MAZHAR ALAM KHAN MIANKHEL, J.---This single judgment shall dispose of instant Civil Revision No.5 of 2002 as well as Civil Revisions No. 382/2003, 613/2004, 873/2004, 603/2005 and 470/2002 as common question of law is involved in all the above referred civil revisions.
During the course of hearing, the learned AAG had raised preliminary objection with regard to the maintainability of these civil revisions as the jurisdiction of any court or authority to entertain such like matters was barred under the MLR,
123. The learned counsel for the petitioners had sought some time to assist the court regarding the preliminary objection.
2. Today the learned AAG and learned counsel for the petitioners were heard.
Today yet another Civil Revision No. 470 of 2002 with the title of Muhammad Said etc. v. Provincial Government was also fixed having same question of law involved in it, so, all the cases were heard together.
3. The main stance of learned AAG for the official respondents was that a. Special provision in the shape of Para 5-A of the MLR 123 has been enacted to settle the disputes of tenants and Ex-ruler of the States of Dir and Swat or claimant landlord and the Ex-rulers of the said States and Para 3(3) of the Regulation has barred the jurisdiction of any court or other. Authority, so, the civil suits having the disputes with regard to the Ex. Ruler of the State of Swat, were not maintainable and requested that the same be returned under Rule 10 of Order VII of Civil Procedure Code. He placed reliance on PLD 1990. Peshawar page 91. The learned AAG frankly conceded that in the case of Zarin Khan vs. Provincial Government, Civil Revision No. 873 of 2004, the suit of plaintiff/petitioner was dismissed for want of jurisdiction Which, under the law, ought to have been returned.
4. As against that, the learned counsel for the plaintiff/petitioners in all civil revisions have submitted that no such objection was raised by the respondents before the lower fora and the cases of the plaintiffs were decided on their merits; that since the properties of all the suits have not been notified in the two notifications by the land commission, so, it is not the property of Ex.
Ruler/Provincial Land Commission, thus, the only remedy available to the plaintiffs is the civil suits for correction of entries in the record-of-rights; that the plaintiff/ petitioners were neither the tenants of Ex. Ruler nor they were claimant landlords, so,, their cases do not fall within the domain of MLR 123. He further argued that the suits filed by the plaintiffs were simple suits for declaration under section 53 of the West Pakistan Land Revenue Act, 1967 as their properties, were wrongly incorporated in the revenue record in the name of Provincial Land Commission and regarding such declaration, the only competent forum is the civil Court. The learned counsel for the petitioner submitted that the case cited at the Bar by learned AAG was not applicable in view of the peculiar circumstances of the case.
5. Perusal of record would reveal that the plaintiffs in all the cases have asked for declaration that they are owners of the properties which have wrongly been incorporated in the revenue record in the name of Provincial Land Commission, who being the custodian of the properties owned by the Ex. Ruler/ his legal heirs as no choice under the Regulation has been given by them. The moment they submit their choice the surplus properties would be resumed and the rest of the properties would be transferred in their names, so, the defendants in all A the suits are the Provincial Land Commission as well as the legal heirs of Ex. Ruler of Swat.
6. The land disputes inquiry commission under MLR, 122 was appointed by the Provincial Government, vide notification dated 8-10-1970, whereby commission was given the task to 'determine the properties of the former States of Dir and Swat and also to determine the private/personal properties of late Nawab of Dir and Ex. Ruler of Swat and also determine the respective shares of their legal heirs. The commission, accordingly, determined such properties and issued notification bearing No.1523 dated 15-9-1972 under MLR 122. Thereafter, another notification was also issued with regard to left over properties bearing No. 1525 dated 29-9-1972.
Besides determination of the said properties under MLR 122, yet another Regulation No. 123 was also issued by the Provincial Government to resolve the disputes of tenants with the Ex. Rulers of the two States or their legal heirs or claimant landlords and the said Ex. Rulers of the two States. To resolve such disputes a special forum in this regard was provided by the Provincial Government for determination of the said disputes referred to in Para 3(1) of the Regulation 123 and, accordingly, such disputes were resolved between the aggrieved ones. Later on, when the Provincial Government came to know that still there were some left over disputes yet another provision in shape of 5-A under MLR 123 was introduced whereby the Provincial Government was required to appoint as many officers as it deems fit with regard to determination of disputes of the nature referred to in sub-paragraph 1 of paragraph 3. This Regulation had already barred the jurisdiction of any Court or other authority to determine the above said disputes.
