Miangul Aurangzeb etc Vs Govt of KP etc

JUDGMENT SHEET

IN THE PESHAWARHIGH COURT,

MTNGORA BENCH (DAR_UL_Q AZA),SWAT

(ludicial Department) C.R No. 1597- P/2010 Miangul Aurangzeb and others.........(petitioners) vs Government of Khyber Pakhtunkhwa through Chief Secretary & others......,.......(Respondents) Present: M/S Mehnaz Naz, Advocate and Asghar Ali, ASC for the petitioners.

Mr. Alam Khan Adenzai, Asst:A.G for the respondents.

Dates of hearing: 01,12.2022

JUDGMENT

MUHAMMAD IJAZ KHAN J.- Throu gh the

instant revision petition, petitioners have challenged the judgment and decree of the leamed Additional District Judgellzafi Zilla Qazi-IV, Swat dated 18.11.2009, whereby he accepted the appeal of the respondents/defendants and set aside the judgment and decree of the leamed Civil Judge/ Illaqa Qazi-II, Swat dated 25.09.2008, who vide the same had decreed the suit of the petitioners/ 't plaintiffs.

2 Precisely the facts of the case are that the present petitioners who are the legal heirs of Badshah Sahib/ex-Ruler of Swat, filed a suit for a declaration to the effect that they are owners of the AbdulSabooh/* (S.8.) tlon'ble N{r. Justice Uuhammad Ijaz Khar

suit property bearing Khasra No. 1139, measuring 5-Kanal 17 Marlas, being their ancestral property and that the respondents/defendants have no right to deny this right ofthe petitioners/plaintiffs. They have also prayed that entries in the name of the respondents/defendants in the revenue record were also incorrect and thus ineffective upon their rights.

They have further prayed for issuance ofpermanent injunction and in alternative for possession, if they could not prove their Possession.

3.The respondents/defendants were summoned, they denied the suit of the petitioners/ plaintiffs and specifically pleaded that in view of the provisions of The Martial Law Regulations No. 115, 122 and 123, the civil Court has no jurisdiction. However, the learned trial Court though framed the issues but the issue of jurisdiction was not framed and the parties were directed to produce their respective evidence, which they have accordingly produced. Thereafter, the leamed trial Court vide judgment and decree dated 25.09.2008 decreed suit of the petitioners/ plaintiffs. The respondents/defendants being aggrieved of the aforesaid judgment and decree, preferred an appeal to the Court of leamed District Abdul S.booh/* (S.8.) Hon'ble Mr. J ustice Muhsmmsd Ijrz Khsn

JudgelZilla Qazi, Swat, which was allowed, the judgment and decree of the leamed trial Court was set aside and suit of the petitioners/plaintiffs was dismissed, which judgment and decree has now been challenged by the petitioners/plaintiffs before this Court through the instant revision petition.

4.Arguments of leamed counsel for the parties were heard in considerable detail and the record perused with their able assistance.

At the very outset, it was noted that the issue of jurisdiction raised in the instant suit was not a formal objection, especially in view of the special law in form of The Martial Law Regulations No. 122 and 123 ("hereinafter referred to as MLR-I22 and MLR-123"), where jurisdiction of the civil Court under certain circumstances, has specifically been excluded and barred and this objection has also been raised by the respondents/defendants in their written statement by making a special reference to the Provisions of MLR-122 and MLR-123, however, 7 neither any issue with respect to jurisdiction was framed nor the parties have led any evidence in this regard nor both the Courts below have attended to this aspect ofthe case.

Abdul Ssbooh/* (S.8.) Hon'ble Mr. Justic€ Muhrmmrd Ijsz Khen

6.It is relevant to mention here that the present petitioners/plaintiffs are the legal heirs of ex-Ruler of the ex-State of Swat i.e. Badshah Sahib, which was merged into Pakistan in the year 1969, vide Regulation No. I of 1969 namely Dir, Chitral and Swat (Administration) Regulation, 1969. After the merger, disputes arose with respect to the property owned by the State, ex-Ruler of Swat, ex-Ruler of Dir and the private persons in the capacity of landlords and tenants, therefore the Provincial Govemment constituted and notified a commission vide Notification No. 66 S'O.(S.P.L.y H.D.l7o,dated 8th October 1970, to enquire into the disputes, in which the aforesaid category ofpeople/ persons are party. Later on, to give a legal cover to the aforesaid Commission, a Martial Law Regulation No. 122 namely The Devolution and Distribution of Property (Dir and Swat) Regulation of lg72 was promulgated, vide a Gazette Notification dated 12.04'1972 and similarly on the same date, another Martial Law Regulation No' 123 namely The Settlement of Immovable Property Disputes (Dir and Swat) Regulation of 1972 was also promulgated.

