' MUHAMMAD SAIR ALI, J.---Consolidation proceedings of Village Buttar, Tehsil and District Sialkot were initiated, undertaken and proposed by the consolidation staff in mid 80s. The land owned by Sher Muhammad i.e, the predecessor-in-interest of respondents Nos.1 to 5 (the plaintiffs in the suit) was also subjected to consolidation and was confirmed on 31-7-1989. Relevant consolidation mutation was entered which was also incorporated in the subsequent Chahar Sala Jama Bandi (Register Haq Daran-e-Zameen for the years 1999-2000). This Jama Bandi shows entry of the consolidated land in the name of respondents Nos.1 to 5 (the plaintiffs) as their predecessor-in- interest Sher Muhammad died in the meanwhile. Possession under the law was transferred and the land was brought under cultivation by respondents Nos.l to 5.
2. As, a consequence, some land owned by Sher Muhammad deceased was transferred in consolidation to many persons including respondents Nos.6 to 9. Corresponding mutation was made and so were the entries in the Register Haq Darane-Zameen for the years 1999-2000 in favour of the village owners after confirmation of the consolidation proceedings. The possession of the land allocated to respondents Nos.6 to 9 was delivered to them and they started cultivation.
Out of the land consolidated in favour of respondents Nos.6 to 9, land measuring two Kanals and four Marlas was sold by them to the petitioner Ahmad Ali and a sale mutation was incorporated and confirmed on 19-3-1992 in his favour.
3. Neither Sher Muhammad nor his legal heirs i.e: respondents Nos.1 to 5 (the plaintiffs) challenged the consolidation proceedings and the confirmation order dated 31-7-1989 passed by the Consolidation Officer. It is also noteworthy that during the proceedings of proposal and preparation of consolidation scheme, no objections were filed by Sher Muhammad or any one on his behalf before the consolidation authorities. However long after the confirmation of the consolidation proceedings in 1989 and transaction of sale in favour of the petitioner in 1992 respondents Nos.1 to 5 filed a time barred appeal on 6-10-1996 before the Additional Deputy Commissioner (Consolidation), Gujranwala against the land which was transferred to them in the consolidation proceedings and was in their cultivating possession. Immediately on 8-10-1996 they also filed a civil suit for declaration and perpetual injunction only against the petitioner Ahrnad All and respondents No,6 to 9 to seek a decree for declaration to establish their title over two Kanals and four Marlas of land transferred in sale to the petitioner by respondents Nos.6 to 9. It was pleaded by respondents Nos.1 to 5 as the plaintiffs that Patwri (Consolidation) connived with respondents Nos.6 to 9 with mala fide and fraudulent object to transfer in consolidation proceedings their more valuable and better land to respondents Nos.6 to 9. They also alleged close relationship of Patwari (Consolidation) with one of the defendants. Mala fide, fraud and conspiracy was also alleged. It was also asserted that the land in-fact had been consolidated to the persons who did not exist and their names were fabricated in the consolidations proceedings.
' Subsequent to the filing of the civil suit, respondents Nos.1 to 5 as plaintiffs unconditionally withdraw their appeal on 6-1-1997.
4. On receipt of the summons, the petitioner and his co-defendants appeared. They filed their written statement along with an application under Order VII Rule 11 C.P.C. To seek rejection of the plaint on the ground that the jurisdiction of the Civil Court was barred under section 26 of the Punjab Consolidation of Holdings Ordinance, 1960 (Ordinance VI of 1960). A preliminary issue was framed thereupon by the learned trial Judge. Evidence was recorded. Respondents Nos.1 to 5 as the plaintiffs produced Waqar Ahmad Patwari as P. W.1 in support of their contention. None of the plaintiffs appeared at the preliminary stage to support the preliminary issue. The petitioner and his co-defendants did not produce any evidence instead they relied upon the provisions of section 26 of the Ordinance of 1960 and the judgments of the Honourable Superior Courts on the subject. The learned Civil Judge through order dated 3-12-2004 decided the preliminary issue on the question of jurisdiction in favour of the petitioner and his co-defendants and against the plaintiffs (respondents Nos.1 to 5) and thus .Rejected the plaint under Order VII Rule C.P.C. On appeal filed by respondents Nos.1 to 5, the learned Additional District Judge, Sialkot through judgment and decree dated 28-2-2005 set aside the above referred judgment dated 3-12-2004 of the learned Civil Judge holding that the Civil Court enjoyed the jurisdiction in view of the allegations of mala fide, fraud and forgery and thus remanded the case to the learned trial Judge for decision of the suit on merits. Hence the present civil revision.
