Military Estates Officer, Peshawar Circle, Peshawar Cantt & others Vs Haji Rehman Shah & others

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ruDGMEI{TSHEET

PESHAWAR HIGH COURT PESTIAWAR

JI]DICIALDEPARTMENT

W.P No.l629-Pl2017.

Militarv Estates Officer. Peshswar Circle. Peshawlr Canff & Others Vs. Hoii Rehmsn Shah & others.

Date of heariry 10.03.2025.

For Petitioner: lVn Nasir Mehmood. Advoatc.

For Federation: Mr. Hazrat Said. Deputv Acoraev C'eneral. For official respondenb: Mr, Waoar Orakzai. AAG For Prirarc resoondene: Mr. Aimal Khatr Bartaudi. Advocate.

.It,DGMENT MUIIAMMAD NAEEM ANVIAR. I: - This single judsement in the instant petition shall decide all thc connected petitions, tabulated at the fioot of this judgement, as an identical questions of law and facts are involved.

2.Succinct facts of these petitions are that initially the respondenb have approached this Court through Writ Petitions No.1875/2011, 2076/2011, 2l74l20ll and, 854/2012, being aggrieved from the verbal directions of the petitioners for their alleged encroachment in the public property, the petitioners bcing served in referred to above petitions appeared and the peritions were decided through consolidatcd judgemcnt in W.P No.1875/2011 on 29.05.2013 iu terms of direction to them to demarcate the property by associating the respondens with the process of demarcalion. Since, the mallcr pertains to 03 revenue estates i.e. Regi [.alma, Tehkal Bala No.l and Malgandher; thus, three Panryari Halqa ilong with respective Patwaris, Girdaw,ar Circles, representative of the petitioners conducted the demarcation proceedings, alleging the encroachmcnt in the public property and based on thc report, fresh notices were served upon the private respondenls, who filed W.P No.227GPl2013 questioning validity and correctness of the notices dated 13.08.2013, dre petitioners being respondents o[ the referred to above Writ Petition were put on noticc and this Court observed that since the respondcnts lvere not associated with demarcation proceedings, as such, thc notices were struck down and thc

petitioners were directed to demarcate the properties, whereas, the respondents rvcre directed to approach the appropriate forum for redressal of their grievances. The petition was decided on 13.09.2013. After the decision of the Writ Petition, the respondents of the instant petition filed Civil Suit for declaration to the effect that they are owners in possession of the property bearing Khasra No.1745, 1747, 1742, 1793, 179411742, 1794/1743, 1502/2, 1497,1498 and 1502 ofthe revenue estate of Reggi LalmE whereas, the respondents of connected C.R No.2,tr5 P/2017 filed civil suit for declaration that they are the owners of the property bearing Khasa No.1745, 1746, 1744/l of the revenue estate of Regi I alma.

3.Respondents of W.P No.163GP/2017 filed a suit for declarafion challenging thc Notice No.206/Land/Q-3/Gen dated 1308.2013 to be ineffective upon the righs. Respondents of W.P No.1631-P/2017 have sought declaration that they are owners in possession of property bearing Khasra No.l488 on the strength of mutations No.2352 datcd 31.12.1984, 4488 dated 20.11.1999, 1205 dated 17.05.1966, l32l dated 05.05.1970, 5099 dated 16.02.2007,5500 dated 16.02.2007 and 5501 dated 16.02.2007, with which the petitioners have got no concern or interesl Respondents of W.P No.l63&P/2017 were seeking declaration in respect of Khasra No.l745 of lhe revenue estate of Regi Lalma on the strengdr of mutarions No.6876 to 6885 dated 11.06.2012. They have challenged notices dated 13.08.2013 and questioned the demarcation procecdings, report submitted to be ineffective upon their rights. Petitioner of W.P No.74GPl2021 through her suit lvas seeking declaration to the eflect that she being dre daughter of Ameer tr{uhammad, who was the owner of the property bearing KhakNo.26, 29, 25, 27 , 49/69,30/40 and 48 of the revenue estate of Regi Lalrnx, on whose dealh, the property was devolved upon her and other legal heirs, as such, she is entitled for her Iegal ard .flrarr'share in the property. Thc denial on the part of private dcfendants and the ollicial defendants fronr her legal md Shari right in the property is inconsistent with her stance, as such, it is iuefl'ective upon her status/ri$rt. During

