ' D' . The suit was
filed by Muhammad Yaqoob against the petitioner and respondents Nos.3 to 7 and it was
dismissed for non-filing of the process fee, vide order, dated 20-3-1991. He further
contends that it becomes crystal clear that the possession of the disputed shops were
handed over to the petitioner by the Patwari in the presence of the Girdawar on the
direction of the Assistant Commissioner on 16-1-1991 as per Annex. 'B'. Hence the
proceedings initiated subsequently by the Ilaqa Magistrate under section 145, Cr.P.C. to
flout the proceedings on the revenue side on the direction of the A.C. and to deprive the
petitioner from the possession of the disputed shop. He further contends that Muhammad
Yaqoob though filed the civil suit but it was dismissed and he never agitated against the
dismissal of his suit. It is further contended that with mala fide intention on 18-1-1991 he
filed the application for the proceedings under section 145, Cr.P.C. The learned
Magistrate after recording the evidence came to the conclusion that the proceedings under
section 145, Cr.P.C. were without any justification as the possession was handed over to
the petitioner on 16-1-1991 by the Revenue Authorities hence directed to hand over the
possession to the petitioner on the basis of the document Annexure 'C' of this petition.
Learned counsel also contends that the judgment of the learned Additional Sessions Judge
is liable to be set aside as he has failed to pass an order on the facts borne out from the
evidence on the record in the proceedings under section 145, Cr.P.C. He further contends
that the learned Additional Sessions Judge has erred in law by not considering the
documentary evidence produced by the petitioner during the proceedings and he has not
given, any importance to the demarcation proceedings by the Revenue Authorities on 16-
1-1991. He has also not given any cogent reasons for allowing the revision petition and
without considering the factual position of the dismissal of the civil suit filed by
Muhammad Yaqoob before the Civil Court. He further contends that a bare perusal of the
document shows that the petitioner was in possession of the disputed property when the
order of dealing of the property was passed by the Ilaqa Magistrate. Hence the order
passed by the learned Ilaqa Magistrate is sustainable in the eyes of law and the order
passed by the learned Additional Sessions Judge in revisional jurisdiction is against law
and facts of the case and is liable to be set aside.

4. Learned counsel appearing on behalf of respondent No.3 has drawn my attention to the
documents placed on the record by the petitioner according to which Annexure 'C' only
shows that the disputed place was demarcated and there is nothing about the heading over
of the possession to the petitioner by the Revenue Authorities hence the document has
rightly been read by the learned Additional Sessions Judge and the learned Magistrate
failed to properly appreciate the proceedings of demarcation. Actually on 16-1-1991 the
possession of the property was not given to the petitioner but only the property was
equally demarcated between the two brothers to whom it was allotted. He has further
contended that the suit filed by respondent No.3 was dismissed on technical grounds and
does not deprive him from his possession which was lawful as he had obtained the shop
on loan by the predecessor-in-interest of respondents Nos.4 to 7. Learned counsel has
35 of 58
also drawn my attention to the documentary evidence as well as the oral evidence which
shows that Muhammad Yaqoob was in possession when the shop was sealed in the
proceedings under section 145, Cr.P.C. He has drawn my attention to the statement
produced by the petitioner before the Ilaqa Magistrate who had admitted that Muhammad
Yaqoob was in possession of the shop at the time of sealing of the shop by the learned
Magistrate. Muhammad Saleem A. W .1 had admitted it correct that when the shop was
sealed Muhammad Yaqoob was in possession of the shop. Similarly Muhammad Ramzan
A.W.2 has also admitted this fact to be correct. Muhammad Nadim A.W.3 has also
admitted that Muhammad Yaqoob was sitting in the shop when the same was sealed by
the Ilaqa Magistrate under section 145, Cr.P.C. He has further contended that the
witnesses produced by respondent No.3 have supported the case of respondent No.3 that
he was in possession of the shop even before two months of the passing of the order and
at the time of desealing of the shop and passing of the final order by the Ilaqa Magistrate
the possession was to be handed over to respondent No.3 who was a tenant and his
possession was lawful. He further contends that respondent No.3 could not be ejected in
the garb of proceedings under section 145, Cr.P.C. by the Ilaqa Magistrate. He has prayed
for sustaining of the order passed by the learned Additional Sessions Judge in revision.

5. I have heard the learned counsel for the parties and also perused the record. The
documents shown by the learned counsel for the petitioner for the demarcation of the
property do not indicate that the possession of the shop was handed over to the petitioner.
The registration of case for taking over the possession was found to be false by the police
and a cancellation report was prepared but there is no cancellation order passed by the
Magistrate of the case. Hence mere submission of the report by the police will not be a
strong piece of evidence against respondent No.3 that he was not in possession of the
shop at the time of initiation of proceedings under section 145, Cr.P.C. The documents
relied upon by the learned counsel for the petitioner shows that the demarcation
proceedings were initiated but it is no where mentioned that the possession of the shop
was delivered to the petitioner during the proceedings but only the demarcation of the
property was made. It is no where mentioned that respondent No.3 who was a tenant and
was evicted from the property hence the document relied upon by the learned counsel for
the petitioner does not prove that Noor Muhammad was handed over the possession of
the property at the time of demarcation. On the other hand Muhammad Yaqub respondent
No.3 has succeeded in proving that he was a tenant was in possession of the property at
the time of initiation of proceedings under section 145, Cr.P.C. This fact has been
admitted by the witnesses produced by the petitioner before the Ilaqa Magistrate. During
the cross-examination A.W.1 and A.W.2 have admitted it to be correct that Muhammad
Yaqub respondent No.3 was sitting in the shop when the proceedings under section 145,
Cr.P.C. were initiated. Similarly respondent No.3 filed a civil suit for permanent
injunction claiming to be a tenant of respondents Nos. 4 to 7 and prayed for restraining
the defendants permanently from dispossessing him from the shop though this suit was
dismissed due to non-submission of the process fee but it cannot be said that it was a
decision on merits against respondent No.3. The basic question to be decided in this
petition is that as to who was in possession at the time of initiation of proceedings under
section 145, Cr.P.C. and to whom the possession was to be delivered by the Magistrate
after the recording of the evidence. The learned Magistrate failed to properly appreciate
the documents produced by the petitioner and he misunderstood that the possession was
delivered by the Revenue Authorities to the petitioner on 16-1-1991. There is nowhere
mention that the possession has been delivered to the petitioner. Hence the learned
Additional Sessions Judge has rightly discussed all the evidence produced by both the
parties and has come to a definite conclusion that Muhammad Yaqub respondent No.3
was in possession of the A property when the shop was sealed. The judgment of the
learned Additional Sessions Judge is fully supported by the evidence 'on the record. On
the other hand the documents relied upon by the petitioner do not establish that the
petitioner was in possession of the property when it was sealed. When it has been
established that respondent No.3 who was a tenant was not legally evicted from the shop
through process of law he cannot be deprived of his possession through the proceedings
under section 145, Cr.P.C.

6. The judgment of the learned Additional Sessions Judge is based on cogent reasons and
is supported by the documentary as also oral evidence and is sustainable in the B eyes of
law. This writ petition has no merit which is hereby dismissed with no order as to costs.

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Respondent No.3 Muhammad Yaqoob was in possession when the possession of property,
was taken over by the learned Magistrate. The learned counsel for the petitioner has tried
to argue that now after the suspension of the impugned judgment the possession was
delivered to Ghulam Muhammad who is a tenant of the writ petitioner. Hence it will
cause complications if a direction is issued for the handing over of the possession to
respondent No.3. Ghulam Muhammad admittedly was given the possession after the
filing of this writ petition when the operation of the impugned judgment was suspended.
Ghulam Muhammad at the roost has stepped into the shoes of the writ petitioner. He will
sink and swim with the petitioner and he cannot retain the possession as his alleged
landlord has been declared to be not in possession at the time of -initiation of proceedings
under section 145, Cr.P.C. hence no complication will arise as the law is very clear.

N.H.Q./N-99/L Petition dismissed

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2000 M L D 1797

[Lahore]

Before Dr. Munir Ahmad Mughal, J

MUHAMMAD MUNIR---Petitioner

versus

MUHAMMAD YOUSAF and 7, others---Respondents

Writ Petition No.6594 of 2000, decided on 5th June; 2000.

