MUHAMMAD IJAZ KHAN, J. Through the instant petition, the petitioners have prayed as under:- "It is, therefore prayed that by accepting this revision petition, order, judgment, decree dated 06.04.2007 of lower appellate Court to the extent of upholding judgment, decree of trial Court dated 07.01.2005 on issues No. 7 & 15 relating to non-existence of jurisdiction may be reversed and the case be remanded to appellate Court for decision on merits."
2. A suit was brought by the present petitioners against 75 persons including respondents No. 10 to 18 who are the Ex-Rulers of Swat for a declaration to the effect that they are owners in possession of land bearing Khasra Nos. 187, 188, 189 and 193 measuring 96 Kanal 2 Marlas commonly known as Sogram situated in Shinkud Sub Tehsil Charbagh Tehsil Swat District Swat being their ancestral property and that respondents/defendants are not legally entitled to deny this right of the petitioners/plaintiffs. They have also prayed for issuance of permanent injunction to restrain the respondents/defendants from interference in the suit property. They have also challenged the entries made in the revenue record in the names of respondents/defendants No. 1 to 6 and 17 to 52 and have prayed that necessary correction in their favour may be made.
3. The respondents/defendants were summoned, in which defendants No. 1 to 18, 22 to 28, 36, 37 and 39 to 57 filed their written statements in three sets. In view of the pleadings of the parties, the learned trial Court framed as many as 15 issues.
4. After framing of the issues, defendants No. 10 to 18 i.e. Ex-Rulers of Swat submitted an application for the return of the aforesaid plaint on the ground of lack of jurisdiction, which application was contested by the petitioners/plaintiffs, however the same was allowed by the learned Civil Judge vide order dated 27.11.1996 by holding that the civil Court has got no jurisdiction in the matter and as such the plaint was returned to the plaintiffs for its presentation before the competent authority.
This order was challenged before the District Judge/Zilla Qazi, Swat, which was allowed vide order dated 13.03.1998 and the case was remanded back to the learned trial Court with the direction to frame proper issues, record pro & contra evidence of the parties and thereafter, decide the case afresh.
5. After the remand, the learned trial Court recorded evidence of the parties and it again vide order and judgment dated 19.11.2003 returned the plaint to the present petitioners, then plaintiffs, for the lack of jurisdiction and for its presentation before the proper forum. Against this order, the present petitioners, then plaintiffs, filed an appeal before the Additional District Judge/Izafi Zilla Qazi, Swat, which was allowed vide order/ judgment dated 26.10.2004 and the case was again remanded to the trial Court for recording findings on each and every issue and deciding the case on merit.
6. After the remand, the learned trial Court through one of the impugned order and judgment dated 07.01.2005 while recording its findings on issue No. 7 again returned the plaint to the present petitioners, then plaintiffs, for presentation before the proper forum. Being aggrieved of the aforesaid order and judgment, petitioners/plaintiffs preferred an appeal to the Court of Additional District Judge/Izafi Zilla Qazi-II, Swat but he too dismissed the appeal of the petitioners/plaintiffs vide impugned order and judgment dated 06.04.2007 with a slight modification and observation that when the learned trial Court was having no jurisdiction, then he should have not been recorded findings on other issues and should have been returned the plaint for its presentation before the proper forum. Through the instant revision petition, the petitioners have challenged the aforesaid orders and judgments of the two Courts below respectively dated 07.01.2005 and 06.04.2004.
7. Learned counsel for the petitioners vehemently argued that both the Courts below have erred as the dispute involved in the present plaint does not fall within the domain of Dir-Swat Land Disputes Enquiry Commission and under section 53 of the Land Revenue Act, 1967, the civil Court has the exclusive jurisdiction to correct the entries made in the revenue record.
8. As against this, learned counsel representing the respondents No. 10 to 18 defended both the impugned orders and judgments and submitted that the issue of jurisdiction has thoroughly been thrashed out by the learned trial Court after recording of evidence for five long years from 1997 to 2003 and that the two Courts below have properly appreciated the law on the subject, therefore the same need to be maintained.
9. Arguments of learned counsel for the parties were heard in considerable detail and the record perused with their able assistance.
