' The facts giving rise to this revision petition are that Hakim Khan and Ayaz Khan (petitioners) instituted the present suit for declaration that they alongwith respondents 8 and 9 have become owners of the land in dispute (fully detailed in the heading of the plaint) situate in village Gandi Khan Khel Tehsil Lakki District Bannu by prescription as the mortgage in their favour had not been redeemed by respondents 4 to 7 within the prescribed period of 60 years. In the plaint Government of N.-W. F. P. Chief Land Commissioner and Deputy Land Commissioner were also impleaded as parties. But it appears that they had not submitted any written statement in the trial Court. Nawaz Khan and Baidullah Khan defendants submitted their written statements and the following issues were framed on 2-7-1974 :-
(I) Whether the plaintiffs have got a cause of action?
(2) Whether the plaintiffs and defendants Nos. 8 and 9 have become the owners of the suit land by prescription?
(3) Whether the plaintiffs are entitled to the declaratory decree as prayed for?
(4) Relief.
' Even though no issue was framed as to the jurisdiction of the civil Court, the learned trial Court vide order dated 26-5-1975 took up the question of jurisdiction and came to the conclusion that in view of the clear bar contained in paragraph 26 of M. L. R. 115, the civil Court had no jurisdiction to entertain the present suit and thus ordered the plaint to be returned to the plaintiff.
2. The plaintiff-petitioner feeling aggrieved preferred an appeal before the District Judge Bannu but it was also dismissed on 22-5-1976 and the finding of the trial Court on the question of jurisdiction was affirmed by the learned District Judge. Hence this revision petition.
3. The learned counsel for the petitioners urged that the only question involved in the case was whether the mortgage stood extinguished by lapse of time and consequently the plaintiff- petitioners became owners of the land in dispute by prescription. This being a question of title could only be gone into and decided by the Civil Court after recording necessary evidence in the matter and as such the Land Reforms authorities could not sit in judgment over the question of title of the present type. On the other hand, the learned counsel for the respondents contended that the land in dispute was resumed by the Land Commission free of encumbrance and even if there was any mortgage charge on the land it stood transferred to other property of the mortgagor. It is also urged that after resumption, the land had been transferred in favour of the sitting tenants and that the Land Commission is the only competent authority to adjudicate upon all the questions relating to the surrender and resumption of land under M. L. R.
115.
4. It may be mentioned at the outset that in the plaint the plaintiff did not challenge either the resumption of land in dispute or its subsequent transfer in favour of the tenants by the Land Commission, the only prayer being for a declaration that the plaintiff had become owner by prescription as the mortgage stood extinguished by lapse of time, para. 26(1) of M. L. R. 115 reads :- "No provision of this Regulation or of any rules or orders made thereunder shall be called in question in any Court, including the High ' Court and the Supreme Court, or before any authority other than an authority appointed under this Regulation, and no such Court or authority shall have jurisdiction in respect of any matter which the Commission is empowered to determine?'
It is obvious that in the present suit none of the orders passed by the Land Commission regarding the land in dispute has been challenged and th plaintiff only sought a declaration of his title on the ground of extinguishment of the mortgage. There is no provision in the Martial Law Regulation that the question requiring determination in the present suit was a matte which the Land Commission was empowered to determine. The question involved being essentially a question of title would fall within the exclusive jurisdiction of the Civil Court. The position would have been different I the order of resumption of the land and its subsequent transfer, in favour of the tenants had been challenged in the suit or had there been any provision in the Regulation specifically empowering the Land Commission to adjudicate upon the question of the type raised in the suit. The learned counsel for the petitioner relied on an unreported D. B. Judgment of this Court Writ Petition No, 576 of 1975 (H. Shah Wali and others v. F. L. C.) decided on 18-5-1980, wherein an identical question was involved and it was held that the question of extinguishment of mortgage and acquisition of ownership by the mortgagees by lapse of time fell within the jurisdiction of the Civil Court. In the said case an application was submitted by the mortgagees to the Deputy Land Commissioner claiming ownership of the land as the mortgage was not redeemed within the period of 60 years.
The Deputy Land Commissioner informed them that according to the decision of the West Pakistan Land Commission, the mortgagees had first to get a declaration from the competent civil Court.
Consequently a suit for declaration was instituted and after obtaining the declaration of their ownership, a copy of the decree of the civil Court was produced before the Deputy Land Commissioner which was forwarded to the Chief Land Commissioner for validation of the decree.
