' IKRAMULL ALI KHAN, J.
' Through the instant appeal under Section 20 of the Auqaf Ordinance, Khyber Pakhtunkwa 1979, the appellant has challenged the impugned order/judgment dated 15.6.2015 rendered by learned District Judge, Mardan, whereby, application of respondents Nos,2 and 3 under Order VII, Rule 11, C.P.C. Was accepted and the suit of the appellant was dismissed.
2. In essence, the appellant filed a suit against the respondents before the learned District Judge, Mardan in respect of the property, fully mentioned in the heading of the plaint, situated in Mauza Michi (Mardan) and the notice dated 31.12.2014 issued by respondents in respect of suit property is against law, revenue record and established rules, which is ineffective upon the right of the appellant. The respondents contested the suit and filed application under Order VII, Rule 11, C.P.C.
For dismissal of the suit of the appellant. The appellant submitted reply to the same and the learned trial Court after hearing the parties, accepted the said application of respondents and dismissed the suit of the appellant under Order VII Rule 11, vide impugned judgment/order dated 15.06.2015, hence the instant appeal.
3. I have heard arguments of learned counsel for the parties and have gone through the record.
4. The record reveals that the suit property has been declared waqf property under Notification No,89-90/01, dated 01.02.1950, whereby, it was acquired by the Provincial Government under administration of the Auqaf Department/ respondent No,2. The record further reveals that the appellant has been recorded in column of tenancy as occupancy tenant, to the extent of 32 kanal and 11 marla comprised of khasra No,2499.
5. It is settled principle of law that once a tenant always a tenant. Appellant had not challenged the notification dated A 01.02.1950, within the prescribed period provided under section 11 of the NWFP Waqaf Properties Ordinance, 1979, which IA reads as:-- "11.Petition to District Court against notification. -(1) Any person claiming any interest in any waqf property in respect of which a notification has been issued under section 7 may, within thirty days of the publication of such notification, petition the District Court within whose jurisdiction the waqf property or any part thereof is situated for a declaration:--
(a) that the property is not waqf property;
(b) that the property is waqf property within limits stated in the petition: ' Provided that, notwithstanding anything contained in any law for the time being in force, or in any custom or usage, or in any decree, judgment, or order of any Court or other authority, or in any proceeding pending before any Court or other authority no such petition shall lie in respect of any interest in the income, offerings, subscriptions or articles referred to in Explanation 4 to clause (e) of section 2, or the services or ceremonies (Rasoomat) mentioned in section 7.
(2) The District Court may, for reasons to be recorded, refuse to issue any process for compelling the attendance of any witness for the purpose of examination or the production of any document or other thing if it considers that it has been made for the purpose of vexation or delay".
6. Appellant had based his claim merely on the entries effected in column of tenancy, where he has been recorded as an occupancy tenant. No doubt, on promulgation of the Tenancy. Act, 1950, all the occupancy tenants who had acquired their occupancy rights in term of Section 5 of the Punjab Tenancy Act, 1887 were declared to be owner to the extent of the land, for which, they either were not paying any rent or to the extent of proportionate share in produce retained by such a tenant, but appellant could not take benefit of the provisions contained in Section 4 of the KPK Tenancy Act, 1950, because the Government were excluded from the operation of the provisions of Section 3 and 4 of the KPK Tenancy Act, 1950, which reads as:--
3. Non Acquisition of occupancy rights.---Subject to the Provisions of this Act no person whether a tenant or not, shall, after the commencement, of this Act, acquire, have or continue to have a right of occupancy in any land under any enactment, contract, decree or order of any Court or officer.
