' AMIN-UD-DIN KHAN, J.--- Through this civil revision petitioners have challenged the judgment and decree dated 11-9-2003 passed by learned Additional District Judge, Bhakkar whereby appeal filed by the petitioners was dismissed and the judgment and decree dated 6-12-2000 passed by learned Civil Judge 1st Class, Bhakkar whereby suit filed by the plaintiffs-petitioners was dismissed.
2. According to brief facts of the case plaintiffs-petitioners on 19-5-1985 filed a suit for declaration that they are owner in possession of suit property and challenged the order dated 16-9-1980 passed by the Deputy. Land Commissioner whereby land was resumed. Case of the plaintiffs- petitioners as pleaded in their plaint is that originally defendant No, 2 was owner of the suit property and suit was filed against him by the plaintiffs on the basis of some right relating to the inheritance. According to the decree granted by the civil court on 25-7-1974 the plaintiffs were declared owner to the extent of 400 kanals and defendant No, 2 and others to the extent of 200 kanals. The revenue department afterwards for implementation of the decree in the revenue record passed Mutation No,3378 on 19-5-1977. As per plaintiffs the revenue authorities dishonestly passed the mutation for specific Khasra numbers though the decree was passed with regard to the shares in the joint property. It is further pleaded that defendant No,2 was a declarant and filed his declaration form and illegally mentioned the property owned by the plaintiffs in his declaration form. It is pleaded that at the most defendant No,1 was entitled to count the suit property for, the purposes of determination of holding of declarant in the holding, but was not entitled to resume the property owned by the plaintiffs and states that through the order dated 16-9-1980 respondent No,1 has illegally resumed the land. , hence, the suit was filed.
3. Defendant No, 2 filed a consenting written statement. Defendant No,1 filed contesting written statement whereby the jurisdiction of the civil court was also challenged. Defendant Nos.3 to 25 who claim to be the allottees of the suit land also filed written statement and contested the suit.
Learned trial court framed the issues and invited the parties to produce their respective evidence.
Both the parties produced their oral as well as documentary evidence. After closure of the trial, learned trial court vide judgment and decree dated 6-12-2000 dismissed the suit. Appeal was preferred, which also met the same fate. Hence, this civil revision.
4. Judgment and decree on the basis of which suit was filed, have been produced as Exh.P.1 and Exh.P.2. To the extent of 400 kanals suit has been decreed in favour of Jana etc. Against Ladhu etc. Vide judgment and decree dated 25-7-1974.
5. Learned counsel for the petitioners argues that the Land Reform Authorities were bound under the law to consider the decree, they cannot ignore the same, therefore, the order 'passed by the Deputy Land Commissioner resuming the land decreed in favour of the petitioners was mala fide.
Further that the decree was passed on 25-7-1974 long before the application of Land Reforms Act, 1977, which came into force on 9th of January, 1977 and further that decree was granted from a share of the joint holding whereas revenue authorities dishonestly attested the mutation No,3378 with regard to specific Khasra numbers. States that though the mutation was attested on 19-5-1977 but it was based upon a decree which was dated 25-7-1974. With regard to valid transaction of the land through the decree relies upon "YARA and 9 others v. Member, Federal Land Commission and 10 others" (2003 SCM R 948) and to argue that Land Reforms Authorities were bound to recognize the civil court's decree relies on "Haji All Bux Khan and 3 others v. The Chief Land Commissioner, West Pakistan, Lahore and 2 others" (1974 SCMR 98) and with regard to answer the question of limitation relies on "Muhammad Yousaf through his L.Rs, and others v. Noor Din and others" (1993 M LD 763).
6. On the other hand, learned counsel for the respondents argue's that civil court was having no jurisdiction to entertain and try the suit. Further that the remedy of appeal was available on the land reforms side, therefore, the suit was not competent. Relies upon "Administrator, Thal Development through EACO Bhakkar and others v. All Muhammad" (2012 SCM R 730).
7. I have considered the contentions raised by learned counsel for the parties and have gone through the record with their able assistance as well as the law cited by them.