10. In order to fully appreciate the controversy between the parties, it would be relevant to mention here that it was in the year 1969 when the erstwhile Ex-State of Swat was merged into Pakistan vide Regulation No. I of 1969 namely Dir, Chitral and Swat (Administration) Regulation, 1969, then disputes arose with respect to the property owned by the State, Ex-Ruler of Swat and private people in the capacity of the landlords and tenants, therefore the Provincial Government constituted and notified a commission vide Notification No. 66 S.O.(S.P.L.)/H.D./70, dated 8th October 1970, to enquire into the aforesaid disputes. Later on to give a legal cover to the aforesaid Commission, a Martial Law Regulation No. 122 namely The Devolution and Distribution of Property (Dir and Swat) Regulation of 1972 was promulgated vide Gazette Notification dated 12.04.1972 and similarly on the same date, another Martial Law Regulation No. 123 namely The Settlement of Immovable Property Disputes (Dir and Swat) Regulation of 1972 was promulgated.
11. In order to appreciate the applicability of the provisions of aforesaid Regulations (Martial Law Regulation No. 122 & Martial Law Regulations No. 123) to the present controversy between the parties, it would be relevant to refer to Paragraph-2 (a) of The Martial Law Regulation No. 122, which defines the Commission as under:- "2.(a) "Commission" means the Dir-Swat Land Disputes Enquiry Commission appointed by the Provincial Government vide its Notification No. 66 S.O. (S.P.L.)/H.D./70, dated 8th October, 1970."
Similarly, as per Paragraph-3, the Provincial Government, on the basis of the recommendations of the Commission shall by order notified in the official Gazette to determine the State property, private or personal property of the ex-Rulers of Dir and Swat and the respective shares of the various heirs of the aforesaid two ex-Rulers of Dir and Swat. For ready reference, Paragraph-3 is reproduced below:- "3. The Provincial Government, on the basis of the recommendations of the Commission and subject to any directive given by the Federal Government shall, by order notified in the official Gazette, determine-- a) What property is State Property of the former States of Dir and Swat respectively; b) What property is private or personal property of the late Nawab Sir Shehjehan Khan, ex-Ruler of the former State of Dir, and the late Sir Abdul Wadud Mian Gul Sahibzada, K.B.E., Badshah Sahib of the former State of Swat respectively; c) The respective shares of the various heirs of the aforesaid two ex-Rulers in their personal or private property."
Similarly, as per the provisions of The Martial Law Regulation No. 123, the Commission has been defined as stated hereinabove, whereas definition of the "dispute" would be relevant, which has been defined in Paragraph-2 (b), which is reproduced below:- "2.(a) ............
(b) "Dispute" means a dispute inquired into by the Commission and for the determination whereof it has made a recommendation in its report."
Similarly, Paragraph-3 of The Martial Law Regulation No. 123 would also be relevant, where it is stipulated that all disputes relating to the ownership of, or any right or interest in any immovable property in the former States of Dir and Swat in which particularly three categories of persons enumerated in clauses (a) (b) & (c) of sub-paragraph (1) of Paragraph-3 of The Martial Law Regulation No. 123, are parties, shall be decided by the Provincial Government or an officer authorized by it in this behalf. For ready reference, Paragraph-3 is also reproduced below:- "3. (1) All disputes relating to the ownership of, or any right or interest in, any immovable property in the former States of Dir and Swat to which any of the following persons are parties; shall be decided by the Provincial Government or an officer authorized by it in this behalf, namely:-- a) the tenants and ex-Rulers of the said former States or their respectively heirs, or b) claimant land lords and the ex-Rulers of the said former States or their respective heirs; or c) the landlords and tenants.
(2) Subject to any general directive of the Federal Government, the decision of a dispute under sub-paragraph (1) and the determination of the respective claims, rights and interest of the parties thereto shall be made on the basis of the recommendation of the Commission.
(3) No Court or other authority shall entertain any proceedings in relation to any dispute referred to in sub-paragraph (1) nor shall any Court or other authority grant an injunction or make an interim order in relation to any such dispute."
