MUHAMMAD NAEEM ANWAR, J- Muhammad Yasin alongwith four others, through instant petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, have questioned the validity and correctness of the judgment of the Tribunal constituted under the provisions of the Khyber Pakhtunkhwa Public Property (Removal of Encroachment) Act, 1977 (the Act of 1977) dated 27.05.2022, whereby their suit was dismissed.
2. Precise facts of the instant petition are that the petitioners filed a suit before the Tribunal for declaration to the effect that property bearing khasra No.1913 of the revenue estate of Tehsil Daggar, District Buner is neither a public property nor they have encroached upon any public property rather their predecessor in interest namely Muhammad Qasim has purchased this property alongwith contiguous properties bearing khasra Nos.1910, 1925, 1909, 1922, 1907, 1918, 1906 & 1917 through different deeds but during settlement the official of the revenue hierarchy have incorrectly, wrongly, unjustly and collusively entered this property in favour of the Provincial Government as "ghair mumkin" thoroughfare. It was averred in the plaint that neither there exists any thoroughfare at the spot nor they have encroached therein, thus, the entries of the revenue papers require correction and notice dated 26.08.2020 issued to them by defendant No.4 under the provisions of the Act of 1977, is without jurisdiction, arbitrary and ineffective upon their rights. They have prayed that the entire proceedings within the parameters of section 3 of the Act of 1977 are liable to be struck down with a further relief that the respondents/defendants be restrained from proceedings against them under the provisions of the ibid Act of 1977. Suit was resisted by the official respondents/ defendants on different legal and factual objections. During pending adjudication of the suit before the learned Tribunal, the private respondents No.7 to 15 filed an application for their impleadment in the panel of the defendants, on the ground that by encroachment made in the public property, they have suffered a lot as the public property/ thoroughfare leads to their houses. This application was allowed by the learned Tribunal on 03.12.2020 and accordingly they were impleaded as defendants in the suit, thereafter, they have also submitted their written statement by challenging the jurisdiction of the Tribunal with prayer for dismissal of the suit. Issues were framed and on conclusion of trial, the learned Tribunal through its judgment in Civil Suit No.17/1 of 2020 dismissed the suit of the petitioners/ plaintiffs through judgment dated 27.05.2022, hence, this petition.
3. It is reflected from order sheet dated 25.01.2023 that respondents No. 7, 12, 13 & 14 were served through Jamshid their special attorney whereas, respondents No.8 & 9 were reported to be abroad and thus due to non-appearance of the private respondents despite service reflects their no interest in the petition in hand, thus this Court directed not to issue any further notice to private respondents, as such, they are proceeded ex-parte.
4. Learned counsel for the petitioners contended that in accordance with the provisions of the Act of 1977, the legislature have intended to vest the Tribunal with the powers to determine as to whether any property is not public and in such an eventuality, whenever any person claims his interest or right, being based upon any document, deed or mutation etc., is required to prove his entitlement and that in such circumstances, the jurisdiction of the Tribunal could not be held to be limited only to the extent of the declaration as provided in section 11 of the Act of 1977. He further added that the Hon'ble Supreme Court in the case of "Mian Jan Vs. Mian Pir Jan and Others" (2015 SCMR 298) has held that the sale-purchase of any property falling within the area of erstwhile PATA, on the basis of any deed, could be considered by the Courts for determination of the rights of the parties. He, while making reliance on the case of "Qemat Baha and another Vs. Government of Khyber Pakhtunkhwa through Secretary, Revenue Department and 03 others" (2013 YLR 2403, Peshawar), submitted that the Division Bench of this Court has set aside the decision of the Tribunal and declared the notice as illegal being based upon the docum6nts pertaining to the property owned and possessed by the private individual but in the instant matter, the learned Tribunal could not advert to this legal aspect and proposition, which resulted into miscarriage of justice.
5. As against that, Khwaja Salahud-Din, the learned Additional Advocate General representing the official respondents supported the impugned judgments.