Criminal Procedure Code (V of 1898)---

----S.133---West Pakistan Land Revenue Act (XVII of 1967), Ss:7 & 117--West Pakistan
Land Revenue Rules, 1968, R.67-A---Constitution of Pakistan (1973), Art. 199---
Constitutional petition---Encroachment upon public way--Respondents having
encroached upon public way, petitioner filed complaint against the encroachment---Trial
Court after spot inspection directed Tehsildar/Revenue Officer to demarcate property in
dispute and Revenue Officer in compliance with order of Trial Court conducted
demarcation proceedings and prepared his report wherein respondents were found having
encroached upon public way---Proceedings upon said report having been delayed by Trial
Court, petitioner filed Constitutional petition to get the matter decided expeditiously and
High Court accepting petition directed Trial Court to decide complaint filed by petitioner
within specified period---Trial Court instead of acting upon report of competent Revenue
Officer which was prepared after spot inspection and was already on file asked Halqa
Girdawar to prepare a demarcation report---Halqa Girdawar in compliance with direction
of Trial Court reported that no encroachment had been made by respondents---Trial Court
on basis of said report dismissed complaint of petitioner and said order of dismissal of
complaint was upheld in revision---Validity---Courts below should have taken into
consideration earlier report prepared by Competent Authority on basis of which
respondents were found having made the encroachment---Orders passed by Courts below
on report of Halqa Girdawar who was not Competent Authority in that respect, were held
to be illegal by High Court and was set aside---Revenue Authorities could, however, take
fresh action in accordance with S-.7 of West Pakistan Land Revenue Act, 1967 and
R.67A of West Pakistan Land Revenue Rules, 9~=

app. 1798, 1800, 1801, 18061 A, B, C & D

PLD 1974 Punjab Statutes p.84 and Anwar Club and another Muhammad Sarwar PLD
1992 Lah. 63 ret.

Rana Nasrulalh Khan for Petitioner_ Nemo for Respondent.

Date of hearing: 5th June, 2000.

JUDGMENT

The brief facts of the case are that the petitioner filed a criminal complaint under section
133, Cr.P.C. against the respondents Nos.1 to 5, before the Resident Magistrate, Daska
alleging that the respondents have closed and obstructed the public path situated in
village Matteke Nagra amounted to public nuisance and that the learned Resident
Magistrate recorded the summary statement of the petitioner on 13-10-1998 and the
,concerned Revenue Officer directed the respondents vide order, dated ?2-10-1999 to
remove the obstruction within a period of 7 days and that the respondents Nos. 1 to 5
contested the complaint on merits and filed a written reply to the same and that the
respondents did not specifically deny the alleged obstruction of the way and the learned
trial Court inspected the spot on 20-7-1999 and directed the Teshildar/Revenue Officer to

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demarcate the property in dispute and that the Revenue Officer conducted the
demarcation proceedings and prepared his report, dated 10-8-1999. It was found that the

respondents encroached upon the public ways consisting of Khasra No.6, I 8 to the extent
of 4 Marlas and included the same in their Thasra No.677 by constructing a Haveli upon
the same and that the respondents, however, filed the objections, dated 28-9-1999 against
the report and that the trial Court inspected the spot on 20-7-1999 and the revenue officer
was assigned the duty of demarcation with the consent of the parties and that the
encroachment was though proved on the record, but the .proceedings were sing delayed
by the learned trial Court. The petitioner thus was constrained to file Writ Petition
No.18831 of 1999 titled as Muhammad Munir v. Rizwan Nazir and others with a view to
get the matter decided expeditiously and that the writ petition was disposed of vide the
order, dated, 7-10-1999 by this Honourable Court with the direction to decide the
complaint within a period of one month and that the learned trial Court with a view to
expedite the matter instead of acting upon the report of the Revenue Officer which was
already on the file, opted to visit the spot on 3-11-1999 and the learned trial Court asked
the Halqa Girdawar to prepare a demarcation report and that the Girdawar accordingly
prepared his report, dated 3-11-1999 and reported that no encroachment was found in
possession of the respondent and that the learned Resident Magistrate on the basis of the
report of the Girdawar, dated 3-11-1999 dismissed the complaint of the petitioner vide the
order of the same date and that the petitioner challenged the same order before the
learned Additional Sessions Judge, Daska through a revision petition which was also
dismissed vide order dated 29-3-2000.

2. The writ was admitted to regular hearing with notice to the respondents for 16-5-2000
and on 15-5-2000 Mr. Muhammad Athar, Advocate High Court filed his power of
attorney for which date the list was cancelled and the case was again listed for today after
notice as recorded at the back of the folder Mark-A but neither the respondents nor the
counsel for the respondents appeared as such they are proceeded ex parte.

3. Ex parte arguments heard.

4. The learned counsel for the Writ Petitioner has urged that both the Courts below failed
to search out the truth and real point in issue and passed illegal orders without application
of mind and that the orders have not been passed to achieve the ends of justice and that
the demarcation report prepared by the Revenue Officer was on the file of the learned
trial Court and the objections filed by the opposite-party were still under consideration
and that according to the demarcation report of the competent Revenue Officer the
respondents had encroached upon an area of 4 Marlas of the public way, but both the
learned Courts below for their own convenience failed to take into consideration the same
report and that the second report prepared by the Halqa Girdawar was not only prepared
by an incompetent person, but also was unnecessary in presence of the report by the
Revenue Officer. 5. The relevant provision of law as to the classes of Revenue Officers is
contained in section 7 of the Punjab Land Revenue Act, 1967 which reads as under:---

Section 7. Classes of Revenue Officer.--(1) There shall be the following classes of


Revenue Officers, namely:--

(a) The Board of Revenue;

(b) the commissioner;

(c) the Collector;

(d) the Assistant Collector of the first grade;

(e) the Assistant Collector of the second grade.

(2) The Deputy Commissioner of the District or the officer performing for the time being
functions as such, shall be the Collector thereof.

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The relevant provisions regarding the power of Revenue Officers to define boundaries
has been mentioned in section 119 of the said Act, which reads as under:--

Section 117. Power of Revenue Officers to define boundaries.--(1) A Revenue Officer


may, for the purpose of framing any record or making any assessment under this Act, or
on the application of any person interested, define the limits of any estate or of any
holding, field or other portion of an estate, and may, for the purpose of indicating those
limits, require bondary marks to be erected or repaired.

(2) In defining the limits of any land under subsection (1), the Revenue Officer may
cause boundary marks to be erected on any boundary already determined by or by order
of any Court or Revenue Officer or any Forest Settlement Officer appointed under the
Forest Act, 1927 (XVI of 1927), or restore any boundary mark already set up by, or by
order of, any Court or any such officer.

Vide Government of the Punjab Notification No.2313-73/629-L-R-I-- With reference to


Notification No.6488-71/3130-L-R-I, dated the 14th November, 1971, issued by the
Board of Revenue, Punjab, and published in the Punjab Gazette of 17th December, 1971,
and in exercise of the powers conferred by section 121 of the West Pakistan Land
Revenue Act, 1967, read with section 122 thereof and with prior approval of the
Government of the Punjab, the Board of Revenue, Punjab, is pleased to direct that in the
West Pakistan Land Revenue Rules, 1968, in their application to the Province of the
Punjab, the following amendments shall be made, namely:

(1) After Part IX, a new part containing the following, rules hall be added, namely:--

"PART IX-A. ---Demarcation of land and Eviction of Unauthorized land owners

Rule 67-A. Demarcation of land. (1) An application under section 117 for defining the
limits of an estate, a holding, a field or any portion thereof, shall contain the following
particulars:--

(a) Designation of the Revenue Officer to whom it is addressed.

(b) Name, parentage and address of the applicant and if the applicant is minor, or a
person of unsound mind, the name, parentage and address of his guardian or of a male
member of his family.

(c) Name, parentage, and address of the person or persons against whom the application
is made, and if he or anyone of them is a minor or of unsound mind, the name, parenage
and address of his guardian or of a male member of his family.

(d) Location and full description of the land to be demarcated.

(e) A brief statement of facts and reasons necessitating the ,making of application.

(f) Signatures or thumb-impression of the applicant.

(g) Any other matter which is necessary for the proper disposal of application.

(2) An application under sub-rule (1) shall bear the court-fee stamp of rupee one and shall
be accompanied by--

(a) an attested copy of the latest entry in Register Haqdaran-e-Zamin or Jamabandi


relating to the land mentioned in the application; and

(b) an attested copy of the portion of the map of the estate showing field number
mentioned in the application.

(3) The application shall be presented to--

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(a) the Revenue Officer-in-Charge of the Circle in case the land to be demarcated is
situated within a Tehsil; and

(b) The Revenue Officer-in-Charge of a Sub-Division, in case the limits of the land to be
defined extended to an adjoining Sub-Division or District.

