Main Said Wahid Vs Nazir Mian

IN

I j/,i //

/ t

A. Y'

\\GHC0

CiVil RETTESION No of co5.

1)Mirn Said Wihid.

ther NiT •Q ...05 oijs of Cndri Niaiij RcSidcnts of Chtur Tehsil Bbzai . District; Swat..

Versus

It

Nzir Min s/t Qenar Nin(1'te) .

Nt.Gul Sbehr widow of ar M / fl i( rs/o Reb.rnar Abi Qarilbar Tebsil Bbuzai / DJstr1cL Swat.

/ tt oner@j Miai s/o Poor Ni3i. 'YTme'i r•'lian son of Kariin Nin L1&Jr Msha1 Niar.

6)Gui Jinhr Mien (since .ie) rep: By; h() Mr.Gu1 H2zaraBibi WIdOW.

Nst.Riff2t Jehan Bibi Widow. /; z•i j///4pøp ji5) N1mn Said Kieen. ?jv/vL"f •) Nn Za1r A11L_fl. /1t-4

Y/$46' /

V)aZB2Cra....SQnS.

vii)Mst.Jehn .ra.

4ji I ' ii) Mst.Di]s ibi.

.Asia Bibi.

L- •.flf aa M8t Bibi.

'., xi) tt.Azrnat Bibi.

xii.) Mt.Sadia Bibi.

xiii)Nst. Hisar Bibi

xii)ShenC'gai Vibi XV') t.ThahflPZ.Bib .....Drs/o Gui abor Iiian sicint of Chtour Yaire Teh3.1 '.BbuZ3i District Si ?) Badshh Said. - - 3) flLcr . 9) Al saId.

Jehin 6 aid...

dSb5fl i....1S cf .Br'ct') - tJaT dr/r rdi(ltc) fc31cjt5 of KozL1 Cnto r c h s i 1 Bcbuz Dstict

rvs1 r PeLi la p against tC judgnnt/ C'rier -n aec:eo te /7/236 hcicc the appi of the petitipnei' ws ismisc s'd tb3t of the jud'ment/decree and cIder tV the G ivi1 TiII/I13q

!jS - 3t vi as I• : ---RE'iLt:c• . - ' -'

4 I -

1 DEC

12u

110JA2'ul

JUDGMENT SHEET

IN THE PESI-IA WAR HIGH COURT, MINGORA BECI1

(DAR-UL-QAZA), SWAT

3 U DICIAL DEPARTMENT

Civil Revision No. 58 7-M/20ü7

Mian Said Wahid and aiwlizer

Vs.

NaZir Mmii and others

JUDGMENT

Date of hearing: 08.02.2017

Eetitioner(s): By Mr. Raza-Lid-Din Khaii, Advot'atc Respondent(s): By M/S Fazal Rahman, Sycd Izzat Badshah and Khurshid Ali Khan, Advocates

IKRAMULLAH KHAN, J..- This revision

pclition is directed against the judgments and

AXTEST

decrees of learned Additional District Judge-I I Izafi Bench ZilIah Qazi Swat dated 25.7.2006 and that of Peshawa 7 Ili Swat, learned Civil Judge-Ill / Illaqa Qazi, Swat dated 28.4.2005, vide which, suit of petitioners was concurrently dismissed by both the lower courts.

S

2.Compendium of facts leading to the filing of instant petition is that plaintifl/petitioners filed a suit for declaration against the defendants!

respondents to the effect that they are owners and in possession of the suit land, fully described in the heading of the plaint and attestation of' mutation in respect of the suit land in the name of respondents is illegal and liable to be cancelled and the revenue record to this effect be also colTected. They further prayed for permanent and perpewal ii iiiictioa to the effect that reSpondents be restrained not to interfere in their lawful possession and ownership, on the basis of impugned directions rendered by respondents on different dates as well as on the basis of impugned mutation.

Defendants/respondents in their

written statement vehemently controverted the stance of the plaintiffs/petitioners, which reu1tcd ;. into framing of issues, on which both the parties led their respective evidence as they wished. On ,r iiO 1 conclusion of trial, suit of the plainti1i/petitioncrs was dismissed and the appeal filed also met the same fate, hence the instant revision petition.

1 have heard the arguments advanced

by learned counsel for the parties and have also gone through the record with their valuable assistance.

The perusal of record reveals that

petilioricr had claimed 4/9 shares in the suit property

-j

being ancestral property coming strailit since their forefath.rs in their possession. The petitioners thcmselvcs examined the revenue officials, who had placed on record the revenue papers. According to the revenue papers, the suit property was originally owned by cx. Ruler of Swat, known as Bacha Sahib, Swat. Alter merger of erstwhile set-up of State of Swat, the Government of Pakistan in order to distinguish and determine the State properties as well as the personal properties of cx- Ruler of Swat promulgated Martial Law Regulation No. 122. For thc said purpose, the Dir-Swat Land Disputes Enquiry Commission (Commission) was constituted 8(h vide Notification No.66 dated October, 1970.

