CONSOLIDATED JUDGMENT WIQAR AHMAD, J. This order is directed to dispose of W.P No. 827-M/2020, W.P No. 328-M/ 2018, W.P No. 710-M/2018, W.P No. 288-M/2019, W.P No. 378-M/2019, W.P No. 1221-M/2019, W.P No. 290- M/2020 and W.P No. 320-M12020. Facts of the above-mentioned cases are not same, but common legal questions have been existing in all these cases, which are being answered through the instant judgment inter-alia, and all these cases were therefore taken for decision through this single judgment.
2. The questions for determination had arisen in the cases of demarcation and proceedings of partition being conducted by the revenue officers in those districts, wherein revenue record had not been existing. The questions regarding jurisdiction of revenue officers to conduct such proceedings are requir ed to be answered. Respective facts of each petition shall be attended later on, but first said questions shall be answered.
3. Arguments of learned counsel for the parties, learned Asst: A.G as well as Mr. Sher Muhammad Khan, Advocate as amicus curiae have been heard. Notice had also been issued to learned Advocate General, Khyber Pakhtunkhwa in all these cases, as mentioned in order dated 05.10.2020 of one of the connected cases heard together but disposed of through a separate judgment of even date. Barrister Dr. Adnan Khan had also been appointed as amicus curiae but he subsequently requested for relieving him from said responsibility for the reason .that he had been representing a party in a similar nature case (W.P No. 1003- M12020). He was accordingly relieved of the responsibility of assisting the Court as amicus curiae.
4. The two common questions that are required to be answered in all these cases are rephrased below for the sake of clarity; a) Can a revenue officer entertain an application for demarcation of the land in respect of which record of rights or periodical records have not been prepared and maintained under the West Pakistan Land Revenue Act, 1967 (hereinafter referred to as the "Revenue Act"). b) Can a revenue officer entertain, an application for partition in respect of the properties, which have not yet been documented in the record of rights or periodical records prepared and maintained under the Revenue Act.
5. Determination of question (a): (Can a revenue officer entertain an application for demarcation of the land in respect of which record of rights or periodical records have not been prepared and maintained under the Revenue Act); All laws of the land stood extended to Provincially Administered Tribal Areas (hereinafter referred to as `PATA') after repeal of Article 247 of the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter referred to as the "Constitution") by the 25th Constitutional Amendment but it requires a clarification here that the Revenue Act had earlier been extended to PATA and same has had its normal operation in the area even prior to 25th Constitutional amendment. Chapter-X of the Revenue Act deals with surveys and boundaries. Section 117 of Chapter-X of the Revenue Act provides for the power of Revenue Officers to define boundaries, when an application for demarcation is made there-under. Said Section is being reproduced hereunder for ready reference; "117. Power of Revenue Officers to define boundaries.- (1) A Revenue Officer may, for the purpose of framing any record or making any assessment under this Act, or on the application of any person interested, define the limits of any estate, or of any holding, field or other portion of an estate, and may, for the purpose of indicating those limits, require boundary marks to be erected or repaired.
(2) In defining the limits of any land under sub-section (1), the Revenue Officer may cause boundary marks to be erected on any boundary already determined by, or, by order of, any Court of Revenue Officer or any Forest Settlement Officer appointed under the Forest Act, 1927 (Act XVI of 1927), or restore any boundary mark already set up by , or by order of, any Court or any such officer ."
An interested person may file an application for defining limits of an estate, or of any holding, field or other portion of an estate, under the above reproduced Section 117 of the Revenue Act. "Estate" has been defined in Clause-9 of Section 4 of the Revenue Act as follows; "(9) "estate" means any area:- for which a separate record of rights has been made; or ii. which has been separately assessed to Land Revenue; or iii. which the Board of Revenue may, by general rule or special order, declare to be an estate;"
Similarly , "holding" has been defined in Clause-10 of Section 4 of the Revenue Act as follows; "(10) "holding" means a share of portion of an estate held by one land owner or jointly by two or more land owners;"
Definition of the word "estate" as provided in Clause-9 of Section 4 of the Revenue Act, means an area for which a separate record of rights has been made or is separately assessed to land revenue or is declared by the Board of Revenue by way of rule or special order as an estate. Similarly, "holding" means a share or portion of an estate held by one land owner or jointly by two or more land owners. The purpose of entrusting revenue officer with the powers of defining boundaries, under section 117 of the Revenue Act has been, to enable him to frame record or make assessment under the Revenue Act or on the application of an interested person to define the limits of any estate, or of any holding, field or other portion of an estate, and may for the purpose of indicating those limits require boundary marks to be erected or repaired. The connotation "field or other portion of an estate" as per the definition mentioned above, means an area for which record of rights has been made or is assessed to land revenue. In all the cases of demarcation aimed at disposal through this judgment, none of the case related to such land, which may be called as an estate or part of an estate, or holding as defined in Clauses-9 & 10 of Section 4 of the Revenue Act.
6. Section 121 of the Revenue Act provides for power of Board of Revenue to make rules for demarcation of boundaries and erection of boundary marks. It has clearly been laid down therein that the Board of Revenue may, make rules as to the manner in which the boundaries of all or any of the estates in any local area were to be demarcated or the boundary marks erected within those estates. The rules so framed may only provide for demarcation of those lands which fall in the definition of an estate. The rules framed for demarcation of lands would therefore be inapplicable in those cases, where the land record has not been existing and which do not come in the definition of an estate. Other related provisions contained in Chapter-X of the Revenue Act have also been so framed as to provide for the effect and ancillary matters of defining boundaries of an estate, holding or part of an estate and can only be given effect in an area in respect of which the revenue record has been existing.
No provision, either in the Revenue Act or rules framed there under had been providing for demarcation of such areas, where land record has not been existing already except a case where such a survey or determination of boundaries is necessary for the purpose of preparation of land record, at the time of settlement of land. Revenue officers, cannot therefore entertain any application for demarcation in respect of land, which has not yet been documented in the revenue record and in that respect record of rights has not been prepared.
