' MUHAMMAD ALAM, J.--- Petitioners have assailed order dated 17-03-2014 of the learned District Judge Skardu, through this petition. Through impugned order, learned first appellate court passed partial decree by accepting CFA No.13/2013 partly in the following words:-
15. In view of the above this appeal is partially accepted. Impugned judgment/decree dated 24- 04-2013 passed in Civil Suit No.(30/1984) 66/98 is hereby altered and following order is passed.
(i) Plaintiff/respondent No.1 has not been given propriety rights by the provincial government under Rule 13(1)(a) of Nautore Rules hence question of his declaration of title over the suit property does not arise.
(ii) Orders of review passed by the Collector Skardu dated 27-12-1976 and 28-03-1978 are apparently illegal being exparte, same comes within the mischief of Section 163(2)(a)(i) of the Land Revenue Act, 1967 and same does not hold the ground after the order of remand passed by the then Revenue Commissioner Northern Areas vide the document Ex-p/5 on record hence both the orders dated 27-12-1976 and 28-03-1978 are hereby set aside.
(iii) After setting aside the orders of review cited above legal implication is that status of plaintiff/respondent No.1 as "Breaker of the suit land" is restored. He shall be entitled to hold the possession of land in his above said capacity for a period of two years as mentioned in the Nautore Rules.
(iv) Order of allotment in favour of defendant No.2 No.Allot2(85) dated 23-12-1985 is hereby set aside to the extent of suit property. And if any portion of suit property has been utilized for construction so much of the portion shall be deducted from the allotted land of defendant No.2/appellant No.2.
(v) This order shall not affect the powers of Provincial Government regarding allotment of suit land under Nautore Rules and Provincial Government shall be at liberty to exercise its powers under rules 13, 14 and 18 of Nautore rules,
(vi) Owing to a question of law parties are left to bear their own costs.
2. Respondent No.1/plaintiff filed Civil Suit No. 66/1998 (Original No.30/1984), in the court of Senior Civil Judge Skardu, who through his judgment/decree dated 24-04-2013, decreed the suit in the following words:--- ' RELIEF.
"Keeping in view my above findings/ observations suit stands decreed except that portion of land which has been allotted for construction of houses for defendants 7 to 15 and thereby its nature has been changed but in return thereof defendants 1 to 6 shall pay compensation of the said land according to the prevailing market rate. Parties to bear their own cost."
' In the plaint of the suit, respondent No.1 /plaintiff has prayed that suit land measuring 20 kanals was allotted to him. Later on, the allotment order was reviewed entailing to modification of the same. Through the suit modification of the original allotment order, petitioners/defendants reduced the allotment to 10 marlas. The review of the original allotment order is legally wrong and respondent No. l/plainfiff is entitled to a declaration to the effect that the review of original allotment order is illegal. In the plaint, respondent No.1/ plaintiff has further prayed for a permanent injunction restraining the petitioners/defendants Nos.1 to 6 as well as the respondents Nos.7 to 16, from all kinds of interference in the suit land and allotment No.02/1985 dated 03-04-1985 and mutation No,08-05-2008 dated 23-12-1985 be cancelled. Through the plaint of the suit, respondent No.1/plaintiff has prayed for possession of suit land also. After complete trial of the suit, learned trial court passed the above decree that the first appellate court varied in the above referred words.
3. I have gone through the file with the assistance of the learned counsel for parties and have heard arguments also. In the peculiar circumstances of the case in hand, I deem it proper to reproduce section 115, C.P.C., which governs civil revision:- "115. Revision.--- [(1) The high Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears--
(a) to have exercised a Jurisdiction not vested in it by law, or
(b) to have failed to exercise a Jurisdiction so vested, or
(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit].
4. As has already been remarked that the two impugned orders of the learned first appellate court and the learned trial court are different from each other, . So I had to thoughtfully consider the arguments advanced by the counsel for parties. Learned counsel for parties advanced arguments on many aspects of the case but the following are main points and also interesting legal as well as factual questions:--
(a) Whether the plaint is correctly drafted and the suit is competent in the present form?
(b) Whether the civil court has jurisdiction to try the suit although admittedly the case is still pending trial in the revenue forum?
(c) Whether the relief granted in the impugned order dated 17-03-2014 is completely different from the relief sought through the plaint? If so, whether there is sufficient evidence in proof of the relief granted by the learned first appellate court through the impugned order?
(d) Whether there are flouting material defects in both the impugned orders of the learned trial court and learned first appellate court?
(e) Whether the allotment orders in the names of petitioners/defendants is overlapping being from the land allotted to respondent No.1/plaintiff? And how such allotments in the names of petitioners/defendants Nos.2, 5 and 6 adversely affects respondent No.1/plaintiff?
(f) Whether the orders of allotments of suit land in the names of petitioners/defendants Nos.2, 5 and 6 is correct?
(g) From plain perusal of the two impugned order it is evident that the trial court has directed for compensation of that part of suit land which is in possession of petitioners and almost similar views are of the first appellate court through relief No.15(iv) of the impugned order. So parties as well as the two courts below are not certain about the quantity of suit land in possession of petitioners Nos.2, 5 and 6. Who is legally bound to clear this ambiguity and how?
