Azad Khan etc Vs SMBR etc

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

BANNU BENCH.

(Judicial Department)

W.P No.134-B/2019.

Azad Khan and others Versus.

SMBR and others.

JUDGMENT

Date of hearing: 21.5.2019.

Appellant-petitioners: By Mr. Ahmad Farooq Khattak, Advocate.

Respondents: By Mr. Muhammad Nishan Khattak, Advocate.

MUHAMMAD NASIR MAHFOOZ, J.- Respondent No.4 filed an application for correction of entries of Khasra Girdawari for the land situated in Khasra No.1436 by filing an application on 18.8.216 but subsequently, filed another application by adding Khasra Nos.1408,1412,1430,1411,1415,1407 and 1410 on 23.01.2017. Deputy Commissioner/District Collector called for the report of Tehsildar to verify the contents of application, wherein he submitted that Saadat Khan, father of the petitioners and respondent No.4 is shown entered in the column of cultivation

while some part of the said Khasra Nos. reveal the name of respondent No.4, hence on 29.3.2018 the application for correction was allowed.

2.This order was set aside in appeal by the Worthy Additional Commissioner, Kohat Division, Kohat with a direction to enter the name of all the legal heirs of late Saadat Khan equally. Further aggrieved respondent No.4 filed revision before the Senior Member Board of Revenue, Khyber Pakhtunkhwa, who passed the impugned order dated 17.01.2019 and set aside the order of Additional Commissioner and allowed application of respondent No.4, hence the instant petition.

3.I have heard arguments of learned

counsel for the parties and perused the record.

4.Petitioners have appended some record of a civil suit filed by them before the Court of Civil Judge-II, Karak, wherein a local commission has also been appointed and the question of title is involved therein. The nature of correction that respondent No.4 is seeking from the revenue forms is envisaged by section 172 sub-section 2 (vi) of the Khyber Pakhtunkhwa Land Revenue Act, 1967. Sub-section 2 expressly bars a civil Court from exercising jurisdiction over any of the matters as laid down in

paras i to xxi and under section 9 of the Code of Civil Procedure too, the civil Court if expressly barred could not exercise jurisdiction. Such ouster of jurisdiction of a civil Court is always limited to niceties of the powers defined in section 172 of the ibid Act. The domain of revenue forums exercising powers under the Land Revenue Act including the Senior Member Board of Revenue could not be equated to the powers of “a Court” and as they are merely revenue authorities exercising administrative powers which could never circumvent the jurisdiction of a civil Court while trying a suit of civil nature involving the question of title.

This is further elaborated by section 53 of the Land Revenue Act which allows a person aggrieved of an entry in the record of rights or in a periodical record to institute a suit for declaration under the Specific Relief Act, 1877. Elucidating the matter further, section 5 sub-section 2 of the Code of Civil Procedure may be conveniently referred, which defines a revenue Court.

The same is reproduced below:-

“5. Application of the Code to Revenue Courts. (1) Where any Revenue Courts are governed by the provisions of this Code in those matters of procedure upon which any special enactment applicable to them is silent, the Provincial

Government may, by notification in the official Gazette, declare that any portions of those provisions which are not expressly made applicable by this Code shall not apply to those Courts, or shall only apply to them with such modifications as the Provincial Government may prescribe.

(2)'Revenue Court' in sub- section (1) means a Court having jurisdiction under any local law to entertain suits or other proceedings relating to the rent, revenue or profits of land used for agricultural purposes, but does not include a Civil Court having original jurisdiction under this Code to try such suits or proceedings as being suits or proceedings of a civil nature.

Revenue Court only includes where proceedings relating to the rent revenue or profit of land used for agricultural purposes is tried. It is governed by the Tenancy Act, 1950. It implies that revenue authorities performing functions under the Land Revenue Act, 1967 do not fall within the definition of Court, thus for all intents and purposes the powers of a civil Court trying a suit of civil nature where question of title is involved has got supervisory capacity to undo the effect of any act performed by the revenue authorities.

5.This is trite law that when the question of title qua parties is in dispute in civil Court then revenue forums

could not assume jurisdiction in such like matters. In the instant case the official respondents while seized of the subject despite knowledge remained oblivious of pendency of civil suit between the parties before the civil Court but still proceeded with the same by ignoring the well established principle as ingrained in section 141 of ibid Act of 1967 applied mutatis mutandis, hence could not be allowed to sustain on the ground afore mentioned.

6.The powers exercised by the official

respondents/revenue authorities are declared as illegal, unlawful, against law and fact and passed without lawful authority. Therefore, the instant writ petition is allowed and the impugned order and judgment of Senior Member Board of Revenue Peshawar dated 17.01.2019 and order & judgment of District Collector Karak dated 29.3.2018 are set aside and the judgment of Additional Commissioner is maintained to remain in the field. Any change in the entries of revenue record being in the nature done Lis Pendens, shall have no legal effect and shall be subject to the decision of civil Court in the pending civil suit.

Announced.

Ihsan/* JUDGE

(S.B.)

Hon’ble Mr. Justice Muhammad Nasir Mahfooz.