Ghulam Sarwar Vs Assistant Commissioner, Karak and others

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

BANNU BENCH

(Judicial Department)

CR No.128-B/2015

Ghulam Sarwar Vs Assistant Commissioner Karak and others.

JUDGMENT

Date of hearing: 03.03.2025

For petitioner(s): Mr. Shai Muhammad Khan Khattak Advocate

For respondent(s): Mr. Naiib Ullah Marwat Advocate.

AAG.

Tchsildar Karak, along with Girdawar and Patwari Halqa, as well as SDO, C&W Department, were in attendance.

:l€ * * *X.*tl.

MUHAMMAD TARIO AFRIDI. J.- Through this 1 revision petition, Ghulam Sarwar (the petitioner), is challenging the legality and validity of the judgment and decree passed by the Additional District Judge-I, Karak, dated 07.11.2015, whereby he dismissed appeal of the petitioner and upheld the decision of the Civil Judge-I, Karak dated 30.04.2015. The Civil Judge-I, Karak had dismissed the petitioner's suit for possession, perpetual injunction, demolition of the constructed foundation of monument of Asfandyar Wali Khan, at Jandari (Bilal Chowk) and seeking compensation for the acquired land,

claiming it should be valued at Rs.45,000 per Marla, being a commercial area.

2.Resume of facts of the case in hand is that the petitioner instituted suit against the respondent No.l to 3, alleging that the respondents had acquired a piece of land in Khasra No. 1682170 and 446 measuring 34-Kanals and 0l-Marla situated in the revenue estate of Talab Khel Karak for the construction of Asfandyar Wali Chowk but they itlegally took possession of six (06) Marla of the petitioner's land beyond the originally acquired land, without authorization and that petitioner had previously 6 filed a civil suit (No. 109/1) in 2012, but it was dismissed, being not maintainable, as ruled by the trial court on 13.09.2012. He challenged the findings before the appellate court through Appeal No. 73113 of 2012.

The appellate court allowed the appeal on 12.12.2012, permitting the petitioner to withdraw the suit and granting liberty to file a fresh suit. On 28-01-2013, the petitioner instituted present suit No. l9ll. The respondents were summoned however they did not appear and were placed and proceeded against ex-parte.

After recording of ex-parte evidence and hearing the arguments of learned counsel for the petitioner, his suit was dismissed by the trial court vide judgment and

decree dated 30-04-2015 and his appeal bearing No.

l5ll3 of year 2015 was also dismissed by the appellate court vide judgment dated 07-Il-2015. The Peshawar High Court, Bannu Bench accepted the petitioner's revision petition (No. 128-Bl20l5) on 06.02.2020, and partially decreed his suit and ordered the respondents to pay compensation to the petitioner for 6 Marlas of land (not acquired) at the market price to be determined/fixed by the Land Acquisition Collector, as per law.

3.The respondents filed an application under Section l2(2) of the Civil Procedure Code (CPC), challenging the 4 Peshawar High Court's judgment dated 06.02.2020.

However, this application was dismissed on 06.12.2021.

The respondents appealed the findings to the Supreme Court in Civil Petition No. 90-P12022, which was converted into an appeal and allowed on 31.05.2021.

Resultantly, judgment of the High Court dated 06.02.2020 was set aside with directions that revision petition No. 128-812015, would be deemed pending before the I{igh Court and the same be decided afresh after notiffing the parties.

4.The petitioner in his suit has alleged that the respondents had acquired a piece of land in Khasra No. 1682170 and 446 measuring 34-Kanals and Ol-Marla situated in the

revenue estate of Talab Khel Karak for the construction of monument of Asfandyar Wali Khan, at Jandari @ilal Chowk) but they illegally took possession of six (06) Marla of the petitioner's land beyond the originally acquired land. The respondents were served with notices, but only Respondent No. 1 appeared initially. The others didn't show up, so they were proceeded against ex-parte.

