CH. MUHAMMAD IQBAL, J. Through this civil revision the petitioner has challenged the validity of the judgment and decree dated 25.03.2000 passed by the learned Civil Judge, Jhang who decreed the suit for declaration along with permanent injunction filed by the respondents and also assailed the judgment and decree dated 22.12.2012 passed by the learned Additional District Judge, Jhang who dismissed the appeal of the petitioners.
2. Brief facts of the case are that the respondents/plaintiffs filed a suit for declaration along with permanent injunction under Order 1, Rule 8, C.P.C [representative suit] against the petitioners and respondent No.150/defendants in respect of land measuring 3936 Kanal 04 Marla situated in Moza Bheer Tehsil and District Jhang fully described in paragraph No.1 of the plaint on the ground that the respondents/plaintiffs are the Tirni Guzar and the entry in respect of illegal possession is illegal and imposition of Tawan for a period w.e.f 1981 to 1984 upon them by the petitioners/defendants is also illegal. That the petitioners/defendants may be restrained from allotting the suit land under 07 Marla Scheme or through auction to anyone else. The respondents/ plaintiffs are in cultivation possession of the suit land since their forefathers. The petitioners/defenda.nts filed contesting written statement. Out of the divergent pleadings of the parties, the trial Court framed following issues:
1. "Whether the plaintiffs are "Tirni Guzar" of the disputed property and the entries of the plaintiffs as illegal occupants are against the law and against the facts? OPP
2. Whether the "Tawan" leyied by defendant No.1 for the year 1981 to 1984 is against the law and against the facts? OPP
3. Whether the plaintiffs have no cause of action and locus standi to file this suit? OPD
4. Whether the description of the suit property is incorrect? OPD
5. Whether the suit of the plaintiff is not maintainable in its present form? OPD
6. Whether this Court lacks jurisdiction to entertain the suit? OPD
7. Whether the suit incorrectly valued for the purpose of court fees and jurisdiction? OPD
8. Whether the suit is not maintainable in view of provisions of Colony Act, 1912? OPD
9. Relief."
And recorded evidence of the parties and finally dismissed the suit vide judgment and decree dated 03.12.1995. Being dejected, the respondents filed an appeal which was accepted vide judgment and decree dated 22.12.1998 by the appellate Court who by setting aside the judgment and decree dated 03.12.1995 of the trial Court, remanded the case to the trial Court for decision of the same afresh. In post-remanding proceedings, the trial Court decreed the suit vide judgment and decree dated 25.03.2000. The petitioners assailed the said judgment and decree through an appeal which was accepted vide judgment and decree dated 14.03.2002 by the appellate Court who by setting aside the judgment and decree dated 25.03.2000 dismissed the suit. The respondents filed Civil Revision [No.929/2002] which was allowed by this Court vide judgment dated 19.01.2012 and the matter was remanded to the appellate Court to decide the appeal afresh.
The appellate Court vide judgment and decree dated 22.12.2012 dismissed the appeal of the petitioners. Hence, this civil revision.
