Fida Hussain etc vs DOR/Collector etc

JUDGMENT SHEET

PESHAWAR HIGH COURT D.I.KHAN BENCH

JUDICIAL DEPARTMENT

CR No. 358-D of 2012 Date of hearing 12.03.2015 Appellant / petitioner (Fida Hussain and others) by Mr. Zainul Abideen Advocate Respondent (D.O.R/Collector DIKhan and others) by Mr. Adnan Ali Assistant Advocate General and Malik Muhammad Bashir Advocate

MUHAMMAD GHAZANFER KHAN J.-Through the

instant revision petition, the petitioner has called in question the concurrent findings of the Courts below dated 1/7/2011 and 19/6/2012 passed by the learned trial Court and lower appellate Court respectively, whereby their declaratory suit coupled with prayer for issuance of perpetual mandatory and prohibitory injunction for restoration of entries in the Record of Rights and other revenue record has been dismissed.

2.After hearing learned counsel for the parties, perusal of record depicts that the petitioner has been non- suited by both the Courts below on the ground of jurisdiction alone. Section 53 of the West Pakistan Land Revenue Act 1967 reads that “if any person considers himself aggrieved of an entry in record of rights”or any

periodical record as to any right of which he is in possession, he may institute a suit for declaration of his right under Chapter VI of Specific Relief Act 1887 (ACT-I of 1887).

3.Consequently,section 172 of the said Act Bars the jurisdiction of Civil Courts in certain matters enumerated in the section itself. However to be concise and to remain on the moot point, reference to subsection- 6 of Section 172 of Act ibid will be sufficient to dispose of the present lis. Subsection (6) deals with correction of an entry in the record of rights, periodical record or register of mutations. Both these provisions of law relate to different situations. Subsection (6) comes into play when there is a correction of an entry in the revenue record, but Section 53 deals with the right of a party and if the party felt himself aggrieved of an order of an entry in record of rights or periodical record of which he is in possession, he will have to invoke the jurisdiction of Civil Court to get his title declared.

4.In the present case, statement of patwari halqa was recorded as PW-2 who produced plethora of record relevant for adjudication of this case which clearly indicate that the petitioners are shown as tenants-at will from decades. However, this entry was removed abruptly

without any order from revenue hierarchy or any of the Civil Court in the year 1989-90. Both the learned Courts below have ignored the record available on file while passing the impugned judgments and have also ignored the factum of change of long standing entries in the names of petitioners.

5.Consequently both the Courts below have skipped over the jurisdiction vested in them under the law, hence this civil revision petition is accepted, their impugned judgments and decrees are set aside and the case is remanded to the trial court for decision afresh strictly in accord with law and after recording remaining evidence of the parties.

ANNOUNCEDJUDGE