7. Exclusion of jurisdiction of civil Court provided in Clauses-xx and xxi of sub-section 2 of Section 172 of the Revenue Act would not be effective in those areas, where revenue record has not been prepared and notified. Said clauses provided for barring jurisdiction of civil Court, which need a consideration here and are reproduced hereunder for ready reference; "(xx) any question connected with or arising out of or relating to any proceedings for the determination of boundaries of estates subject to river action under the provisions of this Act; and
(xxi) any claim regarding boundaries fixed under any of the enactments hereby repealed or any other law for the time being in force, or to set aside any order passed by a competent officer under any such law with regard to boundary marks."
Wordings of the above reproduced Clause (xx) are clear , which bar any question connected with or arising out of or relating to any proceedings for the determination of boundaries of estates under the provisions of the Revenue Act. As explained earlier , no "estate" has been existing in these areas where revenue record has not been notified and therefore there cannot be any question of determination of its boundaries by the revenue officer under Chapter-X of the Revenue Act. For said reason, Clause (xxi) would also not apply and jurisdiction of the civil Courts shall not be barred in cases where there arises any dispute relating to boundaries of private properties not yet documented in the record of rights.
8. Determination of a question as wherefrom property of a particular person or persons starts and where it ends, in such a situation as described above, would be a pure question of title, which can even otherwise not be allowed to be adjudicated upon by a revenue officer exercising powers under the Revenue Act.
These are purely judicial functions and cannot be left at the hands of a revenue officer. Right to hold property is a fundamental right guaranteed under Article 23 of the Constitution. Article 24 of the Constitution also provides for protection of property rights. Question of title of a property is a serious question and requires well defined mechanism for adjudication thereupon. The mechanism should also be such that parties have right to a full-fledged hearing at a well defined judicial proceedings. It should also include proper rights of appeal to such forums which exercises full independence. The Revenue Act has not been enacted for providing such forum or system of adjudication for determination of questions of rights. Purpose of the Revenue Act has mainly been providing for laws relating to documentation of revenue record for the purpose of generation of land revenue. It is a special law and the forums established therein cannot be deemed to have been established for the purpose of adjudicating upon proprietary rights of the parties including disputes of title. By now Article 10-A also stands inserted in the Constitution by way of the Constitution (18 Amendment) Act 2010, which requires that for the determination of his civil rights and obligations or in any criminal charge against him, a person shall be entitled to a fair trial and due process. Hon'ble Supreme Court of Pakistan while rendering its judgment in the case of Al-Jehad Trust through Raeesul Mujahideen Habib-ul-Wahabb-ul-Khairi and others vs. Federation of Pakistan and others reported as PLD 1996 Supreme Court 324 has observed that the right to have access to justice through an independent judiciary was a fundamental right, and without anth independent judiciary the right would be meaningless and would not have efficacy and beneficial value for the public at large. Same view had also been reiterated in the case of Al-Jehad Trust through Raeesul Mujahideen Habib-ul-Wahabb-ul-Khairi and others vs. Federation of Pakistan and others reported as PLD 1997 Supreme Court 84 as well as in the case of All Pakistan Newspapers Society and others vs. Federation of Pakistan and others reported as PLD 2012 Supreme Court 1. In the case of Sh.
Riaz-ul-Haq and another vs. Federation of Pakistan Through Ministry of Law and others reported as PLD 2013 Supreme court 501, the Hon'ble Supreme Court of Pakistan had observed that determination of a question of rights cannot be left at the discretion of persons who had not been having knowledge and experience in the legal field. It was further held in para-45 of the judgment; "The Principle of separation and independence of judiciary as envisaged in Article 175 of the Constitution is also applicable to the lower judiciary as it is the part of the judicial hierarchy . Thus, its separation and independence has to be secured and preserved as that of superior judiciary . In terms of Article 175 read with Article 203 of the Constitution, the lower judiciary should be separated from the Executive and the High Court shall supervise and contro l all courts, subordinate to it. Reference may be made to the case of Government of Sindh v. Sharaf Faridi (PLD 1994 SC 105). In the case of Dr. Mobashir Hassan v.
Federation of Pakistan (PLD 2010 SC 265) it has been held that the Legislature is competent to legislate but such legislation would not be sustaina ble if it is contrary to the principle of independence of judiciary as mentioned in Article 2A of the Constitution, which provides that independe nce of judiciary shall be fully secured read with Article 175 of the Constitution, which lays down a scheme for the establishment of the Courts, including the superior Courts and such other Courts as may be established by law. As it has been held that Service Tribunal discharges judicial functions, thus falls within the definition of a "Court' in view of the above discussion, therefore, the Tribunals have to be separated from Executive following the principle of independence of judiciary in view of Article 175(3) of the Constitution."
It was further clarified in said judgment that wherever a Court makes determination of rights of parties, the function would be judicial in nature and such Court or Tribunal should be manned, controlled and regulated in accordance with judicial principles. Relevant findings of the Hon'ble Court are reproduced hereunder for ready reference; "In the case of Messrs Ranyal Textiles v. Sindh Labour Court (PLD 2010 Karachi 27) it has been observed that under the judicial system as established by the Constitution of the Islamic Republic of Pakistan, there are Courts and there are Tribunals. However , the Tribunals are only limited to the Tribunals specified in the Constitution such as Election Tribunal [Article 225], Administrative Tribunal [Article 212] and Tribunal relating to military affairs [Article 199(5)]. Beside these Tribunals, whenever judicial power is vested in a forum, whatever be its designation, be it called a Court, be it called a Tribunal or be it called a Commission, for all legal intents and purposes it is a Court and therefore has to be manned, controlled and regulated in accordance with the established judicial principles and the law relating to manning, regulation and control of Courts in Pakistan. Therefore, Labour Appellate speaking, through Tribunal, is a Court: it was held that the T ribunal, legally denominated as a nothing more, nothing less.