3. I have heard learned counsel for the parties and have gone through the record.
4. To prove the asserted stance as well as the issues Nos.1 and 2, Hakim Khan (P.W.1) has deposed that they are in possession upon the suit land for more than last 150 years; that the suit land was a forest in the year 1868-70; that shamlat deh is also included in it which is measuring 7600 Kanal; that Allah Bukhsh son of Haji Pathana was the forefather of Chah and Rushed was their forefathers who came there and for livelihood they cultivated the charagha land for the cattle and they are in possession of it as Tirni Guzar; that the land was in the name of the government and was not in knowledge of their forefathers; that in 1985 this fact came into their knowledge; when a tender of suit land was floated and defendant demanded tawan from them; that government has no concern with land. During cross examination, he deposed that 7600 Kanal land was in possession of Bohri Tribe; that he did not know Allah Bukhsh who gave some share of produce to government in the year 1989-90; that he has 200/300 Kanal land and once he also gave tawan; that later on they came to know that the defendants are going to establish 05 Marla scheme; that they did not file any suit prior to instant suit; that he did not know how many people are in possession of the suit land. Hussain son of Ghazi (P.W.2) has deposed that forefathers of the plaintiffs were in possession of suit land for the last 150/200 years; that Moza Bohri was named on the basis of Bohri tribe; that they did not know when the land was transferred in the name of government; that their forefathers were also in possession; that the suit land was a forest and they made it cultivable land; that the government has no concern with the suit land; that they presumed themselves as owners. During cross-examination, he deposed that: Ata Muhammad, one of the respondents/plaintiffs (P.W.3) has deposed that they are the owners of the suit land; that the suit land is measuring 7600 Kanal and they are living therein since 1868-1870; that their forefathers belong to Bohri Tribe; that the suit land was a forest and their forefathers made it cultivable; that they cultivated watermelon (tarbooz) and gawara and were grazing the cattle and also paid tirni; as the suit land was in the name of the government; that in 1985 some people forcibly tried to recover tawan and they did not know that they were in illegal possession; that they have no sale deed or mutation in their favour but that they have possession and they are owners of the suit land measuring 2100 Kanal; that the Mouza is comprising about 5400/5500 Kanal land and the government has no concern with the suit land.
5. Conversely, Ahmad Bukhsh, ex-Patwari Halqa Bohri has deposed that the plaintiffs are illegal occupants and have no concern with the suit land; that the provincial government is owner of the suit land which was never transferred in favour, of the plaintiffs as no mutation was ever attested in favour of the plaintiffs; that the suit has been filed with mala fide intention. During cross- examination, he deposed that: Muhammad Mumtaz Qanungo (D.W.2) deposed that the suit land is owned by the provincial government and the plaintiffs are illegal occupants over it; that the plaintiffs have not paid any tawan to the government; that the plaintiffs have no right over the suit land and they have filed suit malafidely.
6. As per the aforesaid evidence, the respondents/plaintiffs claim that they are in possession of the suit land measuring 3936 Kanal 04 Marla situated in Mom Bheer Tehsil and District Jhang, since their forefathers as Tirni Guzar. It is worth mentioning here that the word Tirni and Tirni Guzar have garner material significance as to whether the same create any right or title in favour of the Tirni Guzar or otherwise. The terms "Tirni" and "Tirni Guzar" have been defined in The Punjab Land Administration Manual as under: "774. Tirni in the Thal-The Thal has been described in paragraph 757. It is now included in four districts. The greater part of it is in the Mianwali, Bhakkar and Leiah Tahsils of Mianwali. Up to the formation of the North West Frontier Province, the Minawali Tahsil was part of the Bannu, and the other two tahsils part of the Dera Ismail Khan District. The rest of the Thal is in the Khushab Tahsil of Shahpur, the Sinawan Tahsil of Muzaffargarh and in the part of the Jhang District lying to the west of the Jhelum. In the Bannu settlement report Mr. Thorburn described the tirni as it existed before the regular settlement of 1872-78 in the Mianwali Tahsil and the description applies also to the Leiah and Bhakkar tahsils-"On annexation, wherever a community was found, an enumeration of its cattle was made, and tirni imposed after which grazers had, irrespective of residence a right of pasturage over the whole Thal...........Thus tirni was a poll tax on cattle........ As graziers re somewhat migratory and murrain......... is occasionally very destructive, the annual imposition of the settlement amount on each village caused serious inequality of taxation." As already noticed (paragraph 757) the greater part of the huge area of the Thal, which is best adapted to the grazing of goats, sheep and camels, was included at the regular settlement in village lands. In Leiah and Bhakkar a fixed grazing assessm ent was imposed on the Thal waste included in village boundaries. But in order to meet the case of camels which browse over large areas, it was decided that they should not be included in this assessm ent and should be free to browse in any Thal village. It was the more necessary to make this arrangement as the camels of the powindah traders from Afghanistan, which pay tirni on entering British territory, pass through the Thal. The tax on the camel belonging to the Thal village is framed to contractors, the estates being grouped in dags or chaks for leasing purposes. The farmers collect from camel owners at rates fixed by Government Powindah camels grazing in village lands pay nothing. The Government rakhs are leased out yearly, generally to the headman of neighbouring villages, who realize fixed fee from all animals including camels whether belonging to residents of the district or outsiders, found in the rakhs, Powindah camels grazing in the rakhs pay the usual fees. The same system was adopted at the regular settlement of Bannu for the Mianwali Tahsil, but there powindah camels were excluded from village waste except with the consent of the landowners, and were charged half rates when browsing in Government rakhs. The forty five chaks into which the Government land in the Thal of the Khushab Tahsil of Shahpur is divided is sold annually at a fair assessment fixed by the Deputy Commissioner to the headmen of adjoining villages, the grazing fees which the farmers are entitled to collect being of course fixed.