12. When seen on the above touchstone, admittedly respondents No. 10 to 18 are the legal heirs of the ex-Ruler of Swat and the suit property has been duly identified, ascertained and notified by the Commission vide Notification dated 29.09.1972. For ready reference, relevant part of the said Notification is reproduced below:- "Order 29th September, 1972.
No. 10/16-SOTA-II/HD/72-1525.--Continuation of this Department Order No. 10/ 16-SOTA-1523, dated 15th September, 1972, the Governor, North-West Frontier Province is pleased to order: a) the property specified in Appendix "B" Schedules I, II, III, attached to this Order, shall subject to determination of disputes and claims in respect of this property or any part thereof under Martial Law Regulation No. 123, be the private or personal property of the late Sir Abdul Wadud Miangul Shahzada, K.B.E., Badshah Sahib of the former State of Swat; b) the private or personal property as aforesaid of the said Ex-Ruler, as shown in Schedules I, II and Ill of this Order, shall, subject to determination of disputes and claims in respect of this property or any part thereof under Martial Law Regulation No. 123, be inherited by the heirs of late Sir Abdul Wadud Miangul Shahzada, K.B.E., Badshah Sahib as shown in column 3 of the Schedule attached to this Department Order No. 10/16-SOTA-II/HD/72-1523, dated 15th September, 1972 in accordance with the shares specified in column 4 thereof.
By order of Governor.
"Part 'D'
All the lands, houses, shops, buildings, forests, trees, mountains, grazing fields, etc., in village Shinkud bounded as follows:- North: Village Ganajir.
South: Kashoray Khur and Ranga.
East: Sur Dheray and Khur.
West: Village Thuha, Pani Dal are owned by Bacha Sahib."
13. Moving on towards the controversies between the parties with respect to the jurisdiction of the civil Court in the aforesaid facts and circumstances of the present case. Again reference is to be made to Paragraph-7 of The Martial Law Regulation No. 122, which in unequivocally terms bars the jurisdiction of any Court to call in question or permit to be called in question any action taken or order made under The Martial Law Regulation No. 122. For ready reference, the said Paragraph is reproduced as below:- "7. No Court shall call in question or permit to be called in question any action taken or order made under this Regulation."
Similarly, sub-paragraphs (1) and (2) of Paragraph-6 of The Martial Law Regulation No. 123 too, bar the jurisdiction of any Court or authority to call in question or permit to be called in question, any action or decision taken or order passed under The Martial Law Regulation No. 122 and the legislature went to the extent that all those suits, appeals and applications pending in any Court or before other authority immediately before the commencement of The Martial Law Regulation No. 123 in respect of any dispute of the nature referred to in sub-paragraph (1) of Paragraph-3 shall order to be abated forthwith. For ready reference, Paragraph-6 of The Martial Law Regulation No. 123 is reproduced below:- "6. (1) Save as provided in paragraphs 4 and 5, no Court or other authority shall call in question, or permit to be called in question, any action or decision taken or order passed under this Regulation.
(2) All suits, appeals and applications pending in any Court or before other authority immediately before the commencement of this Regulation in respect of any dispute of the nature referred to in sub-paragraph (1) of paragraph 3 shall, in so far as they relate to such dispute, abate forthwith."
14. In view of the above unambiguous language of the two Regulations i.e. Martial Law Regulation No. 122 and Martial Law Regulation No. 123, the jurisdiction of the civil Court and any other authority has been specifically barred with respect to any dispute which has already been taken and decided by the Commission and consequently notified by the Provincial Government as in the present case. The legal sanctity of The Martial Law Regulation No. 122 and The Martial Law Regulation No. 123 was duly protected by The Constitution of Islamic Republic of Pakistan, 1973 as a specific protection was given in view of Article 8 (1) and (2) read with First Schedule of The Constitution, which are reproduced below:- "8. Legal inconsistent with or in derogation of Fundamental Rights to be void.---(1) Any law, or any custom or usage having the force of law, in so far as it is inconsistent with the rights conferred by this Chapter, shall, to the extent of such inconsistency, be void.
(2) The State shall not make any law which takes away or abridges the rights so conferred and any law made in contravention of this clause shall, to the extent of such contravention, be void.