'I'hc Commission inquired in respect of t.vo sets or lands, one owned by the State while the other by cx- Ruler of Swat. In this respect a Notification No. 1 0/I -SOTA-l1/HD/72- 1525 dated

September, 1972 was issued and the properties owned by the ex-Ruler of Swat was out-rightly mentioned in Appendix 'B' Schedules I, II and Ill.

The suit property is mentioned at Part 'C' of the said Appendix. According to the said Schedule of the properties bounded at North Village Batura, South Village Supal Banday and Village Murghazar, I1ast Village Islampur and Village Supal Banday, West

Village Maniar, Village Ghaligay, Pani Dal, were declared to be the personal properties of ex-Ruler of Swat with exception to those properties, particularly and spceifically mentioned in the said notification itself.

6.The Government o[ Pakistiii

simultaneously also ISSUCCI another viartia1 [ aw Regulation No.123 on 12.4.1972, wherein, the Commission constituted under Notification No.66 dated 8 October, 1 972 was conferred with the jurisdiction to dispose of, all the disputes relating to the ownership of, or any right or interest in, any iniinovable property in the former States of Dir and Swat to which any of the following persons are parties:-

the tenants and ex-Rulers of the said former States or their respectively heirs; or

claimant landlords and the cx- Exammer( Rulers of the said lbrmer States Peshawar Hicjh Court Benth or their respective heirs; or MigorIORr-UI-QaZa, Swat the landlords and tenants

7.The record depicts that the

respondents approached the concerned Dir-Swat Land Disputes Enquiry Commission (Commission), whereby, the suit property was claimed by the respondeiLs. The Commission, after proper inquiry,

rendered its order in respect of the suit property in favour of the respondents vide its order dated 6.1 0.1972. The ex-Ruler of Swat time and agi ii under the provisions of Martial Law Regulation No.123 filed his appeals, revisions and review petition:; before the concerned Authorities mentioned in the M.L.R. No.1 23 but lie direction / order of" the Commission was stood intact. In pursuance of the direction I order, which is commonly known as decree, the symbolic possession of the suit land was handed over to the respondents by the concerned ievenue Tehsildr, Tehsil I3abuzai, Swat on 1.9.1 975.

8.It is admitted fact that the settlement operation was not enforced in district Swat, which was brought under operation in the year, 1984 and xan PeshaWa

ne efl was completed on 31.12.1986. During the course of swat settlement, the suit property was preliminary entered in the name of Land Commission because all the properties owned by the ex-Ruler of Swat was - provisionally resumed by the Land Commission f constitutcd under Martial Law Regulation No.1 15, but later on, the respondents filed an application in order to give effict to the decrees I orders / directions rendered by the Commission constituted

vide Nuification No.66 of 1972. 'I'he suit property was catered in the name of respondents, accordiigly.

9.It is evident from the record that floliC of the parties herein are in actual possession of the suit land. 1-lowever, the suit land is in possession of various persons, who are cultivating and in pOSSCSSIOfl of the same and recorded as tenant at will in the revenue record. The petitioners have not examined a single person during trial, recorded as tenant at will in the revenue record of the suit property to confirm that the produce of the suit property was receiving by the petitioners. While the Khasra Girdawari produced and placed on record did not show that the petitioners were in actual ATTESrED possession of the suit land because on one hand, the f I petitioners had failed to prove their possession over E xa iii in r Peshawar1içjh Coirt Benth the suit land while on the other hand, they did not MingoraiDar-uI'Qaa Swat,

place on record any conceivable, cogent and documentary evidence that the suit property had ever remained either in their possession or in their ownership. However, the petitioners had placed on record Deed No.517 registered on 3.9.1975 but none of the attesting witnesses have been produced as PWs in order to prove the same in terms or Article

79 of the Qanoon-e-Shahadat Order, 19,94 or any other enabling provisions of the same Order. It is apparcil. From the record that petitioners had institutci the instant suit in the year 1994 while the [)eed, on which, the petitioners had placed their reliance was allegedly executed in the year 1975 but in the interregnum period from 1975 to 1994, the petitioners had kept mum and no plausible explanal ion furnished by them in respect of long delay in lodging of the suit, which is beyond the prescribed period of limitation provided under j\rticle 170 of the Limitation Act.

10.The petitioners had ilaeed on record Deed No.5 17 dated 3.9. 1975, although as mentioned hereinabove, the attesting witnesses of the same /1' I were no( produced during evidence, even if the same Exanhine rt Benc1' is admItted as correct, the properties mentioned Swat therein well recognized by names and admitted to be the ownership of petitioners but they failed to substantiate and prove that infact the properties mentioned in the said deed were the suit properties.