(4) On the receipt of such application duly accompanied by the attested copies mentioned
in sub-rule (23) the Revenue Officer concerned shall--

(a) cause the application to be registered in the relevant column of the Register to be
maintained in his office in Form XXXIII-A;

(b) fix time, and date for demarcation of boundaries; and

(c) cause a notice in Form XXXIII-P to be issued in duplicate to--

(i) the parties to the application;

(ii) Lambardar of the village in which the land mentioned in the application is situated;

(iii) Field Kanungo of the Circle;

(iv) Revenue Patwari of the village if the notice is not to be served through him; and

(v) any other person whose presence at the time of demarcation of boundaries is
considered necessary or expedient by the Revenue Officer.

The notice issued under clause (c) of the preceding sub-rule shall be served on the
persons mentioned therein, in the following modes, at least one week before the date
fixed for demarcation of the land--

(a) By delivering a copy thereof to the person mentioned therein and obtaining his
signatures or thumb-impression on duplicate copy in token of his having received the
same.

(b) In case of refusal to receive the notice or absence of such person, by affixing a copy
thereof on the outer door of his house or place of residence, in the presence of at least one
witness and also by beat of drum at the expense of the applicant.

(c) If any person to be served is residing at a place, other than the village in which the
land is situated, notice shall be served on him by means of registered post
"Acknowledgement Due", or by any other means as the Revenue Officer deems fit. The
expenses for such service shall be done by the applicant.

(6) At the time and on the date fixed for demarcation of boundaries, the Revenue Officer
shall; in the presence of the parties and other persons mentioned in clause (c) of sub-rule
(4) as may be present in response to the notice served on them, cause the measurement of
the land to be taken under his personal supervision, strictly, in accordance with the
instructions and standing orders on the subject issued by the Financial Commissioner and
the Board of Reverie from, time to time.

(7)(a) Soon after taking necessary measurements, the Revenue Officer, on the basis of
data so collected, shall draw up a plan of the encroached area, if any, and shall prepare a
report "inter alia", containing the following details:--

(i) Time, date and place of demarcation of boundaries.

(ii) Full description of the land measured and demarcated.

(iii) Mode and details of the measurements taken.

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(iv) Person in whose presence such measurements were taken and other demarcation
proceedings took place and the objection, if any, raised by anyone or more of them during
that time.

(v) Limits of the existing possession including the exact dimensions of the encroached
area, if any, and the names of the persons found an possession thereof.

The Revenue Officer, after preparing the report, shall read out the same to the parties and
record their statements as to whether they have understood the proceedings or any part
hereof and have any objection against any portion of his report.

(c) After recording such statements and his opinion thereon, the Revenue Officer, on
return to his Head-quarters, shall place the report, together with the plan of encroached
area and statement of the parties, on the file and cause the particulars of the proceedings
entered in the relevant columns of register maintained in office in Form XXXIII-A.

Section 67-B. Eviction of unauthorized landowners. ---(I) An application under section


122 for the eviction of a landowner found in wrongful possession of a land as a result of
demarcation proceedings taken under section 117 read with Rule 67A shall contain the
following particulars:--

(a) Name, parentage and address of the applicant, and in case he is minor or a person of
unsound mind, parentage and address of his guardian or of a male member of his family.

(b) Name, parentage and address of the person who has been found in wrongful
possession of the land (hereinafter referred to as the respondent) and if he happens to be a
minor or a person of unsound mind, the name, parentage and address of his guardian or of
any male member of his family.

(c) Location and description of the land, the possession of which is required.

(d) Brief statement of demarcation proceedings, its result and reasons for the application.

(c) Any other facts which may be necessary for the fair disposal of the application.

(2) The application shall bear the court-fee stamp of rupee one and shall be accompanied
by--

(a) a certified copy of the report, including copy of the plan of encroached area prepared
by the Revenue Officer in the demarcation proceedings conducted by him under rule
67A; and

(b) as many copies of the application as the number.

(3) The application shall be addressed and submitted to the Collector Incharge of the Sub-
Division in which the land in dispute is situated:-

Provided that where the demarcation proceedings are conducted by the Revenue Officer,
Incharge of the Sub-Division, the application shall be addressed and submitted to the
Collector of the District.

(4) On the receipt of the application, the Collector shall fix a date for its hearing and
cause its notice in Form XXXIII-C, together with a copy of the application, to be served
on the respondent in the manner prescribed in sub-rule (5) of the rule 67A.

(5) On the date fixed for hearing, the respondent may put up his appearance either in
person or through an authorized agent and may tile his reply to the application. The
Collector, on the same day of hearing or on any subsequent date to which the proceedings
may be adjourned, after hearing the parties and examining the record, including the file of
demarcation proceedings, may--

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(a) direct fresh demarcation proceedings to be taken by the same or any other Revenue
Officer, if he is satisfied that the landowner whose eviction from the land has been
sought, had no knowledge of the demarcation proceedings or there was some material
irregularity committed by the Revenue Officer in such proceedings; or

(b) accept the application and order eviction of the respondents or any one or more of
them who have been found in wrongful possession of the land or any portion thereof:

Provided that where the proceedings substantially involve a question of title or an


intricate question of law, the Collector shall not pass any order on the merits of the
application and shall refer the parties to the Civil Courts.

(6) If the Collector orders fresh demarcation proceedings to be taken by the same or any
other Revenue Officer, such Revenue Officer shall follow the procedure laid down in rule
67A to the extent and from the stage it becomes applicable.

(7) On the acceptance of the application, the Collector shall afford the respondent an
opportunity of delivering possession of the disputed land to the applicant within a period
not exceeding one month and if he fails to do so, the Collector, on an application made by
the applicant, shall issue a warrant of eviction in Form XXXIII-D which shall be
executed by an official not below the rank of a Kanungo, with or without police
assistance, according to the circumstances of each case:

Punjab Notification No.2313-73/629, LR-I, dated 23-11-1973.

(See PLD 1974 Punjab Statutes, page 84).

In the case of Anwar Club and another v. Muhammad Sarwar (PLD 1992 Lahore 63)
where a Qanungo had made a demarcation report. It was observed as under:--

"Rule 67-A of the Punjab Land Revenue Rules, 1968, framed under the said Act, also
requires a Revenue Officer to define the limits of an estate, a holding, field or any portion
thereof. According to sub-rule (1) of rule 67-A, an application, under section 117 of the
said Act, for demarcation of any field, etc., is to be made to a Revenue Officer. Clause (b)
of sub-rule (4) says that on the receipt of the application, the Revenue Officer shall fix
time and date for demarcation of boundaries and under clause (c) thereof, he is required
to cause a notice of the application to be given to--

(i) the parties to the application;

(ii) Lambardar of the village in which the land mentioned in the application is situated;

(iii) Field Kanungo of the Circle;

(iv) Revenue Patwari of the village if the notice is not to be served through him; and

(v) any other person whose presence at the time of the demarcation of boundaries is
considered necessary or expendient by, the Revenue Officer.

It has been laid down in sub-rule (6) that at the time and on the date fixed for demarcation
of boundaries, the Revenue Officer shall, in the presence of the parties and other persons
mentioned in clause (c) of sub-rule (4) as may be present in response to the notice served
on them, cause the measurement of the land to be taken under his personal supervision,
strictly in accordance with the instructions and standing orders on the subject issued by
the Financial Commissioner and the Board of Revenue from time to time. Sub-rule (7)
provides that after taking necessary measurement, the Revenue Officer shall prepare a
plan and a report. It is also his duty to read out his report to the parties and to record their
statements as to whether they have understood the proceedings and have any objection
against any portion of his report: Sub-rule (7) further provides that after recording such
statements and his opinion thereon, the Revenue Officer, on return to his Headquarters,
shall place the report together with the plan of encroachment area and statements of the

43 of 58
parties, on the file and cause the particulars of the proceedings entered in the relevant
column of the register prescribed for the purpose.

Above provisions of the said Act and of the rules made thereunder leave no room for
doubt that although the Revenue Officer can require the Field Kanungo of the Circle to be
present at the time of the demarcation yet the demarcation is to be carried out under the
personal supervision of the Revenue Officer and the necessary plan and the report are
also to be prepared by the Revenue Officer himself. I, therefore, agree with learned
counsel for the petitioners and hold that a Field Kanungo muchless a Naib Kanungo is
not competent to make a demarcation report in question, which was recorded by a Naib
Kanungo, was not legal evidence for the purpose of deciding the suit giving rise to this
revision. In this view of the matter the Courts below committed a material irregularity in
relying on the said report while passing the judgments and decrees assailed herein."