The Government waste lands of the Jhang Thal are also leased annually. There is no separate camel tirni. In Muzaffargarh too the plan of fixed grazing assessment for village waste and leasing of Government rakhs was adopted and special rules were framed under section 48 of the Punjab Laws Act, IV of 1872 which were substantially the same as rules 3 to 9 and 17 of the general rules issued many years later.
As per aforesaid definition, a Tirni Guzar is mere a lessee/ tenant and is not owner of the land leased out to him. As per the copies of Jamabandis for the years 1924-1925 (Exh.P.6), 1966-1967 (Exh.P.7), 1954-1955 (Exh.P.8), 1990-91 (Exh.P.5) the provincial government is shown owner of the suit land and the respondents/plaintiffs are mentioned as illegal occupants upon the State land. There is neither any mutation nor any order of allotment ever passed in favour of the respondents/ plaintiffs as such the possession of the respondents/plaintiffs over the said land is that of an illegal nature, as such all the ethical, moral and legal norms favour the law abiding persons and lends nil support to the illegal occupants, usurpers, transgressors, encroachers and grabbers of the State land. Reliance is placed on the case titled as Fazal ur Rehman and others v. Province of Punjab through District Officer (Revenue) Bhakkar and another (2014 SCMR 1351), wherein the Hon'ble Supreme Court of Pakistan held as under:- "It is argued by the learned counsel that the petitioner had a 40 years possession over the land in question; therefore, he had been dispossessed in violation of section 32 of the Colonization of Government Lands (Punjab) Act, 1912. We are not inclined because admittedly no document exists in favour of the petitioner to establish his claim to remain in occupation of the property in dispute.
Learned counsel stated that an application has been moved before the Board of Revenue for the proprietary rights. We are not inclined because in our considered opinion this argument had not been advanced earlier at any stage and it was not the case of the petitioner in any manner.
Contrary to it, it strengthens the plea of the respondent that the petitioner was an unauthorized occupant. We may add that the law lean towards persons who believe in the rule of law and not those who takes that law in their hands as happened in the instant case where the petitioner with no legal authority had occupied the premises in dispute. As far as the question that he was in possession for so many years is concerned, it can never be a ground for the purpose of proprietary rights. The petitioner has failed to establish his case in his favour. The learned High Court had rightly declined to exercise its revisional jurisdiction and maintained the orders of the Courts below, thus, we find no merit in this petition which is, therefore, dismissed and leave to appeal is declined.
However if the petitioner has any claim for damages he is free to approach the competent forum for redressal of his grievance."
Similar principle has been reiterated in the case titled as Muhammad Sharif through L.Rs v.