Later, Respondent No. 1 also disappeared and was subsequently placed and proceeded against ex-parte as well. The petitioner appeared himself as PW-l, and fr examined Ghafoor Badshah as PW-2, Aseel Gul as PW- 3, and Khurshid Iqbal Patwari Halqa as PW-4. The trial court heard arguments from the plaintiffs side (since the respondents were proceeded against ex-parte) and dismissed the suit on 30.04.2015. The appellate court rejected the petitioner's appeal on 07.01 .2015, upholding the judgment and decree of the Trial Court dated 30.04.2015, hence, the present revision petition.

5.Arguments from both parties heard, with their lawyers providing valuable assistance, ffid thoroughly reviewed the case records before making a decision.

6.Record reveals that mutation No. 251 attested on 19.09.1990, (Ex.PW-4/3) produced by Khurshid Iqbal, Patwari Halqa, pertains to a different property, one that

v was acquired by the government in 1989, and has no connection to the property in dispute in the current case.

The petitioner as PW-l, testified that the govemment acquired 5 Marla of land via Notification No. 831 dated 09.04.2012, under Section 4 of the Land Acquisition Act, for constructing a monument of Asfandyar Wal Khan, at Jandari (Bilal Chowk), at Karak, but he, after section 4 ibid, didn't provide records of subsequent proceedings or notifications under Sections 5 to 17 of the Land Acquisition Act, that could have demonstrated the completion of the land acquisition process and the o petitioner's subsequent dispossession from the disputed property

7.On 17.02.2025, the official respondents have filed an application (CMA No. 49-B 12025) to submit additional documents, including the de-notification of Section 4 of the Land Acquisition Act, 1894. This Civil Miscellaneous Application is allowed, and the documents attached to it are included in the record for deciding the instant Civil Revision on its merits.

8.The additional documents show that the District officer/ Collector Karak had issued a Notification No.

3960/DOR/LAC on 30.11.2004, under Section 4 of the Land Acquisition Act, 1894, for acquiring land for

reconstructing the Karak Sabir Abad Road and constructing the Sabir Abad Shakerdara Road in District Karak. A corrigendum was later issued on23.LL.2006.

9.The petitioner presented Faiz Ullah, a former Girdawar, as PW-5. This witness conducted demarcation proceedings at the petitioner's request, following an order dated 30.10.2012,by the Collector. This order came after the petitioner's suit was dismissed by the Civil Judge-III, Karak on 13.09.2012. The report of the Girdawar (Ex- PW-5/2) doesn't indicate that other co-sharers were given prior notice of the demarcation proceedings. The demarcation proceedings are questionable because the 4 respondents weren't involved, and there's no evidence that procedural requirements, were followed. The guidelines for demarcation are outlined in the West Pakistan, Land Revenue Rules, 1968., which are being referenced for clarity and guidance;

Rule 67-A:-Demarcation of land.

1.An application under section 177 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.

t, 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 any one of them is a minor or of unsound mind, the name, parentage and address ofhis guardian or ofa male member of his family.

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

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

0 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-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 numbers mentioned in the application.

3.The application shall be presented to: - 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 extend to an adjoining Sub- Division or District.

4.On the receipt of such application duly accompanied by the attested copies mentioned in sub-rule (2), 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 XXX[I-A;

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

c) cause a notice in Form XXXII-B 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;

tiiU Field Kanungo of the Circle;

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

(v)an] other person whose presence at the time of demarcation of

boundaries is considered necessary or expedient by the Revenue Officer.

5.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 fbr demarcation of land:- lr a) by delivering a copy thereof to the person mentioned therein and obtaining his signature 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

v 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 afiY other means as the Revenue Officer deems fit. The expenses for such service shall be borne 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

V

land to bc 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.

7.(a) Soon after taking necessary measurement, 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.

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v riil Full description of the land measured and demarcated.

(il)Mode and details of the measurements taken.

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

tvt Limits of the existing possession including the exact dimensions of the encroached area, if any, and the names of the persons found in possession thereof.

