' YAHYA AFRIDI, J.---This revision petition is directed against the judgment and order dated 10-10- 2003 passed by Additional District Judge-I, Mansehra, whereby the appeal of the respondents against the judgment and order dated 7-11-2000 of Civil Judge-III, Mansehra was accepted.
2. The brief and essential facts leading to the present petition are that the present respondents instituted a suit on 18-3-1999, seeking declaration that they were owners of entire land comprised in Khata' No,250/232 khasra' No,237 measuring 11 kanals' 2 `Marlas', situated in Mauza Chitti Ghatti' , Tehsil and District Mansehra as per Vamabandi' for the year 1992-1993 ("disputed property") and the entries in the names of petitioners Nos.1 to 3 in the revenue record as 'occupancy tenants' to the extent of half share of the disputed property were wrong, as the said petitioners had neither paid any rent to the respondents/owners, in accordance with the law nor any mutation was attested regarding transfer of ownership in favour of the petitioners, hence the 'predecessor-in-interest' of the petitioners had extinguished his right of 'occupancy tenancy'; that registered deed No,78 dated 24-1-1996 on behalf of petitioners Nos.1 to 3 in favour of petitioner No,4 and thereafter attestation cf Mutation No,2350 dated 12-6-1996 on the basis of said Registered Deed and partition Mutation No,2461 dated 18-9-1998, attested on the basis of 'ex parte' partition proceedings on the application of petitioner No,4 by Revenue Officer, respondent No,14 being wrong, against law and facts were void and ineffective upon the rights of the respondents and the said entries were liable to be corrected; that the respondents also prayed for perpetual injunction restraining the petitioners from interfering or alienating or taking illegal possession of the disputed property; and that prayers for cancellation of registered deed No,78 dated 24-1-1996 and ejectment of the petitioners, in case the possession of the respondents was not proved. The petitioners filed their written statement and denied the assertions of the respondents and in fact, claimed ownership of the disputed property.
3. The trial Court, based on the contesting pleadings framed following issues:-- "(1) Whether this Court has jurisdiction to hear the case?
(2) Whether the plaint is properly valued for the purposes of court fee, and jurisdiction?
(3) Whether the plaintiffs are estopped by their own conduct!
(4) Whether the defendants Nos. 1 to 4 are the owners in possession since the settlement, in inception, of the village?
(5) Whether the plaintiffs have become owners of the suit land for its conversion from occupancy to ownership?
(6) Whether the plaintiffs being mortgagees are estopped to deny the title of defendants?
(7) Whether the partition has illegally taken place in the office of revenue officer?
(8) Whether the registered deed No, 78 attested on 241-1996 is not binding on the rights of the plaintiffs?
(9) Relief.
' The parties produced their evidence and thereafter hearing the learned counsel for the parties, the learned Civil Judge-I, Mansehra returned the plaint to the respondents under Order-VII Rule 10 of Civil Procedure Code, 1908 for presenting before the proper forum, vide judgment and order dated 7-11-2000.
'Aggrieved thereof, the present respondents impugned the same in appeal before Additional District Judge-I, Mansehra, which was accepted vide judgment and order dated 10-10-2003. Hence, the present revision.
4. Learned counsel for the petitioners contended that the judgment and order of the appellate Court was based on no findings and was the result of exercise of jurisdiction not vested in it under the law; that the learned appellate Court has failed to appreciate the fact that the subject matter of the suit of the respondents was regarding the claim of a landlord denying the rights of the tenant being 'Occupancy Tenant' , which in view of section 85 of the N-W.F.P. Tenancy Act, 1950, read with section 77(3)(d) of the Punjab Tenancy Act, 1887, could have only been decided by the Revenue Court, thus, the learned appellate Court has acted with illegality and material irregularity causing grave miscarriage of justice.
' Conversely, learned counsel for the respondents contended that the learned trial Court has erred in holding that Civil Court had no jurisdiction in the matter without appreciating the material evidence on record and the law applicable thereto; that the civil Court had the jurisdiction to determine the important legal questions involved in the matter, moreso, when the matter of title to immovable property was involved.
5. The valuable arguments of the learned counsel for the parties heard and the available record of the case thoroughly considered.
6. The most crucial issue in hand relates to which legal forum has jurisdiction to entertain the claim of the respondents; Civil Court or the revenue Court.
