Bashir Ahmad etc. vs Pop etc.

Stereo. H C J D A-38.

JUDGMENT SHEET

IN THE LAHORE HIGH COURT, MULTAN BENCH

MULTAN.

JUDICIAL DEPARTMENT

C.R. No.1883 of 2016 Bashir Ahmad (deceased) through LRs, etc.

Versus

Province of Punjab, etc.

JUDGMENT

Date of hearing: 08.10.2026.

Petitioners by: Malik Mukhtiar Hussain Gorcha and Zafar Ullah Khan Warraich, Advocates.

Respondents by: M/s Abdul Samad Ali, Advocates (for respondents No.5(a) to 5(i).

Mr. Awais Ahmad Qazi, Additional Advocate General.

MUHAMMAD SAJID MEHMOOD SETHI, J.- Through this single judgment, I intend to dispose of the instant revision petition and connected C.R. No.1884 of 2016, as common questions of law and fact are involved in these cases.

2.The disputed land, measuring 75 Kanals in Chak No.67-A/TDA, Tehsil and District Bhakkar, was evacuee property owned by the Provincial Government. The petitioners’ predecessor-in-interest claimed to be in possession since 1972. Under Memo No.915/BOR/74, the Government introduced a scheme for allotment of such land to its occupants. The petitioners alleged that Din Muhammad, predecessor- in-interest of the private respondents, procured an allotment fraudulently in connivance with the revenue staff. The Assistant Commissioner, Bhakkar, recommended allotment to the petitioners at Rs.100 per PIU, but the District Collector, vide order dated 04.02.1996, allotted the land to Din Muhammad. In revision, the

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Additional Commissioner (Revenue), Sargodha Division, vide order dated 05.05.1996, set aside the Collector’s order and directed allotment to the petitioners, whereupon Mutation No.347 was sanctioned in their favour on 14.05.1996 after deposit of the dues.

3.The private respondents challenged the revisional order before this Court and were directed, vide order dated 08.03.2002, to approach the Member, Board of Revenue, Punjab. The Board, vide orders dated 16.03.2006 and 12.12.2006, remanded the matter to the District Officer (Revenue), Bhakkar, and subsequently directed auction of the land. The petitioners impugned these orders through a declaratory suit, which was decreed by the learned Senior Civil Judge, Bhakkar, on 10.07.2013. On appeals by the respondents, the learned District Judge, Bhakkar, vide judgment and decree dated 04.11.2015, maintained the decree as to 48 Kanals (Khasra Nos.220/7, 220/8, 220/9/2, 246/8, 246/9 and 246/10), but denied relief as to the remaining 27 Kanals (Khasra Nos.229/4, 229/5, 229/6/2 and 229/7), holding that the conditions of Memo No.915/BOR/74 were not fulfilled. The petitioners (C.R. No.1883 of 2016) seek relief in respect of the latter Khasra numbers, while the rival claimants (C.R. No.1884 of 2016) challenge both decrees, inter alia, on the ground that the suit itself was not maintainable before the civil court.

4.Learned counsel for the petitioners contends that their predecessor-in-interest remained in continuous possession since 1972, as reflected in the Khasra Girdawari (Exhibit P-9); that the learned trial Court rightly decreed the suit; and that the learned appellate Court misread the revenue record and misinterpreted Memo No.915/BOR/74 while declining relief as to Khasra Nos.229/4, 229/5, 229/6/2 and 229/7. He prays for restoration of the trial Court’s decree to that extent.

5.Conversely, learned counsel for the respondents (petitioners in C.R. No.1884 of 2016) supports the judgment of the learned appellate Court to the extent of the denial of relief, contending that entitlement under Memo No.915/BOR/74 was not established and that no misreading or non-reading of evidence is shown. He further submits

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that the entire suit was barred under Section 36 of the Colonization of Government Lands (Punjab) Act, 1912 (“the Act, 1912”). He has relied upon Member BOR Punjab and another v. Mst. Siddiqan through L.Rs. and others (2015 SCMR 1721), Nasir Fahimuddin and others v. Charles Philips Mills and others (2017 SCMR 468), Muhammad Azam, etc. v. Bashir-ud-Din, etc. (NLR 1998 Revenue 113), Muhammad Din and 8 others v. Province of the Punjab through Collector and others (PLD 2003 Lahore 441) and judgment dated 07.06.2021, passed by this Court in Civil Revision No.195/2013 titled Province of Punjab and others v. Atta Rasool and another.

6.Arguments heard. Available record perused.

JURISDICTION OF THE CIVIL COURT

7.Since the objection to jurisdiction goes to the root of both decrees, it must be decided before the rival claims to allotment are examined on merit. Section 36 of the Act, 1912 provides that a civil court shall not have jurisdiction in any matter which the Collector is empowered by the Act to dispose of and shall not take cognizance of the manner in which the Provincial Government, the Board of Revenue, the Collector or any other Revenue Officer exercises any power vested in it or him under the Act. Jurisdiction is conferred by law and cannot be created by consent or acquiescence, nor can its assumption validate proceedings undertaken in disregard of an express statutory exclusion. At the same time, jurisdiction of the civil court is not excluded merely because the dispute concerns government land or involves the exercise of power by a revenue authority; the exclusion must be founded on the language of the enactment, read with the nature of the dispute and the powers entrusted to the designated authority.

