This revision petition is directed against the order of the learned Senior Civil Judge Bhimber dated 10-2-2004, whereby issues No,4 and 5 were decided against the defendants.
2. The relevant and necessary facts for the disposal of the instant revision petition are that non- petitioners brought a suit for declaration in the Court of learned Senior Civil Judge Bhimber. It was averred by them that in the year 1952, land measuring 106 Kanals was allotted to Farman Ali son of Mahboo, who was a refugee of 1947. He had two sons, Abbul Aziz and 'Muhammad Aziz. Abdul Aziz had died. Now the plaintiffs and pro forma-defendants are his legal heirs. They are occupying the land measuring 45 Kanlas and 19 Marlas being its allottees. They do not know that who is retaining the remaining land. In the recent settlement, the land measuring 9 Kanals and 17 Marlas comprising Survery No,2179, -tour Kaulas comprisitg Survey No,203, 3 Kanals comprising Survey No,2282 was shown under the allotment of defendants Nos.4 and 5 to 10 and 11 respectively, while the land measuring 16 Kanals and 17 Marlas situated in Jandpir was shown under the allotment and possession of the plaintiff and pro forma-defendants. The land measuring 9 Kanlas and 16 Marlas comprising Survey Nos.1308, 1309 and one Karial and 15 Marlas comprising Survey No,1307 was shown under the allotment of defendants No,1 to 3 respectively in the record of Settlement. These entries of the Revenue Record may be declared null, void and inoperative on the rights of the plaintiffs.
3. Prior to the present suit the plaintiffs brought the illegal entries into the notice of the Collector Settlement through an application for correction of the same. It remained sub judice before him.
The lower staff of the Collector proposed for the amendment in the record, but on 2-8-2001, the Collector returned the file to the plaintiff with the direction that he should file the civil suit as the civil Court has the jurisdiction in this matter. It was carved by him that it may be declared that the land measuring 26 Kanals and 8 Marlas, Khewet No,1, Khata No,441, Survey No,2179, Khata No,449, Survey No,2033, Khata No,535, 'Survey No,2283, Survey Nos. 1308 and 1309, Khata No,260, situated in village Ambriala was allotted to the plaintiff and pro forma-defendants. They are retaining the possession since their allotment. The entries of the recent Settlement pertaining to the year 1994-1995 may be declared null and void on their rights and may be set aside.
4. During the pendency of the suit, the petitioner moved an application that the civil Court had no jurisdiction, therefore, this case may be dismissed. Upon this application, the Civil Judge heard the arguments on issues No,4 and 5 and held that the Civil Court had the jurisdiction and the suit is maintainable. Now, this order has been challenged through the instant revision petition.
5. The learned counsel for the petitioner vehemently argued that the judgment of the lower Court is illegal. He referred section 172 of the West Pakistan Land Revenue Act and submitted that under section 172(2)(vi), the jurisdiction of the civil Court was barred. He submitted that the question regarding the correction of any entries of the record of rights or periodical record is not cognizable by the civil Court, therefore, the civil Court has no jurisdiction to entertain the present suit. He referred 2003 YLR 1788 and 2000 SCR 211 in support of his contention.
6. While controverting the.Arguments of the learned counsel for the petitioner, the learned counsel for the non-petitioners contended that under section 53 of the West Pakistan Land Revenue Act, any person aggrieved by any entry in the record of rights or in any periodical record, may institute a suit for declaration of his right under Chapter VI of Specific Relief Act. He submitted that it was only the civil Court, which had the jurisdiction to adjudicate upon the subject-matter of the suit. He referred PLD 1994 Peshawar 249 and PLD 1983 Quetta 52, in support of his contentions.
7. I have heard the learned counsel for the parties, perused the record and have given my utmost muse to the respective arguments, advanced by the learned counsel for the parties.
8. The question requiring determination in this case is whether the jurisdiction of civil Court was barred and the suit was not cognizable by the civil Court? It is a general principle that where the Court has to draw a presumption regarding the jurisdiction of civil Court, then it has to draw the every presumption in favour of the jurisdiction of the civil Court. This view finds support from AIR 1965 AP 326, AIR 1962 Pb. 340, AIR 1942 Lahore 217.
9. It is well-settled principle of law that a provision of law ousting the jurisdiction of the civil Court must be construed strictly and the ouster of the jurisdiction of the civil Court is not to be inferred until and unless the words used in the statute make it clear that the basic intention of the Legislature was to take away the jurisdiction of the civil Court. This view finds support from 1986 CLC 1301, which reads as under:- "The jurisdiction of civil Courts in such matters is expressly barred. Section 9 of the Civil Procedure Code postulates that the Courts shall have jurisdiction to try all suits of civil nature except such suits, the cognizance of which is either expressly or impliedly barred. Civil Courts are vested with jurisdiction to try all suits of civil nature unless such a suit is excluded from their jurisdiction by an express or implied provision of law. On this premises, the consensus is that all disputes of civil nature are triable by civil Courts unless the jurisdiction is ousted expressly or impliedly. The provisions relating to ouster of jurisdiction are strictly construed in order to jealously safeguard and protect the jurisdiction of civil Courts".
10. No doubt, the jurisdiction conferred upon the civil Court under section 9 of the Civil Procedure Code can be restricted or modified by the legislature, through a law, but such law must be construed strictly. This view finds support from 1984 CLC 3216 and 1980 CLC 713.
11. It is pertinent to note that while interpreting a statute, the Court has to consider the basic intention and purpose of the legislature. The basic intention and purpose of the legislature can be gathered from the words used in the statute. The legislative purpose is the reason why the particular enactment was passed by the legislature. The reason may be to remedy some existing evil or to correct some defect in existing law or to create a new right or a new remedy.
