FAZAL SUBHAN, J.- The instant civil revision petition has been filed by the petitioners under section 115 CPC, challenging the judgment and order dated 15.12.2021 of the learned Additional District Judge-VI, Bannu. By the said judgment, the appeal filed by the respondents was allowed and consequently, the judgment and order dated 03.03.2021 of learned Civil Judge-VI, Bannu, which had rejected the plaint under ORDER VII Rule 11 CPC, was set aside and the case was remanded for its disposal after recording pro and contra evidence.
2. In brief, the facts of the case as set-forth are that the respondents instituted a civil suit seeking a declaration that they are owners to the extent of their shares in the suit property measuring 52 Kanal 05 Marlas in Khata No.1054, situated at Moza Aral-I, Side-II, Tehsil Domel, District Bannu. They claimed that following their application on 18.09.2017, revenue officials conducted measurement and demarcation, fixing permanent points/pillars and subsequently, restored possession of the land to them. The respondents alleged that the petitioners being strangers, with no ownership in the property, unlawfully demolished the permanent demarcation points/pillars and occupied the about 18 Kanal of the land within the suit property.
3. The petitioners, in response, submitted a written statement refuting the respondents' version and raising various factual and legal objections. They also filed an application under ORDER VII Rule 11 CPC, seeking the rejection of the plaint. The trial Court, after hearing arguments, allowed the application and rejected the plaint through a judgment/order dated 03.03.2021. This decision was overturned on appeal by the learned Additional District Judge-VI, Bannu through the impugned judgment, remanding the case to the trial Court for its disposal after recording pro and contra evidence. Hence, this revision.
4. Arguments of learned counsel for the parties heard and record perused.
5. Upon thorough consideration of the record, it is evident that the respondents' suit primarily relied on the demarcation of boundaries proceedings conducted on the basis of their application. The record also reveals that Tehsildar Domail, District Bannu, instead of personally handling the matter, directed the Girdawar Circle and Patwari Halqa to determine/demarcate the boundaries. These officials, on the designated visit date, informed the parties and subsequently prepared a joint report dated 15.10.2017. The relevant provisions pertaining to the present controversy are section 117 of the Land Revenue Act, 1967 ("Act") read with Rule 67-A of the Land Revenue Rules, 1968 ("Rules"). It would be beneficial to reproduce the pertinent section, which read as follows: Power of revenue officers to define boundaries.
117. (1) A Revenue Officer may, for the purpose of framing any record or maning 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 or Revenue Officer or any Forest Settlement Officer appointed under the Forest Act, 1927 (Act No. XVI of 1927) or already set up by or by order of, any court or any such Officer.
6. Under the said provision, the authority to define the boundaries of any estate, holding, or field, or to indicate the limits of an estate and to erect boundary marks rests solely with the Revenue Officer. These powers cannot be exercised by, nor can they be delegated to, any other revenue official. The comprehensive procedure for conducting demarcation or determining boundaries is outlined in sub-rule 6 to Rule 67-A of the Rules, which is as follows: 67-A. Demarcation of land:- (1) An application under section 177 for defining the limits of an estate, a holding, a field or any portion thereof, shall contain the following particulars:-
(a) Designation of the Revenue Officer to whom it is addressed.
(b) Name, parentage and address of the applicant and if the applicant is minor, or a person of unsound mind, the name, parentage and address of his guardian or of a male member of his family.
(c) Name, parentage and address of the person or persons against whom the application is made, and if he or any one of them is a minor or of unsound mind, the name, parentage and address of his guardian or of a male member of his family.
(d) Location and full description of the land to be demarcated.
(e) A brief statement of facts and reasons necessitating the making of application.
(f) Signatures or thumb-impression of the applicant.
(g) Any other matter which is necessary for the proper disposal of application.
(2) An application under sub-rule (1) shall bear the court-fee stamp of rupee one and shall be accompanied by:-
(a) An attested copy of the latest entry in Register Haqdaran-Zamin or Jamabandi relating to the land mentioned in the application; and
(b) an attested copy of the portion of the map of the estate showing field numbers mentioned in the application.
(3) The application shall be presented to:-
(a) the Revenue Officer-in-charge of the Circle in case the land to be demarcated is situated within a Tehsil; and
(b) the Revenue Officer-in-charge of a Sub-Division, in case the limits of the land to be defined extend to an adjoining Sub-Division or District.
(4) On the receipt of such application duly accompanied by the attested copies mentioned in sub- rule (2), the Revenue Officer concerned shall:-
(a) cause the application to be registered in the relevant column of the Register to be maintained in his office in Form XXXIII-A;
(b) fix time and date for demarcation of boundaries; and
(c) cause a notice in Form XXXIII-B to be issued in duplicate to
(i) the parties to the application;
(ii) Lambardar of the village in which the land mentioned in the application is situated;
(iii) Field Kanungo of the Circle;
(iv) Revenue Patwari of the village if the notice is not to be served through him; and
(v) any other person whose presence at the time of demarcation of boundaries is considered necessary or expedient by the Revenue Officer.