7. The main thrust of learned counsel for the petitioners was that the second proviso to section 85 of the Act ordained matters relating to occupancy tenancy to be determined under the Punjab Tenancy Act, 1887, which under section 77 thereof provided the revenue Court to be the competent legal forum for redressal and not civil Court.
10(sic) under section 85 of the N.W.F.P Tenancy Act, 1950 ("Act"), which relates to Repealing Clause envisages that:-- "85. Repeal and saving.---The following Acts are hereby repealed--
(a) The Punjab Tenancy Act, 1887, as applicable to the North West Frontier by the North West Frontier Province, Law and Justice Regulation, 1901, ' Provided further that until the rights of an occupancy tenant are determined under sections 4 and 4A of this Act, all provisions of the Punjab Tenancy Act, 1887, as applied to the North-West Frontier Province or the Hazara Tenancy Regulation, 1887, as the case may be, so far as they relate to the occupancy tenancy, shall remain in force."
' While the enabling provisions of section 77(3)(d) of the Punjab Tenancy Act, 1887 are applicable to the present proceedings. The relevant extract of the, said provisions reads that:- "77. Revenue Courts and suits cognizable by them: Procedure where revenue matter is raised in a Civil Court.--
(I) When a Revenue Officer is exercising jurisdiction with respect to 2013] Hussan Jan v.
Muhammad Yaqoob 1061 (Yahya Afridi, J) such suit as is described in subsection (3) or with respect to an appeal or other proceeding arising out of any such suit, he shall be called a Revenue Court.
(2)
(3) ' The following suits shall be instituted in and heard and determined by Revenue Courts, and no other Court shall take cognizance of any such dispute or matter with respect to which any suit might be instituted:-- Provided that:-- (1)
(d) suits by a tenant to establish claim to a right of occupancy, or by a landlord to prove that a tenant has not such a right.. "
In view of the aforementioned second proviso to section 85 of the Act, the condition precedent for application of the Punjab Tenancy Act, 1887 is that the rights of the 'Occupancy Tenant' have not been determined under sections 4 and 4A of the Act.
11. This brings us to another interesting legal exposition; the provisions of section 4 of the Act and the N.W.F.P Tenancy Rules, 1981 have been declared un-Islamic by the Appellate Shariat Bench. This Court in Gul Rehman's Case (2010 CLC 318) has very aptly discussed the implications arising out of the said decision, in terms that:- "The case of the plaintiff/petitioner is only to the extent that entries in their names as occupancy tenants be rectified and names of the defendants appearing as tenants at will be declared as 'unlawful having no support from the record or the spot. However, after the commencement of the Act, occupancy tenants were given a right under section 4 to become owner of the property within the parameters given in the said section. The provisions of section 4 read with N. W. F. P Tenancy (Fixation of Compensation to Landlords) Rules, 1981 (hereinafter to be called as Rules) were declared' against the injunction of Islam by the Shariat Appellate Bench of august Supreme Court in Shariat Appeal No,16 of 1984 vide its judgment dated 10-8-1989 reported in (NLR 1990 SD 90) titled Sultan Khan v. Government of N.-W.F.P. And Review Petition No, 2-R of 1989 dated 7-5- 1991 titled Sardar Muhammad Yousaf v. Government of Pakistan, wherein a target dated of 23rd March of 1990 was given and the Government of N. W. F. P was directed to amend section 4 of the Act, otherwise the same will cease to have its effect from the said target date and the person whose cases were dealt with under the provisions of section 4 of the Act prior to the said date were protected and after the said date no one would be able to claim ownership under section 4 of the Act."
' When the learned counsel for the petitioners was confronted with the status of the petitioners as occupancy tenants, he contended that their rights had been matured under section 4 of the Act.
' In case, this Court accepts the stance taken by the learned counsel for the petitioners then the 'condition precedent' for application of the Punjab Tenancy Act, 1887 would not be fulfilled and the rights of the petitioners could not be adjudicated by the revenue Court under section 77(3)(d)
(Supra).
' This Court, at this stage, would not pass any finding thereon, lest it prejudice, the case of the petitioners. Accordingly, the petitioners have to first cross the threshold provided in the second proviso to section 85 of the Act, in order to bring its claim within the jurisdiction of the Revenue Court under section 77(3)(d) (supra).