5. The learned counsel for the petitioner contended that no objection whatsoever was filed by the plaintiffs (respondents Nos. 1 to 5) or by their predecessor-in-interest i.e, Sher Muhammad before the consolidation authorities who ultimately confirmed the consolidation through order dated 31-7- 1989. And that non-filing of the objections has been settled to be a consent to the scheme of consolidation under the law. Further that the appeal filed on 6-10-1996 by respondents Nos.1 to 5 before the ADC was also barred by seven years and two months and within two days, respondents Nos. 1 to 5 filed their suit on 8-10-1996 which was also barred by time because at maximum, time of six years was available to seek declaration of the title to respondents Nos.1 to 5. Further stated that the appeal filed on 6-10-1996 before ADC was unconditionally withdrawn by respondents Nos.1 to 5 on the statement that they would file a civil suit on the subject. And that the withdrawal of the appeal by respondents Nos.1 to 5 vested a right in the petitioner by that they would not sue the petitioner and had lost their right to challenge the consolidation. Reliance was placed upon the case titled "Abdul Ghani through L.Rs v. M.B.R. (Consolidation), etc." (1985 CLC 2572) to contend that the consolidation hierarchy was the exclusive tribunal for decision of the matters for consolidation including any allegation of fraud or forgery and without explanation of ,these questions by the consolidation authorities, respondents Nos.1 to 5 had no locus standi to file a civil suit and the Civil Court under section 26 ibid had no jurisdiction to entertain and try the suit.
6. Contrarily, respondents Nos.1 to 5 relied upon the case reported as PLD 1995 SC 457 to contend that whenever the allegations of mala fide, fraud and forgery were pleaded by a party in a plaint, the bar in any special law could not override the jurisdiction of the Civil Court as granted under section 9 C.P.C. The learned counsel however admitted that the jurisdiction of the consolidation authorities to hold consolidation and to confirm the same had not been challenged by respondents Nos.1 to 5 but his contention was that the consolidation proceedings transferring the suit land to respondents Nos.6 to 9 and ultimately its transfer to the petitioner were void and illegal because of connivance, fraud and forgery committed by the Patwari in conspiracy with the said respondents/ defendants. Further that in view of the principles laid down in the above referred judgment, the learned Additional District Judge was justified in passing the impugned judgment dated 28-2-2005 setting aside rejection of the plaint by the learned Civil Judge and remanding the case to be decided on merits.
7. Respondents No,6 to 9 were held ex parte as they refused to accept notice which was also affixed upon their doors.
8. Heard.
9. The short controversy involved herein is as to whether the bar of section 26 of the Consolidation of Holdings Ordinance, 1960 attracted to the present case to oust the general jurisdiction of the civil Courts or not. This Court is very clear that the general and preliminary jurisdiction of the civil Court under section 9 of the Civil Procedure Code is available with the Courts to examine exercise of powers by any special authorities beyond the jurisdiction stated in the law regulating the special authority. Also that the civil Court always retained the jurisdiction to try a suit on the basis of basic invalidity, allegation of mala fide, forgery and fraud etc. It is equally well settled that in the present case, question of the absence of jurisdiction is not a moot point. The learned counsel for respondent Nos.1 to 5 conceded before this Court that the consolidation authorities enjoyed the jurisdiction to replace the land owned by the parties in consolidation proceedings and to re- allocate the same in accordance with the law and the scheme. The learned counsel however stated that the B transfer of the land of respondents Nos.1 to 5 to respondents Nos.6 to 9 in consolidation proceedings was a mala fide exercise of Patwari who was related to the said respondents. It is also an admitted case of respondents Nos. L to 5 (the plaintiffs) that they did not challenge the consolidation proceedings or its confirmation before any of the appellate authorities under the Ordinance and that they filed a time barred appeal on 6-10-1996 which was subsequently unconditionally withdrawn.