First Schedule Laws exempted from the operation of Article 8(1) and (2)
Part I ............. .
Part II I. President's Orders .....................
II. Regulations
1. .........
2. .........
3. .........
4. .........
5. .........
6. .........
7. .........
8. .........
9. .........
10. ........
11. ........
12. ........
13. ........
14. ........
15. ........
16. ........
17. ........
18. ........
19. The Dir and Swat (Devolution and Distribution of Property) Regulation, 1972.
20. The Dir and Swat (Settlement of Disputes of Immovable Property) Regulation, 1972 Therefore, the said Regulations are binding and fully applicable to all the functionaries and Courts of law and nobody including the present petitioners could be allowed to frustrate the aforesaid statutory and constitutional mandate of The Martial Law Regulation No. 122 and The Martial Law Regulation No. 123. The language of the aforesaid provisions of law and the intention of the legislature in this regard is so clear and unambiguous that their plain readings takes one to an irresistible conclusions that in the given facts and circumstances, the civil Court would have no jurisdiction. In the case of Government of Khyber Pakhtunkhwa through Secretary Public Health Engineering, Peshawar and others vs. Abdul Manan and others reported as 2021 SCMR 1871, the Hon'ble Apex Court has held that when the intent of the legislature is manifestly clear from the wording of the statute, the rules of interpretation require that such law be interpreted as it is by assigning the ordinary English language and usage to the words used, unless it causes grave injustice which may be irremediable or leads to absurd situations which could not have been intended by the legislature. Only then, the Court may see the mischief which the legislature sought to remedy and interpret the law in a manner that meets the intent of the legislature.
15. The controversy involved in this case has been dilated upon by this Court in the case of Umer Hakim and others vs. Deputy Commissioner, Dir and others reported as PLD 1990 Peshawar 91, where it was held that a bare reading of the afore-quoted provisions of the Regulation indicates that firstly the dispute must relate to the ownership of or right or interest in an immovable property in Dir State and for any reason the same has not been enquired into by the Enquiry Commission; secondly the parties. thereto should be from amongst, the categories as mentioned in (a), (b) or
(c) of section 3(1) (ibid) and thirdly the deciding agency of the dispute shall be the Provincial Government or its authorized officer in this behalf and the jurisdiction of any Court or other authority, to hear such disputes, is barred inasmuch as the Regulation contemplates its own mechanism of deciding such disputes. This being so, we have no hesitation in holding that in point of jurisdiction, once a dispute is found to be falling within the purview of section 3(1) read with section 5-A(1) of the Regulation, there is complete ouster of jurisdiction of a Civil Court or, for that matter, any other authority to adjudicate upon such a dispute.
Further ahead in the said judgment, it was also held that viewed the matter in the perspective of foregoing factual and legal aspect of the case, we have arrived at an inescapable conclusion that the instant dispute between the appellants and the respondent Ex-Nawab of Dir falls within the mischief of section 3(1) read with section 3(1) (c) of the Regulation. In this context of the matter the question as regards the forum for resolving the dispute will not detain us any more inasmuch as under section 5-A of the Regulation such disputes are required to be decided by the Officer appointed by the Provincial Government. We are informed that the Provincial Government of North-West Frontier has already appointed Deputy Commissioner Dir as per Notification No. RHS/ Misc:/2/82 dated 11th October, 1982 for determination of all disputes falling within the purview of section 3(1) of the Regulation and is still in force. This being so, we are of the considered opinion that the appellants should have availed the forums available to them under the Regulation and should have gone before the Deputy Commissioner Dir initially for the settlement of their dispute and in such a situation the impugned orders of the learned lower Court can hardly be taken an exception to.
Similar observations were also recorded by this Court in the case of Shah Zir and another vs. Shahzada Aman Rome and 21 others reported as PLD 2012 Peshawar 176, where it was observed that now reverting back to the facts and circumstances of each case, the petitioners in the Civil Revision No. 470 of 2002 have alleged to be the owners of the suit property on the strength of a sale deed dated 13-3-1975 and had further alleged that the entries in the revenue record in the name of provincial land commission are wrong and ineffective against their rights. The legal heirs of Ex.
