Farooq Khan etc Vs Haji Mir Salam Jan etc.

v. Judgment Sheet

(Judicial Department)

WP No.222-812025

f,''arooq Khan, etc.

Vs Haji Mir Salam Jan, etc.

JUDGMENT

For petitioners: Mr. Muhammad Rashid Khan Wazir Advocate

Date of hearing: 11.04.2025

MUHAMMAD TARIO AFRIDI, J.- Through the instant writ petition under Article 199 of the Constitution, the petitioners have prayed for the following relief:

For the above stated reasons, it is, therefore, respectfully prayed that on acceptance of instant writ petition, the impugned orders and judgments of the learned lower courts ^ may kindly be set aside and suit of the respondents / plaintiffs may kindly be rejected under ORDER VII Rule 11 CPC.

Any other relief which deems appropriate by this Hon'ble Court may also be granted.

2.Concisely stated, the facts leading to the filing of the instant writ petition are that the plaintiffs / respondents (hereafter referred to as the respondents) instituted a suit for declaration cum perpetual, prohibitory, and mandatory injunctions against the defendants / petitioners (hereinafter referred to as the petitioners), asserting that the parties are co- or,\'ners of the suit property with defined shares allocated to

each. It was averred that the petitioners allegedly occupied more than their share of the suit property and encroached upon the portion measuring 30-Kana1, 06-Marla owned by the respondents. The respondents applied for boundary demarcation on 15.06.2023, which resulted in a report dated 22.06.2023, highlighting the alleged encroachment by the petitioners on the plaintiffs' land. Petitioners allegedly refused to vacate the encroached portion and hand over possession thereof to the respondents despite rcpeated demands forcing the respondents to institute a suit in the Civil Court seeking a declaration that the petitioners' encroachment and illegal occupation of their land are unlawful and ineffective upon their rights. They also sought possession of the land and requested permanent and mandatory injunctions.

3.The petitioners were summoned. They appeared and filed an application under ORDER VII Rule I I CPC, seeking rejection of the plaint on the ground that the suit was not maintainable, as the demarcation proceedings had been conducted by a Girdawar Circle, who, according to them, lacked the competence to do so. It was, thus, contended that the demarcation report dated 22.06.2023 could not form the basis of the suit. The respondents filed replication to the said application. After hearing arguments, the Trial Court dismissed the application for rejection of plaint and held the suit to be

maintainable, vide order dated 10.09.2024. This order was subsequently upheld in revision by the Additional District Judge-V, Bannu vide judgment dated 21.01.2025. Hence, this petition.

4, Arguments heard. Record perused.

5.The main thrust of the arguments of counsel for the petitioners was that the Revenue Officer should have conducted the demarcation proceedings within the meaning of Section 117 of the West Pakistan Land Revenue Act, 1967, read with Rule 67-A of the West Pakistan Land Revenue Rules, 1968, however, in the instant case, it was the Girdawar Circle, not a Revenue Officer, who conducted such proceedings. This f implies that the demarcation proceedings were conducted without tawful authority, potentially rendering the outcome invalid and, therefore, the suit for possession with declaratory cum injunctive relief on the basis of such demarcation proceedings being not maintainable and was liable to be rejected under ORDER VII Rule 11 CPC.

6.The west Pakistan Land Revenue Act, 1967 is the principal law governing, among others, the powers of Revenue Officers to define the timits of any estate, or of any holding, field, or other portion of an estate. Section 117 is relevant and is reproduced hereunder for ready reference:

117.Power of revenue officers to define boundaries. (l) A v Revenue Officer may, for the purpose of framing any record or maning 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 boundary marks to be erected or repaired;

(2)In defining the limits of any land under sub-section (1), the Revenue Officer may cause boundary marks to be erected on any boundary aheady determined by, or by order of, any Court or Revenue Officer or any Forest Settlement Officer appointed under the Forest Act, 1927 (Act No. XVI of 1927) or already set up by or by order of, any court or any such Officer.

7.The above quoted provision empowers a Revenue Offrcer to define the limits of any estate or any holding on the application of any interested person for ascertaining whether or I not any outsider has encroached upon the property of the applicant. As noted above, the west Pakistan Land Revenue Act, 1967 is the principal law governing, among others, the powers of Revenue Officers to define the limits of any estate, or of any hotding, field, or other portion of an estate. However, it does not provide for the procedure regulating the conduct of such proceedings. In this context, the Board of Revenue has been empowered under section l2l to make rules for the demarcation of boundaries and the erection of boundary marks, and in exercise of these powers, the West Pakistan Land Revenue Rules, 1968 were made. The comprehensive procedure for conducting demarcation or determining

boundaries is contemplated in Rule 67-A, which is reproduced hereunder for ready reference:

67-A. Demarcation of land:- (l) 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.

(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 I of unsound mind, the name, parentage and address of his guardian or of a male member of his f'amily.

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

(e)A brief statement of facts and reasons necessitating the making of application. (D 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 affested 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 XXXIII-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-

4 (i) the parties to the application;

(ii)Lambardar of the village in which the tand 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.

(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 for demarcation of land:-

(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

v 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 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 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.

(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 prepffe 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.

(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.

(v)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

v record their statements as to whether they have understood the 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 pntered in the relevant columns of Register maintained in offtce in Form XXX[I-A.

8.The language of the above quoted provision is plain and well conceivable, therefore, it leaves nothing in doubt as far as the procedure providing for conducting the demarcation proceedings is concerned. There is nothing either in Section ll7 or Rule 67-A to create any bar on the authority of a Revenue Officer to mark the demarcation proceedings to his subordinates. The record appended with this writ petition demonstrates that the demarcation proceedings were conducted under the supen ision of a Revenue Officer and, therefore, no illegality vitiating the demarcation proceedings could be found in the instant case. Even otherwise, it is undisputed that the petitioners knew about the demarcation process / proceedings, and had the opportunrty to challenge them, if they had any grievances, but the petitioners did not challenge the demarcation proceedings at the right time before the relevant authority / forum. Application under ORDER VII Rule 11 CPC for rejection of plaint appears baseless and is not legally

v sustainable, as objections to demarcation proceedings are not a valid ground for dismissal of the suit. In this regard, reliance can also be placed on the judgment rendered by this Court in Dilawar Khan and 02 others v. Mst. Mehrun Nissa and 08 others (2011 YLR 872 Peshawar), wherein it was held that:

15.To sum up, the legal position is that under section 117 of the Land Revenue Act, the Revenue Oflicer is competent to demarcate the land himself or through Girdawar Circle.

g. In these circumstances, the concurrent findings recorded by both the Trial Court and the Revisional Court are found to be in accordance with law and do not suffer from any legal infirmity warranting interference by this Court in its constitutional jurisdiction. The discretion exercised by the Courts below is neither arbitrary nor capricious and is, thus, not open to any exception. consequently, this petition, being bereft of any merit, is hereby dismissed inlimine'

Announced t

I 1.04.2025

(Ghafoor Zaman) l/{

JUDGE

(s.8.)

ifon'Ut. Mr. Justice Muhammad Tariq Afridi

(C,Unrpo

U I