6. The result is that the petition merits to be allowed and the same is allowed and the
impugned orders, dated 29-3-2000 passed by the Additional Sessions Judge, and dated 3-
11-1999 passed by the Resident Magistrate, Daska are held illegal and set aside. This
order will not come in the way of the Revenue Authorities to take fresh action strictly in
accordance with section 7 of the Punjab Land Revenue Act. 1967 and rule 67A of the
Punjab Land Revenue Rules, 1968. Respondents Nos. 1 to 5 are also burdened with costs
of Rs.500.

H.B.T./M-225/L

Petition allowed.

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1999 Y L R 482

[Lahore]

Before Sh. Abdur Razzaq, J

Malik SULTAN MUMBRAIZ---Petitioner

versus

ABDUL AZIZ and 15 others---Respondents

Civil Revision No.296/D of 1997, decided on 31st March, 1999.

(a) West Pakistan Land Revenue Act (XVII of 1967)---

----Ss.67(A), 117, 122 & 172---West Pakistan Land Revenue Rules, 1968,
R.67-B---Eviction of encroaches---Procedure---Civil Courts, jurisdiction of
--Demarcation proceedings are to be carried out under S.117 read with S.67-A of West
Pakistan Land Revenue Act, 1967 and as a result of such proceedings, landowner found
in wrongful possession of land can be evicted on an application under S.122 of West
Pakistan Land Revenue Act, 1967, moved under R.67-B of West Pakistan Land Revenue
Rules, 1968---Such a specific procedure having been provided under West Pakistan Land
Revenue Act, 1967, for seeking eviction of an encroacher, jurisdiction of Civil Court in
such matter has been expressly barred by S.172 of West Pakistan Land Revenue Act,
1967.

Muhammad Bashir v. Lal Din 1990 MLD 1907 rel.

(b) Specific Relief Act (I of 1877)---

----S.8---West Pakistan Land Revenue Act (XVII of 1967), S.172---Civil Procedure Code
(V of 1908), S.115---Suit for possession of land---Civil Courts, jurisdiction of---
Respondent/plaintiff filed suit on the basis of demarcation proceedings carried out by the
Revenue Authorities for recovery of encroached land---Maintainability---Matter of
eviction of petitioner/defendant, was a matter which the Collector was competent by West
Pakistan Land Revenue Act, 1967 to dispose of and such a quit was expressly barred by
S.172, West Pakistan Land Revenue Act, 1967.

Malik Shahzad Ahmad for Petitioner.

Muhammad Munir Paracha for Respondents.

Date of hearing: 31st March, 1999

JUDGMENT

Instant Civil Revision is directed against the judgment and decree, dated 12-4-1997
passed by the learned District Judge, Attock whereby he accepted the appeal and set aside
the judgment and decree, dated 22-2-1995 dismissing the suit of plaintiffs/respondents.

2. Briefly stated the facts are that plaintiffs/respondents filed a suit for possession
claiming themselves to be owner of land described fully in para.No.1 of the plaint. They
contended that defendant/petitioner had no concern with the suit land and had encroached
upon land measuring 10 Kanals and 19 Marlas out of the said land referred above, that
said encroachment had been adjudged by Naib Tehsildar vide his demarcation reports,
dated 16-6-1991 and 8-7-1991. They requested the defendant/petitioner to handover the
possession of land encroached by him. As the defendant/petitioner did not accede to their
request, hence they were constrained to file the instant suit for possession. The suit was
resisted by the defendant/petitioner who raised some preliminary objections regarding the
jurisdiction of the Civil Court, locus standi of the plaintiffs and asserted that demarcation

45 of 58
reports, dated 16-6-1991 and 8-7-1991 are tainted with mala fide as he had moved
application against Tehsildar with the higher authorities. He, thus, prayed for the
dismissal of the suit.

3. From the divergent pleadings of the parties the Trial Court framed the following issues:

(1) Whether the report of demarcation is incorrect, against the facts and illegal? OPD.

(2) Whether the suit is defective due to preliminary objection No.2 of the written
statement? OPD.

(3) Whether this Court has no jurisdiction to entertain this suit? OPD.

(4) Whether the plaintiffs are owners of the suit property and defendant has illegally
encroached upon the same? OPP.

(5) Whether plaintiffs are entitled to get possession of suit land as prayed for? OPP.

(6) Relief.

4. In support of their respective stand plaintiffs/respondents examined Muhammad Riaz


P.W.1, Raja Hameed Akhtar P.W.2 and Abdul Aziz as P.W.3. They also brought on record
documents Exhs.P-1 to P-8 and then closed their evidence. In rebuttal
defendant/petitioner appeared himself as D. W. 1 and brought on record documents
Exhs.D-1 to D-10 as well as documents Marks-A and B and closed his evidence. In
rebuttal plaintiffs/respondents also produced copies of Jamabandi for the year 1988-89
Exh.P-9 and Jamabandi for the year 1991-92 Exh.P-10.

5. After going through the evidence produced by the parties, the Trial Court dismissed the
suit vide judgment and decree, dated 22-2-1995. Feeling dissatisfied with this judgment
and decree, the plaintiffs/respondents filed an appeal which was accepted by the learned
District Judge Attock who remanded the case vide judgment and decree, dated 12-4-1997.
The defendant/petitioner has felt aggrieved of the said order of remand and has failed the
instant Civil Revision.

6. Arguments have been heard and record perused.

7. The main contention of the learned counsel for the petitioner is that the Trial Court had
no jurisdiction to entertain this suit as the matter exclusively fell within the domain of
Revenue Court. His contention is that according to section 117 of the Land Revenue Act,
1967, a Revenue Officer is only competent to define and fix the boundaries of any land,
that if as a result of said fixation of boundary, it is found that some land owner has
encroached the land then the encroacher can be evicted by invoking the provisions of
section 122(2) of the Land Revenue Act whereby Collector is competent to evict such
person, that under section 172 of Land Revenue Act, the jurisdiction of Civil Court has
exclusively been barred in a case pertaining to the limits of any land and matter can only
be agitated before a Revenue Court. He, thus, submitted that the very suit was not
maintainable before the Civil Court and in support of his contention relied upon
Muhammad Bashir v. Lal Din (1990 MLD 1907). He further contended that plaintiff
Abdul Aziz had no locus standi to move an application for demarcation as he had ceased
to be owner of land as per his own admission and suit was not maintainable. He further
contended that Appellate Court has remanded the suit on the ground that demarcation had
not been carried out in the presence of defendant/petitioner and as such the said
demarcation report was not a valid document. He contended that even if it is assumed that
the demarcation report was not a valid document, it does not make any difference as the
Civil Court lacks jurisdiction to entertain the suit, so the Appellate Court was not justified
in remanding the case. He, thus, prayed that Civil Revision be accepted and suit be
dismissed.

8. Conversely the impugned order has been supported by the learned counsel for the
plaintiffs/respondents. His contention is that even if it is assumed for the sake of
arguments that Abdul Aziz had alienated his entire land it does not make any difference,

46 of 58
as Abdul Aziz is one of plaintiffs/respondents who had filed suit against the
defendant/respondent, that question of jurisdiction can be agitated before the Civil Court,
that as the demarcation has not been conducted in accordance with law so the Appellate
Court has rightly remanded the suit, that there is no force in this Civil Revision and the
same be dismissed.

9. Admittedly the plaintiffs/respondents have filed the suit for possession on the ground
that a certain peace of land has been encroached upon by defendant/petitioner. They have
based their stand on reports of encroachment, dated 16-6-1991 and 8-7-1991 prepared by
Naib-Tehsildar. There is no doubt that both the reports have been prepared in the absence
of defendant/petitioner and as such have rightly been ignored by the Appellate Court.
Leaving aside the question whether demarcation reports have been prepared in
accordance with law or not, the point to be determined is if the Civil Court had the
jurisdiction to entertain the suit, seeking the eviction of encroacher over the suit land. An
application under section 122 for the eviction of a landowner found in wrongful
possession of a land as a result of demarcation proceedings taken under section 117 read
with section 67-A is to be moved under Order 67-B of the Land Revenue Rules, 1968. It
is, thus, clear that a specific procedure has been provided under the Land Revenue Act for
seeking the eviction of an encroacher. That is why the jurisdiction of Civil Court in such
matter has been expressly barred by section 172 of Land Revenue Act, 1967.