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pending adjudication of all the suits, the petitioners submiued applications for summary rejection of the plains on the grounds that no cause of action has been accrued, suits have become infructuous, court has got no jurisdiction and that demarcation proceedings werc conducted in accordance with the direction of this Court. Their applications were resisted by the plaintiffs of the respective suits. Nonetheless, the applications were dismissed by the learned trial court apinst which the appeals failed. In W.P No.740-Pl2021 , the petitioner has filed an application for sinedie adjournment of her suit till disposal of the Writ Petitions pending before this Courl Her application was allowcd but the judgement was set-aside by the learned revisional courVADJ-XII, Peshawar on 12.01.2021. She approached this Court questioning the validity of the order of the rcvisional court. She has sought an interim order on 22.03.2021 when her petition was clubbcd with W.P No.1629-Pl2017 directing the olficial petitioners (respondents of the Writ Petition) to maintain the statusquo. She alleged that despite clear directions, her possession of the property was interfered with, and she was dispossessed, which is violative to the direction of the court, as such, the ofEcial respondents of her Writ Petition have cornmitted contempt of court for which she has filed COC No.l03&P/2021. Likewise, Haji Syed Haider Shah is also agrieved of the allcgcd violation of the order of the court filed C No.454 2t hence, all these petitions

4.Mr. Nasir Mehmood, Advocate, leamed counsel for petitioners contended that suits of respondents rvere not maintainable from the very inception as lhe proceedings were conducted on the direction of the court, wherein, the respondents were found to have encroached upon the property of the petitioners lbr lvhich they were served with fresh notices. He vociferated that in view of Central Government Land and Building (Rccovery of Possession) Ordinance, 1965, civil court had got no jurisdiction to entertain antl adjudicate upon the 4 matter and to grant any injunction in favour of unauthorized occupant becausc the jurisdiction of civil court has specifically been barred under Section 10 of the ibid Act. According to him,

no cause of action rvas ever accrued in favour of plaintiffs/respondcnts and the leamed courts below have failed to appreciate this aspecL In support of his contention, he placed reliance on " Ciuil Auiation A Kanchi W. WS Daa Kanchi (PLD 1993 Karachi 700), IIao brothen Vs 1he hmmander Kanchi (1990 CLC 489), Dirccnr C,cncnl Pakishn hast Guads. Kanchi Vs. MsL hrina Iamshed (1998 MLD 1879)'. lrarned counsel for the petitioners in W.P No.74GPl2021 contended that their application fior stay of proceedings sinedic was rightly allowed by the leamed trial court vide order dated 18.03.2020 but the Civil Revision of Haji Syed Ali Shah (respondcnt No.l) has illegally allowed as the controversy was pending adjudication before this Court through connected writ petitions and until the petitions are decided, proceedings before the civil court could not be conducied. kamed counsel fior the petitioners in COC No.,15,LPl2021 and COC No.l03-P/2029 contended that the orders of this Court were violated rvhen fhe petitioners of both the petitions were ousted from the property. Mr. Aimal Khan Barkandi, Advocate, counsel for plaintills/respondents contended that the initial demarcation was without associating the petitioners and even thereafter the demarcation proceedings were not conducted in accordance with larv he added that, the ownership of the petitioners has not been denied by the petitioners, however, becarrse of illegal demarcation proceedings, they rvere directed to vacate the possession as alleged unaudrorized occupant and in such an eventuality, the plaintiffs were left with no option but to see the declaration in respect of their owned and possessed property. Thc suits of the plaintiffs were filed under Section 42 of the Specific Relief Act, 1877 where the matter pertaining to olvnership which shall be decided in accordance with law because they have nercr alleged themselves to be owner of the state land or the public property and in view of the above the applications of the petitioners wcre rightly turned down by the learned courts below.

5.I havc listened to leamed counsel for petitioners, learncd AAG, learned counscl for private respondents and record was gone through wift the valuable assistance of tlre parties.

