' KH. IMTIAZ AHMAD. J.--- Through the present civil revision, the order of the learned civil Court dated 15-12-2004 by which he plaint was rejected under Order VII, Rule 11, C.P.C. Has been challenged along with the order of the learned Additional District Judge, Vehari dated 10-3-2005 by which the appeal was also dismissed.
2. The relevant facts for the disposal of this revision petition are that the land in dispute under the Co-operative Farming Scheme were allotted to the petitioner Muhammad Manzoor on 17-2-1960 and after the deposit of sale-price on 29-3-1976, the proprietary rights were transferred through sale-deed in favour of the petitioner. The respondent No,3 namely Khadim Hussain his brother filed a civil suit against the present petitioner claiming therein that their predecessor Muhammad Ramzan was the original alottee of the suit-land under Co-operative Farming Scheme. Which was subject of permanent allotment. The said Muhammad Ramzan died in the year 1959 whereupon the said tenancy automatically devolved upon the plaintiff as well as the defendant Muhammad Manzoor as his legal heirs and they became in possession of the suit-land but Muhammad Manzoor being the nominee and elder son of Muhammad Ramzan was enlisted as member of the society in the year 1960 to deal with the affairs of the land. It was further alleged in the said suit that they paid the Government dues jointly and severally through Muhammad Manzoor who kept on cheating the plaintiffs that the land will be transferred to all the legal heirs of Muhammad Ramaza deceased and they remained in possession of the suit-land jointly. However, in the year 1995 due to the family differences relations between the parties became strained and then it was transpired that said Muhammad Manzoor had got the conveyance Deed No,642 dated 29-3-1976 in his own exclusive name from the Government. The said suit was filed in the year 1995 and the payer in the said suit was that the registered conveyance deed in the exclusive name of Muhammad Manzoor was based on fraud, misrepresentation and was liable to be declared as void. The suit was resisted, issues were framed and thereafter, the present petitioner Muhammad Manzoor who was defendant in the said suit filed a petition under Order VII, Rule 11, C.P.C. Contending therein that the civil Court has got no jurisdiction. However, the learned trial Court vide order dated 24-3-2001 dismissed the said application, which order was assailed in a revision petition before the learned District Judge Vehari. The learned Addl. District Judge, Vehari after hearing the parties basing the reliance on section 30(2) read with section 36 of the Colonization of the Government Lands Act, 1912 accepted the revision petition and rejected the plaint. The said order of the learned Addl. District Judge was challenged before the High Court in Writ Petition No,196 of 2002 by Khadim Hussain etc., which petition was dismissed with the observation that the plaintiffs had got a remedy to approach the Member Board of Revenue for redressal of their grievances while the jurisdiction of the Civil Court is barred under the law. This order was passed by the High Court on 10-1-2002.
Accordingly Khadim Hussain approached the learned Member Board of Revenue, who vide order dated 5-5-2004 accepted the revision petition, set-aside the conveyance deed executed in favour of Muhammad Manzoor and remanded the case back to the District Officer (Revenue), Vehari with the direction to hear both the parties, record their evidence and decide the case afresh on merits.
This order of the Member (Judicial-II), Board of Revenue, Punjab has been challenged by the present petitioner through a civil suit. However, the learned trial Court as well as the learned appellate Court vide their detailed orders rejected the plaint under Order VII Rule 11 observing that the matter was still pending and as such the civil Court had no jurisdiction and in this behalf they placed reliance on section 30(2) read with section 36 of the Colonization of the Government Lands Act, 1912.
3. The learned counsel for the petitioner has vehemently argued that the learned Member Board of Revenue, Punjab was not competent to refer the matter back to the Collector/District Officer Revenue for deciding it afresh and it should have done it himself after holding the inquiry and since the basic order of Member Board of Revenue was void, ab initio, so the civil Court has got jurisdiction to entertain the matter. In this behalf he placed reliance on PLD 1993 Lahore 114, 1993 MLD 1929, 2004 YLR 1175, 2001 SCMR 953, 2008 SCMR 521, PLD 1983 Lahore 294, 2003 CLC 1922, 1988 MLD 413, 1998 CLC 401, 2006 PTD 219 and 2000 YLR 2888.
4. On the other hand, the learned counsel for the respondents supported the impugned ordeRs,
5. Arguments heard. Record perused.
6. The consensus of the above mentioned cases relied upon by the learned counsel for the petitioner is that the ouster could not be termed or readily admitted despite provision of section 36 of Colonization of the Government Lands Act, 1912 for Civil Courts have always power to see if act of any Authority which had been performed was beyond the scope of its poweRs, The only question for determination is that the impugned order passed by the learned Member Board of Revenue was whether beyond his powers or was passed within his poweRs, If the Court comes to the conclusion that it was beyond his powers then admittedly the civil Court had the jurisdiction.
However, if the order is passed within its powers then admittedly the jurisdiction of civil Court is ousted under section 36 of the Colonization of the Government Lands Act 1912. In order to appreciate the contentions raised by both the learned counsel for the parties, it is appropriate to re-produce section 30(2) of the Colonization of the Government Lands Act, 1912, which reads as under:--- "If at any time, the Board of Revenue is satisfied that any person had acquired under this Act tenancy in respect of any land by means of fraud or misrepresentation or was not eligible to have such rights for any reason whatsoever then notwithstanding the acquisition of proprietary rights by such person in such land or the terms and conditions of any agreement with or rules issued by the Provincial Government and without prejudice to any other liability or penalty to which such person may be liable under any law for the time being in force, the Board of Revenue may after giving such person a reasonable opportunity of showing cause pass an order resuming the land in respect of which proprietary rights have been acquired or reduce the area of such land or pass such order as it may deem fit."
The perusal of the above said provision of law clearly shows that the Board of Revenue is competent to resume the land provided a reasonable opportunity of showing cause to such person that why the land should not be resumed be provided to him. The petitioner had joined in the proceedings before the Board of Revenue and order was passed after hearing the parties by the Member Board of Revenue. The inquiry in this C aspect was also made by the learned Member and in para 6 of the impugned order, it was specifically mentioned that on one hand Manzoor Aujla occupied the record room and store of the Co-operative Society and a criminal case was registered against him and secondly the record room of the Colony office was also burnt to ashes.
It was further observed that the legal heirs or a right holder can claim their inheritance at any time and limitation does not run in case of inheritance and so came to the conclusion that the opportunity should be provided to the petitioner to prove their case before the competent Court. In this way, it cannot be said that the learned Member had not made the inquiry or have not heard the parties before resuming the land. The above said subsection (2) of section 30 of the Colonization of the Government Lands Act, 1912 also provided that the Member may pass such order as it may deem fit. In the present case, the Member Board of Revenue found it fit that the Collector (now District Officer Revenue) who gave the proprietary rights should record the evidence and then to decide the matter. The said case is still pending before the District Revenue Officer and so far has not been decided by him. In this way, both the courts below had rightly placed reliance upon subsection (2) of section 30 read with section 36 of the Colonization of the Government Lands Act, 1912 by holding that the Civil Court had no jurisdiction.
6. For the foregoing reasons, this revision petition has no force and the same stands dismissed.