10. It is noteworthy that in the repealed Punjab Revenue Act, 1887, in section 101 there
was power in the Revenue Officer, on the application of any person interested, to define
the limits of any estate or of any holding, field or other portion of estate, but there was no
provisions in that Act such as section 122 of the 1967 Act, declaring that settlement of a
boundary under the provisions of Chapter X, therefore, shall be determinative to evict
any landowner "who is wrongly in possession of any land which has been adjudged in the
settlement of a boundary not to appertain to his holding or to the boundary of any person
through or under whom he claims". Had the Courts below had their attention invited to
section 122; they would have not held, as they did.

11. The plaintiffs' suit, it further appears, was expressly barred, by section 172 of the
Land Revenue Act, for the matter of eviction of defendant/petitioner, was a matter which
the Collector was competent by the Act to dispose of.

12. Consequently, the revision petition is accepted and the impugned order is set aside.

Q.M.H./M.A.K./S-328 Revision accepted.

47 of 58
P L D 1999 Lahore 31

Before Malik Muhammad Qayyum, J

PERVEZ AHMAD KHAN BURKI and 3 others---Petitioners

versus

ASSISTANT COMMISSIONER, LAHORE CANTT. and 2 others---Respondents

Writ Petition No. 19175 of 1997, heard on 24th June, 1998

West Pakistan Land Revenue Act (XVII of 1967)--

----5. 3---Partition of property---Demarcation of land occupied and used as a building


site---Jurisdiction of Revenue Authorities---Scope---Area sought to be demarcated by
Authority was built upon since long and formed part of bungalow bearing property
number and did not form part of revenue estate of Cantonment---Section 3, West Pakistan
Land Revenue Act, 1967, provided that except for certain fiscal purposes nothing in the
said Act would apply to land which was occupied as a building site or such land on which
permanent structures had been raised because such land after raising structure thereon,
would lose all characteristics of agricultural land and dispute as regard partition of such
land had to be resolved through Civil Court and not by Revenue Court--Revenue Officer
would not have any jurisdiction to entertain an application for partition of properties
which had ceased to be land notwithstanding fact that such properties continued to be
assessed to land revenue---Area sought to be demarcated by Revenue Authority was on
much better footing inasmuch as same did not pay any land revenue---Revenue
Authorities, in circumstances, had no jurisdiction to carry out demarcation of property
which formed part of bungalow.

Tahir Hanif v. Member, Board of Revenue and others 1982 CLC 1732; Ghulam Rasool

v. Ikram Ullah and others PLD 1965 (W.P.) Lah. 429 and Syed Aslam Shah and 3 others

v. Mst. Sakina and another 1988 MLD 1596 ref.

Mian Hamid Farooq for Petitioner

Shahid lqbal, Asstt. Advocate-General for Respondent No. 1.

Zia H. Rizvi for Respondent No.3.

Date of hearing: 24th June, 1998.

JUDGMENT

This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973
calls in question a notice issued by the Tehsildar/Assistant Collector, Lahore Cantt. to the
petitioners for carrying out demarcation of Khasra No.S-41-R-37, Mauza Mozang,
Lahore. According to the petitioners, the aforesaid notice was not served upon them yet
the respondents are threatening to carry out demarcation without any lawful authority.

2. The learned counsel for the petitioners has contended that the area in question is/has
been built upon since long and forms part of bungalow/property bearing No.S-41-R/33
and does not form part of the revenue estate of Lahore Cantt. and as such the authorities
under the Punjab Land Revenue Act, 1967 have no jurisdiction either to carry out
demarcation or interfere with the same in any manner whatsoever.

3. On the other hand, the learned counsel for respondents, relying upon the judgment of
this Court in Tahir Hanif v. Member, Board of Revenue and others 1982 CLC 1732, has

48 of 58
argued that the revenue officer is competent for the purpose of preparation of records or
assessment of an estate to carry out demarcation.

4. Having heard the learned counsel for the parties and perused the record, I am of the
view that the contentions raised on behalf of the petitioners are unexceptionable.
Undoubtedly respondents Nos.2 and 3 are functionaries appointed under the Punjab Land
Revenue Act, 1967 to carry out the purposes of the aforesaid Act. The preamble to the
Act recites that it was being framed to consolidate and amend the law relating to the
making and maintenance of records-of-rights, the assessment and collection of land
revenue, the appointment and functions of revenue officers and other matters connected
therewith.

According to section 3 of the Act, except for certain fiscal purposes, nothing in the Act
applies to land which is occupied as a building site or such land on which permanent
structures have been raised; it loses all characteristics of an agriculture land and the
dispute as regards the partition of such land has to be resolved through the Civil Court
and not by Revenue Court. No detailed discussion on the subject is necessary in view of
the judgment of this Court in Ghulam Rasool v. Ikram Ullah etc. PLD 1965 (W.P.) Lahore
429 whereafter exhaustive discussion on the subject it was held that a Revenue Officer
does not have any jurisdiction to entertain an application for the partition of the properties
which have ceased to be land notwithstanding the fact they continue to be assessed to
land revenue. The land involved in the present case is on much better footing inasmuch as
the land does not pay any land revenue. The same view was taken in Syed Aslam Shah
and 3 others v. Mst. Sakina and another 1988 MLD 1596. So far as the judgment relied
upon by the learned counsel for the respondents is concerned, it is clearly distinguishable
inasmuch as it related to demarcation of open plots of land.

In view of the above, this petition is allowed and it is declared that respondents Nos. I
and 2 have no jurisdiction to carry out demarcation of the IB property which forms part
of bungalow No.S-41-R-33

No order as to costs.

H.B.T./P-52/L Petition allowed

49 of 58
1996 S C M R1491
[Supreme Court of Pakistan]

Present: Sajjad Ali Shah C.J., Zia Mahmood Mirza and Sheikh Riaz Ahmad, JJ

MUNICIPAL COMMITTEE, HARIPUR---Petitioner

versus

Haji MUHAMMAD NAWAZ and 83 others---Respondents

Civil Petition No.82 of 1995, decided on 5th-July, 1995

(On appeal from the judgment dated 21-9-1994 of Peshawar High Court, Abbottabad
Bench, in Writ Petition No.138/92 (Abbottabad)/1109/92 (Peshawar)).

North-West Frontier Province Local


Government Ordinance (IV of 1979)---
----Ss. 64, 79 & 164---Constitution of Pakistan (1973), Art. 185(3)--Construction of fruit
and vegetable market on private land---Owners claimed that such market had been
constructed on private land which was outside the Municipal Committee---Municipal
Committee claimed that land on which such market was being constructed lay within
Municipal limits and that no private market could be set up in Municipal area without its
sanction---Municipal Committee in earlier round of litigation having failed to obtain
interim injunction either from the Trial Court or from Appellate Court had withdrawn its
suit with permission to file fresh suit but instead of filing suit Municipal Committee
obtained fresh report from revenue staff; that land in question lay within Municipal limits
and served notices on respondents and thereafter Administrator of Municipal Committee
was directed by the Local Government Authorities to take necessary steps to restrain
respondents from running private fruit and vegetable market---Respondents filed
Constitutional petition against notices in question, which were declared to be without
lawful authority and of no legal effect---Validity---Municipal Committee had heavily
relied upon demarcation report of revenue officials, according to which land in question
lay within Municipal limits---High Court, however, found that demarcation report was
manipulated by Municipal Committee---Validity of notices issued by Municipal
Committee having been challenged in Constitutional petition and Municipal Committee
having chosen to establish before High Court that land in question fell within Municipal
limits and that its action was lawful, High Court was, thus perfectly justified in holding
on basis of material placed before it that Municipal Committee had failed to prove that
disputed land fell within Municipal limits, therefore notices issued by it were without
lawful authority and of no legal effect---Leave to appeal was refused in circumstances.

Qazi Abdur Rashid, Advocate Supreme Court with Ejaz Muhammad Khan, Advocate-on-
Record for Petitioner.

Qazi Muhammad Anwar, Advocate Supreme Court with Manzoor Ilahi, Advocate-on-
Record for Respondents.

Date of hearing: 5th July, 1995.

JUDGMENT
ZIA MAHMOOD MIRZA, J.---Municipal Committee, Haripur through its
administrator has filed this petition for leave to appeal against the judgment of Peshawar
High Court, Abbottabad Bench, dated 21-9-1994 whereby writ petition filed by the

50 of 58
respondents herein was accepted and the notices issued by petitioner committee to the
respondents were declared to be without lawful authority and of no legal effect.