The perusal of above case-law makes it abundantly clear that a tribunal is not always function as a 'Court', nor its action is always judicial; however , the determining factor is the nature of the dispute to be resolved by the Tribunal. If the Tribunal has to determine a dispute relating to a right or liability , recognised by the Constitution or law and is under an obligation to discover the relevant facts, in the presence of the parties, in the light of the evidence produced by them, it acts judicially . Besides, whenever judicial power is vested in a forum, be it called a Court or Tribunal, for all legal intents and purposes it is a Court. Further , such Tribunals have to be manned, controlled and regulated in accordance with the established judicial principles."
A Division Bench of this Court while giving judgment in the case of Ali Azim Afridi, Advocate High Court Peshawar vs. Federation of Pakistan reported as PLD 2020 Peshawar 105, had also declared Section 141 of the Revenue Act -- which authorized a revenue officer to constitute itself as a civil Court and determine question of title as ultra-vires and inef fective by holding; "Though special courts and tribunals are formed under Article 212 of the Constitution but they have to exercise powers within their allotted spheres and could not intrude beyond that. Similar powers are exercised by a Rent Controller when only relationship of landlord and tenant exists but he as the Judicial Officer presides over the hearing and in case of denial he can frame a preliminary issue in this regard. A Family Court is also presided over by a Judicial Officer in cases of matrimonial dispute between spouses interse. Every special court is presided over by a Judge but not in the ibid Act. It is a remnant of olden colonial times.
This is not the sole reason, we note that in view of the term implied in subsection (1) or he may himself proceed to determine the question as though he were such a court and in subsection (5)(b) of section 141 if the revenue officer continues to proceed with the trial despite dispute of title his order is to be treated as order of Civil Judge and .a decree of civil court, made appealable before the District Judge. By inserting such clause legislature was certainly not oblivious that the jurisdiction of revenue officer ceases to exist but fell short of applying the trichotomy of powers principle from the initial stage when question of title was raised in written reply. Just by their own figment of imagination the revenue hierarchy exercise their authority without following due process of law. While enacting this provision legislature is not oblivious that the powers of revenue hierarchy ceases from that point forward but still it authorizes a revenue officer to deliver judgment as a civil court by adopting procedure of the Civil Procedure Code.
The stage from .where jurisdiction of revenue officer ends is where the jurisdiction of the civil court begins. If the law allows him to continue to exercise such jurisdiction it overlaps and it is not a step in aid of justice as it empowers an officer of the executive branch to exercise powers of judicial organ of the State."
As corollary to above made discussion, it is held that in those districts where revenue record had not been prepared and maintained, a revenue officer would not have a jurisdiction to entertain applications for demarcation of boundaries of estate under section 117 of the Revenue Act and the bar of jurisdiction contained in Clauses-xx & xxi of sub-section 2 of Section 172 of the Revenue Act would not be operative against a civil Court entertaining any suit for the purpose.
9. Determination of Question (b): (Can a revenue officer entertain, an application for partition in respect of the properties, which have not yet been documented in the record of rights or periodical records prepared and maintained under the Revenue Act); Section 135 of the Revenue Act gives jurisdiction to a revenue officer to entertain application for partition. Said section of law being relevant is reproduced hereunder for , ready reference; "135. Application for partition.- Any joint owner of land may apply to a Revenue Officer for partition of his share in the land if:- a) at the date of the application the share is recorded under Chapter VI as belonging to him; or b) his right to the share has been established by a decree which is still subsisting at the date; or c) a written acknowledgment of that right has been executed by all persons interested in the admission or denial thereof."
The above cited provision of law gives jurisdiction to a revenue officer to enter tain application for partition but requires existence of one of the three conditions for exercising such jurisdiction. The essential conditions include; i. Where the share is recorded under Chapter VI of the Revenue Act as belonging to the applicant. (Clause
(a) of Section 135 of the Revenue Act); or ii. His right to the share has been established by a decree, which is subsi sting at the date of filing the application. (Clause (b) of Section 135 of the Revenue Act); or iii. A written acknowledgement of share in joint immovable property is executed by all the persons interested in admission or denial thereof. (Clause (c) of Section 135 of the Revenue Act).
10. If any of the above mentioned three conditions are available to an applicant, he may file an application for partition of his share in joint immovable property, which may be proceeded by the revenue officer according to rest of the provisions of the Revenue Act and Rules framed there-under, otherwise an application cannot be entertained by a revenue officer. In all the connected cases, the revenue record, in respect of the property sought to be partitioned, has neither been prepared nor maintained under Chapter VI of the Revenue Act. The first condition could not be met in any of these cases. The other two conditions remain i.e. determination of share by a decree of Court or a written acknowledgement of the right to such share, which are needed to be looked into, in the perspective of facts of each case separately , and such exercise shall be taken in latter part of this judgment. The question can therefore be answered easily by referring to Section 135 of the Revenue Act and clarifying that only in case of existence of any of the three situations given in Section 135 of the Revenue Act, an application may be entertained by a revenue officer for partition of joint immovable property , otherwise he would be divested of the jurisdiction to entertain such an application.