5. A discussion in the light of peculiar circumstances of the case and the proceedings of the two courts below are very important for disposal of this case. The circumstances of the case in hand are very peculiar, firstly because:- "Both the courts below have either failed to examine the plaint of respondent No.1/plaintiff or have willfully or negligently omitted to examine the same. I have examined the plaint which suffers from following apparent defects:- "In plaint of the suit, respondent No.1/plaintiff has prayed for a number of remedies, which are contradictory to each other and also some prayers are not within the jurisdiction of a civil court. On the one hand, respondent No.1/plaintiff prayed for permanent injunction which is possible only when title of respondent No.1/plaintiff to suit land is either admitted or declared so by a competent court. In the case in hand, respondent No.1/plaintiff is neither admitted owner of suit land nor has been declared owner of the suit land by any competent court. From plain perusal of plaint, it is rather admitted that after allotment of 20 kanals land in favour of respondent No.1/plaintiff, the same allotment was reviewed by the petitioner No.1 and the allotment was reduced to 10 marlas.
On the other hand, respondent No.1 /plaintiff has prayed for possession of suit land in the last prayer part of the plaint. This prayer of the respondent No.1/ plaintiff shows that suit land is not in his possession, and if the same is in possession of petitioners Nos.2, 5 and 6, then the question that what was the factual position of the suit land is still unanswered? Through the plaint, respondent No.1/plaintiff has specifically prayed for the cancellation of review of original allotment order of suit land. The question of cancellation of review of the original allotment order is admittedly still pending trial before the Collector Skardu. Through the plaint, respondent No.1/ plaintiff has further prayed for cancellation of allotment order of suit land in the names of petitioners Nos.2, 5 and 6.
From the averments of the plaint, it is also evident that mutation of suit land has been attested in the names of petitioners Nos.2, 5 and 6. In para No.6 of the plaint, respondent No.1 /plaintiff has frankly admitted that the case of cancellation of original allotment order of suit land through review, is pending trial before the revenue courts, as a result of remand of the said case to the collector by the revenue commissioner and is pending trial in the said court. So, why and how a civil court can take cognizance of a case, admittedly pending trial in a revenue court?
' Secondly, because:- "The operative part of impugned order reproduced supra clearly shows that the learned first appellate court did not declare respondent No.1/ plaintiff owner of the suit land. This very declaration has attained finality as respondent No.1/plaintiff did not challenge said findings of the first appellate court anywhere. It is really very astonishing that on the one hand, learned first appellate court refused to declare respondent No.1/plaintiff as owner, then how the said court pleased to pass order contained in para Nos.15(iii) and 15(iv), reproduced supra? Through relief 15(iii), the learned first appellate court has declared respondent No.1/plaintiff as breaker of the suit land. Admittedly, respondent No.1/plaintiff is resident of Astore and the word breaker of land used in Nautore Rules is specific for a local person who has lands adjacent to the government land, being broken. From joint perusal of reliefs Nos.15(i) to 15(iv), reproduced supra, it is evident that the first appellate court has practically acted as a revenue court. The first appellate court did not stop here and went ahead with yet another contradictory finding embodied in 15(v) of the impugned order, reproduced supra, whereby, the learned first appellate court recognized powers of the provincial government. The provisions of relief No.15(v), read with provisions of relief No.15(i), clearly show that the review of original allotment order of suit land in favour of petitioner No.1 and allotment of the same in favour of petitioners Nos.2, 5 and 6, was correct. So the reliefs granted by the learned first appellate court are not only completely different from the prayer of the respondent No.1 /plaintiff but are also against law, therefore, are wrong in the eye of law.
' Thirdly, because:- "Learned counsel for parties argued on the question that where the suit land situated, in Sukemedan Skardu or in Sindus Skardu? In this connection, counsel for parties referred revenue record which shows that the land allotted to petitioners Nos.2, 5 and 6 is situated in Sukimedan Skardu while the land allotted to respondent No.1 /plaintiff is situated in Sindus, Skardu. In this connection, respondent No.1/ plaintiff was bound to establish that the land allotted to him, through the original allotment order in his favour, is the same land, i.e., suit land, and is in possession of petitioners Nos.2, 5 and 6. So the very important question rises that how and why the allotment of suit land, in favour of petitioners Nos.2, 5 and 6, adversely affected respondent No.1 /plaintiff? And what remedy respondent No.1 /plaintiff is entitled to against petitioners Nos.2, 5 and 6, because petitioners Nos.2, 5 and 6 are prima facie bonafide allottees of the suit land? I have heard learned counsel for parties at length on this particular point that the allotment, in favour of petitioners Nos.2, 5 and 6, is overlapping regarding the land allotted to respondent No.1 /plaintiff through the original allotment in his name. I do not find any evidence- in this connection. In my opinion, in such a case, respondent No.1 /plaintiff was bound to establish the quantity of land allotted to petitioners Nos.2, 5 and 6 from the land measuring 20 kanals, allotted to respondent No.1 /plaintiff, because admittedly, petitioners Nos.2, 5 and 6 have obtained lands measuring 50 kanals. Through the impugned orders, learned two courts below have declared respondent No.1 /plaintiff entitled to compensation of that part of suit land which is in possession of petitioners Nos.2, 5 and 6 and have used the words "that part of suit land". This part of findings of the two courts below is very vague and confusing.
6. In sequel of above discussion, I hold that the above pointed out defects in the two impugned orders of the learned District Judge and learned trial court are material irregularities, inviting interference of this court. . Both the orders of District Judge and the trial court are set aside. Plaint of the respondent No.1 /plaintiff rejected under Order VII, rule 11, C.P.C. Holding that the questions raised through the plaint are still revenue matters and civil court has no jurisdiction to try the suit unless and until the revenue forum is exhausted. Parties or any of the parties to approach the revenue forum, and through this order, I direct the District Collector for resuming the proceedings pending trial before him and also to pass orders after doing the legal formalities that he is required to do under the relevant laws. Parties to bear their own costs. This file be consigned to record.