6.Having heard the arguments and perusal of record would reveal that the plaintiffs/private respondents were seeking declaration in respect of their owned and possessed properties described in the plaing fhe petitioners being served r,r'ith the notice put appearance and subrniued their written statement by refuting the contents of the plaint and alleging therein that the plaintiffs have encroached upon the public property. The factum as to whether the plaintiffs arc the owners of their owned land and has never amalgamated the boundaries ol' thcir property with the contiguous orvnership of the petitioners requires recording of evidence. Any such suit even with iqlunction is dealt with under Section 42 of the Specific Relief Act, 1877 when the right, stahrs is denied or intended to be denied by a person declaration is granted, if the stance of the former is proved and the possession, if any, found in possession of the plaintiffs is directed to be surrendered in favour of actual orvners/possessors. The Ordinance of 1965 on one hand is excluding the jurisdiction of the civil court in respect of the property on lvhich a person is found in possession but unauthorized, then off-coursc in such an eventuality, neither the suit could be entertained nor adjudicated upon. It is well established principle of law that incompetency of suit is required to be determined from day first by the leamed trial court as the incompetent suit requires burial from its inception. The court while considcring the contents of the plaint and rvritten statement may decide the matter even without rccording of t evidence if the facts were not conhoverted. This Court in the case " Muhanmad Zzman and Vg Sheh Wezii Khan (PLD 2002 Peshawar 45)", lvherein, it was observed that; " incompetent lis requires to bc bwied from its inccption". Moreover , the august Suprerne Court in the case of "RaiaAli Shah Ys. Messn Esscm Ilotel Limitcd and othets (2007 SCMR 7411" has observed thaLq " if the contents of tJrc nleit t tnt di s cause of action suit lns not heen valued oronerlv or it is ed but not

coffected or il' coufi fee has not been allixcd on the nlaint on s Dresentafion and within the oeiod nrouided b y law. the has not been made and if b law ma t 1B In such an evenhrality, the court is equipped with the power to nip the evil in the bud. However, rejecting the plaint at the inception is a drastic penal provision restraining the plaintiff from seeking the remedy of his grievance from the court of competent jurisdiction. The Hon'ble Supreme Court in the case of "Misee Khan and othen Vs. Abdul Ghafoor and othen (PLD 2025 SC 24)", wherein, it was observed thaq " Therefore, lhe conditions Drecedenl to exercise power under Order VII, Rule I l, CPC are ;tittneat. This Court has consistently held that the averments in the plaint must be read as a wlnle to determine whether it discloses a cause of action or whether the suit is baned under anv law. This iacludes a bar creatcd due to the laose of the limitation oeiod. At the stase of e.vercise of Dower under Order VII, Rulo l l ePe-if the avermeng in t]rc nlaint ex-facie do not disclose a cause of action or on a reading thereof,, the suit aooeats to be bared under anv law: the olaint can be rerbcted."

7.Sigrrificandy, accrual of cause of action and disclosure of cause of action are hvo different phenomenon which cannot bc amalgamated with each other. Nondisclosure of cause of action results into rejcction of the plaint, whereas non-accrual of cause of action results into dismissal of the suit. Former does not preclude a person from institution of the fresh suit on the basis of same cause of action except in certain cases as specifically provided in the code, whereas the latter debars the plaindlf from institution of the fresh suit under the same cause of action within the purview of Section l1 of the code o[ Civil Procedure, 1908. Reliance may be placed on " othen (PI.D 2002 Karachi 408)". Thc application of the petitioners/defendans is mainly based upon the provision of the Ordinauce of 1965 and thc grounds taken therein manifests that nondisclosure of cause of action improper valuation and allixation of the court fee have not been alleged in the application;