12. In the present case, there is another aspect of the case, which requires attention. The petitioners in their written statement have denied the existence of relationship of 'tenant' and landlord' between the parties and have claimed ownership of the disputed property and termed the respondents to be mortgages of the disputed property.
' In view of the serious challenge made by the petitioners to the relationship of 'landlord' and `tenant', the exclusion of the civil Court's jurisdiction cannot be readily inferred. Infact, it has to be seen whether the exclusion of the civil Court is expressly provided in clear terms or be clear by implied terms of the Act.
' Section 9 of the Civil Procedure Code, 1908 ("CPC") signifying this principle reads:- "9. Courts to try all civil suits unless barred.---The court shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.
' Explanation I.---A suit in which the right to property or to an office is contested is a suit of a civil nature, notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies.
' Explanation II. ---For the purpose of this section, it is immaterial whether or not any fees are attached to the office referred to in Explanation I or whether or not such office is attached to a particular place."
' This Court is alive to the position that the provisions of section 77(3)(d) of Punjab Tenancy Act, 1887, expressly bars the Civil Court to entertain matters relating to:-- "(d) Suits by a tenant to establish claim to a right of occupancy, or by a landlord to prove that a tenant has not such a right."
The situation is drastically changed once the petitioners deny the relationship of 'landlord' and `tenant'. Once the petitioners claim ownership of the disputed property then they cannot claim the bar to the C jurisdiction of civil Court under the aforementioned provisions of section 77 (Supra).
This issue has been very clearly explained in Allah Ditta's Case PLD 1975 Lah. 429, wherein it has been held that:-- "The terms in which clause (d) of section 77(3) is couched shows that it is applicable only to a case where a suit is by a tenant who claims a right of tenancy as subsisting on the date of the suit or where the suit is filed by a landlord to prove that his tenant had no subsisting right on that date.
Obviously, therefore, it will not apply to a case where the suit is not by a tenant but a person who once used to be a tenant and now claims to be an owner. It will not apply to a case where no subsisting right of occupancy tenancy is claimed by a tenant. This clause will apply only to a case where admittedly the relationship of landlord and tenant exists between the parties and the only dispute is whether that relationship is of occupancy tenant or of a non-occupancy tenant. It will not apply to a case where subsisting relationship of landlord and tenant is not admitted. Clearly, therefore, if the relationship of landlord and tenant is not admitted as existing and subsisting on the date of filing of the suit clause (d) is not a bar to the jurisdiction of the Civil Court. This jurisdiction is not taken away merely because the question of landlord and tenant is raised. Such a question, in these circumstances is merely incidental or subsidiary question."
' The above view has been consistently followed by the. Superior Courts in Asghar Shah's Case (1991 MLD 1252), Khushi Muhammad's Case (PLD 1978 Lahore 1276) and Rabia Bibi's Case (NLR 1980 Revenue Lah. 30).
In view of above legal discourse, it is clear that the civil Court has the jurisdiction to adjudicate upon the matter.
13. The learned counsel for the petitioners had advanced an argument that the 'condition precedent' and 'jurisdictional facts' in the present case have to be first determined by the Revenue Court. This Court does not agree with the said line of argument. In this regard, guidance is sought for the decision in Hamid Hussain's Case (1974 SCMR 356), wherein the apex Court has gone to the extent by holding that:-- "Such tribunal of special jurisdiction has no jurisdiction to determine any facts on the basis of which it will have the power to assume jurisdiction and made order falling within its jurisdiction."
' Thus, the Civil Court is the appropriate legal forum to decide even the question whether 'jurisdictional facts' exist for it to refer the matter to the revenue Court or otherwise.
14. This Court is adjudicating the present petition in its provisional jurisdiction, the scope thereof as provided under section 115 of the Code of Civil Procedure, 1908. While exercising its provisional jurisdiction, this Court finds that the appellate Court had the jurisdiction to adjudicate upon the matter and that while exercising the said jurisdiction it had applied its conscious mind to the facts of the case and rendered findings, which are not arbitrary, capricious or out rightly absurd so as to warrant interference.
15. Accordingly, for the reasons stated hereinabove, the present revision petition is devoid of legal force and is thus dismissed.
' Before parting with the judgment, this court notes that as the present matter dates back to the year 1999, therefore, the learned trial court is directed to expeditiously conclude the trial, within a period of six months, if not earlier, from the date of the receipt of this judgment.
' Parties are directed to appear before the trial court on 20-3-2013. No order as to costs.