The Chief Land Commissioner accepted the decree of the civil Court and the consequent mutation was attested in this behalf. However, the order of the Chief Land Commissioner was challenged before the Federal Land Commission who set aside the order of the Chief Land Commissioner and held that the land in question was rightly resumed under M. L. R.
64. This order of the Federal Land Commission was challeged in writ petition and the High Court ca me to the conclusion that the order of the Chief Land Commissioner based on the civil Court decree was final and the order could not have been interfered with by the Federal Land Commission. In Mohammad Shafi v. Ahmed Din , it was held that under section 11 of the Punjab Consolidation of Holdings Act, 1936, a consolidation officer is empowered to deliver possession and since section 22 of the Act prevents a Civil Court from entertaining a suit in a matter in respect of which a consolidation officer is "empowered" by the Act to take a decision in ordinary circumstances the jurisdiction of the Civil Court is barred. But in that case one of the defendants' pleas was that of adverse possession and since the decision of the question of adverse possession amounted to a decision of question of title, therefore, it was held that the matter was beyond the prohibition contained in section 22 of the Act and the consolidation officer was not empowered to decide the question and it was only the Civil Court which had the necessary jurisdiction in the matter.
5. The learned counsel for the respondent cited Mst. Bibi Ayesha and others v. The. Chief Land Commissioner and others , wherein it was held that' M. L. R. 64 provides an "absolute safeguard" for powers of "final decision" vested in Land Commission and, therefore, the Commission was not bound to act according to the Civil Court decree although the Commission itself had permitted the families to have their rights declared by the Civil Court. But in the case in hand we are not concerned with the question whether the decree, if granted by the civil Court, would have a binding effect on the Land Commission authority. It will be a matter within their competence to give such weight to the decree of the civil Court as they deem proper because the power of "final decision" under M. L. R. 115, no doubt, vests in the Land Commission. Reliance is also placed on Mst. Hajiani and others v. West Pakistan Land Commission, Lahore and others , wherein it was held that "the power of final decision in respect of every disputed matter is vested in the Commission, and it is subject to that power of final decision that the action of the Commission in permitting the matter to be litigated before a Court should be interpreted and understood". In the cited case a petition was submitted to the Land Commission complaining that not only the petitioners were deprived of their share but in terms of the provisions of the M. L. R. 64, they have also been deprived of their right of going to a competent Court of law and seeking necessary declaration. In the reply received from the Commission it was mentioned that "there does not seem to be any bar in your seeking the relief in' a civil Court with regard to your inheritance from K. B. Chakar Khan Shahani deceased".
Thus the Hon'ble Supreme Court taking into consideration the circumstances of the case came to the conclusion that the Regulation did not contain anything to suggest that such a course contravened any provision in the Regulation. However, in the cited case, the decree obtained from the Court was forwarded to the Commission for necessary action but after considering the matter, the Commission decided that the decree of the civil Court could not be accepted. This order of the Commission, refusing to give effect to the decree of the civil Court, was challenged in a writ petition before the High Court. The Hon'ble Supreme Court did not agree with the finding by the High Court that the District Judge's jurisdiction in relation to the suit was barred by anything contained in the Regulation and thus observed that what was safeguarded by the Regulation was the power of final decision in all disputed matters. It was also observed that there was nothing to prevent the Commission from procuring assistance in the resolution of civil disputes, as to rights, from the agency best qualified to perform this function, namely the civil Courts, provided the right of final decision conveyed by para. 4(6) of the Regulation was preserved intact. In the case in hand the dispute relates to the acquisition of ownership by the plaintiffs on extinguishment of the mortgage by lapse of time and even if the plaintiffs succeed in the civil Court, the final decision would be that of the Land Commission who may take into account the decision of the civil Court on the question of title relating to the land in dispute. It is obvious that in the present suit none of the orders passed by the Land Commission under M. L. R. 115 have been challenged nor is there anything in the said Regulation empowering the Commission to determine the question presently in dispute and thus the provisions of para. 26 of M. L. R. 115 would not bar the jurisdiction of the civil Court.1 2 3
6. For the aforesaid reasons, it is clear that both the learned Courts below have failed to exercise jurisdiction vested in them by law. Therefore, by accepting the revision, the judgments and orders of both the Courts ' below are set aside and the case remanded to the trial Court for decision on merits. Costs to follow the event. PLD 1961 Lah. 183 PLD 1966 SC 84 PLD 1966 SC 114