(5) The notice issued under clause (c) of the preceding sub-rule shall be served on the persons mentioned therein, in the following modes, at least one week before the date fixed for demarcation of land:-
(a) by delivering a copy thereof person mentioned therein and obtaining his signature of thumb- impression on duplicate copy in token of his having received the same:
(b) in case of refusal to receive the notice or absence of such person, by affixing a copy thereof on the outer-door of his house or place of residence, in the presence of at least one witness and also by beat of drum at the expense of the applicant;
(c) if any person to be served is residing at a place, other than the village in which the land is situated, notice shall be served on him, by means of registered post "Acknowledgement Due", or by any other means as the Revenue Officer deems fit. The expenses for such service shall be borne by the applicant.
(6) At the time and on the date fixed for demarcation of boundaries, the Revenue Officer shall, in the presence of the parties and other persons mentioned in clause (c) of sub-rule (4) as may be present in response to the notice served on them, cause the measurement of the land to be taken under his personal supervision, strictly in accordance with the instructions and standing orders on the subject issued by the Financial Commissioner and the Board of Revenue from time to time.
(7) (a) Soon after taking necessary measurement, the Revenue Officer, on the basis of data so collected, shall draw up a plan of the encroached area, if any, and shall prepare a report "inter alia", containing the following details:-
(i) Time, date and place of demarcation of boundaries.
(ii) Full description of the land measured and demarcated.
(iii) Mode and details of the measurements taken.
(iv) Persons in whose presence such measurements were taken and other demarcation proceedings took place and the objection, if any, raised by any one or more of them during that time.
(v) Limits of the existing possession including the exact dimensions of the encroached area, if any, and the names of the persons found in possession thereof.
(b) The Revenue Officer, after preparing the report, shall read out the same to the parties and record their statements as to whether they have understood the proceedings or any party thereof and have any objection against any portion of his report.
(c) After recording such statements and his opinion thereon, the Revenue Officer, on return to his Headquarter, shall place the report, together with the plan of encroached area and statement of the parties, on the file and cause the particulars of the proceedings entered in the relevant columns of Register maintained in office in Form XXXIII-A.
7. The said sub-rule removes any doubts and places the responsibility for conducting proceedings for demarcation and determination of boundaries solely upon the Revenue Officer. Consequently, any proceedings conducted by a subordinate revenue official would lack the authority to carry out demarcation proceedings. In the case of Malik Sher Rodikhel and 05 others Vs Khalid Ameen and another reported as 2013 CLC 1823 [Peshawar], this Court has held that: "12. A person claiming encroachment in his property by the adjacent owner in any way, can move the Revenue authorities for demarcation of land under Rule 67-A of West Pakistan Land Revenue Rules, 1968 and the Revenue Officer has the ample power under section 117 of the Act, 1967 to define the boundaries and in this respect, an exhaustive procedure has been given in the referred Act and Rules made thereunder. After the settlement of boundaries and ascertaining its proper position, the unauthorized landowner can be evicted by the aggrieved person/landowner basing upon the demarcation wherein encroachment has been found and to this effect, prayer can be made for the eviction of unauthorized landowner. In the instant case, neither any demarcation took place prior to the institution of suit nor the respondents/plaintiffs have taken any serious steps to this effect. They have not complied with the relevant provisions of Land Revenue Act and Rules referred above and has straightaway filed the suit for perpetual injunction and recovery of possession in the shape of mandatory injunction which is not the mandate of law. As such without complying with the relevant provisions for ascertaining the boundaries of the encroached land, if any, no suit can be filed for eviction of unauthorized landowner as claimed by the respondents/plaintiffs."
8. Similarly, in the case of Noor Alam Khan and others Vs. Senior Member Board of Revenue Khyber Pakhtunkhwa Peshawar and others reported in 2020 CLC 1453 [Peshawar (D.I.Khan Bench)], it has been authoritatively held that: "As earlier discussed, the provisions of subsection (3) of Section 20 of the Act clearly provided that
(3) Subject to the rules made under this Section, a Revenue Officer may refer any case which he is empowered to dispose of under this Act to another Revenue Officer subordinate to him for investigation and report and may decide the case upon such report after giving the parties concerned an opportunity of being heard. When the ibid provisions of Rule 7 are read in juxtaposition with the above referred provisions of subsection (3) of Section 20 of the Act, this Court is of the opinion that the Revenue Officer is competent and empowered under the law to appoint a local commissioner to conduct commission proceedings, however, he must not be below the rank of a Revenue Officer."
9. The relevant provisions mentioned above and the aforementioned pronouncements lead this Court to the unequivocal conclusion that the Patwari Halqa and Girdawar Circle were not competent under the law and Rules to carry out demarcation or determine boundaries. The law explicitly authorizes only the Revenue Officer to perform this task under the said law and Rules. The demarcation conducted through the Girdawar Circle and Patwari Halqa was in contravention of the law. Consequently, no suit could be filed based on such flawed demarcation proceedings.
10. The learned trial Court, after thorough consideration of the matter, correctly concluded that the remedy available to the respondents was to seek partition of the property after the transfer of some portion of the suit property to the petitioners. It is, therefore, held that the judgment passed by the appellate court, remanding the case for trial, was illegal and lacked jurisdiction. As a result, this civil revision is accepted. The impugned judgment dated 15.12.2021 is set aside, and the judgment/order of the learned Civil Judge-VI Bannu is maintained. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.