MIAN SAQIB NISAR, J.---All these petitions (mentioned in Schedule I & Schedule II attached herewith) involve the identical facts and question of law, therefore, are being disposed of together.
2. The facts of this petition are, which more or less are the same in the other cases, that on 18-4- 1988 Hakam, the predecessor-in-interest of the petitioners, filed a suit for the declaration and permanent injunction claiming that he has acquired the title of ownership of the suit land as being "Adna Malik" and the defendants have no right to the land in dispute, which is a "Shamlat" situated in Mauza Dagar Yar Shah, Tehsil and Distict Bhakkar. The Mutations Nos. 48 and 49, envisaging the respondents as "Aala Malik" of the land, were also brought under challenge. The respondents contested the matter and the learned Civil Judge, vide judgment and decree dated 25-10-1993, decreed the suits in the petitions specified in Schedule-I hereto, holding that the plaintiffs have proved to be the owners of the suit land as being "Adna Malik", whereas the suits in the petitions of Schedule-II were dismissed, on the reasoning that the plaintiffs of these cases have not been able to prove their "Adna Malkiyat". Both the set of the aggrieved parties filed appeals and the learned appellate Court through the impugned judgment and decree dated 22-2-2005 has held that the Civil Court had no jurisdiction on account of Para. 27 of MLR No,64, therefore, by accepting the appeals, the suits have been dismissed. It has been specifically held by the Court that "since these appeals were/are disposed of on jurisdictional ground and not on other grounds the parties are left to bear their own costs."
3. Learned counsel for the petitioners has argued that it is the Civil Court, which has the jurisdiction to decide the question of title to the suit property and para. 27 of M.L.R. No,64, neither expressly nor impliedly, bars the jurisdiction of the Civil Court. In support of his contention, he has placed reliance upon the following judgments:-- Dalil Khan and another v. Sardar Khan and 2 others 1979 CLC 104; Punjab Land Commissioner and another v. Mst. Kalsoom Bibi and another PLD 1988 Lah. 407; Sher Zaman v. Muhammad Ishaq and othes PLD 1985 SC 144; Makhdoom Muhammad Ahsan v. Pathana and 21 others PLD 1975 SC 369; Hussaina and 5 others v. Fazal Rahim Khan and 67 others PLD 1975 SC 574; and An unreported judgment of Honourable Supreme Court dated 30-4-2006 passed in Civil Appeal No,1409 of 1997;
4. Conversely, the learned counsel for the respondents has argued that though it is the Civil Court which has the jurisdiction to decide the question of title, but in these cases, it is the "status" of the.
Plaintiffs which is in issue and not their title, therefore, by virtue of the collective reading of paras. 3, 22 and 27 of the M.L.R.No,64, it is the Land Reform Authorities, which shall have the jurisdiction to decide the same. It is also submitted that the Court of appeal has not only decided the matter on the point of jurisdiction, but also on the merits of the case while holding:-- "Even otherwise at such a belated stage perhaps it will not be proper to record any findings with regard to nature of entries in the revenue record. So, since the Revenue Authorities or Land Commission Authorities were and are holding up to date revenue record, therefore, it would be in the fitness of things that first parties, should have a resort before the competent authority constituted under M.L.R. And if their relief is not satisfied from the said authority by invoking all the remedies available under said M.L.R. Or Rules then they can call in question the said final orders of the competent authority before the Civil Court to examine the validity and propriety of said orders of authorities."