The petitioners were required to place on record some docwnentary evidence in the shape of Aaks Shajer-i-Kistwar of the suit properties as Nvell as I: ar(l Jamma Bandis, to prove that the properties

mentioned in Deed No.5 17 were included in the suit 1roper1ies. The revenue papers placed on file do not su)pont the version of the petitioners, however, only similarity of names of the land could not be treated to be ilie properties oiven to the petitioners through the aforesaid deed.

II . The contention of learned Counsel for rcspoiidents that since the subject matter of the suit had already been decided by a c01111etent forum i Commission, as such, the Civil Court has got no jurisdiclon is concerned. No doubt, in view of Paragrali-6 of the Martial Law Reguat ion No. 123, 110 court or other authority shall call in question, or permit to be called in question, any action or decision taken or order passe(1 under this Regulation but where any person impugned any wrong entry in the record of rights, which is tile result of orders / directions of the Commission during settlement ' 'u t BetLI operation in Swat, such dispute of a claimant shall be entertained and adjudicated by the Civil Courts having plenary jurisdiction in terms of Section 9 of the CPC. The Sub-Para (I) of Paragraph-3 of the Martini Law Regulation No. 123 only empowered the Commission to take cognizance of disputes of (he perans nientioneci hereinabove in Paragraph-6

MMENOMMM

of this iudgmeiit. So the persons, who were not mentioned in Sub-Para-1 of Paragraph 3 or the ibid Regulation, could not approach the Commission.

Apart ftom the above, the Commission was authorized only to determine and take cognizance ol disputes, which were mentioned in Paragraph-2 (b) of the Martial Law Regulation No. 123, which rca as: -

"Dispute" means a dispute inciutred

into by the Commission and fbi the determination whereof it has made a recommendation in its report."

12.In view of aforesaid meaning of

dispute, it is crystal clear that the Commission was not empowered to adjudicate upon and rendered its orders in respect of all kinds of disputes regarding laud in ex-state of Swat but only a specific dispute which had already inquired by the Commission had to take co°nizance.

Examifle shiW iql1 coukt Bench 1 3. As already discussed hereinabove, S'4Bt

pnr to the year 1986 the settlement record was not niaiiitained in district Swat, so the lands were recognized by specific names and boundaries and as such, the properties which were declared to be the ownership of either ex-Ruler of Swat or private persons duly mentioned in both the Notificatoiis

issued under the Martial Law Regulation Nos. 1 22 and 123 recognizable by names only wilhout spccifyag the measurement of the area. During the course ol settlement operation at Swat in the year a ood number of civil disputes arisen because SOfl)C liropertics which were declared to be the ovncrship of ex-Ruler of Swat under Martial Law Regulation No.122 and tite some were declared to be the ownership of the claimants / landlords under the Martial Law Regulation No. 23 and in the garb of these orders, the adjacent properties, to one mentio;ed in these orders, were also entered in the name of' either Commission or claimant/landlord populaily known as decree-holder. Likewise, in a estate / mouza, several areas were known by a common name, so the decree-holder / claimant / landlord while taking benefit of orders I directions 1TE5I rendered by the Commission under the Martial Law Regulation No.123 picked and chose valuable Exarnnek ct seftch h COLrt a, SWOL lieS ifl view of siniihtiity of names within a particolar estate / mouza. So, these cases shall be distinguished from the one in which a specihe order has b en rendered by the Commission, due to which, the jurisdiction of Civil Courts is barred to take cognizance in terms of Paragraph-6 of the Martial Law egu1ation No.123. 1-lowever, the cases which

were brought before the Civil Court after coitipiction of the revenue record, wherein, any person cIiaI1en:i g the wrong entries in the record of rights, which arc the result of either notification issued under the Martial Law Regulation No:;. 122 and 1 23 or on the basis of order / direction / decree rendered by the Commission, shall be entertained and the court shall afford an opportunity to such claimant / htigant io prove its assertion and at. th end of trial, ii the Trial Court arrived at a conclusion that the disputed land was one which was brought under consideration and inquired by the Commission then such like suits are to be rejected in terms of Order VII Ru!e II CPC and if the conclusion of Trial Court is otherwise then the Civil Court could not be restricted to hass an appropriate order in strive of fair justice.

14.For what has been discussed above. I £xamnBen igorabat.0zaI swat PestlaW thgh Co could not find any illegality or material irregularity in the impugned judgments nor any jurisdictional defect. This court normally does not interfere with the coneulTent findings of facts of t\vo courts below unless there is misreading of evidence or any patent illegality in the impugned judgments. 1-lence finding

no meriT, this petition is dismissed with no order as Announced.

Sd.Ikranwllah Khan-J Dated: 08.02.2017

Certi fled to be true copy

EXMII

shawar I3igh Court, Mingor ,uIioriiCd Under Arlide 071

j .))