' MRS. IRSHAD QAISER, J.---Government of N.-W.F.P. (now KPK) through Secretary Works and ServiceS Department Peshawar and five others petitioners seek constitutional jurisdiction of this Court against the judgment and decree dated 29-6-2005 passed by Additional District Judge-V, Mansehra, qua, Tribunal under N.-W.F.P. Public Property (Removal of Encroachment) Act, 1977 in Suit No,3/1-TR 2002 and praying that:-- "It is, therefore, prayed that on acceptance of instant Writ Petition this Hon'ble Court may be pleased to;-
(I) Declare that the judgment and decree passed by the Additional District Judge-V, Mansehra as Tribunal under the N.-W.F.P. Public Property (Removal of Encroachment) Act, 1977 in Suit No,3/1-TR of 2002 titled as Shams ur Rehman v. Government of N.-W.F.P. And others is illegal, arbitrary, void, without lawful authority and against facts on record.
(ii) Dismiss the suit filed by the plaintiff/respondent No, 1 with costs.
(iii) Grant any other relief to the petitioners to which they may be found entitled under the law.
(iv) Grant interim relief to the petitioners by suspending the operation of impugned judgment and decree dated 29-6-2005 passed by the Tribunal (respondent No,2) and the Status quo be ordered to be maintained."
2. The brief and essential facts leading to the present petition are that Shams-ur-Rehman respondent No, I instituted a suit for declaration to the effect that land 'Khata' No,1923/3022, "Khasra" No,333 measuring 2 'Kanals', situated in 'Mauza Ghari Habib Ullah', Tehsil Balakot District Mansehra, as per 'Jamabandi' for the year 1995-96 and whatever 'Khasra" number or area to be proved was the sole ownership and in 'Hissadari' possession of respondent since his forefathers and he had made improvements over the disputed property worth lacs of rupees in shape of shops and house and the disputed property had neither been sold by the respondent or his predecessor to the petitioners nor the petitioners had acquired or purchased the same; the disputed property had never been a part of public property or a road and the petitioners have no concern with it and in this respect notice No,700615-B dated 9-2- 1986 issued by petitioner No,3 to respondent was wrong, against law and facts, based on mala fide, without jurisdiction and the entries in the revenue record including correction mutation No,5117 dated 7-11-1942 or any other mutation in favour of the petitioners effecting the rights of respondent in any manner was wrong and without consideration and liable to be cancelled and the said notice was not binding on the respondent on the basis of wrong entries. The respondent also prayed for permanent injunction against the petitioners restraining them from interfering in possession of therespondent, forcible dispossessing without any authority, demolishing his construction, implementing the wrong notice or acting in any manner thereby affecting the rights of the respondent.
4. The petitioners contested the suit by filing written statement. Based on the contesting pleadings of the parties, the learned Tribunal framed the following twelve issues:- "(I) Whether the plaintiff has got a cause of action?
(2) Whether the suit is time barred?
(3) Whether the Court has got jurisdiction to entertain the present suit?
(4) Whether Notice No,700615-B dated 8-2-1986 is legally issued to plaintiff?
(5) Whether Mutation No,5717 dated 7-11-1942 is registered in favour of Provincial Government?
(6) Whether the disputed property was the ownership of plaintiff?
(7) Whether the road is and was in 'Khasra's Nos.322/336 or 333, 332 or 'Khasra's Nos.332-3348 and what is the exact location of present and existing road?
(8) Whether the two 'Khasra' Nos.207, 209 were converted into new 'Khasra' Nos.333-334 at the time of 1946-1947 settlement?
(9) What was the actual area of old 'Khasra' Nos.207-209 and new 'Khasra's Nos. 333-334?
(10) Whether the plaintiff wrongly and illegally constructing shops in 'Khasra' No,333 which is not his property?
(11) Whether the plaintiff is entitled to the decree as prayed for?
(12) Relief?"
5. The parties produced pro and contra evidence in support of their respective claims and finally the learned Tribunal decreed the suit in favour of the respondent against the petitioners' vide judgment and decree dated 29-6-2005. Feeling aggrieved with the said judgment and deeree of the Tribunal, the petitioners preferred instant writ petition with the prayers enumerated hereinabove.
6. Learned AAG submitted written arguments, while learned counsel for the respondent addressed his arguments at the bar. The available record of the case was thoroughly considered.
