MUHAMMAD NAEEM ANWAR, J. Impugned herein is the judgment of the learned Additional District Judge/Izafi Zila Qazi-VI/Tribunal constituted under the Khyber Pakhtunkhwa Public Property (Removal of Encroachment) Act 1977 (the Act of 1977) dated 05.11.2018, whereby suit of the petitioners seeking declaration that they are owners in possession 17.29 Marla in Khasra No.4618 measuring 04-kanal 11-marla of the revenue estate of Shawr Tehsil Matta, District Swat, on the strength of registered deed No. 90 dated 05.02.1976, wherein they have constructed a house and shops and notice No.30 dated 23.09.2013 and proceedings thereupon by the respondents alongwith wrong entries in the revenue papers in favour of the respondent/Education Department are ineffective upon their rights, was dismissed.
2. Learned counsel representing the petitioners contended that Ex.PW1/5 is Aks Shanjara-i-kishtwar, which describes that the property bearing Khasra No. 4617 & 4618 are contiguous to each other, wherein Khasra No.4618 measuring 04-kanal and 11-marla is the recorded ownership of the Provincial Government and in possession of the Education Department, however, the petitioners/ plaintiffs are the owner to the extent of 17.29 Marla on the strength of deed No.90 dated 05.02.1976 in the said Khasra number of the revenue estate of Shawr, Tehsil Matta, District Swat but it was incorrectly and against the facts entered in the revenue papers in favour of the Provincial Government, therefore, the notice issued to the petitioners was without any legal justification and authority. He further contended that though said notice has already been declared by the learned Tribunal as illegal, unwarranted, unjustified but the petitioners/ plaintiffs' prayer to the extent of declaration of wrong entries in the revenue papers in favour of respondents remained intact and their suit was dismissed, which is the result of misreading and non-reading of the record/evidence because the scribe, witnesses and son of vendor, were produced before the learned Tribunal. He further submitted that the learned Tribunal has exclusive jurisdiction to dilate upon and to decide the issue once for all, in view of the principle enunciated by the apex Court in the case of "Chief Engineer Irrigation Department, N.-W.F.P Peshawar and 02 others Vs. Mazhar Hussain and 02 others" (PLD 2004 Supreme Court 682).
3. As against that the learned A.A.G contended that the jurisdiction of Tribunal is limited, which can exercise its jurisdiction within the ambit of section 1.1 of the Act of 1977 whereas, the prayer of the petitioners is that of section 42 of the Specific Relief Act, 1877. He added that the learned Tribunal has rightly concluded the matter by dismissing the suit of the petitioners because the petitioners have completely failed to substantiate their contention.
4. Arguments heard and record perused.
5. Insofar as the jurisdiction of Tribunal u/s 12 of the Act of 1977 is concerned, the Hon'ble Supreme Court in the case of "Mian Hakim Ullah and 02 others Vs. Additional District Judge/Tribunal Nowshera and 04 others" (1993 SCMR 907) has held that "Tribunal constituted under the Act is vested with the exclusive jurisdiction to decide the dispute under the Act, whether a property in respect whereof a notice under section 3 of the Act has been issued is not 'a public property or that the lease or license in respect of such property has not been determined for the purposes of the Act. It is conceded before us that a dispute whether the property is not a 'public property' or a lease or license in respect 'of such 'public property' has not been determined for the purposes of the Act", whereas, in the instant case the contention of the petitioners/plaintiffs is that they are owners of 17.29 Marla property on the strength of a registered deed of the year 1976, which was not incorporated in the revenue record in first ever settlement, thus, the entries in favour of the Provincial Government regarding the entire property including the property alleged by the petitioners to be their ownership is wrong. This contention of the petitioners is misconceived because the Tribunal only determines as to whether the property is not public property as per section 13 of the Act of 1977. To the extent of the powers conferred upon the Tribunal it has got exclusive jurisdiction. Insofar as the correction of the entries of the revenue papers is concerned, that could only be decided by the civil Court. The matter of exclusive jurisdiction of the tribunal and that of civil Court has been dealt with by the Hon'ble Supreme Court in the case of "Muhammad Farid and others versus Municipal Committee" (PLD 1999 SC 41), wherein it was held that: "Reading of sections 11 and 12 together, makes it abundantly clear that in cases where the Tribunal has been vested with exclusive jurisdiction, the jurisdiction of the Civil Court is barred, Mr. Mushtaq Ali Tahir Kheli, learned counsel for the respondents Nos. 1 and 2 has argued that the Tribunal has been vested with limited kind of jurisdiction and it has no jurisdiction to determine rights between the parties. In our view, the learned counsel appears to be right because section 13 clearly vests the Tribunal with jurisdiction only to determine whether any property is not a public property or that any lease or licence in respect of such public property has not been determined for the purpose of the said Act. Evidently, the questions dealt with by the Tribunal in the present case did not fall within the ambit of its jurisdiction, as visualised by section 13. It is only in this regard that the Tribunal appears to have been vested with exclusive jurisdiction and the jurisdiction of the civil Court has been barred as indicated by section 11. Mr. Muhammad Ibrahim Satti has, however, argued that the words or anything done or intended or purported to be done under this Act" occurring in section 11 tend to enlarge the jurisdiction of the Tribunal to any action that may be taken under the provisions of the said Act. This contention of the learned counsel appears to be falacious on the face thereof as sections 11 and 13 are to be read together. Section 13 of the said Act hardly leaves any doubt E that the jurisdiction of the Tribunal extends to matters only referred to therein. As has been pointed out earlier, it is only where the Tribunal has been vested with exclusive jurisdiction, the jurisdiction of the Civil Courts to that extent has been barred. The said words referred to by Mr. Muhammad Ibrahim Satti indicate that section 11 does not only relate to actions which may be taken under the Act, but the bar provided in the said section would even relate to purported actions that may be taken under the said Act. Therefore, the Tribunal is clearly not vested with jurisdiction to determine questions other than those referred to in section 13 of the said Act and jurisdiction of the Civil Courts in such cases would not be barred."