thus, the application of the petitioners under Order VII Rule l l (1) (a) (b) and (c) could not be invoked. Evcn otherwise, the contents of the plaint do disclose a cause of action and rvhen the contents of the plaint were controverted through written statements on different legal and factual objections then the trial court has got ultimate jurisdiction to decide the fate of the suiL In so far as the bar of the suit under the Ordinance of 1965 is concerned, suflice it to say that the plaintillis have made reliance on the enh'ies of the revenu€ papeni and have sought declaration that to the extent ol their owned and possessed property and in such an eventualiry, civil court of ultimate jurisdiction could try the suit and no such specific bar has been provided in the Ordinance of 1965. It is worth mentioning that the Ordinance of 1965 was repealed in 2021 by Federal Properties, Public Properties; Removal ol' Encroachment Ordinancc, 2021 was promulgated providing a forum for determination of unauthorized possession but even within the lifetime of the Ordinance of 2021 no Tribunal was constituted flor determination thereof. Neither the Ordinance of 2021 through its extension holds the field nor it converted into enactrnent and after the expiry of 120 days as extended latcr, it has comb to an end and whcn so, dre Ordinance of 1965 has beerr revivcd but alarmingly the Ordinance of 1965 provides no forurn for deterrnination of tlre issue of unauthorized person. It is not understandable that in the Ordinance of 1965 on one hand the jurisdiction of civil court was barred but on the other hand, in the Ordinance, there is no provision to address the issue of alleged unauthorized occupation.

8.Be that as it may, the above are dte instances when the plaint is returned for its presentation before court of competent jurisdiction. Iutriguingly, the alleged encroachment is based upon demarcation, the validity of which is to be determined by the court rvhere the suits are still pending. There is no cavil with preposition that in determining the boundaries of the property three permanent points arc taken for erccting the boundaries and determinatiorr thereof. Reliance is placed on " Col. Mahbaob Khan Vs. Abdur Raslid and another (1993 MLD 1599, I-ahore).

The trial court where the suits are still pending will dilate upon this legal aspect because record reflects allepd encroachmenL Likewise, the Ordinance of 1965 does not provide any forum for determination of the boundaries of the property and the remedy against unauthorized person or redressal thereofl against the officials. Though dre case before this Court is not under the provision of the Act of 1977 (Iftyber Pakhtunkhwa Public Property lRemova] of Encroachmentl) Act, 1977 read, with Rules of 1966. However, if any public property is alleg,edly encroached upon by a private individual, the jurisdiction of Tribunal is limited only in respect of the issue as to whether the property for which the riotice was served upon the private individual is not public property? Reliarrce is placed on "Mian lfakim Wah and 02 othen Vs. Additional Disuict Nowsheta and 02 othen (1993 SCMR 907)". In this peculiar aspect, whin there is a Tribunal to decide the factum of unauthorized possession or alleged encroachment is limited and tribunal, il' any, is not competent to determine the ownership of the individual, which is the sole job of the civil courL Reliance is placed on"Muhammad Farid and othen V* Mun:cioal hmmiuee (PLD 1999 SC 4l) wherein it was observed that:

T.eading of sections I I and 12 together, makes it abundantly clear that in cases where the Tribunal has been vested with exdusive jurisdiction, the jurisdiction of the Civil Court is barred, Mr. Mushtaq Ali Tahir Kheli, learned counsel for the respondents Nos. I and 2 has argued that the Tribunal has been vested with limited kind ofjurisdiction and it has no jurisdiction to deterrnine rights benreen the parties. [n our view, the learned counsel appears to be right because section l3 clearly vests the Tribunal with jurisdiction only to dercrrnine wtrether atry property is not a public property or that any leasc or license in respect of such public property has not been determined for the purpose of the said Acr Evidently, the questions dedt with by the Tnbunal in the present case did not fall within the ambit of its jurisdiction, as visualized by section 13. It is only in this regard that the Tnbund appears to have been vested with exclusive jurisdiction and the jurisdiction of the civil Court has been barred as indicated by section ll' Mr. Muhammad Ibrahim Sari has, however, argued that the words 'or arrything done or intended or purported to be done under this Acf occurring in section

I I li:nd to enlarge the jurisdiction of the Tribunal to any action that may be taken under the provisions of the said AcL This contention of the learned counsel appeaxs to be fallacious on the face thereof as sections I I and l3 are to be read together. Section l3 of the said Act hardly leaves any doubt that the jurisdi*ion of the Tribund extends to matters only referred to therein. As has been pointed out earlier, it is only where the Tnlbunal has been vested with exclusive jurisdiction, the jurisdiction of the Civil Courts to tlrat extent has been barred. The said words referred to by Mr. Muhammad Ibmhim Sani indicate that section l l does not only relate to actions which may be taken under the AcL but the bar provided in the said section would even relate to purported actions that may be taken under the said Acr Therefore, the Tribunal is clearly not vested with jurisdiction to determine questions other than those referred to in section l3 of the said Act and jurisdiction of the Civil Courts in such cases would not be barred. ln the present case, the Tribunal appeaxs to have dealt with issues which did not fall within its exclusive domain. Ig therefore, had no jurisdiction to decide the same."