7. Perusal of record would reveal that in the first round of litigation, respondent No,1 impugned Notice No, 700615-B dated 8-2-1986 under Section 3 of the N.-W.F.P. Public Property (Removal of Encroachment).Act, 1977 by filing Civil Suit in. The Court of Civil Judge, Mansehra on 25-6-1986. The suit was dismissed by the Civil Judge, Mansehra on 22-5-1990 and appeal thereagainst before the District Judge, Mansehra was allowed vide judgment dated 31-3-1992 and the case was, remanded back to Civil Judge Mansehra for decision afresh. The Civil Judge, Mansehra passed an 'ex parte' decree against the petitioners vide judgment dated 4-5-1995 and the appeal filed by the present petitioners against the said ex parte decree was also dismissed by the District Judge, Mansehra, which was impugned before this Court in Civil Revision, which was allowed and the 'ex parte' decree dated 4-5-1995 was set aside and the case was reminded back to the trial Court for proceeding with the suit from the stage preceding the date on which the 'ex parte' decree was passed vide judgment dated 20-4-2001. However, the learned Senior Civil Judge, Mansehra returned the plaint to the respondent vide order dated 18-7-2002 for lack of jurisdiction and directed the respondent to approach the Tribunal under the Act of 1977.
8. Before the Tribunal, the respondent/plaintiff has produced Khalid Khan SOK, Mansehra as (P.W.1), who brought revenue record for the years 1904-05, 1907-08, 1911-12, 1919-20, 1924-25, 1929-30, 1937/38 and 1940-41 as (Exh.P.W.1/1 to Exh.P.W.1/8) respectively. He also brought revenue record for the year 1946-47 (Exh.P.W.1/9 to Exh.P.W.1/11) and copy of correction mutation No,5916/2 attested on 29-4-1943 (Exh.P.W.1/12) through which an area measuring 1 Kanal 3 Marlas, out of 3 Kanals 13 Marlas in 'Khasra' Nos.207 and 209 was entered in the name of petitioners, and its present 'Khasra' number is 332.
' Niaz Hussain Shah Patwari Halqa was examined as (P.W.2), who also brought revenue record for the year, 1946-47, 1951-52, 1957-58, 1967-68, 1991-92 and 1999-2000 as (Exh.P.W.2/1 to Exh.P.W.2/7).
He stated that `Khasra' Nos.207 and 209 have been bifurcated in many other 'Khasra' numbers and he also brought 'Fard Jamabandis' in respect of those 'Khasra' numbers as well. He placed on record 'Fard Jamabandi's in respect of "Khasra" Nos.327, 325, 334, 324 and 332 as (Exh.P.W.2/8 to Exh.P.W.2/12).
' Respondent No,1 Shams-urRehman himself appeared as (P.W:3) and reiterated the averments recorded in the plaint and stated that the petitioners have got no right with the disputed property and the suit be decreed in his favour. He also produced Syed Farman Shah as (P.W.4) in support of his case and Afsar Ali Shah ' Senior Clerk, C&W Department was ' examined as (P.W.5), who brought on ' record copy of impugned notice, as (Exh.P.W.5/1). ' year, 1985-86, the respondent Shams-urRehman started construction and in order to prevent him, Notice No,700615-B was served upon him on 8-2-1986 under Encroachment Act for the removal of the Encroachment.
' Khalid Khan SOK, Mansehra again appeared as (DW-2) and brought on record copy of mutation No,5717 attested on 7-11-1942 as (Exh.DW 1/1). He also produced record of Khata Nos.496/1326 to 1328 for the year 1940-41 as (Exh.DW-2/ P-1). He stated that the disputed property was not included in the mutation in question.
9. It was the contention of learned A.A.-G. That the Tribunal had no jurisdiction to adjudicate upon the matters and to pass declaration relating to correction of mutation or revenue record falling within the exclusive jurisdiction of Revenue hierarchy. In the first instance, in order to determine whether the Tribunal had jurisdiction to adjudicate or entertain the claim of the petitioner, this Court considers it appropriate to identify the matters, wherein the Tribunal has the jurisdiction and the remedies available to an aggrieved person against order/notice under Section 3 of the North- West Frontier ' Province Public Property (Removal of Encroachment) Act, 1977.
' In rebuttal, the petitioner No,3, Nisar Ahmad, Assistant Director R-II, Works and Services Mansehra appeared and recorded his statement as (DW-1). He stated that disputed Khasra No,333 was the ownership of Provincial Government, which was transferred in its name in the year, 1942 vide mutation No,5717 and thereafter the disputed Khasra has been shown in the name of Provincial Government in the revenue record.
