SULTAN TANVIR AHMAD, J.----This civil revision has been filed against the decision dated 12.03.2013 passed by the learned Additional District Judge, Lahore whereby the order of learned trial Court dated 23.102012 was upheld.
2. Brief facts necessary for disposal of the case are that Zanjeer Khan joined Jahad-e-Kashmir with Lashkar -e- Mujahideen . Land was allegedly allotted to Zanjeer Khan by the competent authority under West Pakistan Border Area Regulation, 1959. Balay Khan son of Zanjeer Khan was also in Border Police and allegedly took advantage of his position showing himself as the only legal heir of Zanjeer Khan. Two mutations were allegedly recorded first one No.1603 in favour of Balay Khan and second in favour of Respondents Nos.2 to 4 (legal heirs of Balay Khan) bearing No.2833. The Petitioners alleged that Balay Khan with intention to usurp the land and deprive the other legal heirs of Zanjeer Khan passed on the suit land to Respondents Nos.2 to 4. The Respondents were proceeded ex-parte on 03.09.2005 and ex parte evidence was recorded. The learned trial Court vide its judgment dated 06.07.2006 dismissed the suit of the Petitioners, against which, an appeal was preferred. On 20.06.2012 the judgment dated 06.07.2006 was set aside and case was remanded to the learned trial Court to decide afresh.
Petitioners (present appellants) assailed the judgment dated 20.06.2012 through FAO No.307/12 titled "Din Badshah and others v. Balay Khan and others" and this Court vide order dated 28.06.2012 disposed of the FAO with the direction to learned trial Court for decision of the case in the light of the order impugned expeditiously , preferably within a period of four months commencing from the date of communication of order , strictly in accordance with law .
3. Respondent No.4 filed an application under Order VII, Rule 11 of the Code of Civil Procedure, 1908 for the rejection of plaint on the ground that the learned Civil Court lacks jurisdiction to adjudicate upon the maters emanating out of West Pakistan Border Area Regulation, 1959 [M.L.A. Zone B] (the "Regulation, 1959 "). This application was accepted by the learned trial Court which was assailed before the learned First Appellate Court. On 12.03.2013 the appeal was dismissed, which is challenged by way of present Civil Revision.
4. Mr. Ghulam Farid Sanotra, learned counsel for the Petitioners argued that the learned Courts below have failed to consider that the Border Allotment Committee (the "Committee ") or the appellate forum in hierarchy under the Regulation, 1959 had the powers of allotment and issues which are arising out of the allotment of the land; that present matter is arising out of subsequent inheritance which can only be resolved by the learned Civil Court; that under Section 9 of the Code of Civil Procedure, 1908 the learned Civil Court has jurisdiction which could not be ousted in the present case and placed reliance on case titled Jan Muhammad through Mubarik Ali and others v, Nasir Ahmad and others (2004 SCMR 612); that tribunal under Regulation, 1959 has power to adopt procedure which is summary in nature; that the issue in hand can be resolved only by leading the evidence; that impugned judgment and decree is Per Incurium and the binding judgments of the Honourable Superior Courts have been ignored. Learned counsel has relied upon cases titled Wali Muhammad v. Ellahi Bakhsh through LRs. and others (2005 SCMR 1526 ), Abdul Rehman v. Member (Revenue), Board of Revenue, Punjab, Lahore and 2 others (PLD 1989 Supreme Court 246) and Subedar Sardar Khan through Legal Heirs and others v.
Muhammad Idrees through General Attorney and another (PLD 2008 Supreme Court 591).
5. Conversely , Sh. Fazal Ellahi Shahid, learned counsel for the Respondents has opposed the present revision petition and submitted that the special law prevails over the general law; that learned Civil Court lacks jurisdiction in view of Articles 14 and 15 of the Regulation, 1959. Learned counsel further submitted that the learned Courts below have rightly invoked Order VII, Rule 11 of the Code of Civil Procedure, 1908 and the incompetent suit should be laid to the rest at the earliest moment. Learned counsel for the Respondents has relied upon cases titled Mir Sahib Jan v. Janan (2011 SCMR 27), Begum Hafizunnisa Qureshi and others v. Shaikh Muhammad Hussain and others (2003 CLC 1 156) and Mehr Muhammad Siddique v . Pervaiz Iqbal (2Q1 1 CLC 128).
6. I have heard the arguments and with the able assistance of the learned counsel for the parties record is perused.
The relevant provisions of the Regulation, 1959 are as under:- Article 10. a) A Committee may scrutinize allotment of any State land or immovable evacuee property within any border area and may, on being satisfied that any allotment was made to a person not eligible for allotment, cancel such allotment and direct the allottee to surrender forthwith the property to the Deputy Comm issioner within whose jurisdiction the property is situated, failing which the Deputy Commissioner or the Committee may take possession of the property by evicting any person therefrom with such force as may be necessary for the purpose: Provided that no such order shall be made unless the person likely to be affected thereby is given an opportunity of being heard before the order is passed.
(b) The decision of the Committee uncle sub-paragraph (a), shall be final,] Article 14. (a) For the purpose of holding any enquiry or scrutinizing any allotment, a Committee shall have the same powers as a Civil Court trying a suit under the Code of Civil Procedure, 1908 (Act V of 1908), in respect of:-
(i) Summoning and enforcing the attendance of any person and examining him on oath or af firmation;
(ii) Compelling the discovery and production of any document;
(iii) Requisitioning any public record from any of fice; and
(iv) No legal practitioner shall appear on behalf of any person in any proceedings before the committee.
Article 15. (a) No provisions of this Regulation, or order made or direction issued thereund er, shall be called in question in any Court including the High Court and the Supreme Court, or before any authority , except as provided in this Regulation, and no such Court or authority shall have jurisdiction in respect of any matter arising out of the operation of this Regulation.