Abdul Sabooh/* (S.8.) Hon'blc Mr. Justicc I\Iuhammad ljaz Khsn

7.In order to appreciate the applicability of the provisions of aforesaid Regulations (Martial Law Regulation No. 122 & Martial Law Regulations No. 123) to the present controversy between the parties, it would be relevant to refer to Paragraph-2 (a) of The Martial Law Regulation No. 122, which defines the Commission as under:- ,,2,(a) "Commissi ontt means the Dir-Swat Land Disputes Enquiry Commission appointed by the Provincial Government vide its Notification No. 66 S.O. (S.p.L.y H.D,170, dated 8th October, 1970.', Similarly, as per Paragraph-3, the

Provincial Government, on the basis of the recommendations of the Commission shall by order notified in the offlrcial Gazette to determine the State property, private or personal property of the ex-Rulers of Dir and Swat and the respective shares of the various heirs of the aforesaid two ex-Rulers of Dir and Swat. For ready reference, Paragraph-3 is reproduced below:-

"3. The Provincial Government, on the basis of the recommendations of the Commission and subject to any directive ,3 given by the Federal Government shall, by order notified in the official Gazette,, determine--

a) What property is State Property of the former States of Dir and Swat respectively;

Abdul Sabooh/* (S.8.) Hon'ble ltlr. Justice Muhammad Ijaz Khan

b) What property is private or personal property of the late Nawab Sir Shehjehan Khan, ex- Ruler of the former State of Dir, and the late Sir Abdul Wadud Mian Gul Sahibzada, K,B.E., Badshah Sahib of the former State of Swat respectively;

c)The respective shares of the various heirs of the aforesaid two ex-Rulers in their personal or private property."

Similarly, as per the provisions of The Martial Law Regulation No. l23,the Commission has been defined as stated hereinabove, whereas definition of the "dispute" would be relevant, which has been defined in Paragraph-2 (b), which is reproduced below:-

"2.(a) .'........

(b)"Di!E!g" means a dispute inquired into by the Commission and for the determination whereof it has made a recommendation in its rePort."

Similarly, Paragraph-3 of The Martial Law Regulation No. 123 would also be relevant, where it is stipulated that all disputes relating to the ownership of, or any right or interest in any immovable property in the former States of Dir and q Swat in which particularly three categories of .o/ persons enumerated in clauses (a) (b) & (c) of sub- paragraph (l) of Paragraph-3 of The Martial Law Regulation No. 123, are parties, shall be decided by

the Provincial Govemment or an officer authorized by it in this behalf. For ready reference, Paragraph- 3 is also reproduced below:-

"3. (l) All disputes relating to the ownership of, or any right or interest in, any immovable property in the former States of Dir and Swat to which any of the following persons are parties; shall be decided by the Provincial Government or an officer authorized by it in this behalf' namely:--

a) the tenants and ex-Rulers of the said former States or their respectively heirs, or

b) claimant landlords and the ex-Rulers of the said former States or their respective heirs; or

c) the landlords and tenants.

(2)Subject to any general directive of the Federal Government, the decision of a dispute under sub-paragraph (l) and the determination of the respective claims, rights and interest of the parties thereto shall be made on the basis of the recommendation of the Commission.

(3)No Court or other authority shall entertain any proceedings in relation to any dispute referred to in sub-paragraph (1) nor shall any Court or other authority grant an injunction or make an interim order in relation to any such dispute."

8.In view of the above, it may be noted that the present petitioners are legal heirs of the q ex-Ruler of Swat and the suit properfy has been V duly identified, ascertained and notified by the Commission vide Notification dated 29'09'1972' For ready reference, relevant part of the said Notification is reProduced below:- Abdul Ssbooh/* (s.8.) Hon'ble )Ir. Juslice Muhamm ad ljaz Khan

tt0rder 29th September,,1972.