11. An ancillary question, raised by most of the parties in the instant proceedings have been, that if they had made a recourse to civil Court for partition of joint immovable property ,, their suit would have been hit by the bar of jurisdiction contained in Clause (xviii) of Section 172 of Revenue Act. Clause (xviii) being relevant is reproduced hereunder for ready reference; "(xviii) any claim for partition of an estate or holding, or any question connected with or arising out of, proceedings for partition, not being a question as to title in any of the property of which partition is sought;"
Clause (xviii) of Section 172 of the Revenue Act bars a suit before civil Court for partition of an estate or joint holding, or any question connecting with or arising out of proceedings for partition. The word "partition" used in Clause (xviii), no doubt means a partition for which an application is entertained under section 135 of the Revenue Act. A case where an application cannot be entertained under section 135 of the Revenue Act, cannot therefore be subjected to the bar of jurisdiction contained in Clause (xviii) of Section 172 of the Revenue Act. So far as the words "any claim for partition of an estate or holding" are concerned, such words need to be understood according to the definition given in Section 4 of the Revenue Act, which has already been dilated upon in earlier part of this judgment. It has already been concluded that a land in respect of which record of rights had not been maintained or which was not assessable to Land Revenue or in respect of which Board of Revenue had not issued a special order declaring it as an estate, could not be termed as "estate". Similarly , such an estate would not come in the definition of "holding" which means a share of portion of an estate held by one land owner or two or more jointly. The bar of jurisdiction of civil Court in respect of entertaining application for partition would not therefore be effective against a civil Court in these areas, where revenue record has not at all been existing. Even otherwise, bar of jurisdiction of civil Court cannot be lightly inferred. Any law providing for exclusion of jurisdiction of civil Court has to be considered strictly as held by Hon'ble Supreme Court of Pakistan in case of Muhammad Tufail vs. Abdul Ghafoor and others reported as PLD 1958 Supreme Court (Pak.) 201, wherein the Hon'ble Court on the basis of ratio of an earlier judgment in the case of Secretary of State vs. Mask & Co. (AIR 1940 PC 105), had observed; "The general principle was enunciated in Secretary of State v. Mask & Co. AIR 1940 P C 105. At page 110, their Lordships observed: "It is settled law that the exclusion of the jurisdiction of the Civil Courts is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied. It is also well settled that even if jurisdiction is so excluded, the Civil Courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with, or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure". Similarly, to Muhammad Din and others v. Imam Din and another AIR 1948 PC 33: PLD 1947 P C 317, the Privy Council held that "Their Lordships have no doubt that the Civil Court has power to entertain a suit, in which the question is whether the executive authority has acted ultra vires."
Similarly, this Court in its earlier judgment given in the case of Azad Khan and another vs. Senior Member Board of Revenue Khyber Pakhtunkhwa, Peshawar and 3 others reported as PLD 2019 Peshawar 208 has also held that, where a question of title is involved, the civil Court would have the jurisdiction to entertain a lis. Relevant part of the observation is reproduced hereunder for ready reference; "Revenue Court only includes where proceedings relating to the rent revenue or profit of land used for agricultural purposes is tried. It is governed by the Tenancy Act, 1950. It implies that revenue authorities performing functions under the Land Revenue Act, 1967 do not fall within the definition of Court, thus for all intents and purposes the powers of a civil Court trying a suit of civil nature where question of title is involved has got supervisory capacity to undo the effect of any act performed by the revenue authorities."
Further reliance in this respect may be placed on judgment of this Court given in the case of Mohabat Khan vs. Abdul Hameed reported as 2016 YLR 1120, as well as judgment in the case of Hafiz Kalu and others vs. Muhammad Bakhsh and others reported as 2019 YLR 1523.
12. The contention of learned counsel, that their suit, if filed before learned civil Court would be barred by provisions of Section 172 of the Revenue Act has therefore been misplaced for the reasons mentioned above. Civil Courts shall be fully competent to entertain suits for partition of joint immovable properties in respect of such land, which had not yet been documented according to Chapter-VI of the Revenue Act. While passing a preliminary decree in such a case, then again it is for the civil Court to deal the matter according to the provision of Order XX Rule 18 of the Code of Civil Procedure 1908 (hereinafter referred to as 'CPC'), which provides; "18. Decree in suit for partition of property or separate possession of a share therein.-- Where the Court passes a decree for the partition of property or for the separate possession of a share therein, then,-- 1) If and in so far as the decree relates to an estate assessed to the payment of revenue to the Government, 'the decree shall declare the rights of the several parties interested the property , but shall direct such partition or separation to be made by the Collector , or any gazetted subordinate of the Collector deputed by him in this behalf, in, accordance with such declaration and with the provisions of section 54; 2) If and in so far as such decree relates to any other immovable property or to movable property , the Court may, if partition or separation cannot be conveniently made without furthe r inquiry , pass a preliminary decree declaring the rights of the several parties interested in the prop erty and giving such further directions as may be required."
13. The Court after declaring rights of the parties vis-a-vis their entitlement in any joint immovable property may direct the remaining job to be done by a revenue officer. The civil Court may also direct at the time of preliminary decree that the leftover job may be done by the civil Court itself. The above quoted rule further fortifies our opinion when it provides that in case of an estate which is assessed to payment of land revenue, the matter of final partition shall be left to the Collector, while in case of a property not being an estate assessed for land revenue, the Court has the discretion under Sub-rule-2 of Rule 18 of Order XX CPC, to make proper directions for further proceedings. Provision of sub-rule 1 of Rule 18 of Order XX CPC providing for referring the matter to the Collector shall not be applicable regarding such properties in respect of which revenue record has not been existing,, and it would be within the discretionary powers of civil Court to direct at the time of passing preliminary decree, as to whether the leftover job of separating shares should be left to the determination of revenue officer or to be done by the civil Court itself. There is no legal bar in the way of civil Court even to entertain an application for grant of final decree, if direction to the contrary has not been given at the time of passing preliminary decree.
14. Nature of the disputes involved in all these connected cases also testified to the fact that the questions taken cognizance by the revenue officers in the garb of demarcation and partition, had in-fact been questions relating to determination of title in respect of the disputed lands. In some of the cases, the disputed lands stretched over very vast areas, particularly in those cases, where the disputes were between two villages. Determination of such questions and entitlement of the respective parties vis-a-vis their rights to property has no doubt been job of civil Courts. Whether it was in the shape of entertaining application for partition - in those districts where land record had not been notified and where shares of the respective parties had not been determined by a subsisting decree - or case of demarcation, the revenue officers had in-fact been performing the functions of civil Courts vis--vis determination of entitlement and other rights of ownership and possession of the respective parties in the property in dispute in those cases. Such a job was out of the purview of jurisdictional contours of the revenue officers, defined under the Revenue Act and related laws & rules.
15. After answering the two questions and determining the touchstone for discerning facts of each respective case, these cases are being taken individually for determination.