The relevant provisions of the Regulation read as under:-- Paragraph 3. (1) All disputes relating to the ownership of, or any right or interest, in, any immovable property in the former States of Mr and Swat to which any of the following persons are parties; shall he decided by the Provincial Government or any officer authorized by it in this behalf, namely:-
(a) the tenants and ex-Rulers. Of the said former States or their respectively heirs; or
(b) claimant landlords and the ex-Rulers of the said former States or their respective heirs; or
(c) the landlords and tenants. (2) Subject to any general directive of the {Federal Government the decision of a dispute under sub-paragraph (1) and the determination of the respective claims, rights and interests of the parties thereto shall be made on the basis of the recommendation of the commission.
(3) No court or other authority shall entertain any proceedings in relation to any dispute referred to in sub-paragraph (1) nor shall any court or other authority grant an injunction or make an interim order in relation to any such dispute.
5-A of MLR 123
5. A. (1) For Determination of disputes of the nature mentioned in sub paragraph 1 of paragraph 3 which have not been inquired into by the commission for any person but so ever, the provincial government may appoint as many officer as it deems fit.
(2) An officer appointed under sub-paragraph 1 shall decide disputes after hearing the parties and taking such evidence as the parties may like to produce.
(3) Any person aggrieved by decision under subsection (2) may, within sixty days of the decision, excluding the time requisite for obtaining of the copy of the order; submit an appedl to the provincial government.
4) The order of the Provincial Government and subject to the order of the Provincial Government in appeal, the order of the officer appointed under sub paragraph 1 shall be final.
A look at the above provisions would confirm the above discussion.
7. Now reverting back to the facts and circumstances of each case, the petitioners in the Civil Revision No. 470 of 2002 have alleged to be the owners of the suit property on the strength of a sale deed dated 13-3-1975 and had further alleged that the entries in the revenue record in the name of provincial land commission are wrong and ineffective against their rights. The legal heirs of Ex.
Ruler of Swat were also impleaded. Same is the position in Civil Revision Nos.5 of 2002, 383/2003; 613/2004 and 873/2004. The plaintiffs in all the cases, have claimed the suit property to be their ancestral property or the property purchased by them. The facts and circumstances of all the cases would confirm that the property in dispute had been recorded in the name of land commission, who being the custodian of the properties of the Ex Ruler/their legal heirs as stated above. Legal heirs of the ex-ruler have also been made party in almost all the cases except one.
Plaintiffs claimed their ownership of the properties which is basically owned by the ex-ruler so, such disputes on the face of it appears to be the dispute falling within the scope of Para.3(1) of MLR 123 and under section 5-A, such disputes have to be determined by a specially authorized person by the Provincial Government in this behalf. Any court or other authority has no jurisdiction to entertain and decide such disputes under Para 3(3) of the Regulation. The learned AAG submitted that the person specific notification was once issued by the Provincial Government on 6-8-2009 but he was not in possession of the latest position. The general attorney of the legal heirs of Ex-ruler of Swat submitted that after earlier notified officer, yet another officer has been notified by the Provincial Government in this behalf but he too, was not in possession of said notification. If at all, no one has been authorized then the Government should nominate a person to resolve these disputes.
So, in this view of the matter. This Court is left with no option but to declare that the civil Court, in the circumstances. Has got no jurisdiction to entertain such disputes. Accordingly, the plaints are hereby directed to be returned to the plaintiffs for submission of the same before the proper forum.
However, suit of Zarin Khan v. Provincial Government, Civil Revision No. 873/2004 was dismissed by the' trial Court for want of jurisdiction but dismissal of suit for want of jurisdiction is hardly appreciated under the law which should have been returned to him. So, in Civil Revision No.873 of year 2004, findings of the two Courts below regarding the dismissal of suit are modified with the direction to the trial court to return the plaint. Needless to say that the trial court while returning the plaints along with necessary documents, should retain the photo copies of the same for its own - record.
So, after hearing the preliminary objections, all the above civil revisions are disposed of in above terms.