' MALIK MANZOOR HUSSAIN, J.---This constitutional petition has been directed against order dated 22-12-1990, whereby the learned E.A.C. Vested with the powers of Deputy Commissioner under PATA Regulation, 1975, decreed the suit of respondent No, 1 and that order was affirmed vide judgment dated 31-8-1992 by the learned Additional Commissioner-1 and through an order dated 10-9-2011 passed by the learned Deputy Secretary Home, Khyber Pakhtunkhwa
2. Briefly stated the facts of the case that respondent No, 1 filed a civil suit under PATA Civil Procedure (Special Provisions), Regulation, 1975, for declaration, possession and permanent injunction against the petitioners on 1-12-1984 before the Court of E.A.C. The suit was contested by the petitioners by filing written statement. As per PATA Regulation "ibid", the matter was referred to "Jirga" on 24-2-1987 for recording of necessary evidence and to give its opinion. Both the parties examined their respective witnesses and after conclusion of statement of parties. One "Jirga" member Faiz Muhammad Khan suggested that the suit be decreed in favour of respondent No 1, whereas other "Jirga" member Mulvi Muhammad Shah Khan opined that due to grave contradictions in statements of parties, he recommended to settle the dispute according to Sharia.
The recommendation of Faiz Muhammad Khan is dated 16-12-1987 whereas that of Mulvi Muhammad Shah Khan is dated 17-12-1987. On 19-12-1987, the Tehsildar being Chairman of "Jirga" received the reports and declared that since the opinion of two "Jirga" members is contradictory one, therefore, if the parties want to resolve the controversy through Shariat they are at liberty, otherwise, the matter would be entrusted to a new "Jirga". Decision of Chairman "Jirga" was placed before the E.A.C. Concerned, who vide order dated 12-7-1987 remitted back the' matter to the Chairman "Jirga" to explain his position with regard to settlement of the dispute, who regretted through an application dated 17-8-1988 that he cannot give his decision on the available material, therefore, this matter be entrusted to another Tehsildar. Vide order dated 12-9-1989; the Matter was again referred to the same "Jirga" to get opinion of "Jirga" member Mulvi Muhammad Shah Khan. In the meanwhile, the petitioners submitted an application on 23-9-1989 for change/ replacement of "Jirga" members, as per provision of PATA Regulation, as they deposed no confidence in the "Jirga" already constituted. Vide order dated 31-1-1990, the learned E.A.C. declared this application as premature and matter was sent back to the same "Jirga" to proceed further in accordance with the earlier order. On 6-3-1990, the "Jirga" member Mulvi Muhammad Shah Khan gave his opinion that suit of the plaintiffs be decreed as prayed for. It is pertinent to mention here that this "Jirga" member, who had earlier given his definite finding to the effect that he does not deem it appropriate the evidence recorded is sufficient enough to make any clear opinion, but on the basis of same evidence, he later on changed his opinion and somersaulted from his previous verdict without any justification. This opinion was forwarded to the concerned E.A.C. And on 22-12-1990, the learned E.A.C. Decreed the suit on the basis of opinion of "Jirga", which was affirmed in appeal as well as in. Revision. All these decisions of "fora" below have been challenged in the instant petition.
3. Learned counsel for the petitioners contended that the order passed by the learned trial Court .i,e, E.A.C. Dated 22-12-1990 was not in accordance with law, as earlier opinion of "Jirga" members was not unanimous, rather contrary to each other. The Chairman of the "Jirga" recommended that either decision would be made in accordance with Sharia or new "Jirga" members be appointed, but in violation of law, the matter was referred back to the same member and got a favourable decision, as the plaintiff/respondent No,1, was a practicing lawyer and he maneuvered his personal position to get a favourable decision from second "Jirga" member Mulvi Muhammad Shah Khan.
Further contends, that prior to filing of the suit, during settlement proceedings, the respondent No, 1 approached revenue hierarchy for correction of entries in the revenue record and that application was dismissed vide order dated 12-12-1979 and settlement proceedings were concluded and in consequence thereof entries were made in favour of the petitioners. In the first ever settlement record, which were later on challenged by the respondents by filing referred civil suit before the E.A.C. It was further argued that the settlement proceedings, which carries presumption of truth should not lightly be disturbed by procuring opinion of "Jirga" as sanctity is attached to the first ever settlement. Lastly, it was argued that the second opinion of "Jirga" member Mulvi Muhammad Shah Khan was quite contrary to his earlier opinion and no justification was given to change the opinion; therefore; reliance placed on opinion of this "Jirga" member was not in accordance with law.
4. Conversely, the learned counsel for the respondents supported the judgments of civil Court tinder PATA Regulation and contended that concurrent findings of facts cannot be disturbed under constitutional jurisdiction of this Court.