Therefore, the suit of the petitioners to the extent of correction of the entries of the revenue papers and the relief for declaration was misconceived. The case law relied upon by the petitioners reported as PLD 2004 SC 682 is of no help to them because in that suit the claim of the plaintiff before the tribunal was based upon the entries of the revenue papers in his favour on the strength of mutation No. 13140 dated 07.07.1993. The process of settlement in District Swat was started in mid-seventies and ended in 1985-86, but they and earlier their predecessor has never sought correction of the wrong entries of the periodical record or record of rights either before the settlement authorities or before the Civil Court. More-so, the claim of the petitioners to the extent of 17.29 Marla from Khasra No. 4618 measuring 04-Kanal 11- Marlas on the basis of registered deed has also been not proved by them.
6. More-so, PW-6 in his cross examination has admitted that during settlement process the predecessor of the petitioners namely Nazar Muhammad was in the village. He has also admitted that the property which was purchased by the Nazar Muhammad has been entered in his name in the revenue papers. During the course of argument learned counsel for petitioners contended that the boundaries of adjoining Khasra Numbers i.e., 4618 and 4617 have been amalgamated but the petitioners have never applied for demarcation of the property or for determination of the boundaries of both the Khasra numbers. Again, the question of determination and fixation of the boundaries the properties are also not the job of tribunal, for which the petitioners were required to approach to the competent forum.
7. Furthermore, the suit of the petitioners/plaintiffs was based on a notice issued u/s 3 of the Act of 1977. When it was alleged by the respondents that the petitioners have made certain encroachments in the property owned by the Government, the definition of the property has been elaborated in section 2 (c) of the Act of 1977, which means the property owned by the Provincial Government. Interestingly, the learned Tribunal has held issuance of the notice as without lawful authority of respondents, as such, it was decided by the learned Tribunal that the notice was issued without any justification, regarding which no cross objection or petition has been preferred by the respondents. Once the Tribunal has decided that the notice was issued without any lawful authority, the jurisdiction of Tribunal ends. Insofar as the rest of the prayers of the petitioners that they are owners on the strength of a deed of year 1976 could only be decided by the civil Court is concerned, the learned Tribunal ought not to decide this issue and should have to direct the petitioners to approach to the appropriate forum. There is no cavil with the proposition that jurisdiction cannot be conferred even with the consent of the parties. Issuance of notice u/s 3 of the Act of 1977 and filing of the suit leads to jurisdiction of Tribunal when the respondents alleged that the petitioners have encroached upon the public property and the plaintiffs filed a suit for declaration that it is not public property. The controverted pleadings of the parties were resulted into framing of issue No.7, which reads as under: In order to prove justification to the notice and to prove it on record as to whether it was legally and justifiably issued to the petitioners, respondents produced Muhammad Amin Naib Tehsildar as DW-1, who deposed that: After detailed discussion, the learned Tribunal has decided that the notice issued by respondent No.3 is illegal and of no legal consequence. The decision of issue No.7 pertaining to notice diminishes and curtails the jurisdiction of the learned Tribunal, therefore, the findings of the learned Tribunal regarding rest of the issues were also without lawful justification.
8. Therefor, for the detailed discussion, we hold that: i) The findings of the learned Tribunal to the extent of issuance of notice being without lawful authority, unjustified and illegal are correct and have attained finality being not assailed by the respondents. ii) The findings of learned Tribunal regarding rest of the issues on merits are wrong being without jurisdiction as to the extent of correction of entries of the revenue papers the suit was incompetent.