8. First of all I take the objection of jurisdiction of civil court under section 28 of the Land Reforms Act, 1977, as it is clear that the order made or anything done or any action taken under the Act shall not be called in question in any court. For determining the jurisdiction of civil court which otherwise have a plenary jurisdiction under section 9 of the C.P.C. The basic test is whether the action taken or order passed by the authorities is within the jurisdiction conferred upon them in the statute in which the provision of bar of jurisdiction is available. If the order has been passed with the jurisdiction having under the Statute then certainly the civil court has no jurisdiction to entertain a suit against the order which has been passed with jurisdiction and if the order is beyond jurisdiction or scope of the authority vested by the statute then certainly the civil court has jurisdiction to entertain a suit against such like order. In this case the basic question for determination is whether the order passed by the Deputy Land Commissioner dated 16-9-1980 was within his jurisdiction, when there is a decree for declaration of title of the ownership of the suit property in favour of the plaintiffs. It is settled principle of law that a declaratory decree declares a pre-existing right, it does not create or confer a new right, therefore, a declaratory decree is not executable but, is implementable in the record, if necessary. In this case when a court of competent jurisdiction has granted a decree in favour of the plaintiffs with regard to the suit property on 25-7-1974, the ownership of the plaintiff pre-existing to the filing of that suit was declared by the civil court on 25-7-1974, meaning thereby that the civil court, has recognized their right and ownership in the property prior to 25-7-1974. Even in the suit in hand as pleaded by the plaintiffs, there was some dispute of matter of inheritance between the parties. The rights E of the plaintiffs are not subject to the implementation of the decree in the revenue record. Since the time of grant of decree in their favour their rights of ownership in the suit property have been declared and the land reforms authorities have absolutely no jurisdiction to ignore the decree granted by a civil court. As the crucial date for determination of individual holding according to section 3 of the Land Reforms Act, 1977 was the date of implementation of the Act, ibid. As I have already observed above that the decree in question was granted in favour of the plaintiffs long before coming into force of the Land Reforms Act, 1977. In this regard the judgment cited by the learned counsel for the petitioners i,e, "Haji All Bux Khan and 3. Others v. The Chief Land Commissioner, West Pakistan, Lahore and 2 others" (1974 SCMR 98) is helpful to the plaintiffs and so far as the matter of limitation is concerned, as in this case the cause of action accrued to the plaintiffs when they felt themselves aggrieved by the action of the respondents and in this regard light can be taken from "Muhammad Yousaf through his L.Rs, and others v. Noor Din and others" (1993 M LD 763).
9. So far as passing of mutation on the basis of decree of civil court is concerned, I have noticed that in the decree the share of the joint F. Property has been declared in favour of the plaintiffs by the decree dated 25-7-1974 whereas the revenue authorities when passed the mutation specific khasra numbers have been mentioned therein, which were against the spirit of the decree. It seems that the specific numbers have intentionally been mentioned in order to injure the rights of the plaintiffs, therefore, the mutation to that extent was against the decree.
10. So far as objection raised by the learned counsel for the respondents is concerned that the remedy of appeal was available under the Land Reforms Act and by non-availing the appellate remedy the suit was not competent and in this regard reliance has been, placed on "Administrator, Thal Development through EACO Bhakkar and others v. Ali Muhammad" (2012 SCM R 730). I have carefully gone through the. Said judgment of august Supreme Court of Pakistan, I bow before the Hon'ble Supreme Court of Pakistan but I humbly see that the same is not applicable to the facts of this case as in the cited judgment the matter of jurisdiction with regard to the resumption of state land by the Colony Officer due to non-fulfilment of the required pre-condition by the plaintiffs was in issue as in the cited case it is the Colony Department which has to determine whether the party has fulfilled the conditions or not by considering their own record. Whereas in the case in hand the matter of value of the decree of the civil court is concerned as the Deputy Land Commissioner has ignored the decree. The question determinable was whether Deputy Land Commissioner has the jurisdiction to ignore the decree granted by the civil court, therefore, I believe that in case in hand filing of appeal etc. Under the Land Reforms Act before higher forum would have been a futile exercise, therefore, best forum in this case was the civil court to determine whether the decree granted by a civil court can be ignored by the Land Reforms Authorities or not.
11. The upshot of the above discussion is that when a declaratory decree has declared a pre- existing right in favour of the plaintiffs long before coming in force of the Land Reforms Act, 1977, therefore, the Deputy Land Commissioner was having no authority to scrutinize or to H ignore decree of the civil court, therefore, when the order passed by the Deputy Land Commissioner was absolutely without jurisdiction, therefore, the civil court was having jurisdiction to entertain and try the suit.
12. In this view of the matter, by ignoring the legal principles both the courts below fell in error while dismissing the suit and the appeal filed by the plaintiffs-petitioners. Resultantly, I allow this civil revision, set aside the judgments and decrees passed by both the courts below and decree the suit filed by the plaintiffs-petitioners.