' SAHIB KHAN, J.--- Through this civil first appeal, appellant/ plaintiff assailed the impugned judgment/decree dated 28-11-2000 passed by the Civil Judge First Class No.1, Gilgit, in Civil Suit No.122 of 2009; whereby, he dismissed the suit of appellant/plaintiff finding it to be vague and not proved with costs.
2. Precisely narrated facts of the matter are that the plaintiff sued defendants for declaration with consequential relief and for recovery of. Compensation amount Rs,691955/- from defendant No.4, and for attestation of mutation in respect of disputed land in favour of the plaintiff on the ground that 26 kanals, 14 marlas nautr land was allotted in the name of Mukhtiar alias Bakhtawar under File No.152 (Nautr) by the Assistant Political Agent on 30-01-1957. The said Bakhtawar, soon after getting the possession of allotted land, went to Skardu in connection with his job and died there. The plaintiff further disclosed in the plaint that the allotted land was occupied by armed forces; while defendant No.4, with the collusion of revenue field staff, managed to prepare fake and factitious documents in his favour, and the officials illegally attested mutation in favour of defendant No.4.
The defendant No.4 also succeeded in getting the compensation of land during the pendency of suit in the Court.
3. Defendant No,4 contested the suit with the defence that the land in dispute was allotted in his favour as share in nature land by the competent authority with many other inhabitants of Jutial.
The defendant No,4 stated that the mutation in respect of disputed land was attested in his favour legally and he obtained the compensation as his legal right. Defendant No,4 fully showed his title over the disputed land. However, rest of the defendants did not contest the suits that were proceeded ex parte.
4. We have heard the arguments from the learned counsel pro and contra and have minutely gone through the record of the case.
5. As contended in the plaint land measuring 26 kanals, 14 marlas entered into Khasra No,841 was allotted to Mukhtiar alias Bakhtawar on 3-1-1957 by the Assistant Political Agent Gilgit along with many other people of Jutial. The original allotment order is placed on file as Exh.P./1. The veracity of the document as well as the competency of the authority sanctioned the allotment in favour of the said Bakhtawar (deceased) has not been questioned by the defendant No,4 or by the other defendants from Government side. However, defendant No,4, in his written statement and through other documentary evidence, tried to prove that this piece of land on subsequent stage was allotted to him for the reasons known to him. Thus the existence of allotment order dated 3-1-1957 in respect of the land entered into Khasra No,841 measuring 26 kanals, 14 marlas in favour of the deceased son of the plaintiff Khushab Juma is proved and established as per record of the case.
6. The contention of the defendant that the same land was allotted in his favour by the authorities on later stage is concern, he relied on certain documents to substantiate this version. Documents Exh.D/1 to Exh.D/10 attached with the written statement by the defendant No,4 contained the application for issuance of copy by the defendant No,4 dated 20-11-1986, Copy of Khasra Girdawari from 1978 to 1981, report of Tehsildar dated 14-11-1984, report of AC, dated 23-8-1984, report of AC Exh.D/6 and all other are found to be the reports but no specific order passed by any competent authority who might have cancelled the allotment made in favour of the Mukhtiar deceased or this piece of land was allotted in favour of defendant No,4.
7. Vide Mutation No,1212 dated 21-9-1980, the land entered into Khasra. No,841 has been transferred in favour of defendant No,4. At Column No,3 of the mutation deed, the land has been shown as Khalisa sarkar. The sole reason for attestation of this mutation disclosed is on the basis of entry in the "Khasra Girdawari". As stated supra, the reason of attestation of mutation negates the story of allotment of land in the written statement. In all the proceedings exhibited vide Exh.D/1 to' Exh.D/10, not a single word is appearing with regard to transfer/ allotment of the disputed land in favour of defendant No,4 vide referred mutation which indicates and strikes the judicial mind that weather this mutation was existed when all the reports were prepared by the revenue staff including the reports of the AC and Tehsildars. Likewise, attestation of mutation by a Naib-Tehsildar through which a considerable quantity of nautr land, i,e,, 26 kanals, 14 marlas that too without any allotment by the competent authority under the nautr rules prevailing at that the moment is nothing except.
Being illegal act by an unauthorized officer is illegal and without jurisdiction.
8. The preparation of compensation papers on the basis of stated, documents exhibited- as D/1 to D/10 in favour of defendant No,4 was the second act of high-handedness by those who are custodians of the record of precious rights of the State as well as the citizens. It is not a single case wherein the concern staff and officers have committed material illegalities but it is generally noticed while dealing with the judicial matters before the Courts. The ultimate result of such acts is that majority of the cases pending before the revenue/civil Courts is outcome of that process. We in the circumstance feel no hesitation that the preparation of compensation papers in favour of defendant No,4 and passing an award on the basis of those papers by the Collector is illegal and without authority as the defendant No,4 had no legal title or D ownership of the land for which such a. Huge amount was sanctioned and paid it to him during the pendency of suit, as stated by the counsel the revenue authorities even overlooked the injunction order of the Court.
9. Defendant No,4 through his application dated 11-5-19961 produced documents exhibited as Exhs.D-2/1 to D-2/13. Exh.D2/1, 2 is judgment of the WAFAOI MOHTASIB. This judgment has been delivered on the basis of documents presented before him for enhancement of compensation by the petitioners (in that petition) including defendant E No,4, and the dispute of title was neither agitated nor the plaintiff was party to the proceedings, even she was not aware about the proceeding before MOHTASIB; hence, this order cannot be enforced on the plaintiff, neither this judgment preclude the appellant for the relief through instant declared suit.
10. Defendant No,4 besides above exhibited-documents has relied on the document, i,e,, findings of the Collector Gilgit dated 26-7-1983.
' Although the Collector has very clearly identified the legal position of present situation, This order of Collector has not been challenged or reversed by any of the competent forum and having its legal effect up till date; wherein, it has been held that the allotment with regard to disputed land in favour of deceased son of plaintiff is intact till that date, i,e,, 26-7-1983. Hence, what should be the legal position of mutation attested in favour of defendant No,4 on 21-9-1980? The revenue reports coupled with the mutation are nothing except being without any force of law, having no legal effect and concocted one.
11. We have noticed that the learned Trial Judge has decided the matter without considering the attending circumstances of the lis. The plaintiff has asked for declaration with consequential relief in the matter; hence, Civil Court has got the exclusive jurisdiction over all the ancillary relief and can be adjudicated by the Court of ultimate jurisdiction; hence, the findings of Trial Judge are without force of law; hence, set aside the impugned judgment dated 28-11-2000, passed by the Civil Judge 1st Class Gilgit.
12. We, in the circumstances, are constrained to hold that the land measuring 26 kanals, 14 marlas enter into Khasra No,841 situated at Jutial was allotted to Mukhtiar alias Bakhtawar deceased son of plaintiff Khushab Juma. This land, as the record purports, was acquired by the armed forces and compensation thereof Rs,691955!- was paid to defendant No,4 on the basis of illegal award based on fake mutation passed by the Collector Gilgit, is payable to legal heirs of plaintiff from defendant/respondent No,4. However, the prayer for attestation of mutation of land in favour of the legal heirs of the plaintiff cannot be acceded as the land has been acquired by the government after payment of due compensation; hence, mutation of land be entered and attested in favour of armed forces if not previously acted.
13. The Chief Secretary Gilgit-Baltistan is directed to hold an inquiry and fix the liability even criminal proceedings be invited for attesting the illegal mutation and preparation of compensation papers by the concern revenue authorities either are in service or have been retired.
14. Costs of the case are payable to appellant by responding No, 4.