Province of Punjab through district Officer Revenue, Pakpattan (2014 SCMR 334). In a case titled as "Shazia Gillani and others v. Board of Revenue, Punjab Lahore through Member Colonies and others" (in C.P. No.332-L of 2016) the Hon'ble Supreme Court has refused to protect the possession of usurpers of state property vide order dated 25.03.2016 holding that:- "The petitioners are lessees of the land in question. Their lease admittedly expired in 2000 after which they have been in unauthorized possession. No case has been made out for any protection of their rights as per the notification dated 18.7.2005 which has been relied upon in this regard. The discretion of the learned High Court in terms of Article 199 of the Constitution or this Court as per Article 185 of the Constitution is not available for the protection of possession of people who are usurpers of state property. No case has been made out for interference. Dismissed accordingly."
(emphasis supplied)
In another case, the Hon'ble Supreme Court of Pakistan in Civil Petition No.882-L of 2015 vide order dated 15.03.2017 held as under:- "2. We find that in the light of above circumstances, the learned High Court rightly allowed the writ petition of the respondents and restored possession of the property to them, and correctly dismissed the writ petition of the instant petitioners, who are admitted encroachers of the property and are in unauthorized possession therefore. Resultantly, this petition is dismissed."
(emphasis supplied)
7. Admittedly, the respondents/plaintiffs through filing civil suits seek declaration whereas no document has been referred from the record to show existence of any title in their favour, whereas through suit for declaration under Section 42 of the Specific Relief Act, 1877 only a declaration is issued regarding a pre-existing right and no fresh right can be created, thus any suit for declaration with non-existence right is not maintainable. Reliance in this regard is placed on a recent pronouncement of the Hon'ble Supreme Court of Pakistan cited as Director Military Lands and Cantonment Quetta Cantt., Quetta and others v. Aziz Ahmed and others (2023 SCMR 860). ...we are clear in our mind that through a declaration in civil matters claimed under section 42 of the Specific Relief Act a pre-existing right can be declared and a new right cannot be created by grant of a decree by the civil court. Same is the position here, the learned High court under the Constitutional Jurisdiction vested in it under Article 199 can declare a pre-existing right and no new right can be created through a declaration issued under Article 199..."
8. Moreover, it evinces from the record that the documentary evidence (Exh.P.1 to Exh.P.9) was produced on behalf of the respondents/plaintiffs by their counsel in his statement whereas it is mandatory requirement of law that documents relied upon should be produced in the evidence by party in its own statement so that the adverse party may have a fair opportunity to cross-examine the authenticity or veracity of such documents, as such the documents produced in the statement of counsel for the respondents lack intrinsic value and such documents can validly be excluded from taking into consideration. Reliance is placed on the case titled Mst. Akbar Sultana v. Major Retd. Muzaffar Khan Malik through his legal heirs and others (PLD 2021 SC 715). Similar view bas been reiterated by the Hon'ble. Supreme Court of Pakistan in its latest judgment cited as Rustam and others v. Jehangir (deceased) through LRs. (2023 SCMR 730) wherein it is held as under: "7. As regards the other two documents i.e. Mutation No.I836 (Exh.D-9) and Mutation No.1837 (Exh.D- 8), it is suffice to say that according to principle settled by this Court in the cases reported as Mst.
Hameeda Begum and others v. Mst. Irshad Begum and others (2007 SCMR 996), Federation of Pakistan through Secretary Ministry of Defence and another v. Jaffar Khan and others (PLD 2010 SC 604), Province of the Punjab through Collector, Sheikhupura and others v. Sited Ghazanfar Ali Shah and others (2017 SCMR 172) the document should be produced in the evidence by the party itself and a fair opportunity should be given to the opposite party to cross-examine the same, as such, the said two documents produced by the defendants counsel in his statement could not be taken into consideration."