No. I 0/l 6-50T A-lllHD 17 2-l 525.tontin- uation of this Department Order No. 10/ l6-SOTA-1523, dated l5th September, 1972.- the Governor, North-West Frontier Province is pleased to order:

a) the property specified in Appendix "B" Schedules I, II, III, attached to this Order, shall subject to determination of disputes and claims in respect of this property or any part thereof under Martial Law Regulation No' 123, be the private or personal property of the late Sir Abdul Wadud Miangul Shahzada, K.B.E., Badshah Sahib of the former State of Swat;

b) the private or personal property as aforesaid of the said Ex-Ruler, as shown in Schedules I, II and III of this Order, shall, subject to determination of disPutes and claims in respect of this property or any part thereof under Martial Law Regulation No' 123, be inherited bY the heirs of late Sir Abdut Wadud Miangul Shahzada, K.B.E,, Badshah Sahib as shown in column 3 of the Schedule attached to this DePartment Order No. l0/16-SOTA-I[JHD|72-1523, dated 15th SePtember, 1972 in accordance with the shares specified in column 4 thereof' BY order of Governor'

ttPart'M'

ty All the lands, houses, shops, buildings, forests, trees, mountains, grazing fields, etc., in vill age Sa idu Sharif bo unded as follows:- North: Dowthar Amankot VeterinarY HosPital and ProPertY Attaullah Khan' South: SalamPur Kanbao DooPghar Pani Dal Dowthar Gulegram' East: Khudra, JanaseY Gar uPto Batkara Pani Dal.

Abdul Sabooh/r (s.8.) Hon'ble l!lr. Justice Iluhamma d lirz Khan

West: Girah and Kheta Ghar Pani Dal are owned by Bacha Sahib except the following:- l. Haji Nazarai.

i. Jabah Sarai with houses, 2. Syed Mahmood Mian.

i. Kharapa Sarai Lulma with houses.

3.Nakshai Gujar.

i. Nakshai Patay with houses.

4, Fazale Maula Mian.

i. Near Khaistan Mera Fazale Mula Patay with two houses. ii. Share in Gunghato Lulma'

5.Ahmad Mohammad.

i. Share in Gunghato Lulma.

6.Ali Bakhsh Mian.

i. Two Pieces in Gunghato Lulma with houses.

7.Pir Muhammad, Head Master. i. AnanguraY Lulma.

8.Mianjee Mian.

i, AnanguraY Lulma.

9.Noor Zada Mian.

i. Sukhat Lulma share.

10.Miangan Saidu Sharif.

i. Sar PataY.

I l. Rehman Gul Nasur.

i. KancheY Khowa PataY with + g, houses.t'

Now, when admittedly the petitioners are legal heirs of the ex-Ruler of Swat and the subject property comprising of Khasra No' 1139 is Abdul Srbooh/r (S.8.) Hon'blt Ilr. Justice iUu hammad Ijaz Khan

situated in Mouza Saidu Sharif, which has been declared through the aforesaid Notification as the ownership of the ex-Ruler of Swat to the exception of properties, which are find mentioned in the said Notification, then in the given facts and circumstances, whether the civil Court was having jurisdiction or not, has not been addressed by the two Courts below.

10.It may be reiterated that the question of jurisdiction was required to be addressed and determined by the leamed trial Court with application of its judicial mind by keeping in view Paragraph-6 of MLR-123 and other provisions of MLR-122 and MLR-123. It is observed that whenever a Court of law is seized with a /ls, its first and foremost duty is to ascertain as to whether it has the jurisdiction to entertain the irs or not. It is also bounden duty of the Court that at the first available opportunity and on the very first date, they must attend to the question of jurisdiction v including other statutory requirements for entertaining and adjudicating a /rs. Such approach if adopted, the same would reduce a substantial burden on the Courts as the merits of the case and evidence produced by the parties, all become Abdul Sabooh/1 (S.B,) Hon'ble Ntr. Justice llluhammad Iiez Khan

irrelevant and inadmissible, once it is found that the Court has no jurisdiction, therefore, it becomes the prime duty of the Courts of law to attend to the question of jurisdiction at his own without waiting for the objection of either of the party.

