' MAULVI ANWARUL HAQ, J.---On. 17-6-1980 the petitioner filed a suit for ejectment of the private respondents. On the other hand private respondents filed a suit for declaration that they are owners in possession of the suit-land. Both the suits were filed under provisions of Civil Procedure (Special Provisions) Ordinance, 1968. Latter suit was contested by the petitioner by filing written statement containing several preliminary objections including limitation. The suit was taken up by the Political Assistant, D.-G. Khan along with two other suits who dismissed the same holding that these are barred by res judicata vide order, dated 8-3-1983 (Annex. D). The private respondents filed appeal which was heard by the Commissioner, D.G. Khan who allowed the same inasmuch as it was held that res judicata is attracted yet the case was remanded back for examining the question of limitation vide order, dated 19-2-1984 (Annex. F). After remand the matter was again taken up by the Political Assistant who vide order, dated 24-7-1990 held the suit to be barred by time and dismissed the same. Again the respondents filed an appeal which was dismissed by the Commissioner on 4-10-1992 (Annex. I). A revision was filed which was allowed by the Secretary to the Government of the Punjab (Mr. Lutaf Ali Malik) vide order, dated 24-4-1993. He proceeded not only to reverse the findings of res judicata and limitation but straightaway decreed the suit filed by the respondents on merits.
2. Learned counsel for the petitioner contends that respondent No.1 has acted without lawful authority inasmuch as transfer application had been filed and the Chief Minister had payed the proceedings but he proceeded to decide the matter. It is then argued that even if the findings recorded on question of limitation were to be set aside, the only other course open was to remand the case back with reference to a Tribunal/Jirga in accordance with the provisions of the said Ordinance, 1968 for decision on merits. Learned A.A.-G informs that the said Ordinance stands repealed and now matters are heard by ordinary Civil Courts. Learned counsel for the contesting respondents vehemently urges that this Court cannot exercise constitutional jurisdiction in view of bar contained in Article 247(7) of the Constitution. He refers to a judgment, dated 27-11-2001 of this Court in W.P. No.1326 of 1992 which in its turn is based on the dictum of don'ble Supreme Court of Pakistan in the case "Ghulam Bungush and others v. Qaum Turi and others (1991 SCM R 2400).
According to the learned counsel the respondent No.1 had all authority to decide the case on merits notwithstanding the fact that no findings had been recorded by the learned Courts below.
3. I have gone through the file of this writ petition with the assistance of the learned counsel for the parties. I have already narrated above the history of the case. I have further gone through the said judgment of this Court as also the judgment in the case of Ghulam Bungush and others.
' I have accordingly considered this case strictly in the light of the said dictum. Now there is no dispute that the parties belong to specified area and the dispute has also arisen in the same area.
Now according to the procedure laid down in the said Ordinance of 1968, where a dispute is required to be adjudicated upon the Deputy Commissioner is required to constitute a Tribunal in accordance with section 5 of the said Ordinance, and by order in writing is to refer the dispute to the same. This, however, is subject to the condition that the dispute is not barred by time. Now as noted by me above, Political Assistant as well as the Commissioner opined that the suit was barred by time and thus turned down the contention of the respondents that the matter ought to have been referred to the Tribunal. Now respondent No.1 is to exercise jurisdiction in terms of section 12 of the said Ordinance. I deem it appropriate to reproduce the said section 12 as under:--
12. Revision.---(1) Government may, within ninety days of any order passed by the Commissioner on an appeal, either of its own motion or on the application of any party to a dispute, call for and examine the record of any appeal disposed of by the Commissioner, for the purpose of satisfying itself as to the correctness, legality or propriety of any decision, decree or order given, passed or made under this Ordinance, or as to the regularity of any proceedings thereunder and may, when calling for such record, direct that the execution of the decree or order in question be suspended pending the examination of the record: ' Provided that nothing herein contained shall be deemed to authorize Government to vary or set aside a finding of a Tribunal on a question of fact where such finding has been accepted by the Commissioner unless it is of opinion that there has been a material irregularity or defect in the proceedings or that the proceedings have been so conducted as to occasion a miscarriage of justice.
(2) Government may, after examining any record call for under subsection (1) and giving the parties an opportunity of being heard, pass such orders as it may think fit".
4. Now upon reading of the said provision of law respondent No.1 has been authorized to call for and examine the record of any appeal disposed of by Commissioner to satisfy himself as to the correctness, legality or propriety of any decision, decree or order passed or made under said Ordinance or irregularity of any proceedings thereunder.
5. Now as noted by me above, only question decided by the Commissioner was that he upheld the finding that the suit was barred by time. To my mind there is no doubt that in view of the said dictum of the Hon'ble Supreme Court of Pakistan that respondent No.1 had exclusive authority to examine the records with reference to the said decision. He has accordingly held that the suit was within time. However, thereafter he proceeded in the matter utterly without jurisdiction. I may note here his own observation appearing on pages 4 and 5 of his impugned order:-- "The Revenue Record err rights does not create or extinguish title but is merely evidence thereof. It would, therefore, be incorrect to say that in case of waste land possession should be deemed to be with recorded owners for in fact they may not be the true owners. The respondent is, however, right in saying that the title of the petitioners has got to be determined but for the purpose of present arguments the assumption has to be made that they were indeed the true owners although not recorded as such in the Revenue Records because of their possession over the land in dispute for more than centuries."
' Notwithstanding the said observation and further after nothing the complaint that the Deputy Commissioner ought to have referred the matter to the Tribunal, he has proceeded to decree the suit for declaration filed by the respondents as prayed for.
6. It is, of course, evident that respondent No.1 has done so without recording any evidence. Now I may further note here that in the appeal as well as in the revision prayer made was that the case be remanded back for trial by the Tribunal. An application was then filed for correction of Khasra number. This was allowed vide order, dated 23-12-1992. However, in the amended memo. Of revision prayer made was for decreeing the suit by correction of records which was, of course, allowed by respondent No. 1.
7. Having thus examined the records, I do hold that respondent No.1 was not authorized even under the said Ordinance to decree the suit. His decision as to question of limitation of course would be beyond the domain of this Court but his latter order decreeing the suit after himself observing that there is no evidence on record and that the matter ought to have been tried by the Tribunal, is utterly without lawful authority and without jurisdiction. It is accordingly set aside to the said extent.
Writ petition is allowed. Result would be that the suit filed by the respondents shall be deemed to be pending before the learned Senior Civil Judge, .D.G. Khan before whom the parties shall appear on 13-9-2005. Learned Senior Civil Judge shall requisition the record of the said suit and proceed to try and decide the same in accordance with law respecting the findings recorded by respondent No.1 that it is within time. All other questions of law and facts arising in the suit shall be decided after framing the issues and giving chance to the parties to lead evidence. No orders as to costs.
8. A copy of this order to be remitted to the learned Senior Civil Judge, D.G. Khan by the office immediately.