16. W.P No. 827-M12020 (Mian Shehzada Jan & others vs. Muhammad Israr & others, arising out of partition proceedings); An application was filed by petitioners for separating the land belonging to people of village Dislawer before the revenue officer i.e. Additional Assistant Commissioner Wari at Dir Upper on. 18.09.2017. Petitioners had based their claim on the decision of Assistant Commissioner Wari dated 28.04.1984 passed under the Provincially Administered Tribal Areas Civil Procedure (Special Provisions) Regulation, 1975 (hereinafter referred to as 'Regulation'). It had been claimed that out of 18 toras of land, Musakhel tribe had been having 6-1/2, Zarabkhel tribe had been having 6-1/2 and Ahmad Walikhel had been having 5 toras and that said land should be distributed among the respective tribes by metes and bounds. The revenue officer, vide his order dated 23.04.2018 held that order dated 03.05.1984 of the then Assistant Commissioner Wari, District Dir had been based upon a compromise decree between the parties and that same had not been an executable decree being time bared. The revenue officer had also held that the property in dispute had been consisting of vast area of the land and determinations of the questions had purely been of civil nature, which had not been falling in his jurisdiction.
Said order was maintained by Additional Deputy Commissioner , Dir Upper vide his order dated 30.11.2018, which order was however set aside by the Additional Commissioner Malakand Division vide his order dated 06.12.2019.
Judgment of the Additional Commissioner Malakand Division was challenged by respondents before the Senior Member Board of Revenue Khyber Pakhtunkhwa (hereinafter referred to as "SMBR"), which was set aside by the Member-II, Board of Revenue Khyber Pakhtunkhwa vide its order dated 18.06.202Q . Feeling aggrieved there-from, petitioners have invoked constitutional jurisdiction of this Court with the following prayer; "It is, therefore, most humbly prayed that on acceptance of instant writ petition this Hon'ble Court may graciously be pleased to declare the impugned order and judgment dated 18.06.2020 rendered by the learned respondent No. 17 as illegal, unlawful, without lawful authority, without jurisdiction and void ab- initio and the judgment and order of remand dated 06.12.2019 handed down by respondent No. 16 may kindly be upheld. Similarly, the judgments and orders of respondents No. 14 & 15 may also be declared null and void, illegal, without lawful authority and of no legal effect.
Any other relief, which is not specifically asked for in the instant writ petition, may also be granted in favour of the petitioners."
17. Perusal of record reveals that there had been no subsisting decree determining the respective shares of petitioners or respondents in the property in dispute. Land revenue record has not been prepared and notified for .the area in dispute also. Learned counsel for petitioners has contended that order dated 03 05.1984 of Assistant Commissioner Wari passed under the Regulation had been a subsisting decree providing for determination of rights, but I am afraid I would not be able to agree with learned counsel in this respect. Perusal of the order reveals that it had in-fact been based upon decision of jirga appointed in the case, wherein also rights of the tribes had been determined but specific shares of petitioners had never been determined in the decision of jirga or the judgment. The requirement of a subsisting decree mentioned in Clause (b) of Section 135 of the Revenue Act, means such a decree where specific right of the applicant or applicants to a particular share in some specific property stands determined with particularity, so that when the application for partition is brought under section 135 of the Revenue Act, there remains no doubt regarding the extent of entitlement of a particular applicant or applicants. A joint decree or order in favour of the whole tribe would not fulfill the requirement of Clause (b) of Section 135 of the Revenue Act. The revenue officer has rightly shown his inability and had rightly held that decision on the application required determination of numerous questions of title and same had been out of the purview of his jurisdiction. The order had also been rightly maintained by the Additional Deputy Commissioner, Dir Upper. Same had wrongly been disturbed by the Worthy Additional Commissioner Malakand Division vide his order dated 06.12.2019, which wrong has been remedied by the Member-II, Board of Revenue Khyber Pakhtunkhwa in the impugned judgment. Learned counsel for petitioners could not show any illegality or material irregularity in the impugned judgment, warranting interference of this Court in exercise of its constitutional jurisdiction. Resultantly, the instant writ petition was found lacking any substance and same is accordingly dismissed.
18. W.P No. 710-M/2018 (Muhammad Alam vs. Muhammad Younas & others, arising out of partition proceedings); An application was filed by respondents No. 1 to 4 on 11.02.2008 for separating their shares from the joint property before the revenue officer i.e. Deputy District Revenue Officer (Judicial) Timergara. Petitioner was summoned, who appeared and filed his reply along with an application for rejection of the application for partition on the ground that revenue Court has no jurisdiction in the matter as question of title had been involved therein. The revenue officer, vide his order dated 21.01.2010 held that partition had already taken plate between the parties and therefore the application for partition was dismissed. Said order was challenged by respondents through an appeal before Deputy Commissioner Dir Lower, who vide his order dated 27.04.2010 allowed the appeal and remanded the case back to lower revenue Court with direction to frame issues, record evidence and decide the case afresh. After remand, the application for partition was accepted by Assistant Commissioner, Samarbagh vide his order dated 27.08.2015. Petitioner filed an appeal there-against before Additional Deputy Commissioner, Dir Lower at Timergara, which was partially accepted and the case was remanded back to the lower revenue Court vide order dated 11.04.2016. Aggrieved of said order, respondents No. 1 to 4 filed revision petition before the Additional Commissioner Malakand, which was dismissed vide order dated 28.12.2016 but their revision filed before Worthy SMBR was accepted vide impugned order dated 30.03.2018 of Member-11, Board of Revenue Khyber Pakhtunkhwa, whereby order dated 27.08.2015 of Assistant Commissioner, Samarbagh was restored. Feeling aggrieved there-from, petitioner has invoked constitutional jurisdiction of this Court with the following prayer; "It is therefore, most humbly prayed that on acceptance of this writ petition the impugned orders dated 27.08.2015 and 30.03.2018 of learned respondents No. 5 and 8 respectively, may graciously be set aside and be declared the same as illegal, arbitrary, without lawful authority and without jurisdiction and consequently the orders dated 11.04.2016 & 28.12.2016 of learned respondents No. 6 & 7, regarding remand of case, may kindly be restored or any other order which this Hon'ble Court deems fit in the facts and circumstances of the case may also kindly be passed."