11.It may also be noted that all Courts functioning in the country are to attend to the mandate of The Constitution of Islamic Republic of Pakistan, 1973, where Article 175(2) specifically barred a Court to the effect that it shall not exercise any jurisdiction save as conferred on it by The Constitution of Pakistan or any other law, however, in the present case, it was noted that though the respondents/defendants have at the very initial stage agitated the issue of jurisdiction by making special reference to the provisions of MLR-122 and MLR-123 but even then it was left unattended and unanswered, which necessitating the setting aside of the judgments of the learned Courts below' It q may also be noted that jurisdiction could not be conferred on the Court of law with the consent of the contesting parties. In the case of S.M. Waseem Ashraf vs. Federation of Pakis n throu h ecreta M/ O Housin and Wor ks Isl MA d and others reported as 2013 SCMR 338, the Abdul Srbooh/* (S,8.) Hon'bl. Mr. Justicc Muh.mm sd ljaz Khsn

Hon'ble Supreme Court of Pakistan has held that according to Article 175(2) of the Constitution of the Islamic Republic of Pakistan, 1973 "No Court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law". From the above quoted language of this Sub-Article, it is unambiguously clear that a bar, and a prohibition has been placed that "No" Court in Pakistan shall exercise any jurisdiction in any matter brought before it until and unless, such jurisdiction has been conferred upon it by the Constitution itself or under any law. The word "save" appearing in the Sub-Article has clear connotation ofthe word "except" for the purpose of construing the above, meaning thereby that "No" Court shall have the jurisdiction except as has been conferred upon it by the Constitution and/or law' It is a settled law that any forum or Court, which' if lacks jurisdiction adjudicates and decides a matter, such decision etc. shall be void and of no legal effect. Similarly, in the case of Administrator' * al elo men ro hE ha ra

ot hers vs. Ari Mu hammad reported as 2Ol2 SCMR 730, the Hon'ble apex Court has also held that that two Courts below were, therefore, not Abdul Srbooh/* (S.BJ Hon'ble }tr. J ustice M uhammad [jaz KhrI

justified in bypassing,n. ,rrr. of maintainability of the suit merely on the concession of appellants' counsel, who refrained to argue this legal point.

Needless to mention here that it is the bounden duty of every CourUTribunal to examine the issue of bar of its jurisdiction at the earliest opportunity and decide it in accordance with law, instead of escaping to decide such important aspect of the case on the mere concession of one or the other party. Moreso, when consent of the parties can neither confer nor can take away the jurisdiction of a Court/Tribunal, unless so conferred or barred by law. It was also held in the case of Sved H atn ha vs. bdu m Muh m

and others reported as 2011 SCMR 743 that after remand a specific objection to the jurisdiction of revenue Court was taken and agitated before the was appellate and revisional forum' In fact the case sent for adjudication to the revenue Court having jurisdiction under the Baluchistan Tenancy ,7 Ordinance, 1978 with consent of parties but such

consent does not confer jurisdiction on the sub-

no ordinate Revenue Cout, which has otherwise jurisdiction in the matter in view of the admitted in position that the houses in question were situated lbout srtoonr (S.8.) Hon'ble Mr. Justice l\tuhsmm!d Ijsz Kh!n

a village and was not a site of building occupied on the land of tenancy let for agricultural purposes, when a Court suffers jurisdiction, no amount of consent or acquiescence in the proceedings can invest such Court with such jurisdiction. No question of estoppel is attracted in such circumstances.

12.It is also relevant to mention here that in the recent past, a suit was filed by some private persons against some defendants including legal heirs of the ex-Ruler of Swat and thus the suit of those private persons was dismissed by the trial Court and retumed by the appellate Court on the ground that in view of the bar of jurisdiction as enrooted in MLR-122 and MLR-123, a civil Court has no jurisdiction to entertain such suit in which .0. legal heirs of the ex-Ruler of Swat are parties and with respect to the properties which has already been determined by the Commission, which orders have also been upheld by this Court, which case is now reported as 2022 CLC 1879 titled as nimullah and others vs, rnment of

Kh rP khtu khwa thro hH me creta

and others. Relevant para of the same is reproduced as under:-

AbdulSabooh/* 1S.8.) Hon'ble Mr. Justic. Muhamm ad Ijsz Khen

"The controversy involved in this case has been dilated upon by this Court in the case of Umer Hakim and others v. Denutv Commissioner. Dir and others reported as PLD 1990 Peshawor 91, where it was held that a bare reading of the afore-quoted provisions of the Regulation indicates that firstly the dispute must relate to the ownership of or right or interest in an immovable property in Dir State and for any reason the same has not been enquired into by the Enquiry Commission; secondly the parties, thereto should be from amongst, the categories as mentioned in (a), (b) or (c) of section 3(1) (ibid) and thirdly the deciding agency of the dispute shall be the Provincial Government or its authorized officer in this behalf and the jurisdiction of any Court or other authority, to hear such disputes, is barred inasmuch as the Regulation contemplates its own mechanism of deciding such disputes. This being so, we have no hesitation in holding that in point of jurisdiction, once a dispute is found to be falling within the purview of section 3(1) read with section 5-A(1) of the Regulation, there is complete ouster of jurisdiction of a Civil Court or, for that matter, any other authority to adjudicate upon such a dispute.