It has also been argued by the learned counsel for the respondents that in the facts and circumstances of the case, the learned court of appeal has rightly left the matter for the determination of the dispute between the parties by the Land Reforms Authorities (LRA), which has the requisite and proper record. It is also submitted that the learned appellate Court has protected the interest and rights of both the sides and has passed an equitable order, which should not be interfered in the revisional jurisdiction. In support of his contentions, the learned counsel has relied upon the following judgments:- Superintending Engineer, High Ways Circle, Multan and others v. Muhammad Khurshid and others 2003 SCMR 1241; Muhammad Hussain Khan and others v. Muhammad Din and others NLR 1988 SCJ 397; Mst. Bibi Ayesha and others v. The Chief Land Commissioner, West Pakistan and others PLD 1966 SC 84; Nasir Ahmad Khan v. Mst. Ismat Jehan Begum 1968 SCMR 667; K.B. Mian Feroze Shah v. Nawabzada Muhammad Umar Khan and others PLD 1966 SC 340 and Mst. Hajiani and others v. West Pakistan Land Commission Lahore and others PLD 1966 SC 114.
5. Heard. Before proceeding to examine the question about the jurisdiction, at the very outset, I repel the submission of the respondents counsel that the case has been decided by the appellate Court on merits, rather in view of the operative para of the impugned judgment, reproduced in paragraph No,3 above, it is crystal clear that the plaintiffs have been non-suited due to the lack of the jurisdiction of the civil Court and not on any other issue, therefore, the argument has no substance.
6. Now dilating upon the central question involved in the matter about the jurisdiction of the Civil Courts, suffice it to say that according to section 9 of C.P.C., the Civil Courts are the courts of ultimate jurisdiction to try all suits of a civil nature, excepting the suits of which their cognizance is either expressly or impliedly barred. In my considered view, the ouster of jurisdiction of the Civil Courts, which under the law are the courts of plenary and ultimate jurisdiction in the dispute between the parties pertaining to civil nature, should not be lightly inferred or the lack of jurisdiction be assumed as a matter of course. But there should either be express provision in any law/statute, which debars and takes away the jurisdiction of such court, and the provision must per strictly construed and applied leaving no room for doubt that the jurisdiction of the civil Courts has been ()listed, or if the ouster-is claimed on the basis of implication, the implication must be founded and adjudged on the touchstone that the forum or the tribunal created by the special law have been conferred with the exclusive jurisdiction to try the matter of a specific civil nature.
7. In the first category of the. Express bar of the civil courts, reference can be made to section 172 of the Land Revenue Act, 1967 or section 25 of the Displaced Persons (Land Settlement) Act, 1958, which unambiguously and expressly command that the jurisdiction of the civil Courts is barred to take the cognizance of the matters, which under the above special laws, have been conferred upon the special forums. Para.27 of the M.L.R. No,64 also falls within the category of the express bar of the jurisdiction. However, if one has to look for the -bar of jurisdiction of the Civil Court on the rule of "implication", the Punjab Rent Restriction Ordinance, 1959 is an example, which does not contain any express provision for the ouster of jurisdiction, but under this special law, exclusive jurisdiction has been conferred upon the rent controller to decide the matters referred to in the law vis-a-vis the landlord and the tenant about the properties falling within the purview of the Ordinance.
Thus, for applying the rule of implied bar, it has to be seen that where a special tribunal or a public body is created by or under the authority of an Act of the Legislature for the purpose of determining rights which are the creation of the Act, then the jurisdiction of that tribunal or of that body is exclusive and the jurisdiction of the Civil Court is barred.
8. From the reading of the provisions of section 9 of C.P.C., it is clear that three important factors must prevail to decide the jurisdiction,
(i) whether the matter inched in a lis is of a civil nature, (ii) the bar of jurisdiction of the civil Court is express, (iii) or it is implied in nature. As far as the present case is concerned, the petitioners have claimed the right to the property on account of their being "Adna Malik" and this claim undoubtedly propounded by them in the suit is of civil nature. Now the proposition to be further re-examined is, if the jurisdiction of the Civil Courts has been expressly barred to determine this right, because neither the appellate Court nor the respondents have set up the plea of implied bar. In this behalf, I feel expedient to reproduce the provisions of para.27 of M.L.R. No,64, which enunciates the express bar and reads as follows:-- "No provision of this regulation or of any rules or orders made thereunder shall be called in question in any Court, including the High Court and the Supreme Court, or before any authority other than an authority appointed under this regulation, and no such Court or authority shall have jurisdiction in respect of any matter which the Commission or an officer acting under the authority of the Commission is empowered to determine."