(b)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 thc proceedings or any party thereof 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 Headquarter, 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 XXXII-A

10.The demarcation report (Ex-PW-5/2) lacks probative value due to non-compliance with prescribed procedures and failure to follow legal requirements, rendering it unreliable for court consideration.

ll.Another crucial aspect of the case is that the respondents filed Civil Miscellaneous No. 49-812025, bringing on record the de-notification of Section 4 of the Land Acquisition Act, 1894, issued on 03.03-2025 for the scheme, '(Consl: Monument of Asfendyar Wali Khan at Jonderi (Bilol Khel Chowk) at Tehsil f, ond District Karok" citing detailed reasons for its abortion, effectively terminating the acquisition process. The petitioner also failed to provide evidence that the acquisition process was completed, possession was taken, or that the respondents encroached on the petitioner's proPertY.

12.The petitioner presented Khurshid Iqbal, Patwari (PW-4), who produced mutation No. 251, attested on 19-09-1990, related to previous land acquisition by the Government. However, it is evident from record that the petitioner didn't pursue remedies under the Land Acquisition Act, 1894. The civil court's jurisdiction is barred from taking cognizance of

disputes exclusively covered under the Act and Rules 13.In light of the above discussion, it is held that the learned Courts below have rightly and thoroughly appreciated and evaluated evidence in true perspective and have concurrently reached a just conclusion. The concurrent findings on record and appreciation of facts of the case by the courts cannot be disturbed in exercise of revisional jurisdiction under section I 15 of Code of Civil Procedure, 1908. Wisdom in this regard is sought from the case laws reported as "Mst. Zaitoon Begum v. Nazar Hussain and another" (2014 SCMR 4 1469), "Cantonment Board through Executive Officer, Cantt. Board Rawalpindi v. Ikhlaq Ahmad and others" (2014 SCMR 161), "Muhammad Farid Khan v.

Muhammad Ibrahim & others" (2017 SCMR 679), "Muhammad Sarwar and others v. Hashmal Khan and others" (PLD 2022 Supreme Courtl3) and "Mst.

Zarsheda v. Nobat Khan" (PLD 2022 Supreme Court 21), wherein it has been ruled that:-

'There is a dffirence between the misreading, non-reading and miss-appreciation of the evidence therefore, the scope of the appellate and revisional jurisdiction must not be confused and care must be taken for interference in revisional jurisdiction only in the cases in which the order passed or a iudgment rendered

by a subordinate Court is found perverse or suffering .fro* a jurisdictional error or the defect of mtsreoding or non'reading of evidence and the conclusion drawn is contrary to law. This court in the case of Sultan Muhammad and onother v. Muhammad Qasim and others (20|0SCMR 1630) held that the concurrent findings of three courts below on a question of fact, if not based on misreading or non-reading of evidence and not suffiringfrom any illegality or material irregularity effecting the merits of the case are not open to question at the revisional stage.'

14.Further in judgment reported as Salamat Ali and others v. Muhammad Din and others (PLJ 2023 SC 8), I the same view has been uPheld that:- 'Needless to mention that a revtsional Court cannot upset a finding of foct of the Court(s) below unless that finding is the result of misreading, non-reading, or perverse or absurd appraisal of some material evidence. The revisional Court cannot substitute the Jinding of the Court(s) below with its own merely fo' the reason that it finds its own linding more plausible than that of the Court(s) below.'

15.In this regard, wisdom is also sought from the case law reported as Mst. Far zarta Zia and others v' Mst' Saadia Andaleeb (2024 SCMR 916) wherein ithas invariably been held that:-

'13. The High Court cannot substttute its ownfindings unless it is found that the conclusion drawn by the lower courts were flawed or deviant to the erroneous proposition of law or caused serious miscarrtage of justice and must also avoid independent re-assessment of the evidence to supplant its own conclusion.'

16.For the foregoing reasons, the revision petition in hand being devoid of merits stands dismissed. No order as to the costs.

Announced

(Ghafoor Zaman) tly

JUDGE

I v

D

(S.B.) Hon'ble Mr. Justice Muhammad Tariq Afridi