19. Perusal of record reveals that there had been no subsisting decree determining the respective shares of petitioners or respondents in the property in dispute. Land revenue record has not been prepared and notified for the area in the dispute also. The revenue officer has wrongly and without lawful authority framed issues and accepted application for partition, which order had also been wrongly restored by the Member-II, Board of Revenue Khyber Pakhtunkhwa in the impugned judgment. Resultantly, the instant writ petition is allowed, order dated 30.03.2018 of Member-IL Board of Revenue Khyber Pakhtunkhwa and order dated 27.08.2015 of Assistant Commissioner Samarbagh are set aside.
20. W.P No. 288-M/2019 (Zaheer Uddin & others vs. Latif-ur-R ehman & others , arising out of partition proceedings); Respondents No. 1 to 8 filed an application for separating their shares from joint property by way of official partition on 22.03.2016 before the Additional Assistant Commissioner, Dir Upper. Petitioners were summoned, who appeared and filed an application for rejection of the application for partition, wherein they raised an objection as to jurisdiction of the revenue officer. The revenue officer i.e. Additional Assistant Commissioner, Dir vide his order dated 02.03.2017 held that the revenue Court had the jurisdiction to entertain the matter under section 135 of the Act and application of petitioners (herein) was dismissed. Said order was maintained upto the higher revenue forum i.e. Member-II, Board of Revenue Khyber Pakhtunkhwa who vide its order dated 31.12.2018 dismissed revision petition filed by petitioners. Aggrieved there-from, petitioners have filed the instant constitutional petition with the following prayer; "It is therefore, humbly prayed that on acceptance of this writ petition; i. All the orders dated 31.12.2018, 03.07.2018, 12.10.2017, 02.03.2017 passed by the respondents No. 12, 11, 10 & 9 respectively, may kindly be declared as illegal, unconstitutional and be set aside and the application filed by the petitioners may graciously be accepted as prayed for; ii. That any other relief which this honorable Court deems fit and proper in the circumstances may also be very kindly granted.
21. Perusal of record reveals that there had been no subsisting decree determining the respective shares of petitioners or respondents in the property in dispute. Land revenue record has not been prepared and notified for the area in the dispute also. The revenue officer has wrongly entertained application under section 135 of the Revenue Act, which order had also been wrongly maintained by all the revenue forums. Resultantly , the instant writ petition is allowed and orders of all the revenue of ficers impugned herein are set aside.
22. W .P No. 1221-M/2019 ( Inayat Ullah & others vs. Asad Khan & Others , arising out of partition proceedings); An application was filed by one Rahim Zeb (uncle of petitioners) against petitioners and private respondents for separation of his share from joint property by way of official partition on 07.11.2016 before the Assistant Commissioner, Dir Lower at Chakdara. Petitioners had filed an application for rejection of application for partition, wherein they had raised a number of objections including objection as to jurisdiction of the revenue officer. Their application was dismissed by the revenue officer vide his order dated 02.11.2017 by holding that the revenue Court had the jurisdiction to entertain the application under section 135 of the Act.
Aggrieved of the order, petitioners filed an appeal before Additional Deputy Commissioner, Dir Lower at Timergara, who vide his order dated 11.01.2018 accepted the appeal, set aside order dated 02.11.2017 of lower revenue Court, returned application for partition to Rahim Zeb (Petitioner of that application) and directed the parties to approach the civil Court for establishing their title. Orders of the lower revenue Courts were reversed by the Worthy Additional Commissioner Malakand vide his order dated 29.03.2019 passed in appeals filed by respondents No. 1 & 2 as well as Rahim Zeb (petitioner of partition application). Feeling aggrieved there-from, petitioners as well as private respondents filed their separate revision petitions before SMBR, both of which were dismissed by Member-II, Board of Revenue Khyber Pakhtunkhwa vide its order dated 12.09.2019. Petitioners have then approached this Court through the instant constitutional petition with the following prayer; "It is, therefore, humbly prayed that on acceptance of this writ petition, the impugned orders dated 29.03.2019, 12.09.2019 may kindly be set aside and order dated 11.01.2018 may please be restored. Any other relief which this august Court deemed fit in the circumstances of the case and not prayed for by the petitioners, may also graciously be granted in favour of the petitioners against respondents."
23. Perusal of record reveals that there had been no subsisting decree determining the respective shares of petitioners or respondents in the property in dispute. Land revenue record has not been prepared and notified for the area in the dispute also. The Additional Deputy Commissioner Dir Lower at Timergara had rightly set aside order dated 02.11.2017 of the revenue officer i.e. Assistant Commissioner, Dir Lower at Chakdara and had rightly directed the parties to approach the civil Court for establishing their title Said order had wrongly been disturbed by the Worthy Additional Commissioner Malakand as well as the Member- II, Board of Revenue Khyber Pakhtunkhwa by way of the impugned judgments. Resultantly, the instant writ petition is allowed and order dated 12.09.2019 of Member-II Board of Revenue Khyber Pakhtunkhwa, order dated 29.03.2019 of the Additional Commissioner Malakand as well as order dated 02.11.2017 of Assistant Commissioner Dir Lower at Chakdara are set aside.
