SHAKEEL AHMAD, J.- Through the present Civil Revision Petition, the petitioners have called in question the judgment and decree dated 11.12.2012, passed by the learned Additional District Judge, Kohat whereby the appeal of the petitioners against the judgment and decree dated 30.11.201 1 of the learned Civil Judge-IV , Kohat was dismissed.
2. The facts giving rise to the filing of suit for declaration by the petitioners have been recounted in the judgment and decree dated 30.11.201 1 of the learned Civil Judge-IV , Kohat however , concisely stating the admitting fact are that the petitioners/plaintif f brought a suit for declaration in respect of the property in khasra No.1003, 1004 and 1005 measuring 19 kanals 18 marlas; that respondents/defendants having adjacent landed property , encroached upon the property in dispute. Feeling aggrieved, the petitioners submitted an application for demarcation of the same, accordingly demarcation was carried out and the respondents/ defendants were found in possession of excess property measuring 7 kanals and 13 marlas, the demarcation report was submitted before the revenue officer at Kohat, who announced his decision on 18.01.2007, whereafter , the defendants were asked to admit the right of the petitioners/plaintif fs, but in vain which necessitated to file the suit. After service of summons, the respondents put their appearance contested the suit by filing written statement. From the divergent pleadings of the parties, 10 issues were framed and the parties were directed to produce their evidence. On the conclusion of trial, vide judgment and decree dated 30.11.201 1 the suit was dismissed by the learned Civil Judge-IV , Kohat. The relevant portion of the judgment is reproduced below:- For the aforementioned reasons, this court lacks jurisdiction to assume the role of Collector and decide the matter which substantially falls in his jurisdiction.
3. Not contended with the same, the petitioners filed appeal before the learned District Judge, Kohat which was marked to the learned Additional District Judge-III, Kohat for disposal. Vide judgment and decree dated 11.12.2012, the learned Additional District Judge-III, Kohat dismissed the appeal. The relevant portion of the judgment of the learned Additional District Judge-III, Kohat is reproduced below:- Since, jurisdiction of civil court is barred to entertain such like matters; therefore, appointment of Local Commissioner and disposal of suit on merits was beyond jurisdiction of Civil Court and in this regard assessment of trial court is just in accordance with law and need not be interfered with.
Accordingly , appeal in hand, being devoid of any force, stands dismissed with costs. Appellants may approach Revenue Court for the desired purpose, if so advised. Learned trial court be informed accordingly , its record be returned forthwith.
4. It has been argued by learned couns el for the petitioner that impugned judgment and decree passed by the learned lower fora is in conflict with Order-7 Rule-10 CPC; that the petitioners have sought possession of the land measuring 1 kanal in khasra No.2/1003, land measuring 5 kanals 13 marlas 2/1004 and land measuring 7 kanals 13 marlas in kahsra No.1005 out of 91 kanals 18 marlas on the basis of demarcation carried out by the revenue officials; that the civil court has got jurisdiction to adjudicate upon the matter, and that both the courts below wrongly held that the civil court has got no jurisdiction to decide the controversy between the parties as held by this court in case reported in PLJ 2013 Peshawar-240.
5. Conversely, the learned counsel representing the respondents argued that the civil court has got no jurisdiction to adjudicate upon the matter, therefore, the suit was rightly dismissed and the judgment and decree of the learned trial court was upheld by the learned District Judge; that the judgment of the learned lower fora is based on proper appreciation of evidence which needs no interference. However, when the learned counsel for the respondents was confronted with the judgment of the learned lower fora he stated that instead of deciding the suit on merits the plaint should have been returned to the petitioner for approaching before the appropriate forum.
6. Arguments heard and record perused.
7. Perusal of the record reflects that earlier the petitioners filed an application for demarcation of the property in dispute before the revenue officials, which was entertained and adjudicated upon. It is true that mere demarcation of the land is the matter within the exclusive domain of the revenue authorities, but to claim possession of the area demarcated and encroached upon the suit has necessarily to be filed in a civil court.
8. Perusal of the plaint further reflects that the petitioners have sought possession of the encroached land by filing the suit before the civil court. Admittedly, Rule-67-A and Rule-67-B for demarcation of land and eviction of unauthorized landowners in the West Pakistan Land Revenue Rules, 1968 were added by the Government of Punjab through Notification No.2313-73- LR-I dated 23.11.1973, however, this amendment was not adopted by the Province of KPK. After completion of demarcation proceedings, the job of the revenue officer gets completed and he has no power to restore the possession as per law prevalent in KPK and he has got no power under the Land Revenue Act, 1967 to restore the possession of the encroached land and for that purpose the aggrieved person has to file civil suit for possession as the ibid amended rules is not applicable in the province of KPK being not adopted. Reference in this behalf may be made on the cases reported as Mehram Khan and others Vs. Fateh Khan and others (1983 SCMR 366), Dilawar Khan and 2 others Vs. Mst.
Mehrun Nisa and others (2011 YLR 872) and Ghulam Haider and others Vs. Masaud and others (PLJ 2013 Peshawar-240 ).
9. For what has been discussed above, this petition is allowed and the impugned judgments and decrees of the learned lower fora are set aside and the case is remanded back to the learned trial court for decision afresh on merits after providing the parties an opportunity of hearing, and if the learned counsel representing the respondents raised any objection on the maintainability of the suit other than the jurisdiction of the court, that may be decided in accordance with law. The parties are directed to appear before the learned trial court on 25.4.2018.