10. The pleadings of respondents Nos.1 to 5 (the plaintiffs) as incorporated in the plaint are too general, too vague and too unsubstantiated on the question of mala fide, forgery, fraud and connivance. No specific or particulars of fraud were either pleaded or alleged by the plaintiffs (respondents Nos.1 to. 5) in the plaint. Purthermore, the entire case had been structured by respondents Nos.1 to 5 as the plaintiffs on a central figure i.e, Patwari (Consolidation) who under the law culd at maximum make the initial proposal which was subject to scrutiny, examination and confirmation by the consolidation authorities before approval of the scheme and that too in presence of the parties. In the plaint, it was not pleaded that Sher Muhammad deceased or any of his legal heirs were not present before the consolidation authorities at the time of confirmation or proposal of the scheme which was confirmed on 31-7-1989 by the c consolidation officer. To the understanding of this Court, the suit as developed was even otherwise not proceedable as none of the consolidation authorities or the consolidation officer or the said Patwari had been impleaded as parties in the plaint. Furthermore, the confirmation order dated 31-7-1989 of the consolidation officer had not been assailed in the civil suit by respondents Nos.1 to 5 as the plaintiffs. In the absence of particulars of fraud, forgery, mala fide and in the absence of the impleadment of the consolidation authorities against whom mala fide and fraud was alleged, this case squarely fell within the scope of the exclusive powers of the consolidation authorities who proceeded in accordance with the law to frame the consolidation scheme and finalized it through order dated 31-7-1989. The plaintiffs (respondents Nos.1 to 5) in acceptance of the consolidation scheme took possession of the land and started cultivating and also obtained incorporation of the consolidated land in their favour through a mutation and its entries in the subsequent Jama Bandis.
11. As the question of limitation was not a question before the learned Courts below, therefore, this Court would not like to make any observations thereupon.
12. In view of the law laid down by the Honourable Supreme Court of Pakistan in the cases titled "Muhammad Hussain Munir and others v. Sikandar and others" (PLD 1974 Supreme Court 139), "Islamuddin v. The Deputy Settlement Commissioner and others" (1981 SCM R 835), "Falak Sher and others v.. Sharif and others" (1989 SCM R 1096), "Muhammad Bashir and 9 others v. Sultan and 3 others" (1993 SCM R 1568) and "Mst. Kaniz Fatima through legal heirs v. Muhammad Salim and 27 others" (2001' SCMR 1493), this Court observes that in the present case, the provisions of section 26 of the Consolidation Ordinance barring jurisdiction of the civil Court to entertain E and try a suit hi the matters of consolidation were directly attracted. In view of the bar contained in section 26 of the Ordinance, the plaint was rejectable under Rule 11 Order VII C.P.C.
13. In view thereof, this Court finds that order dated 3-12-2004 passed by the learned Civil Judge, Sialkot was passed in consonance with the provisions of the law. The impugned judgment dated 28-2-2005 of the learned Additional District Judge was passed with material irregularity and in excess of jurisdiction vesting in the appellate Court.
14. In view of the above, this civil revision is accepted. The impugned judgment dated 28-2-2005 of the learned Additional District Judge, Sialkot is set aside and the judgment dated 3-12-2004 of the learned Civil Judge, Sialkot is confirmed.
15. In view of the effort made by the young lawyer appearing for the respondents, there shall be no order as to the costs.