24. W.P No. 320-M/2020 (Lal Badshah & others vs. Said Badshah & others , arising out of partition proceedings); An application for partition was filed by respondent No. 1 against petitioners and private respondents for separation of his shari share in joint property on 09.08.2019 before the Assistant Commissioner, Malakand at Batkhela. Petitioners appeared and filed their joint reply to the application, wherein they had raised a number of objections including objection as to jurisdiction of the revenue officer. Whereas, respondents No. 2 to 10 appeared and supported application for partition by filing their replies. After framing issues and recording evidence of both the parties, the revenue officer allowed application for partition and passed a preliminary decree vide his order dated 06.02.2018. Aggrieved there-from, petitioners filed an appeal before Additional Deputy Commissioner , Malaka nd, who vide his order dated 14.05.2018 dismissed the appeal, which order was maintained upto the Board of Revenue Khyber Pakhtunkhwa who vide its order dated 09.01.2020 dismissed revision petition of petitioners. Feeling aggrieved there-from, petitioners have invoked constitutional jurisdiction of this Court with the following prayer; "It is therefore, humbly prayed that on acceptance of this writ petition, the impugned orders and judgments of all the lower Courts dated 06.02.2018, 14.05.2018, 18.07.2019 and 09.01.2020 may kindly be set aside and the application for partition may kindly be dismissed throughout with cost. Any other relief not specifically prayed for but this august Court deemed proper and just may also be granted to petitioners.
25. Perusal of record reveals that there had been no subsisting decree determining the respective shares of petitioners or respondents in the property in dispute. Land revenue record has not been prepared and notified for the area in the dispute also. Perusal of record further reveals that there had been a title dispute existing between the parties but same had wrongly been entertained by the revenue Courts below.
Resultantly, the instant writ petition is allowed and orders of all the revenue forums impugned herein are set aside.
26. W.P No. 328-M/2018 (Walayat Khan & others vs. Muhammad Shahzad & others , arising out of proceedings of demarcation); This case has got a chequered history but same need not be reproduced, for the purpose of instant adjudication.
The instant writ petition arises out of an application filed by predecessors of petitioners on 09.02.1989 before Assistant Commissioner, District Dir praying for demarcation of the disputed boundaries between the parties.
Respondents had raised a number of objections in their reply including their objection as to jurisdiction of the revenue officer. Certain proceedings were conducted during pendency of the application including appointment of Tehsildar as local commission, who had also accordingly submitted his report. The matter had also once come up before this Court, which had been remanded in pursuance of the agreement between the parties at the bar for conducting fresh demarcation vide its order dated 21.05.2014. At that stage neither objection as to jurisdiction has been raised nor answered by this Court and the matter has simply been remanded with concurrence of both learned counsel for the parties. During fresh demarcation proceedings conducted by the Tehsildar after remand both the parties agreed upon resolution of their dispute through local jirga, who had accordingly given their recommendations on 27.01.2015. In light of recommendations of the jirga, demarcation proceedings were conducted and completed vide order dated 17.02.2016 of Tehsildar, Dir. which order was set aside by Deputy Commissioner, Dir Upper vide his order dated 25.05.2016 rendered in appeals filed by respondents and the case was remanded back to Tehsildar concerned for deciding the case on merits. Aggrieved there-from, petitioners had filed revision petition before the Worthy Commissioner Malakand Division. The Additional Commissioner Malakand Division vide his order dated 23.11.2016, set aside order of the lower revenue Court dated 25.05.2016 and maintained order of the Tehsildar, on accepting the revision. The matter, had then come before Member-II, Board of Revenue Khyber Pakhtunkhwa, who vide its order dated 20.12.2017 accepted revisions filed by respondents and remanded the case back to Tehsildar Dir Upper for deciding the case strictly on merits and according to law and rules. This is second round of litigation that the matter has come up before this Court through the instant constitutional petition filed by petitioners with the following prayer; "It is therefore, most humbly prayed that on acceptance of this writ petition the impugned orders dated 25.05.2016 and 20.12.2017 of learned respondents No. 65 & 67 respectively may graciously be set aside and be declared the same as illegal, arbitrary, without lawful authority and without jurisdiction and consequently 'the orders dated 17.02.2016 and 23.11.2016 of learned respondents No. 64 & 66 regarding demarcation between the parties may kindly be restored or any other order which this Hon'ble Court deems fit in the facts and circumstances of the case may also kindly be passed."
27. The chequered history of the case mainly appears to have been caused by the fact that the matter has not been related to simple demarcation of boundary of an estate, holding or part of an estate. It had in-fact been a dispute between two separate villages of Darora and Jabar, District Dir Upper. It had been a dispute regarding title over large piece of land and same had therefore been beyond the capacity, legal as well as practical, of the revenue officer concerned to decide, in absence of any revenue record in the area. It is admitted that revenue record has never been prepared under provisions of the Revenue Act in respect of the land in dispute.
When the land in dispute could not be categorized as an estate, or holding or part of holding, then proV isions contained in Chapter-X of the Revenue Act cannot be applied thereto. The revenue officer had therefore not been having jurisdiction to entertain application for demarcation under section 117 of the Revenue Act. The matter has wrongly been remanded by Member-II, Board of Revenue Khyber Pakhtunkhwa vide its order dated 20.12.2017, (impugned herein) to Tehsildar , Dir Upper for decision afresh and conducting demarcation once again. When the revenue officer was found to have been divested of the jurisdiction in the matter , he cannot be allowed to proceed further therewith. Resultantly , the instant writ petition is allowed, order dated 20.12.2017 of Member-II, Board of Revenue Khyber Pakhtunkhwa and order dated 25.05.2016 of Deputy Commissioner , Dir Upper are set aside.
28. W.P No. 378-M12019 (Shahabuddin Khan & others vs. Feroz - Khan & others, arising out of proceedings of demarcation); There had been a dispute of title between the inhabitants of village Dodba, Dir represented by Haji Amanullan etc, and the inhabitants of village Gharbi Hayagay, Dir represented by Habib Khan etc and in that respect, the inhabitants of village Dodba had filed a suit on 08.03.2002 before the authorized officer/Deputy Commissioner under section 5-A of Martial Law Regulation, No. 123. During proceedings in the suit, the inhabitants of village Rokhan Bala, Dir/ respondents herein, had also filed an application for their impleadment. On 08.06.2007, a compromise was effected between the competing parties i.e. inhabitants of village Dodba and the inhabitants of village Gharbi Hayagay. Accordingly, the suit was disposed of on the basis of compromise vide order dated 14.10.2008 of the District Officer Revenue & Estate, Dir Upper, while application of the respondents for their impleadment in the proceedings was dismissed. They were however directed to approach the proper forum for settlement of their dispute.