4. [Rights of ownership of certain persons. ---Any occupancy tenant, who had the right of occupancy in the land so occupied by him under section 5 (1) (c) of the Punjab Tenancy Act, 1887, or who may prove by a reliable, clear and unambiguous evidence, before a court of competent jurisdiction, that he is the real owner, according to Shariah, of the land under his tenancy, and who occupies any land as such, shall become full owner of such land without payment of any compensation to the landlord and shall acquire it free from any encumbrance created in respect of that land by the landlord] "
7. As the respondents had not so far challenged the entries in the name of appellant as an occupancy tenant, therefore, the same could not be brought under discussion, in order to give any findings, however, the concession and rights conferred upon any occupancy tenant in term of Section 4 of the KPK Tenancy Act, 1950 could not be extended to the appellant.
8. On the other hand, appellant had not been declared as owner, by any competent authority or Court, before the target date i,e, 23.03.1990 as fixed by the August Supreme Court in case of Qazalbash Waqf v. Chief Land Commissioner (1989 SC MR 2012), therefore, no decree could be passed, even, in regard to occupancy rights, if any in favour of appellant.
9. This Court in case of "Noor Maidar v. Altaf Ahmad Khan" , reported as 2014 YLR 468, has already been dealt with similar nature issue, where ownership was claimed on the basis of Section 4 of the Khyber Pakhtunkwa Tenancy Act, 1950, wherein it was held that "the Hon'ble Supreme Court of Pakistan, in case of Muhammad Yousaf v. Hukomat Pakistan (PLD 1990 SC 760) has defined thereof, some rules, principles for such like occupancy tenants and has declared sections 4 and 5 of the N.W.F.P. Tenancy Act, against the injunction of Islam. No one could acquire proprietary rights in any land being the occupancy tenant after the target date 23.03.1990 as held thereof by the Federal Shariat Court
10. By virtue of the provisions contained in Section 3 of the Khyber Pakhtunkwa Tenancy Act, 1950, all kind of rights of occupancy had been relinquished on promulgation of the Khyber Pakhtunkwa Tenancy Act, 1950.
11. As, it could not be denied, that the suit property had declared to be waqf property vide notification dated 01.02.1950, but the appellant did not opt to challenge the same within the prescribed period of thirty days provided under Section 11 of the N.W.F.P. Waqaf Properties Ordinance, 1979.
12. It could also be ascertained without any other view that appellant had instituted another suit with regard to the same cause of action under the same title prior to the one in hand, which had withdrawn with permission to institute a fresh suit and thereafter, irrespective of the direction or finding rendered by the learned Court below, the instant suit has been instituted on 21.01.2015 while the limitation provided for such like cases in terms of Section 120 of the Limitation Act, is six years.
13. No doubt, every wrong entry in every fresh periodical record give fresh cause of action, if a person is in possession of land but once the limitation start could not be condoned on mere having possession over the land.
14. As the suit instituted by the appellant was not only hopelessly time barred in terms of Section 11 of the N.W.F.P. Waqaf Properties Ordinance, 1979 or under Article 120 of the Limitation Act, but on other hand, appellant has no cause of action in terms of Section 4 of the KPK Tenancy Act, 1950 which had already been declared against the injunction of Islam by the Apex Court.
15. In such peculiar facts and circumstances of the case, the provision of Order VII, Rule 11, C.P.C.
Was applicable. In case of S.M.Sham Ahmad Zaidi through legal heirs (2002 SCM R 338), the Apex Court has held which is as follows:-- "Besides averments made in the plaint, other material available on record which on its own strength was legally sufficient to completely refute the claim of the plaintiff, could also be looked into for the purpose of rejection of the plaint Not necessary that other material would be taken as conclusive proof of the facts stated therein but it actually moderated that other material on its own intrinsic value to be considered along with the averments made in the plaint".
16. The purpose of Order VII, Rule 11, C.P.C. Is to save not only precious time of Court but also the other party from the agonies of prolong litigation, where on the face of the record; a suit is barred by law. The only appropriate remedy for a party to protect these established rights and save him from long fruitless litigation, he has to invoke the jurisdiction of the Court under Order VII, Rule 11, C.P.C. The reasons given by learned Courts blow are based on correct appreciation of law, require no legal interference.
17. For the reasons given hereinabove, the instant appeal is dismissed.