2. Facts relevant for the disposal of this petition, briefly stated, are that the respondents
having purchased the landed property comprising Khasra Nos.488 and 506 in village
Darwesh started constructing a private Fruit and Vegetable market thereon. They had
earlier obtained orders from Assistant Commissioner, Haripur to the effect that the said
Khasra numbers were situate outside the limits of Municipal Committee, Haripur. While
the construction by the respondents was in progress, petitioner committee instituted a suit
in the Civil Court for a declaration that the respondents had no right to construct a private
Fruit and Vegetable Market on the Khasra numbers in question and relief was also sought
in the mandatory form for demolishing the constructed building. Alongwith the suit, an
application for temporary injunction was moved for restraining the petitioners from
proceeding with the construction. The application was dismissed by the Civil Judge vide
order dated 7-1-1992 and appeal filed by the petitioner committee also met a similar fate
and was dismissed by the learned District Judge on 21-3-1992. Petitioner committee,
thereafter, withdrew the suit with permission to file a fresh suit but instead of filing the
fresh suit, the committee obtained a report from the revenue staff saying that the Khasra
numbers in dispute lay within the Municipal units and thereafter, proceeded to serve two
notices on the respondents, one under section 64 of the N.-W.F.P. Local Government
Ordinance, 1979 and the other under section 79 read with section 164 of the Ordinance
stating that the Khasra numbers were situate within Municipal Limits and, therefore; no
private Market could be set up without the prior permission of the Municipal Committee
and the respondents were accordingly restrained from further construction of the market
or running or holding it. The notices were followed by an order passed by the Local
Government and Rural Development, Government of N.-W.F.P. on 14-10-1992 directing
the Administrator of the petitioner committee to take necessary steps to restrain the
respondents from running private Fruit and Vegetable Market.

Feeling aggrieved, the respondents assailed the validity of the aforementioned two
notices issued by the petitioner committee and the order of the Local Government
Department dated 14-10-1992 in Constitutional jurisdiction of the High Court. .

4. Case of the writ petitioners in the High Court was that the land in dispute did not fall
within the Municipal limits and in any case, section 64 of the Local Government
Ordinance did not put a total ban on establishing private Fruit and Vegetable market.
They were at the most required to obtain a licence from the Municipal Committee on
payment of prescribed fee for setting up a private market. Contention of the petitioner
committee, on the other hand, was that the Khasra numbers in dispute were situate within
the Municipal Limits as per the two Notifications dated 4th April, 1938 and 28th June,
1944 and, therefore, it was not available to the respondents to construct the private
market thereon without the permission of the committee. .

5. Learned Judges of the Division Bench of the High Court after referring to the two
Notifications relied upon by the petitioner-committee which defined the Municipal Limits
of Haripur and the ' Shajra Kishtwar' found that "disputed land bearing Khasra Nos.488
and 506 do not fall within the triangular which has been notified to be included within the
municipal limits. Moreover the Khasra numbers with regard to village Darwesh specified
in the two notifications to be included in the municipal area do not include disputed
Khasra numbers. In such circumstances the subsequent demarcation report seems to be
manipulated and thus cannot be attached any significance". Learned Judges also observed
that the petitioner-committee had earlier filed a suit for declaration that the construction
of private Fruit and Vegetable Market on the land bearing Khasra Nos.488 and 506 was
illegal but failed to substantiate its claim and ultimately withdrew the suit with
permission to bring a fresh suit but no fresh suit has been brought by it till today.
Reliance was placed by the learned Judges on the earlier report of the Tehsildar dated 7-
9-1991 which the respondents had obtained before starting the construction and which
report specifically mentioned that the two Khasra numbers in question were outside the
Municipal Limits and on spot inspection were found to be in the rural area. This report, it
was noted by the learned Judge, was duly endorsed by the Collector by his order dated 8-
9-1991 and was later relied upon by the Civil Judge and the District Judge when deciding
the petitioner's application/appeal in the matter of temporary injunction. Writ petition was
accordingly accepted and the impugned notices were declared to be without lawful
51 of 58
authority vide the impugned judgment with the observation that the Government could
extend the limits of local area and declare it to be a Town or City at any time.

6. We have heard the learned counsel for the petitioner as also the learned counsel
appearing for the caveators. The moot point in this case before the High Court was
whether the Khasra Nos.488 and 506 are situate within or outside the Municipal limits of
the petitioner-committee. Case of the petitioner-committee, of course, was that the said
Khasra numbers were situate within the Municipal limits and quite evidently it was for
this reason that it issued the impugned notices to the respondents. In support of its claim,
the petitioner sought to rely upon the two notifications aforementioned but he learned
Judges of the High Court after examining the said notifications together with the ' Shajra-
Kishtwxr' came to the conclusion that the Khasra numbers in dispute did not fall within
the Municipal limits. Learned counsel for the petitioner has not been able to show that the
Khasra numbers in dispute were mentioned/incorporated in the said two notifications. He,
however, has heavily relied upon the demarcation report of the Revenue Officials
according to which, the Khasra numbers in dispute lay within the Municipal limits of the
petitioner-committee. This report, as noted above, has been found by the learned Judges
of the High Court to have been manipulated by the petitioner. The view taken by the
learned Judges in the attendant circumstances of the case is not open to any legitimate
exception. The report in question, it appears, was obtained by the petitioner-committee
after withdrawing the suit from the Civil Court and was based on the demarcation carried
out by the subordinate revenue officials and that, too, in the absence of the respondents. If
the petitioner was really sure of the correctness of its claim, it should have established it
in the suit which it had filed but it chose to withdraw it and thereafter did not file fresh
suit although permission sought for the same was granted to it. On our query, the learned
counsel was unable to offer any explanation as to why the petitioner-committee had
withdrawn the suit and did not file fresh suit for which it had sought the permission.
Needless to observe that the controversy as to whether the disputed Khasra numbers are
situate within the Municipal limits of the petitioner-committee or in the rural area of
village Darvesh could best be resolved through the machinery of civil suit. Be that as it
may, since the validity of the notices issued by the petitioner was challenged in the
Constitutional jurisdiction of the High Court and the petitioner chose to establish before
that Court that the Khasra numbers m dispute fell within the Municipal limits and,
therefore, its action was lawful, the High Court was perfectly justified in holding on the
material placed before it that the petitioner "failed to prove that the disputed land falls
within the Municipal limits --------" and as such the impugned notices were without
lawful authority and of no legal effect.

7. Upshot of the above discussion is that we find no merit in this petition which is
accordingly dismissed and the leave sought is refused.

A.A./M-3136/S Leave refused.

52 of 58
1996 C L C 840

[Chief Court Gilgit]

Before Muhammad. Ishaq Khan, Chairman

ZAMINDARAN OF VILLAGE SOMAL GUPIS through Fateh Ali Khan and


another---Appellants

versus

ZAMINDARAN OF VILLAGE RAUSHAN through Muhammad Nadir and 2


others---Respondent

JC. CSA No. 49 of 1993, decided on 31st May, 1995

Arbitration Act (X of 1940)---


----S. 17---Civil Procedure Code (V of 1908), S. 12(2)---Dispute relating to demarcation
of pasture area---Collector during pendency of appeal against such demarcation,
appointed arbitrators with consent of parties and on submission of their award made it
rule of the Court---Award and order making it rule of Court were challenged in Civil
Court but to no effect---Appellate Court on admission of appeal filed by plaintiff ordered
status quo---Appeal was, however, dismissed for non-prosecution---Plaintiffs challenged
such dismissal through application under S. 12(2), C.P.C. about 8 years after the
impugned judgment alongwith application for ad interim injunction against defendants
(respondent)---Order of status quo was granted by Appellate Court which was later on
clarified to the effect that defendants/respondents were entitled to graze their cattle in
disputed pastures---Validity---Order in question, was very clear and correct---So far as
legal and factual position of case was concerned appellants (plaintiffs) had no prima facie
case, for all the decisions of Revenue Authorities and Courts below were against
them---Respondents were enjoying disputed pastures since 1945, through valid
judgments and decrees, therefore, conduct of appellants would disentitle them to get
interim relief especially when they remained mum for 8 years to question judgment
rendered by Appellate Court---Appellant in earlier round of litigation were being
represented by their agent and counsel and, therefore, they were bound by the acts of
their agents/counsel---Appellants could not put in plea of non-prosecution of appeal in
earlier round of litigation on the shoulders of their agent/counsel---Order of Appellate
Court entitling respondents to graze their cattle in pasture in question, was maintained in
circumstances.