' This question has been resolved by the honble Supreme Court of Pakistan in Chief Engineer, Irrigation Department, N. W. F. P. Peshawar v. Mazhar Hussain and 2 others (PLD 2004 SC 682), wherein, it was held that:-- "The argument of the learned Additional Advocate General that the Tribunal had no jurisdiction to declare the plot to be the property of the plaintiffs/respondents, has no force, for, section, 13 of the Act provides that the Tribunal has exclusive jurisdiction to adjudicate upon a dispute that whether any property is not a public property and for that purpose the plaintiffs/respondents invoked the jurisdiction of the Tribunal. Section 11 of the Act imposes a bar on the Civil Courts to entertain any proceedings, grant any injunction or make any order in relation to a dispute that any property is not a public property, therefore, in view of section 11 bar of jurisdiction of the civil Court, no Court except for the Tribunal has the jurisdiction to adjudicate upon a dispute that any property is not a public property. The Tribunal on assessment of the evidence on record both oral and documentary, held the property to be not a public property and declared it to be owned and possessed by the respondents, as such, the decision rendered by it, whereby the rights of the parties with regard to the controversy were conclusively determined under the Act which attained finality and was binding on the parties under section 14(1) and; (2) of the Act, could not be questioned. The Tribunal by adjudicating the controversy between the parties and declaring the plot to be property of the respondents and not a public property, has exercised its lawful jurisdiction vested in it by virtue of section 13 of the Act and the High Court has rightly upheld its judgment being legal, proper and in accordance with law. This petition is accordingly dismissed and leave; refused."
Thus from the aforementioned annunciation of the apex Court, it has been settled that the Tribunal has the exclusive jurisdiction to adjudicate upon the suit of the respondent, wherein, the Tribunal had rightly passed declaration in his favour regarding the property to be not a 'Public Property' .
10. The next contention of the learned A.A.-G. That the suit of respondent No,1 was barred by limitation, as the time spent by the respondent in the forums having no jurisdiction in the matter could not legally be excluded from the period of limitation and that respondent has not filed any application for condonation of delay is without any legal force. It is evident from the record that respondent had been pursuing his case with due diligence since the issuance of the impugned notice in the year, 1986 before Civil Court and it was for the first time, when learned Senior Civil Judge, Mansehra on 18-7-2002 had terminated the proceedings and observed that:-- "Hence, it is concluded that this Court is not having jurisdiction to entertain the present suit. The plaintiff was required to approach the Tribunal provided in the N.-W.F.P. Public Property (Removal of.Encroachment) Act, 1977. Resultantly, the plaint in the instant case is returned to the plaintiff with the directions to approach the competent forum in this respect,"
In such like circumstances, provisions of Section 14 of the Limitation Act, 1908 would be attracted and applicable. In this regard, learned counsel for the respondent relied on Mst. Anwar Bibi's case (2002 SCM R 144), wherein, it has been provided in a very clear terms that:-- "Section 14 of Limitation Act applies to a case where the Court by its own order has terminated the suit or proceedings on the ground that it has no jurisdiction to entertain it or that there is some other cause of like nature which makes it impossible for the Court to entertain it. The object behind is the protection against the bar of limitation of a party bona fide pursuing his case and seeking adjudication on merits but nevertheless prevented from getting decision on merits on account of defect of jurisdiction or other cause of like nature. The phrase "other cause of like nature" has a meaning ejusdem generis that the words, "defect of jurisdiction".
Thus, this Court holds that the suit of the respondent was well within time and the findings of the learned Tribunal on issue No,2 qua limitation are well founded and in accordance with the settled principles and based on correct appreciation of law.
11. So far as factual controversy is concerned, the record produced by the revenue officials would support the contention of the respondent and the petitioners were absolutely failed to prove as to how the name of Provincial Government was entered in the revenue record and how correction mutation No,5717 dated 7-11-1942 was attested in their favour, when their names does not figure in the revenue record regarding the disputed property prior to the attestation of said mutation.
Admittedly, the property has not been acquired by the petitioners, as they could not bring any record in this regard. The burden was on the petitioners to prove that the disputed property was a public property but they failed to discharge the burden by producing cogent and reliable evidence.
Khalid Khan SOK, (DW-1) however, admitted during cross- examination that disputed property has not been included in the disputed Mutation No,5717 dated 7-11-1942. This Court is not inclined to embark upon the factual controversy and reappraisal of evidence and proceed as if it were heading an appeal from a subordinate Court, while exercising constitutional jurisdiction.
12. In view of the principles laid down by the apex Court in the aforementioned judgment delivered in Chief Engineer's case .(supra), this Court is of the opinion that the Tribunal in exercising jurisdiction in the matter has committed no illegality, and taken into account all the relevant and important evidence oral as well as documentary having jurisdiction in the matter in accordance with law on the subject warranting interference by this Court in its constitutional jurisdiction.
13. Accordingly, for the reasons stated hereinabove, this petition being devoid of merit is dismissed.
No order as to costs.