(b) No such Court or authority shall be competent to grant any injunction or other order in relation to any proceeding before a committee or before any officer exercising any power or discharging any function under this Regulation or under any order made or direction, issued thereunder .
(Emphasis Supplied)
7. Reading of Articles 14 and 15 of Regulation, 1959 makes it amply clear that jurisdiction of a Civil Court has been ousted except the A matters not covered under the Regulation. This aspect has already been decided by the Honourable Supreme Court of Pakistan in case titled Province of Punjab and others v. Member (Colonies)
Board of Revenue, Punjab and others (1986 SCMR 529 ), the relevant part of the said judgment is as follows:- 'Besides, it appears that the procedure for interfering with such allotments was provided for in Para 10 of Schedule III already reproduced. The Board of Revenue does not figure anywhere in the scheme. Therefore, the very first order of the Board of Revenue by which it proceeded to cancel the allotment of the respondent No.3 was without jurisdiction and outside the frame-work of Regulation under which the land had been allotted by the Border Allotment Committee. That order being absolutely outside the jurisdiction of the Board of Revenue a corrective which removed that order from the scene cannot be objected to on any legal or jurisdictional plane. It had to be corrected and even if not so corrected it had to be ignored so far as its legal implications are concerned .
If there is any illegality or impropriety in making the allotment the procedure prescribed in the Regulation or under the Regulation had to be follo wed and none outside it. On this short ground, this appeal is liable to be dismissed and we dismiss it with costs."
(Emphasis Supplied)
The learned Peshawar High Court in case titled Shah Nawaz v. Umar Daraz and 9 other s (1999 CLC 1883 ) dealt with the matters as under:- "12. If, however , due to any fallacy of facts, misrepresentation or misreading of any document or due to any other vitiating factor , a wrong or unwarranted order was passed, the same could be corrected by the same authority which passed the previous order , or by upper hierarchy under the same law in view of section 21 of the General Clauses. Act, 1897 (Act No.X of 1897), which reads as under:- Power to make, to include power to add to amend, vary or rescind orders, Rules or bye-laws .--- Where by any Central Act or. Regulation, a power to issue notifications, orders, rules, or bye-laws is conferred, then that power includes a power , exercisable in the like manner and subject to the like sanction and conditions (if any), to add to, amend, vary or rescind any notifications, orders, rules or bye-laws so issued." and, in this way , any wrong or mischief can be undone by the same authority ."
This Court in case titled Muhammad Nawaz and 2 others v. Muhammad Khan and 9 others (2009 CLC 663) while deciding the issue arising out of jurisdiction under Land Reforms Regulat ions, 1972 [M.L.R.1 15] held as under:- "5. Apart from the said facts apparent on the face of record the settled rule of law is that jurisdiction to declare any transaction to be void under MLR 115 exclusively vests in the Land Commission or, its subordinate officers and jurisdiction of the Civil Court as also all other Tribunals/Authorities is absolutely excluded as laid down in the case of Mst. Aisha Bibi being relied upon by the learned counsel and which has since been followed by all Courts in the country . The impugned judgment and decree of the learned Additional District Judge, therefore, is wholly without lawful authority ."
(Emphasis Supplied)
8. Once an allotment is made by the Committee, Article 10 of the Regulation, 1959 limits the powers of the Committee to scrutinizing the allotment made under the Regulation. Therefore, when question does not pertain to allotment or the scrutiny of allotment but same arises out of subsequent sale of the said allotted property or subsequent matters of inheritance or any other matter which is not covered in the Regulation, 1959 the Committee is left with hardly any concern. The augu st Supreme Court of Pakistan in case titled Kharaitey and 2 others v.
Border Allotment Committee and 2 others (PLD 1971 Supreme Court 430) has dealt with a similar matter as follows: .........Border Area Committee is not competent to annul or modify a mutation finally authenticated by the competent Revenue Authority . Of course, the Border Area Committee sent a copy of its impugned order to the Revenue Authority concerned to enable them to review the mutation . But this was done apparently to carry into effect the Border Area Committee's 'finding with regard to inheritance and mode of succession and its order cancelling the allotment in 5/8th share, which the committee, in the facts of this case, was, not competent to make. For these reasons, the learned Judges of the High Court were not right in taking the view that there was no lack of jurisdict ion or power in the Border Area Comm ittee to cancel the allotment in excess of entitlement of the appellants."
(Emphasis Supplied)
9. The learned counsel of the parties have not disputed the fact that the suit property was rightly allotted as acknowledgement of the sacrifice by Zanjeer Khan or services rendered by Zanjeer Khan in Jahad-e-Kashmir . The learned First Appellate Court as well as the learned trial Court while rejecting the plaint have not discussed as to whether the real contest between the parties is the allotment of the property or the dispute is regarding the transaction subsequent to the allotment or question to be determined is the legal heirs and inheritance of Zanjeer Khan. This question can be determined by providing a chance to the parties to lead their evidence and exhibit the relevant documents. Learned counsel of the parties, without bringing the relevant revenue documents on record by way of making them exhibit(s), are unable to admit or deny the documents attached with this petition and submitted that they have no instruction to admit or deny the documents, leaving the Court with no option but to make an order of remand.
Present revision petition is accepted by setting aside the impugned orders passed by the learned First Appellate court and the learned trial Court and the case is remanded to the learned trial Court to decide the application under Order VII, Rule 11 of the Code of Civil Procedure, 1908 after framing the issue of jurisdiction and providing opportunity to the parties to lead evidence on the said issue.
10. The instant matter pertains to an allotment made in 1967 and it should be decided expeditiously , therefore, the learned trial Court is directed to decide the question of jurisdiction within one month from the date of receipt of certified copy of this judgment.