Further ahead in the said judgment, it was also held that viewed the matter in the perspective of foregoing factual and legal aspect of the case, we have arrived at an inescapable conclusion that the instant dispute between the appellants and the respondent Ex-Nawab of Dir falls within the mischief of section 3(l) read with section 3(1) (c) of the Regulation. In this context of the matter the question as regards the forum for resolving the dispute t will not detain us any more inasmuch as under section 5-A of the Regulation such disputes are required to be decided by the Officer appointed by the Provincial Government. We are informed that the Provincial Government of North-West Frontier has already appointed Deputy Commissioner Dir as per Notification No. RHS/Misc:/2/82 dated llth October, 1982 for determination of all disputes falling within the purview of section 3(1) of the Abdul Sabooh/* (S,8.) Hon'ble NIr. Justicc ]lluhammed Ijaz Khan

Regulation and is still in force, This being so, we are of the considered opinion thai the appellants should have availed the forums available to them under the Regulation and should have gone before the Deputy Commissioner Dir initially for the settlement of their dispute and in such a situation the impugned orders of the learned lower Court can hardly be taken an exception to.

Similar observations were also recorde dbv this Court in the case of Shah Zir and nother v. Sha da nRo and 2 others reported as PLD 2012 peshawor 176, where it was observed that now reverting back to the facts and circumstances of each case, the petitioners in the Civil Revision No. 470 of 2002 have alleged to be the owners of the suit property on the strength of a sale deed dated 13-3-1975 and had further alleged that the entries in the revenue record in the name of provincial land commission are wrong and ineffective against their rights. The legal heirs of Ex. Ruler of Swat were also impleaded. Same is the position in Civil Revision Nos.5 of 2002, 38312003, 61312004 and 87312004. The plaintiffs in all the cases, have claimed the suit property to be their ancestral property or the property purchased by them. The facts and circumstances of all the cases would confirm that the property in dispute had been recorded in the name of land commission, who being the custodian of the properties of the Ex-Ruler/their legal heirs as stated above. Legal heirs of the ex- ruler have also been made party in almost all the cases except one. Plaintiffs claimed their ownership of the properties which is ) basically owned by the ex-ruler so, such 0,/ disputes on the face of it appears to be the dispute falling within the scope of Para.3(l) of MLR 123 and under section 5- A, such disputes have to be determined by a specially authorized person by the Provincial Government in this behalf. Any court or other authority has no jurisdiction to entertain and decide such disputes under Para 3(3) of the Regulation. So, in this view of the matter, this Court is left with no option but to declare that the civil Court, in the circumstances, has got Abdul Sabooh/* (S.8.) Hon'ble Mr. Justice Muhammsd Ijez Khan

no jurisdiction to entertain such disputes. Accordingly, the plaints are hereby directed to be returned to the plaintiffs for submission of the same before the proper forum. However, suit of Zarin Khan v. Provincial Government, Civil Revision No. 87312004 was dismissed by the trial Court for want of j urisdiction but dismissal of suit for want of jurisdiction is hardly appreciated under the law which should have been returned to him, So, in Civil Revision No.873 of year 2004, findings of the two Courts below regarding the dismissal of suit are modified with the direction to the trial court to return the plaint,"

13.In view ofthe above discussion, when there is a contesting issue of jurisdiction between the parties, which goes deep into the roots of the /rs and which would ultimately affect the outcome of years long proceedings, then this Court has left with no other option but to allow this revision petition, set aside both the impugned judgments and decrees of the learned Courts below and remand the case back to the learned trial Court with the direction to decide the issue of jurisdiction alongwith other controversies between the parties.

Announced Dt: 01.12.2022 I

d:-$" AbdulSabooh/* (s.R.) Ilon'ble Mr. Justice Muhammad Ijaz Khtn