6. Arguments heard and record perused.
7. Scrutiny of record reveals that during trial before the learned Tribunal, the petitioners produced Patwari Halqa as PW-1, who placed on file an extract from jamabandi for the year 1977-78 of the revenue estate of Daggar, District Buner pertaining to khasra No.1913 (Ex PW1/2), which as per the entry of column of ownership, is the ownership in possession of the Provincial Government through District Council. The area of the property is 01-kanal and 12-inaria and it is a ghair mumkin thoroughfare. These entries of the revenue are based upon the first ever settlement of District Buner, thus, from the very inception this property is recorded as the ownership in possession of the Provincial Government, regarding which, the petitioners were claiming to be the owners and possessors.
8. Insofar as the jurisdiction of the 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 Judie/Tribunal Arimshera 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". Learned counsel for the petitioners contended that the notice, which was served upon the petitioners was improper as no description of the property was given therein. With the able assistance of learned counsel for the petitioners and learned A.A.G representing the official respondents, we have gone through from the record i.e., extract from the jamabandi and coloured copy of "masavi". The entries of the revenue papers reflect in categoric terms that the property is owned and possessed by the District Council and its status is of a ghair mumkin thoroughfare. The presumption of truth is attached to the entries of the revenue papers though rebuttable. Similarly, the attested copy of aks-az-masavi also reflects the property as ghair mumkin thoroughfare from north towards south in diagonal form, width whereof is not more than two karam. Now, the question is whether these documents could be evaluated within the parameters of the rights as provided by the Statute i.e., section 42 of the Specific Relief Act, 1877 pertaining to the right of an individual and denial thereof in juxtaposition with the powers of the Tribunal? In consonance with the provisions of section 42 of the Act of 1877, the right, character and status of a person pertaining to a property could be determined when it is denied or intended to be denied whereas, no such declaration could be granted under the Act of 1977 except as provided that the Tribunal shall vest with the powers to declare that any property is not a public property.
This matter was also resolved and put to rest by the apex Court in the case of "Muhammad Farid and others versus Municipal Committee" (PLD 1999 SC 41), wherein it was held that jurisdiction of the Tribunal is limited to the extent of powers provided u/s 11 & 13 of the Act of 1977 whereas, the determination of a right, status or.character is sole domain of the Court of competent jurisdiction.
For ready reference, relevant portion of the ibid judgment of the apex Court is reproduced as under: "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 visualized 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 fallacious on the face thereof as sections I 1 and 13 are to be read together.
Section 13 of the said Act hardly leaves any doubt 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."
9. Furthermore, during the course of arguments, learned counsel for the petitioners submitted that the petitioners have filed an application for placing on file certain documents/ deeds showing the boundaries of the property, vide which, certain properties including the disputed one was purchased by them. Irrespective of this fact that these documents were neither placed on record before the Tribunal nor before this Court through instant petition rather same were placed on file through a separate application, thus, the evidentiary value of these documents, at this stage, cannot be determined by this Court as these documents would require proper adjudication, evaluation and determination, being based upon the evidence to be recorded on behalf of the petitioners being plaintiffs before the competent forum and cross examination from the other side, as such, neither any reliance could be placed on said documents nor it could be termed to be valid.
10. It is significant to mention that Mr. Abdul Halim Khan, Advocate representing the petitioners contended that khasra Nos.1919 & 1920 were ownership of the petitioners/ plaintiffs wherein they had made construction but later on they have extended their construction and now a portion of khasra No.1913 comes underneath the constructed portion and since they are owners of the other contiguous properties, therefore, the property underneath the houses of the petitioners may be adjusted from any other property as the public one. However, this submission of learned counsel for the petitioners is misconceived because the grant of land or declaration as waqf for public purpose i.e., ghair mumkin thoroughfare, the adjustment of the properties against the disputed one, are the questions requiring proper determination, deliberation either through recording of evidence or production of documents, for which, the petitioners are required to file a separate suit before the Court of competent jurisdiction.
11. As discussed above, the jurisdiction of the Tribunal is limited to the extent of public property or declaration thereof that it is not a public property, therefore, the Tribunal could not declare that the entries of the revenue papers in favour of the Provincial Government as ineffective upon rights of the petitioners, which determination is the sole domain of the Civil Court, where the contention of the Petitioners will be adjudged in light of evidence. Therefore, in peculiar circumstances as discussed above, the case law relied upon by the petitioners is of no help to them,
12. Thus, for the reasons discussed above, the instant petition, being devoid of merits, is hereby dismissed, however the petitioners are at liberty to seek redressal of their grievance from the Court of competent jurisdiction, in accordance with law, if so advised.