9. From the aforementioned para, it is vivid that the Civil Court shall have no jurisdiction to take cognizance or to determine if any of the provisions of the above regulation or any of the rules or the orders made thereunder, are challenged as invalid. It is not the case of either side that in the present matter, the above issue is involved. The second part of the clause provides that the civil courts shall also have no authority or jurisdiction in respect of any matter which the commission or an officer acting under the authority of the commission is empowered to determine. (The underline is for the emphasis). Therefore, it is from the pleadings of the parties and the issues joined by them, that it has to be located if the Commission or the authority acting under it is empowered to determine such a matter. The learned counsel for the respondents has failed to convince me, under which para. Of the M.L.R., the authority is empowered to determine the question about the ownership of the petitioners. I, with the help of the learned counsel for the parties, have scanned through the different clauses, such as paras. Nos. 3, 7, 8, 13, 17 and 19, which relates to the empowerment of the Commission for the determination of certain questions and-find that in none of these clauses, any jurisdiction has been conferred upon the authority to decide the issue about the ownership inter se the parties. The learned counsel for the respondents, in order to establish the bar of jurisdiction, has relied upon para. 22 of the M.L.R.No,64., but in my view, this para. Only relates to the abolition of the interest of "Aala Malkiyat" and reads as under:-- "Ala-Malkiat and similar other interests subsisting immediately before the commencement of this regulation, shall on such commencement, stand abolished and no compensation shall be claimed by, or paid, person affected by the abolition."
10. The above provision of the regulation in. No manner, can be considered or extended to involve the question or dispute between two parties about the ownership of a. Property on the basis of "Adna Malkiyat" or otherwise, neither this clause nor any other clause of the M.L.R. Can be said to oust the jurisdiction of the civil Court and thus, it is, only the civil Court,. Which has the power to decide the dispute between the parties invok ed in the matter. I am also not persuaded that in the case, the question of "status" rather than that of the "title" is involved because from the bare perusal of the plaint it is clear that the petitioners are seeking the declaration about their ownership, which is equated to the title. Even otherwise, the legal status of a person is synonymous to the legal character and thus in any case, the case of the petitioners falls within the purview of section 42 of the Specific Relief Act and for the relief which they have claimed in the suii, no power has been conferred upon the Land Commission Authorities to determine the said matter. The learned Court of appeal unnecessarily has made reference to certain provisions of the M.L.R. And has tried to stretch these, and by an erroneous implication has come to the conclusion that the Civil Court lacks jurisdiction in the case. It is a simple case, which should have been determined and decided on the basis of para. 27, which as has been held earlier is not attracted. Thus, the impugned judgment of the learned appellate Court, dismissing the appeals of either side on the lack of jurisdiction of the Civil Court, cannot be sustained, which is hereby set aside. The matter is remanded to the learned Court of appeal to decide the matter on merits on the basis of the record.
These revisions are accordingly allowed. No order as to costs.
C.R. NO.676 OF 2005 SCHEDULE-I SCHEDULE-II
1. C.R. No.677 of 2005.
1. C.R. No.810 of 2005
2. C.R. No.678 of 2005 2. C.R. No.811 of 2005
3. C.R. No.679 of 2005 3. C.R. No.946 of 2005
4. C.R. No.680 of 2005 4. C.R. No.1117 of 2005
5. C.R. No.1470 of 2005 5. C.R. No.1118 of 2005
6. C.R. No.1471 of 2005 6. C.R. No.1204 of 2005
7. C.R. No.1472 of 2005 7. C.R. No.1473 of 2005
8. C.R. No.1476 of 2005 8. C.R. No.1474 of 2005
9. C.R. No.1750 of 2005 9. C.R. No.1475 of 2005
10. C.R. No.1751 of 200510. C.R. No.1477 of 2005
11. C.R. No.1752 of 200511. C.R. No.1478 of 2005