5. Arguments heard and available record perused with valuable assistance of learned counsel for the parties.
6. Perusal of record reveals that the respondent No, 1 filed an application before Tehildar Settlement on 2-12-1979 for correction of entries with regard to disputed property against the petitioners and notices were duly issued to the petitioners and on 12-12-1979 that application was dismissed. No appeal was filed by the respondent No,1 nor that order of dismissal of application was challenged in the suit filed by the respondent No, 1 under PATA Regulation. Later on, on 1-12-1984, respondent No, 1 filed civil suit against the petitioners with regard to disputed property. After receiving written statement of the petitioners, the matter was referred to "Jirga" as per provision (IV) (II) of the PATA Regulation.. The "Jirga" was consisting upon two Jirga" members Faiz Muhammad Khan and Mulvi Muhammad Shah Khan, whereas Tehsildar Chakisar was appointed as Chairman "Jirga" and as per provision of Regulation ibid, the recommendation of "Jirga" members were too he submitted to the Chairman "Jirga" and who if agreed forwarded the same to the learned E.A.C. For proper order.
In the case, there is difference of opinion; then a new "Jirga" is to be constituted as per provision of the Regulation. In the case in hand, earlier there was difference of opinion between "Jirga" members and Tehsildar being Chairman of "Jirga" vide order dated 19-12-1987 recommended that either the parties be directed to settle the dispute through Shariat or new "Jirga" members be appointed. The petitioners through an application dated 23-9-1989 applied for appointment of new 'Jirga'', as they deposed no confidence in the previous "Jirga", but strangely enough, without forwarding any reasons, the learned E.A.C. Dismissed the request of petitioners and matter was again referred for opinion of "Jirga" member Mulvi Muhammad Shah Khan. Similarly, Chairman of the "Jirga" made a request that he may be replaced by new Chairman, but his request was also turned down. Again Mulvi Muhammad Shah Khan resiled from his earlier verdict and made an opinion that suit of plaintiffs/respondents be decreed. Not a single word has been uttered by the "Jirga" member for change of his opinion neither any justification was put-forward in this regard: In the real sense, neither the evidence produced by the parties were properly appreciated nor the defence taken by the petitioners was considered. It seems that second opinion from the "Jirga" member was procured one, which was taken in hasty manner and on the basis of same, the learned E.A.C. Passed the impugned order on 22-12-1990. It is well settled by now, that if the original order is not in accordance with law, then the whole superstructure built on it would fall on the ground. Long standing entries were there in favour of the petitioners and in the settlement proceedings their names were entered in the revenue record. When the respondent No,1 failed to procure favourable order from settlement officer, he remained satisfied for a long time and filed the suit on 1-12-1984 to challenge the settlement entries recorded in favour of the petitioners.
Neither the statements of petitioners were appreciated nor the evidence recorded by their witnesses were taken into consideration 13y the "Jirga" members, rather unilaterally evidence- respondent No,1 was considered and a wrong decision and conclusion were made.
7. Presumption of truth is attached to record of rights in general. But to the first ever settlement record in particular. In the settlement proceedings physical measurement is made by the Settlement Officer on the spot and proper inquiry is to be conducted regarding the ownership and possession on the spot and proprietors are being associated to have firsthand information and to verify the same at spot. Very strong evidence is required to rebut the presumption of correctness attached to the first settlement of an area. In the case in hand, no evidence of any credence had been adduced in rebuttal of entries of settlement record. Documentary evidence could not be rebutted by oral evidence and mere bald statement against such entry is not sufficient to discard the entries of settlement. The learned E.A.C. Committed illegality by referring back the matter to the same "Jirga", who were not unanimous in the earlier round and no reason was forwarded by the learned E.A.C. To send back the matter to the same "Jirga". The evidence recorded earlier was not considered by one "Jirga" member to be sufficient to make any opinion, but, after remand, without recording any further evidence the same "Jirga" member opined contrary to his earlier verdict. The decision of "Jirga" was not only contrary to the provisions (IV) (II) of PATA Regulation, 1975, but also against the principles of natural justice. Once the petitioners deposed their no confidence on the "Jirga" there remain no option for the learned E.A.C. But to constitute a new "Jirga" and refer the same for decision. Learned E.A.C. Never considered request of Chairman of "Jirga" for his replacement and forced him to give verdict. Which also speaks loudly about the conduct of the E.A.C. Concerned. The possession of petitioners were admitted by the witnesses examined by the "Jirga" members and supported by strong corroborative evidence of settlement record.
8. It is well settled that Court of law or Tribunals are vested with the Powers to decide matter rightly and not wrongly. In case a matter is A not decided rightly then the same comes within definition of order passed without proper exercise of jurisdiction and can be struck down by this Court while exercising constitutional jurisdiction. Reliance can be placed on PLD 1987 Supreme Court 477.
' In view of what has been observed above, this petition is allowed and in consequence thereof order passed by the learned E.A.C. And upheld by the appellate Court and revisional forum is declared illegal, "void ab initio" and ineffective upon the rights of petitioners and suit filed by the respondents/plaintiffs stands dismissed. <