Consequently, while considering the legislative purpose, the Court has to resort to the circumstances existing at the time of enactment of law. This view finds support from Construction of Statutes by Crawford's Interpretation of Law, page 247.
12. Now, the question emerges as to whether in this case, the basic purpose and intention of the legislature was to oust the jurisdiction of the civil Court or not? As section 53 of the West Pakistan Land Revenue Act is concerned, it provides that if any person considers himself aggrieved by an entry in record of rights or in periodical record, as to any of his rights, may institute a suit for declaration of his right under the Specific Relief Act. For having the proper perception, I would like to reproduce section 53 of the West Pakistan land Revenue Act which is as under:- "53. Suit for declaratory decrees by persons aggrieved by an entry in a record. If any person considers himself- aggrieved by an entry in a record-of-rights or in a periodical record as to any right of which he is in possession, he may institute a suit for a declaration of his right under Chapter VI of the Specific Relief Act".
In the aforesaid provisions, the words "any right" have been used which mean that if any right of a person is affected by the entries of the Revenue Record, then he can invoke the jurisdiction of the civil Court. Section 53 confers complete jurisdiction upon the civil Court regarding any right which had been affected by an entry in the record-of rights or a periodical record, while section 172 (2)
(vi) contained that a civil Court shall not have the jurisdiction, regarding correction of the entries in the record-of-rights, periodical record or register of mutations. Both the provisions are contradictory. According to section 53 of the aforesaid. Act, complete jurisdiction was conferred upon the civil Court regarding any entry affecting any right of a person while according to section 172 of the said Act, the correction of any entry in the record-of rights or periodical record is not cognizable by the civil Court. Now, the question arises that when both the provisions of law are contradictory, then which one will prevail. As held in the earlier part of this judgment that it is general principle that every presumption should be construed and made in favour of jurisdiction of civil Court. A provision of law ousting the jurisdiction of the civil Court must be construed strictly and ouster of the jurisdiction of the civil Court is not to be inferred, unless and until the words used in the statute make it clear that the intention of the Legislature was to take away the jurisdiction of civil Court.
13. Now, the question arises as to whether the basic intention and purpose of the legislature was to oust the jurisdiction of civil Court, in respect of the entries recorded in the Revenue Record" It is to be noted that if the legislature would have an intention to oust the jurisdiction of the civil Court, then why they would have enacted section 53 of the West Pakistan Land Revenue Act, which confers a complete jurisdiction on the civil Court so it could be said safely that the legislature had no intention to oust the jurisdiction of the civil Court. In view of the principle laid down in the earlier part of judgment, that a provision of law ousting the jurisdiction of, the civil Court must be construed strictly, one has to lean in favour of the provision conferring the jurisdiction upon the civil Court and preference should be given to such provisions, Thus, the jurisdiction of the civil Court was not barred under section 172 of the aforesaid Act, in presence of section 53 of the Act.
14. While consideration the case from another angle, it is to be noted that even otherwise the difference between sections 53 and 172 of the aforesaid Act is that under section 172, the jurisdiction of the civil Court has been barred in respect of methodology adopted by the Revenue Officers for discharging their functions. Where a methodology regarding the recording Of any entry has been challenged, then the jurisdiction of the civil Court is barred under section 172 of the West Pakistan Land Revenue Act. This view finds support from PLD 1983 Quetta 52 (56) which reads as under:- "In order to clarify the legal position, suffice it to say that section 53 of the Act of 1967 itself creates a right in favour of an aggrieved person to approach the civil Court for declaration of this right under section 42 of the Act of 1877. The scope of section 172 of the Act of 1967, is entirely different. It only excludes the civil Courts from taking in hand the functions assigned to the Revenue Courts, as also the questioning of their methodology adopted for the discharging of such functions. The function of the Revenue Court is to prepare the Revenue Records in the light of evidence with regard to one's title or interest, but the finality is attached to the orders of the civil Courts who shall determine such right, if any dispute arose in that regard. The view of the Senior Civil Judge was erroneous and was rightly set aside by he District Judge".
15. The aforesaid report clearly contained that the scope of section 172 of the Act is entirely different. It only excludes the jurisdiction of the civil Court from taking in hand the functions assigned to Revenue Courts and questioning the methodology adopted by them during the discharge of their duties. The function of the Revenue Court is. To prepare the Revenue Record in the light of evidence with regard to one's title or interest but the finality is attached to the orders of the civil Courts, who shall determine such rights in case of dispute. In the instant, case the methodology adopted by the Revenue Court was not challenged but it was alleged by the plaintiffs that they were allottees of the land in question and it may be declared that they were the allottees of the said land and in the Settlement of 1994-1995, the entries have wrongly been recorded in favour of the defendants.
16. The same like proposition came up for consideration before the Supreme Court in the case titled "Khawaja Muhammad Akbar v. Fateh Muhammad" wherein it was held that "prayer clause in the plaint is impliedly clear. The plaintiff-respondent did not seek merely the correction of the Revenue Record, but basically their case is 'hat in view of the averments made in either part of the plaint, they wereowners in possession of two shares out of three shares arid that the gift executed by the defendants No,1 and 2 being in excess of their share, was null and void and against their interest, therefore, it was heid that civil Court has the jurisdiction to try the suit. The present suit was a suit under section 42 of the Specific Relief Act which was cognizable- by the civil Court as laid down in section 53 of the West Pakistan Land Revenue Act.
17. It is also to be noted here that prior to the present round of litigation, the petitioner moved an application before the Revenue Court which was returned to him, with the direction that the subject-matter is cognizable by the Civil Court, therefore, he may seek the redress of his grievance from the civil Court. Thus, the subject-matter of the present suit was only cognizable by the civil Court.
18. The upshot of the above discussion is that this revision petition being devoid of any substance, is hereby dismissed with costs.