1986 SCMR 1496; 1985 CLC 217 and PLD 1977 SC 220 ref.

Muhammad Shafi for Appellants.

Ghulam Sarwar Mir for Respondents.

JUDGMENT
1. The appellants brought a representative suit in the year 1981 against the respondents in
the Court of Civil Judge Ist Class Gilgit, challenging therein the order of Collector based
on Award, who made the same as a rule of the Court. The learned Civil Judge dismissed
the suit vide his order dated 31-7-1982.

2. Not content with the said order, an appeal was preferred against the judgment of Civil
Judge Ist Class, Gilgit, in the Court of District Judge, Gilgit on 23-9-1982. After many
adjournments on 19-3-1985 the appeal was also dismissed for non-prosecution.

53 of 58
3. This order, has now been challenged by the appellants under section 12(2), C.P.C. for
setting aside the order dated 19-3-1985 passed by the District Judge, Gilgit, in appeal
against the judgment/decree dated 31-7-1982 of the Civil Judge, Gilgit. They have also
filed an application for ad interim injunction against respondents Nos. l to 3 and a status
quo order was passed by the District Judge on 21-4-1993. The learned counsel for the
appellants raised the following point§ during the course of arguments that respondent
No.4 has disposed of his property in village Somal and settled at Gupis and has,
therefore, lost his right of grazing in pasture of Somal. In a nutshell, the learned counsel
for appellants stated that from the facts of case, the appellants had a prima facie and a
stay order was issued in their favour, but not clear. So the present appellants moved an
application for clarification on 28-10-1993 in the Court of District Judge, Gilgit.
Replication by respondent No. l and rejoinder by respondent No.4 have also been brought
on file of the Court of District Judge, Gilgit. The learned counsel for appellants also
urged at the bar that after dismissal of the appeal for non-prosecution, the respondents did
not move the Court of the Collector for implementation of his order passed on the basis
of Award dated 10-4-1981.

It was also argued by the counsel for the appellants that in April 1993 respondents wanted
to make a bridge and the appellants came to know about it. He repeated his arguments
that (i) his clients have a prima facie case; (ii) pasture is at their next door, and (iii)
balance of convenience is also in favour of the appellants and also cited 1986 SCMR (a)
page 1496 and 1985 CLC (g) page 217 in support of his arguments.

On the other hand in reply to the arguments of Mr. Muhammad Shafi counsel for the
appellants, Mr. Ghulam Sarwar Mir, Advocate made the following submissions (i) that
the dispute between the parties relates to demarcation of the boundary of the disputed
pastures, (ii) 2ndly that in 1945 when Indian Assistant Political Agent used to sit at Gilgit
and was controlling the areas of Gilgit and Gupis, vide order dated 25-1-1945 of the then
Indian Assistant Political Agent, the boundaries of the disputed pastures were fixed, (iii)
that after demarcation parties used to graze their cattle in their respective boundaries from
1945 to 1981.

In 1981 the present appellants Zamindaran Soma represented by Mr. Muhammad Shafi,
Advocate started interference in the boundaries of the pastures of Zamindaran Raushan.
Zamindaran Raushan submitted an application to the Tehsildar that Zamindaran Soma be
restrained from interference in their pastures, for which boundary was fixed by the then
Indian Assistant Political Agent in 1945.

So far the demarcation of the land is concerned it is the exclusive jurisdiction of revenue
authorities as mentioned in section 172 of the Land Revenue Act. Tehsildar Gupis, vide
his order dated 21-1-1981 being Revenue Officer directed Zamindaran Somal not to
interfere in the boundaries of Zamindaran Raushan and the learned S.D. M./Assistant
Collector Ist Grade vide his order dated 5-2-1981 concurred/agreed with the order of the
Tehsildar dated 21-1-1981.

Zamindaran Somal being aggrieved froth the order of Tehsildar Gupis dated 21-1-1981
and order of S.D.M. dated 5-219$1 filed an appeal before the Collector/Revenue forum
and before the Collector parties mutually agreed and settled their dispute through a penal
of Ulemah and these Ulemah were appointed with the mutual consent and fish of the pies
and Ulema went to the spot and after spot inspection they gave oath to Zamindaran
Raushan in the presence of Zamindaran of Somal regarding the point of boundary. And
on Holy Qur'an the Zamindaran Raushan took oath. Then the Ulemah submitted their
Award and the Collector vide his judgment/order/decision dated 26-8-1981 made the
Award as rule of the Court.

The chapter should have been Closed at that time, because demarcation is the job of
Revenue Authorities. PLD 1977 SC page 220. There should have been an end but the
Zamindaran Somal challenged the order dated 26-8-1981 of Collector in Civil Court after
taking evidence pro and contra the Civil Judge dismissed the suit of present appellants
vide his judgment dated 31-7-1982. And being aggrieved from this judgment dated
31-7-1982 Zamindaran Somal filed an appeal in the Court of District Judge, Gilgit, where
the appeal remained for adjudication for 2-1/2 years and finally it was dismissed on the
statement of Mr. Muhammad Isa, Advocate for non-prosecution who stated at the Bar that
54 of 58
his clients did not give any instructions to him and finally the appeal was dismissed for
non-prosecution on 19-3-1985. And the Zamindaran Somal remained mum for full 8
years and after availing the services of Mr. Muhammad Shafi, Advocate, they challenged
the judgment dated 19-3-1985 through application under section 12(2) of C.P.C. dated
20-4-1993 alongwith an application for ad interim injunction against respondents Nos. l
to 3.

The learned District Judge while admitting the petition through his order dated 21-4-1993
issued injunction by maintaining status quo till further orders. The order was very much
clear, through which status quo was maintained, but the office instead of issuing the Urdu
memo in consonance of the order of District Judge issued injunction whereby the
respondents Zamindaran Raushan were restrained from interference in the disputed
pasture. The clerical error was brought to the notice of District Judge who issued fresh
order whereby the earlier wrong injunction issued by the office on 21-4-1993 was
corrected and the order of status quo was issued on 17-8-1993.

The Zamindaran of Somal after correction of the order of injunction moved an


application on 28-10-1993 for clarification of the order of the District Judge dated
17-8-1993 whereby status quo was maintained and the learned District Judge vide his
order dated 16-12-1993 interpreted the status quo in clear words and declared that
respondents are entitled to graze their cattle in the disputed pastures and said order was
challenged in this Court in the shape of the present appeal.

Let us revert to the impugned order. The order in question is very much clear and correct.
So far the legal and factual position of the case is concerned the present appellants have
no prima facie case in the eyes of law because through the litigation all the decisions are
in favour of respondents Zamindaran Raushan. The respondents are enjoying the disputed
pastures since 1945, through valid judgments and decrees, the conduct of the present
appellants disentitles them to get the interim relief because they remained mum 1 for 8
years to question the judgment dated 19-3-1985.

The appellants are bound by the act of their agent Wazir Mir Akbar and the act of their
counsel Mr. Muhammad Isa, Advocate and if they are aggrieved, they should sue their
agent/representative Wazir Mir Akbar because it is a settled principle of law, justice and
equity that parties are bound by the acts of their agents/pleaders.

In view of the above discussion while maintaining the impugned judgment/order dated
16-12-1993 the appeal stands dismissed.

A.A./5/Gilgit Appeal dismissed.

1
Silent, quite, mute, tight-lipped.
55 of 58
1992 C L C 1198

[Board of Revenue, Punjab]

Before Hafeezullah Ishaq, Member (Revenue)

HASSAN ABBAS MIRZA---Petitioner

versus

Mst. ISHRAT JABEEN---Respondent

R.O.R. No.1694 of 1991, decided on 29th October, 1991.

West Pakistan Land Revenue Act (XVII of 1967)-- -

----S. 164---Relief by way of correction of record through "Seht lntiqal", declined by


Courts below---Case involved complicated questions of law and fact, which could not be
sorted out by Revenue Authorities in summary proceedings---Parties had purchased land
in question, through registered sale deeds which had been duly reflected in revenue
record---Some of the land in question had been acquired by Government for which
compensation was duly paid but such land continued to be disposed of by several
persons---Some of the land was subject to pre-emption decree---Petitioner did not take
possession of land in question, at the time of purchase whereas respondent was in
possession of same for more than sixteen years---Petitioner's application for demarcation
was dismissed by Collector after carrying out demarcation at spot, which was never
challenged by petitioner by way of appeal or revision---Courts below had thus, rightly
declined to give petitioner relief by way of correction of record through "Seht
Intiqal"---Reasons which weighed with the Collector and Additional Commissioner in
their respective orders being unexceptionable did not warrant any interference in
revision.