Ruler of Swat were also impleaded. Same is the position in Civil Revision Nos.5 of 2002, 383/2003, 613/2004 and 873/2004. The plaintiffs in all the cases, have claimed the suit property to be their ancestral property or the property purchased by them. The facts and circumstances of all the cases would confirm that the property in dispute had been recorded in the name of land commission, who being the custodian of the properties of the Ex-Ruler/their legal heirs as stated above. Legal heirs of the ex-ruler have also been made party in almost all the cases except one.
Plaintiffs claimed their ownership of the properties which is basically owned by the ex-ruler so, such disputes on the face of it appears to be the dispute falling within the scope of Para.3(1) of MLR 123 and under section 5-A, such disputes have to be determined by a specially authorized person by the Provincial Government in this behalf. Any court or other authority has no jurisdiction to entertain and decide such disputes under Para 3(3) of the Regulation. So, in this view of the matter, this Court is left with no option but to declare that the civil Court, in the circumstances, has got no jurisdiction to entertain such disputes. Accordingly, the plaints are hereby directed to be returned to the plaintiffs for submission of the same before the proper forum. However, suit of Zarin Khan v.
Provincial Government, Civil Revision No. 873/2004 was dismissed by the trial Court for want of jurisdiction but dismissal of suit for want of jurisdiction is hardly appreciated under the law which should have been returned to him. So, in Civil Revision No.873 of year 2004, findings of the two Courts below regarding the dismissal of suit are modified with the direction to the trial court to return the plaint.
16. It is settled law that jurisdiction cannot be conferred upon the Court or any other authority at whims and wishes of the parties when specifically provided by the relevant law. In the case of Administrator, Thal Development through EACO Bhakkar and others vs. Ali Muhammad reported as 2012 SCMR 730, the Hon'ble Apex Court has held that the two Courts below were, therefore, not justified in bypassing the issue of maintainability of the suit merely on the concession of appellants' counsel, who refrained to argue this legal point. Needless to mention here that it is the bounden duty of every Court/Tribunal to examine the issue of bar of its jurisdiction at the earliest opportunity and decide it in accordance with law, instead of escaping to decide such important aspect of the case on the mere concession of one or the other party. Moreso, when consent of the parties can neither confer nor can take away the jurisdiction of a Court/Tribunal, unless so conferred or barred by law.
Similarly, in the case of Syed Muhammad Hussain Shah vs. Abdul Qayyu m and others reported as 2011 SCMR 743, the Hon'ble Apex Court has also held that adverting to the contention of learned counsel for the appellant that the issue of jurisdiction was decided by High Court in C.P. No.16 of 1999, as such, it could not be reopened and pressed into service, it may be observed that from the contents of the application filed by the appellant it was not clear that the houses in question were situated in `Abadi Deh' and not in the land let for tenancy to the respondents. In the said application, it was averred that the respondents were inducted as tenants/bazgers in the land of the appellant but they failed to vacate the houses in their possession. After remand a specific objection to the jurisdiction of revenue Court was taken and agitated before the appellate and revisional forum. In fact the case was sent for adjudication to the revenue Court having jurisdiction under the Balochistan Tenancy Ordinance, 1978 with consent of parties but such consent does not confer jurisdiction on the sub-ordinate Revenue Court, which has otherwise no jurisdiction in the matter in view of the admitted position that the houses in question were situated in a village and was not a site of building occupied on the land of tenancy let' for agricultural purposes, when a Court suffers jurisdiction, no amount of consent or acquiescence in the proceedings can invest such Court with such jurisdiction. No question of estoppel is attracted in such circumstances.
Further reliance in this respect may also be made on the following judgment:- i. Muhammad Ameer Qazi vs. Muhammad Asif Ali and others (PLD 2015 Lahore 235);
17. For the reasons stated hereinabove, the judgments and decree of both the Courts below respectively dated 07.01.2005 and 06.04.2007 are perfectly in accordance with the above provisions of law and thus the same are maintained and upheld and consequently, the instant petition filed by the petitioners is dismissed.