29. After a long period of eight years, respondents had filed an application dated 06.12.2016 before Deputy Commissioner, Dir Upper for demarcation of the disputed boundaries between the parties.
Respondents had raised a number of objections in their reply including their objection as to jurisdiction of the revenue officer. Application for demarcation was accepted by the Deputy Commissioner Dir Upper vide his order dated 07.08.2017, which order was reversed by the Worthy Additional Commissioner vide his order dated 24.07.2018. Aggrieved of said judgment, respondents had filed revision petition before the Worthy Senior Member Board of Revenue Khyber Pakhtunkhwa, which was accepted by Member-IT, Board of Revenue Khyber Pakhtunkhwa, vide its order dated 03.01.2019, whereby order dated 24.07.2018 passed by the Worthy Additional Commissioner Malakand was set aside while order dated 07.08.2017 passed by the Deputy Commissioner, Dir Upper was resorted. Aggrieved there-from, petitioners have 'invoked constitutional jurisdiction of this Court with the following prayer; "It is therefore, humbly prayed that on acceptance of the instant writ petition; i. The impugned order dated 07.08.2017 passed by respondent No. 5 and order dated 03.01.2019 passed by respondent No. 7 be declared as illegal, without lawful authority and of no legal effect. ii. Any other remedy, which this Hon'ble Court deems fit in the circumstances of the case, may also be granted in favour of the petitioners."
30. Though there have been earlier litigations regarding disputes of ownership of the parties but there had never been a decree of the Court determining respective shares of the parties in the disputed property . The decree passed in proceedings under MLR-123 has not been determining the respective shares of the parties to the suit with specifications. It has already been held in earlier part of this judgment that requirement of a subsisting decree under section 135 of the Revenue Act means such a decree which specifies shares of the parties with particularity .
Revenue record had not been existing in respect of the property in dispute. There has not been a written acknowledgment. Neither the necessary conditions for entertaining an application under section 135 nor the essential conditions for entertaining an application under section 117 of the Revenue Act, had been forthcoming in the petition. The application has been filed under section 117 of the Revenue Act for demarcation, which powers or jurisdiction had not been available to the concerned revenue officer as discussed in earlier part of this judgment.
When the land in dispute could not be categorized as an estate, or holding or part of holding, then provisions contained in Chapter-X of the Revenue Act cannot be applied thereto. The revenue officer had therefore not been having jurisdiction to entertain application for demarcation under section 117 of the Revenue Act and his order dated 07.08.2017 has wrongly been restored by Member-II, Board of Revenue Khyber Pakhtunkhwa vide its order dated 03.01.2019, impugned herein. Resultantly , the instant writ petition is allowed, order dated 03.01.2019 of Member-II, Board of Revenue Khyber Pakhtunkhwa and order dated 07.08.2017 of Deputy Commissioner , Dir Upper are set aside.
31. W.P No. 290-M/2020 (Hukam Khan & others vs. Ajmir Khan & others , arising out of proceedings of demarcation); An application was filed by petitioners before Assistant Commissioner, Dir Upper for demarcation of the disputed boundaries between residents of village Tangi Banda and residents of village Atrango, Tehsil Dir District Dir Upper.
Respondents were summoned, who had filed their reply, wherein they had raised a number of objections including their objection as to jurisdiction of the revenue officer. After hearing arguments of learned counsel for the parties, the revenue officer i.e. Additional Assistant Commissioner, Dir accepted application for partition vide his order dated 28.11.2014. Said order was reversed by the Deputy Commissioner vide his order dated 16.11.2017 by holding that there had been a dispute of title which could not be determined by the revenue Court rather same could have been determined by the civil Court and the interested party should first apply to the civil Court for determination of their title. Order of the Deputy Commissioner, Dir Upper was maintained upto the Board of Revenue Khyber Pakhtunkhwa, who vide its order dated 16.10.2019 dismissed revision petition of petitioners filed against orders of the revenue fora below. Aggrieved there-from, petitioners have invoked constitutional jurisdiction of this Court with the following prayer; "It is therefore, most humbly prayed that on acceptance of this writ petition, the impugned orders dated 16.11.2017, 26.04.2019 and 16.10.2019 of learned respondents No. 15 to 17, respectively, may graciously be set aside and be declared the same as illegal, arbitrary, without lawful authority and without jurisdiction and consequently the order dated 28.11.2014 of learned respondent No. 14 regarding demarcation proceedings between the parties may kindly be restored or any other order which this Hon'ble Court deems fit in the facts and circumstances of the case may also kindly be passed."
32. Perusal of record reveals that there had been a dispute of title between the parties and same had therefore been beyond the jurisdiction of the revenue officer concerned to decide the same, in absence of any revenue record in the area. It is admitted that revenue record has never been prepared under provisions of the Revenue Act in respect of the land in dispute. When the land in dispute could not be categorized as an estate, or holding or part of holding, then provisions contained in Chapter-X of the Revenue Act cannot be applied thereto. The revenue officer had therefore not been having jurisdiction to entertain application for demarcation under section 117 of the Revenue Act. His order dated 28.11.2014 has rightly been set aside by the Deputy Commissioner , Dir Upper vide his order dated 16.11.2017, which order has been maintained upto Member -II, Board of Revenue Khyber Pakhtunkhwa. Learned counsel for petitioners could not show any illegality or material irregularity in the impugned judgments, warranting interference of this Court in exercise of its constitutional jurisdiction. Resultantly, the instant writ petition was found lacking any substance and same is accordingly dismissed.
33. Any of the parties, if find any of their proprietary rights or other rights ancill ary thereto abridged may have recourse to the civil Courts having jurisdiction in the matter , where their cases shall be decided according to law. It is however clarified that the determination and interpretation made above shall not affect those cases which have already been decided finally and have attained the status of past and closed transaction. Ratio of this judgment shall have a prospective operation only .