(emphasis supplied)
9. As per available revenue record i.e. Jamabandis and Khasra Girdawaris, the land in question is state land which is admittedly a public asset and the Courts of law are ultimate custodian of the public properties, public interest and while dealing with matters relating to such properties/assets or interests, it is inalienable obligation of the courts to be extraordinary careful and cautious and assure itself to the extent of certainty that no mischief is being played with the state assets. An unalienable obligation is placed upon the courts to keep abreast itself with law and facts of such cases and when certain material facts unearthed before it then the miner should be decided as per law even without being influenced by respective pleadings of the parties. In this regard, reliance is placed on judgments cited as Al-Shafigue Housing Society v. P.M.A (PLD 1992 SC 113), Union Council Dhabeji v. Al-Noor Textile Mills Ltd. (1993 SCMR 7), Multiline Associates v. Ardeshir Cowasjee (PLD 1995 SC 423), Provincial Government through Collector, Kohat and another v.
Shabbir Hussain (PLD 2005 SC 337); Abdul Hag lndher v. Province of Sindh (2007 SCMR 907), Muhammad v. Town Committee (1994 CLC 2214) and Sindh Peoples Welfare Trust v. Government of Sindh (2005 CLC 713).
10. So far as argument of learned counsel for the respondents/plaintiffs that the respondents/plaintiffs claim that they cultivated the land as Notaur but the statements of the P.Ws did not support this argument as no such claim was made by the plaintiffs. Therefore, the argument of learned counsel for the respondents/plaintiffs being devoid of any force is hereby repelled.
11. Besides above, admittedly the petitioners/Province of Punjab is the owner of the suit land and till date, no proprietary rights have been granted to respondents. As the Province of Punjab is owner of the suit land, as such under section 36 of the Colonization of Government Lands Act, 1912 the Civil Court has no jurisdiction to enter into the vested jurisdiction of the revenue hierarchy. For ready reference, aforesaid section is reproduced as under: "36. Jurisdiction of Civil Court barred as regards matter arising under the Act. A Civil Court shall not have jurisdiction in any matter of which the Collector is empowered by this Act to dispose and shall not take cognizance of the matter in which Provincial Board of Revenue or Collector or any other Revenue Officer exercises any power vested in it or in him by or under this Act."
In the above plain provision of law, the jurisdiction of Civil Court has expressly been declared as barred and Court of civil jurisdiction should avoid to encroach up the jurisdiction of special tribunal until and unless the special extraordinary unavoidable circumstances to warrant, otherwise civil suits are not maintainable as held in the case laws referred herein below: i). In a case titled as Muhammad Sharif v. Province of Punjab and another (1984 SCMR 1308) the Hon'ble Supreme Court of Pakistan has held as under: "After hearing learned counsel, we find that the petition has no merit. The Collector's order of resumption, dated 7.2.1966. which had been the subject-matter of challenge in the civil suit, had been passed in pursuance of instructions received from the Board of Revenue, directing scrutiny of all such cases prior to grant of proprietary rights......... That being so, the concurrent finding of the three Court below that the suit was barred by section 36 of the said Act is not open to exception." ii). In the judgment titled as Abdul Hamid and others v. Province of the Punjab through Collector Faisalabad and others (1989 SCMR 1741), it, Hon'ble Supreme Court of Pakistan has held that: "The jurisdiction of the Civil Courts in this case is obviously barred under Section 36 of the Act.
Consequently it is not a fit case for interference. The result is that this petition is dismissed." iii). In the case cited as Alam Sher through Legal Heirs v. Muhammad Sharif and 2 others (1998 SCMR 468) the Hon'ble apex Court has observed that: "Learned counsel was asked to demonstrate that the Civil Court was competent to decide the dispute between the parties in presence of clear bar as mentioned above. He, however, submits that the Civil Courts would always be competent where the judgments/orders are without jurisdiction or based on mala fide. The argument is without substance as the above provisions are mandatory in nature stating that Civil Court shall have no jurisdiction to entertain the dispute over which the Collector etc. had the authority to decide. Learned counsel was also unable to show as to how the orders passed by the competent Revenue Authority were without jurisdiction. In other words, the petitioners had remedy to move appeal/revision before the Member, Board of Revenue which they, admittedly, failed to avail of. We, accordingly, hold the view that Civil Court was not competent to interfere where the Revenue Courts/Authorities had the exclusive jurisdiction. Even on merits, the petitioners had no case inasmuch as they violated the conditions on which they were given the disputed land. They did not cultivate the land in accordance with the terms and conditions of their allotments. The land had, thus, rightly been allotted to the respondents as Islamabad affectees because it became available by operation of law. In such a situation, the judgments of the Courts below are not open to exception. The petitions have been found to be without substance. These are-accordingly, dismissed."