S. Altaf Hussain Shah for Petitioner.

Malik Talib Hussain Awan for Respondent.

ORDER

The facts of the case as narrated in the impugned order are that out of Khasra No.1ll (5
Kanals 14 Marlas), land measuring 4 Kanals 4 Marlas situated in village Pindi Rajputan,
Tehsil Lahore Cantt. (was) acquired by the Provincial Government in the year 1967 for
the construction of road in the Township Scheme and mutation No.2717 was sanctioned
on 27-5-1978. The owners of Khasra No. II l sold one Kanal of land to Hassan Abbas
petitioner vide registered sale-deed for Rs.19,500 which was incorporated vide mutation
No.2600 numbered as Khasra No.111/2. Mst. Ishrat Jabeen also purchased one Kanal of
land vide a registered sale deed which was incorporated vide mutation No.2602 dated
31-8-1976. Ishrat Jabeen again purchased one Kanal of land vide another registered sale
deed and this sale was also incorporated vide mutation No.2603 dated 31-8-1976. The
road had been completed on 25-12-1969. Ishrat Jabeen respondent took the possession of
2 Kanals of land and constructed house/school there. Hassan Abbas either did not take or
was not put in possession of the land purchased by him.

2. Hassan Abbas went on filing miscellaneous applications to the Revenue Authorities.


His latest application regarding the demarcation of the site and for giving him Khasra
No.1ll/2 was rejected by the DC/Collector on 24-1-1991. That order was unsuccessfully
challenged in appeal before the Additional Commissioner, (Consolidation), Lahore
Division. Hence this revision petition under section 164 of Punjab Land Revenue Act,
1967.

3. The learned counsel for the petitioner submitted in the written arguments, that the
P.W.D. had acquired an area of 67 Kanals 10 Marlas situated in the revenue estate of
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Pindi Rajputan including Khasra No.111 (5K14M) (Ghair Mumkin brick kiln) for the
construction of Lahore Township Link Road, vide Notification No.1A/363/12, dated
15-2-1967. The project was completed on 25-12-1969 and an area of 4K-4M was covered
leaving an area of 0-18M towards the west of the road and 12 Marlas on its cast. Tatimma
Shajra was accordingly prepared allocating Survey No.111/1 to the portion of the
metalled road (4K-4M), 111/2 to the portion on the west (0-18M) and 111/3 to the east
(0-12M) compensation was paid for 4K-4M i.e. for Khasra No.111/1 (4K-4M). However
this Khasra number continued to be disposed of through sales irrespective of the
acquisition proceedings. Vide Mutation No.2557, dated 21-5-1976 by way of
implementation of decree this Khasra number was mutated in the name of one
Muhammad Khan son of Qaim Din as vendee in the column of cultivation on behalf of
Anwar Ali Shah son of Walayat Ali Shah as vendor. Vide Mutation No. 2558 dated
29-1-1975 under registered sale-deed this fieled number measuring 5 Kanals 14 Marlas
was transferred in the names of Muhammad Younis 2/3, Shaukat Ali, Iftikhar Ali in equal
shares 1/3, sons of Muhammad Sharif. Vide Mutation No.2600, dated 16-6-1976 the
petitioner Hassan Abbas purchased an area of 1 Kanal through registered sale-deed dated
26-5-1976 from Muhammad Younis. Vide mutations Nos.2602 and 2603 dated 31-8-1976
the respondent purchased an area of 2 Kanals through two registered sale deeds dated
28-5-1976.

4. The field staff on the back of foil1 of Mutation No.2600 as well as on counter foil2
prepared the Tatimmas indicating different sales with entry of their dimensions in the
field book thus prepared as below:--

Khasra No. Khasra No. in Area.

Tafnnra.

111 111/(5K-14M) (1K-4M)

111/2 Vendee Hassan Abbas


(1 K-OM) Petitioner).

111/3
(OK-8M)
111/4
(OK-3M)
111/5 (Vendee Ishrat Jabeen
(2K-OM) Respondent).

Total: 5K-15M

Thus the whole of this Khasra number was sold although 1K-10M was only available for
sale.

5. Continuing the learned counsel submitted that vide Mutation No.2717 dated 27-5-1978
the aforesaid acquisition proceedings based on mutations. Nos.2557, 2558 and 2600 were
incorporated in the revenue record simultaneously retaining the aforesid Tatimmas intact
in such a manner that in the previous column 111 /1 2K-4M, 111/3 OK-8M, 111 /4
OK-3M, total 2 Kanals 15 Marlas meant for substitution were recorded and thus the new
entry made in the name of the Provincial Government in the following form:--

111/1 IK-12M, 111/3 OK-8M, 111/4 OK-3M

Total: 2K-3M

The learned counsel maintained that the field staff had not followed the entries obtaining
at the time of acquisition and had not prepared the correct Tatimmas which resulted in
sales of this area to different persons indicated by different Tatimmas contrary to the
position at the spot being double sales. The Appellate Court had failed to take notice of

1
Halt, frustrate, throw a monkey wrench in the works.
2
Stump, end, remains.
57 of 58
the fact that the respondent had been occupying area in contiguous Khasra Nos.103, 104
and 111 and had also committed serious irregularities in getting sanctioned mutations
Nos.2600, 2602, 2603 and 2717 and that Tatimmas were prepared against acquisition. Yet
the Revenue Authorities did not take any remedial measures for the removal of these
irregularities. The learned Collector vide his order dated 24-1-1991 had also similarly
failed to search the truth as to how the acquisition took place and the identity of the
owner to whom the compensation was paid. The learned counsel emphasized that the
Collector should have verified the entries, the registered sale-deeds, and then corrected
the revenue records by way of `Seht Indraj'. He prayed that the revision petition may be
accepted by setting aside the impugned mutations.

6. The learned counsel for the respondent in the written agreements submitted that the
petitioner had purchased land measuring 1 Kanal Survey No.1ll/2, vide Mutation
No.2600, dated 16-6-1976 and Tatimma was drawn on it by the revenue staff. The
respondent also purchased land measuring 2 Kanals through two different sale-deeds
dated 28-5-1976, Survey No.1ll/5, and Mutations Nos.2602 and 2603, dated 31-8-1976
were sanctioned. The building plan was sanctioned by the Municipal Corporation and the
LDA and the respondent constructed a house and school known as Jinnah Foundation
High School for Girls and Inter College. The petitioner's various demarcation
applications were rejected by the Collector's order dated 21-1-1980 which was never
challenged and thus had attained finality. The petitioner's civil suit was also dismissed on
26-11-1979. His Police case was also rejected by the local Police. However, after the
lapse of about eight years the petitioner preferred another application for demarcation
which was filed on 27-8-1989 but instead of filing an appeal he brought another
application for demarcation dated 23-7-1990 which was rejected by the DC/Collector on
24-1-1991. His appeal was also dismissed by the Additional Commissioner
(Consolidation) vide his impugned order. The revision petition before the Additional
Commissioner was totally against the basic applications because the petitioner had lost
his case in all the forums and the respondent is running her School and College in the
land in dispute for the last 16 years. It was prayed that the revision petition may be
dismissed.

7. I have considered the arguments and pressed the case record. The case, to say the least,
involves complicated questions of law and facts which cannot be sorted out by revenue
authorities in summary proceedings such as mutation/Seht record. The parties have
purchased the land is dispute through registered sale-deeds which have been duly
reflected in the revenue record. Some of the land in dispute had been acquired by the
Government for construction of road for which compensation was duly paid but
continued to be disposed of by several persons. It was also subject of a pre-emption
decree. The petitioner did not take possession of the land at the time of its purchase. On
the other hand, the respondent is in possession and running her School/College for the
last 16 years. The petitioner's application was dismissed by the DC/Collector after
carrying out demarcation at the spot and this order was never challenged by him by way
of revision or appeal. The lower Courts have, therefore, rightly declined to give him any
relief by way of correction of record through `Seht Intiqal'. The reasons which weighed
with the Collector and the Additional Commissioner in their respective impugned orders
are unexceptionable and do not call for any interference. The revision petition is thus
dismissed.

8. The order in this case was reserved and shall be communicated to the parties. .

AA./460/R Revision dismissed.

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59 of 58