Through the instant writ petition, petitio ners have challenged the impugned judgments dated 16.01.2018 and 16.01.2019, rendered by Respondents No. 3 and 4 respectively whereas, the former accepted revision petition of respondents against the impugned judgment of DOR/District Collector Swabi dated 28.06.2012, while the latter has dismissed the revision petition filed against the judgment of Respondent No. 3 dated 16.01.2018.
2. In essence, private respondents herein, had instituted a suit recovery of the amount of produce in regard to the suit land, well mentioned in the head note of the plaint, against petitioners along with an application for ejectment of petitioners, therefrom the suit land. Petitioners filed an application for dismissal of the suit before the Deputy District Officer Judicial, Mardan, which was accepted and the suit was dismissed vide judgment dated 11.02.201 1.
Respondents filed an appeal against the judgment of DDO (J), Mardan, dated 11.02.201 1 before District Collector Mardan, which was dismissed by impug ned judgment dated 28.06.2012. Respondehts filed a revision petition before the Additional Commissioner Mardan, which was accepted and the impugned judgments of lower fora mentioned hereinabove were set aside through the impugned judgment dated 16.01.2018. Petitioners, preferred a revision petition before the Khyber Pakhtunkhwa, SMBR (Senior Member Board of Revenue), but their revision petition was dismissed through the impugned judgment dated 16.01.2019, hence the instant writ petition.
3. Learned counsel for petitioners contended that the impugned judgments are against law, as respondents are not owner of the suit property , while petitioners are recorded owners as per revenue record on the basis of Mutation No. 1268 dated 31.12.1963 and decre e dated 06.04.2004, but both the concerned Courts below have not appreciated the legal aspect of the case and illegally accepted the appeal and dismissed the revision petition filed by petitioners.
4. On the other hand, learned counsel for respondents argued that petitioners had succeeded in obtaining an ex- parte decree, in regard to the suit property , through instituting a suit against the Revenue officials without impleading respondents therein, and such ex- parte decree has no value as respondents could not be deprived of their property without due process of law .
5. I have heard learned counsel for the parties and have gone through the record.
6. The record reveals that the suit property in not the ownership of respondents, which had already allotted to predecessors in interest of petitioners vide Mutation No. 1268 dated 31.12.1963 and lateron, shares of petitioners were adjusted through Court decree dated 04.04.2004. In fact, the suit property and other property not subject matter of dispute had resumed by Land Commission under West Pakistan Land Reforms Regulation, 1959, and thereafter allotted to the predecessors in interest of petitioners Mst. Akbaro, which in turn, transferred to petitioners.
7. The private respondents had challenge d the judgment and decree dated 04.04.2004 before competent Court of law and in this regard, this Court had already made direction to the learned trial Court to decide the application 12(2), CPC as well as the civil suit instituted by respondents, in regard to the suit property , vide its judgment dated 17.02.2020. The judgment of this Court dated 17.02.2020 reveals that the Court decree dated 04.04.2004 and Mutation No. 1264 of the year 1963, both are still intact and petitioners are recorded as co-owner , in record of rights in regard to the suit property , therefore, a stranger could not institute suit for produce, till he confirm his title before the civil Court.
8. The impugned judgments rendered by both the fora below are without jurisdiction, and rendered in utter violation of law. Therefore, both the impugned judgments rendered by Respondents No. 3 & 4 respectively are set aside, by acceptance of this writ petition and the suit filed by respondents stand dismissed accordingly .