8.In Nausher v. Province of Punjab through District Collector, Khanewal and another (PLD 2022 Supreme Court 699), the Hon’ble Supreme Court reiterated that, notwithstanding an exclusionary provision, civil courts retain a limited jurisdiction to examine whether

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a statutory authority has acted in accordance with the law under which it purports to act. Where the authority acts within its jurisdiction, the civil court cannot sit in appeal over its findings on disputed facts; where the order is without lawful authority or in violation of the governing statutory framework, it falls outside the protection of the bar. Reference can also be made to Muhammad Nazir Khan v. Ahmad and 2 others (2008 SCMR 521) and Administrator, Thal Development through EACO Bhakkar and others v. Ali Muhammad (2012 SCMR 730). The exception cannot be invoked by merely describing an order as illegal or by disagreeing with the revenue authorities’ findings; the party invoking civil jurisdiction must establish a legally sustainable ground showing that the impugned action was without jurisdiction or in excess of the authority conferred by law. Equally, where a genuine question of such nature arises, the civil court must examine it rather than decline jurisdiction mechanically.

9.Applying these principles, the controversy arose from competing claims to allotment of government land under Memo No.915/BOR/74. The petitioners’ predecessor relied upon the order dated 05.05.1996 and Mutation No.347. The rival claimants were directed by this Court, vide order dated 08.03.2002, to approach the Member, Board of Revenue, where-after the Board passed the orders dated 16.03.2006 and 12.12.2006 in exercise of powers vested in the revenue authorities. The declaratory suit was directed against those orders and sought to preserve the benefit of the earlier allotment proceedings. No ground was shown, either in the plaint or before this Court, demonstrating that the Board acted without jurisdiction or beyond the authority conferred by law. A favourable revisional order and a mutation do not establish that; a mutation is a revenue entry and cannot confer jurisdiction on the civil court which the statute excludes. They are relevant material before the competent forum, not a basis for assuming civil jurisdiction. Insofar as the suit sought adjudication upon the validity and effect of the Board’s orders, the civil court was not competent to entertain it, and Nausher (supra) governs the distinction.

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POSSESSION AND REVENUE ENTRIES

10.The petitioners’ reliance upon possession since 1972, the Khasra Girdawari (Exhibit P-9), deposit of dues and Mutation No.347 concerns substantive entitlement, which is distinct from possession. In Fazal ur Rehman and others v. Province of Punjab through District Officer (Revenue), Bhakkar and another (2014 SCMR 1351), the Hon’ble Supreme Court held that possession of State land, without lawful authority or title documents, does not by itself confer proprietary rights, and Member, Board of Revenue, Punjab and others v. Sheraz Khan (PLD 2024 Supreme Court 1235) underscores that rights under an allotment scheme are governed by the statutory framework and the conditions of the allotment. Possession, cultivation, revenue entries, deposit of dues and mutation are relevant evidence, but cannot substitute for the legal requirements of the scheme. Whether those requirements were fulfilled is for the competent statutory forum, and no finding on the entitlement of either side is recorded here.

EFFECT ON THE IMPUGNED JUDGMENTS AND DECREES

11.The objection to jurisdiction applies to the entire decree. The partial relief maintained by the learned appellate Court as to 48 Kanals cannot cure the defect, and the refusal of relief as to the remaining 27 Kanals cannot validate the decree to the extent it was maintained. Once the suit is held barred, the question whether the documentary evidence regarding individual Khasra numbers was correctly appreciated does not arise. The learned trial Court, by entertaining and decreeing the suit, and the learned appellate Court, by modifying the decree without addressing the foundational objection, proceeded on a matter falling within the statutory domain of the revenue authorities. This is an error going to the root of the proceedings, warranting interference in revisional jurisdiction.

ORDER

12.In view of the above, C.R. No.1884 of 2016 is allowed, and C.R. No.1883 of 2016 is dismissed as the petitioners cannot claim

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restoration of a decree passed in proceedings not maintainable before the civil court. Consequently, the judgment and decree dated 04.11.2015 passed by the learned District Judge, Bhakkar, and the judgment and decree dated 10.07.2013 passed by the learned Senior Civil Judge, Bhakkar, are set aside, and the declaratory suit instituted by Bashir Ahmad and his legal representatives is dismissed as not maintainable before the civil court. It is clarified that this decision rests solely on want of jurisdiction. It is not an adjudication on the ultimate entitlement of either party to allotment of the disputed land. The legal effect of the orders dated 16.03.2006 and 12.12.2006 and the respective claims of the parties shall be determined by the competent forum in accordance with law, and no opinion is expressed on their merits. No order as to costs.

(Muhammad Sajid Mehmood Sethi) Judge

APPROVED FOR REPORTING

Judge

*Sultan / Waseem.*