7/9/23, 4:35 PM 1999 Y L R 482
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
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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 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
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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, 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 sec tion 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.
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