9.Yes, in cerLain suis of prirate individuals, notices were challenged but they too based upon the ownership of the plaintiffs. It would not be out of contcxt to rnention that determination of the private ownership is not the job of the Tribunal, if any, and wi*rout providing an opportunity within the parameters of thc code and the procedure provided could not be decided by dre Tribunal. Thus, their suits were cornpetent, which shall be adjudicated upon by the Courl

10.In so lar as the contention of Mr. Nasir Mehmood, Advocate, rvho is representing the petitioners that petitioners have encroached upon [re public land but in the entire record there is no sketch of the alleged encroachment against each and every individual, therelbre, his submission is misconceived. Though the submission ol'l4r. Nisir Mehmood, Advocate, being defendants N beforc the fierl court may be the ground for dismissal of the suit but in no circumstance, it provides any crcdit to the petitioners for rejection of plaint. Another aspect is that once the encroachment is found ba-sed on demarcation report then recovery of possession was the sole job of the civil court except rvhen anot]ter forum is

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provided in ttre statute. Reliance is p laced on " Ghulam llaider & others V . Masoud others (PU 2013 Pesh 240)"

11.Next tuming to the fate of the peritions filed by Mst. Niaz Meena and COC for and ag.ainst by private individual. In the suit, an application was submitted for stay of the suit but till the determination ol'these writ petitions and since the petitions have been decided today, therefore, the applicarion has become infructuous, and the suit shall be decided after recording of pro and contra evidence.

12.Admiuedly, the petitioners are in possession of the property, which was alleged by them on the basis of the demarcation report then only thing which is required to be determined from the civil court as to whether lhe plaintiffs were unauthorized occupant of the property or ttrey were in possession of their owned property and when the respondents of the instant petition are in possession of their own land wherefrom they have been allegedly dispossessed, their grievance shall be redressed by the courl Both the learned courts below righdy dilated upon the issue and have reached to the conclusion that the application submimed by the petitioners was not filed within the format of Order VII Rule 11 to rvhich leamed counsel for the petitioners could not point out any illegality, legal error, jurisdictional defec! non-reading and misreading of record; hence, for the forrcgoing reasons, this and connected petitions along with o Cs are dismissed. No order as to costs

Annor.rnced.

r0.03.2025. JTJD GE

Table

q Case Numbet Case Title No.

1.C.R No.245- Milltary Estales Offrce\ Peshawar Circle, P/2017 Peshawar Cana & others Vs. Hoji Syed Ali Shah & othe$,

2.ll/,P No,l6i0- Military Eslales Officer, Peshawar Circle, PnO17 Peshawar Canfr & othen Vs. Hafi Muhanmad Nawaz & otherc,

3.WP No.1631- Mifitary Estales Office\ Peshawar Clrcle, P/2017 Peshawar Canlt & olhers Vs, Syed Muhammad Ashruf Shah & othen, 1, lLP No.1633- Mllitary Estates OIliceL Peshawar Arcle, P/2017 Peshowar Cantt & otheN Vs. Htji Naik Muhammad & othets.

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5.lllP No,I634- Mllltary Eslales OIliceL Pahrwar Clrcle, PDOIT Peshuwar Cana & ofiers ys. Habtb Ullah & olhen.

6.COC No.151- Haji Syed Alt Shah & othen Ys. Mllhary Estau P/2021 tn C.R Oflicer, Peshawar Circle, Peshawar Cantt & No,245-P/2017 other* W,P No.740- MsL Nlaz Meena Vs, Said All Shah & othets.

P/2021

E. COC No.I03- MsL Maz Meerra Vs. Said Ali Shah & others, P/2022 ln HIP No.74l)-P/2021

Irard., Slorr, SS.t (SB) Ho,t'bte NL lasttcc Nuhann'dd No'a't An 'u'