(emphasis supplied) iv). In another judgment titled Muhammad Ali v. Province of Punjab and others (2005 SCMR 1302), the Hon'ble apex Court held as under: "4. We have heard the learned counsel for the petitioner at length. We find that the petitioner did not avail the statutory remedies of appeal and revision before the Commissioner and the Board of Revenue respectively against the orders passed by the Collector. The learned counsel failed to satisfy us that such remedies, even if availed, would have been an exercise in futility. The averments in the plaint do not spell out that the orders of the Collector were illegal or beyond the scope of the powers of the Collector and in any other way suffered from any jurisdictional defect so as to be amenable to the jurisdiction of the Civil Court in view of the dicta of this Court in Abdul Rab and others v. Wali Muhammad and others 1980 SCMR 139 and Bashir Ahmad and others v.
Manzoor Ahmad and others 1987 SCMR 1620. The High Court has taken a correct view that the plaint was liable to be rejected on account of bar of jurisdiction of Civil Court under section 36 of the Act. The High Court has also given valid reasons for not remanding the case on the question of rejection of plaint independently of the stay matter in the peculiar facts and circumstances of this case. Therefore, we need not express any opinion on this aspect of the case. The impugned judgment does not call for any interference by this Court. This is not a fit case for grant of leave to appeal."
(emphasis supplied) v). Reliance is placed on the case titled as Muhammad Nazir Khan v. Ahmad and 2 others (2008 SCMR 521).
Further, the respondents/plaintiffs challenged the validity of the notice for recovery of Tawan through the civil suit whereas the said notice is appealable before the revenue hierarchy.
Thus, on the date of institution of the suit the Colonization of Government Land Act, 1912 was in full force which ousts the jurisdiction of the Civil Court to take cognizance of the matter in issue and if any declaration is issued by the Courts of civil jurisdiction that would patently be void ab-initio and nullity in the eyes of law and even the plaint of the suit was liable to be rejected under Order VII, Rule 11, C.P.C. and such frivolous civil lis should have been buried at the very inception to save the precious time of the public. Reliance is placed on cases titled as S.M Shah Ahmad Zaidi through Legal Heirs v. Malik Hassan Ali Khan (Moin) through Legal Heirs (2002 SCMR 338) and Haji Farman Ullah v. Latif-ur-Rehman (2015 SCMR 1708).
12. In view of above, the findings of both the Courts below on issues Nos.1 to 8 being based on misreading and non-reading of evidence as well as against the record, same are hereby reversed and the said issues are decided against the respondents/plaintiffs and in favour of the petitioners/defendants.
13. The Courts below have committed blatant misreading and non-reading of the evidence and have also failed to apply the correct law which rendered the said dicta as not sustainable in the eyes of law and are liable to be set-aside. This Court, under section 115, C.P.C, has jurisdiction to interfere in the perverse concurrent judgments and decrees of the lower fora. Reliance is placed on the case of Nazim-ud-Din and others v. Sheikh Zia-ul-Qamar and others (2016 SCMR 24).
14. Resultantly, this civil revision is allowed, the judgment and decree dated 25.03.2000 passed by the trial Court as well as the judgment and decree dated 22.12.2012 passed by the appellate Court are hereby set aside and consequently the suit for declaration along with permanent injunction filed by the respondents is hereby dismissed. No order as to costs.