Mazhar Alam Khan Miankhel, J.--Through this constitutional petition, the petitioners have sought the indulgence of this Court to set aside the orders of respondents 16 to 18 and to restore the order dated 12.12.2009 of Respondent No, 15 and in consequence thereof, the application of the Respondents 1 to 14 for eviction of the petitioners may be dismissed and the demarcation proceedings so conducted be declared as null ana void.
2. Concise facts of the case, as enumerated in this petition, are that respondents 1 to 14 submitted an application before District Officer Revenue, Swabi, Respondent No, 16, on 05.07.2008 for conducting demarcation of property situated in Khasra No, 4180, Khata No, 1434/2734 as per Jamabandi for the year 1959-60 of village Kalu Khan, District Swabi. The demarcation proceedings were conducted by Girdawar Circle on 23.08.2008 and report thereof was accordingly submitted.
Respondents 1 to 14 submitted application in the Court of District Revenue Officer, Respondent No, 16, for eviction of the petitioners from the property shown to be encroached upon in the demarcation report which was marked to Deputy District Revenue Officer, Respondent No, 15, for disposal. However, Respondent No, 15 (DDOR, Swabi) disposed of said application vide his order dated 12.12.2009 whereby the DDOR held that complicated questions of law and fact including title are involved between the parties, so the proper forum for the parties would be the Civil Court.
Respondents 1 to 14 preferred appeal there against in the Court of Respondent No, 16 (DOR, Svvabi) who vide his order dated 18.01.2010 allowed the appeal and the above said order of Respondent No, 15 was set aside by sending back the matter to the DDOR, the Respondent No, 15, to decide the matter afresh in the light of judgment of Additional District Judge dated 23.5.2008. The present petitioners feeling themselves aggrieved, challenged the same in appeal before Respondent No, 17 which was dismissed on 03.04.2010 thereby maintaining the order of DOR, Swabi. The petitioners impugned the order of DOR, Swabi and Additional Commissioner, Mardan), respondents 16 and 17 respectively, before Senior Member Board of Revenue, Respondent No, 18, in a revision petition but the same was also dismissed on 15.01.2012. Hence this writ petition.
3. Learned counsel for the petitioners vehemently contended that the impugned orders of respondents 16 to 18 are illegal, wrong and against the facts of the case; that the initial order of the DDOR dated 12.12.2009 is entirely in accordance with law and all the subsequent orders of the revenue hierarchy impugned herein, being violative of law, are liable to be set at naught. The learned counsel requested that the orders of Respondent No, 16 to 18 may be set at naught and that of Respondent No, 15 restored.
4. As against that, learned counsel appearing on behalf of the respondents strenuously refuted the contentions of the learned counsel for the petitioners and supported the impugned orders and argued that the same are based on proper application of law/rules and do not warrant interference by this Court in its extra ordinary constitutional jurisdiction and prayed for dismissal of the writ petition.
5. Arguments of learned counsel for the parties were heard and record of the case perused.
6. After hearing the learned counsel for the parties and perusal of the record, it appears that the respondents had filed a suit for possession regarding the suit property, which was dismissed and their appeal also met the same fate when the learned Additional District Judge-III Swabi vide his judgment dated 23.5.2008 dismissed their appeal. We are clear in our mind that mere demarcation of the land in the case in hand is a matter which comes within the exclusive domain of the revenue authorities. However, to claim possession of the area demarcated and encroached upon, a civil suit for possession has necessarily to be filed in a Civil Court. For this view, we are enlightened by the judgment rendered in the case of Mehram Khan and others vs. Fateh Khan and others (1983 SCMR 366).
Though the findings given by the appellate Court are not under consideration before us but the appellate Court by giving the findings has totally misconceived and misconstrued the law on the subject which has resulted into the impugned findings of respondents 16 to 18. The appellate Court held that the revenue hierarchy under Section 117 of the West Pakistan Land Revenue Act, 1967 has the exclusive authority for demarcation of the property and the possession of the property encroached upon can be sought under Section 122 of the Act of 1967 ibid and the jurisdiction of the Civil Courts is barred by Section 172 (1) of the Act of 1967 ibid. We are mindful of the fact that the said judgment has attained finality between the parties and also not under attack before us but we have been compelled to opine that the said judgment is per incuriam. It is settled law that the both, the judgment sub silentio or per-incuriam have no legal binding effect and the same can be termed as if no judgment was delivered. Because, the appellate judgment have B blocked their doors to the Civil Courts in the same matter which was not properly considered by the Civil Court at that time and because of the said decision, the revenue hierarchy was, being asked for a matter which was beyond their domain and the impugned orders of the revenue hierarchy also reflect this aspect of the case.
It is a simple case of encroachment and initially, civil suit was filed without any demarcation which was dismissed and the appeal there against (referred to above) was also dismissed. The respondents applied for demarcation before revenue hierarchy and after the encroachment, the respondents filed an application under Section 122 of the Act of 1967 ibid read with Rule 67-B of West Pakistan Land Revenue Rules, 1968 for possession of the encroached piece of land before the revenue hierarchy. This subsequent application was because of findings of the appellate Court referred to above. The law on the subject is that the demarcation and defining the boundaries of a landed property is the sole and exclusive job of the revenue hierarchy and the detailed procedure for the same has been laid down in Volume 1 of the Rules and Orders of the Lahore High Court, Chapter 1-M as referred to in the landmark judgment Sheikh Allah Ditta vs. AF. Ahmad and Co. and others (PLD 1954 Lah. 608) authored by his lordship Justice M.R. Kayani and then the Government of Punjab by way of Notification No, 2313-73/529-LR-I dated 23.11.1973 included Rule 67-A and Rule 67- B for demarcation of land and eviction of unauthorized landowners in the West Pakistan Land Revenue Rules, 1968. This amendment was introduced by the Province of Punjab and the same was not adopted by the Province of Khyber Pakhtunkhwa. After the conclusion of demarcation proceedings, the job of Revenue hierarchy gets completed as per law prevalent in the Province of Khyber Pakhtunkhwa and the Rules ibid of Lahore High Court. So, the restoration of possession to the lawful owner of encroached area will never remain the job of revenue hierarchy and for that purpose the concerned party has to file a civil suit for possession simply for the reason that the provisions of Section 122 of West Pakistan Land Revenue Act, 1967 cannot be made applicable in this Province as the Collector is supposed to evict the person in unlawful possession of the encroached area under the rules framed by the Punjab Board of Revenue which are not applicable in the Province of Khyber Pakhtunkhwa being not adopted. Reference in this regard can be made to the cases of Mehram Khan and others vs. Fateh Khan and others (1983 SCMR 366), Dilawar Khan vs. and 2 others vs. Mst. Mehrun Nissa and 8 others (2011 YLR 872). Even the judgment of this Court in the case of Dilawar Khan (Supra), referred to by the Senior Member Board of Revenue would confirm that there would be a civil suit after the demarcation proceedings and possession of encroached area has to be claimed from the Civil Court. Rule 67-B would be for Punjab and in case of question of title involved in the matter, then too, the revenue hierarchy in Punjab would not be competent to resolve the same under Rule 67-B and the matter would ultimately go back to the Civil Court. Again there is no cavil to the fact that the Civil Court considering the civil suit for possession can also appoint commission for demarcation but that, no doubt, would be conducted by the revenue officials.
7. For above discussion, this writ petition is allowed, orders of respondents 16 to 18 are set aside and order dated 12.12.2009 of Respondent No, 15 is restored. The respondents 1 to 14 may approach the Civil Court to claim possession of area encroached upon if so advised.