MUHAM:MAD NAEEM ANWAR, J: - This single judgement in the instant petition shall decide all the connected petitions, tabulated at the foot of this judgement, as an identical questions of law and facts are involved.
2. Succinct facts of these petitions are that initially the respondents have approached this Court through Writ Petitions No.1875/2011, 2076/2011, 2174/2011 and 854/2012, being aggrieved from the verbal directions of the petitioners for their alleged encroachment in the public property, the petitioners being served in referred to above petitions appeared and the petitions were decided through consolidated judgement in W.P No.1875/2011 on 29.05.2013 in terms of direction to them to demarcate the property by associating the respondents with the process of demarcation. Since, the matter pertains to 03 revenue estates i.e. Reggi Lalma, Tehkal Bala No.1 and Malgandher; thus, three Patwari Halqa along with respective Patwaris, Girdawar Circles, representative of the petitioners conducted the demarcation proceedings, alleging the encroachment in the public property and based on the report, fresh notices were served upon the private respondents, who filed W.P No.2270-P/2013 questioning validity and correctness of the notices dated 13.08.2013, the petitioners being respondents of the referred to above Writ Petition were put on notice and this Court observed that since the respondents were not associated with demarcation proceedings, as such, the notices were struck down and the petitioners were directed to demarcate the properties, whereas, the respondents were directed to approach the appropriate forum for redressal of their grievances. The petition was decided on 13.09.2013. After the decision of the Writ Petition, the respondents of the instant petition filed Civil Suit for declaration to the effect that they are owners in possession of the property bearing Khasra No.1745, 1747, 1742, 1793, 1794/1742, 1794/1743, 1502/2, 1497, 1498 and 1502 of the revenue estate of Reggi Lalma, whereas, the respondents of connected C.R No.245- P/2017 filed civil suit for declaration that they are the owners of the property bearing Khasra No.1745, 1746, 1744/1 of the revenue estate of Reggi Lalma.
3. Respondents of W.P No.1630-P/2017 filed a suit for declaration challenging the Notice No.206/Land/Q-3/Gen dated 1308.2013 to be ineffective upon the rights. Respondents of W.P No.1631-P/2017 have sought declaration that they are owners in possession of property bearing Khasra No.1488 on the strength of mutations No.2352 dated 31.12.1984, 4488 dated 20.11.1999, 1205 dated 17.05.1966, 1321 dated 05.05.1970, 5099 dated 16.02.2007, .5500 dated 16.02.2007 and 5501 dated 16.02.2007, with which the petitioners have got no concern or interest. Respondents of W.P No.1633-P/2017 were seeking declaration in respect of Khasra No.1745 of the revenue estate of Reggi Lalma on the strength of mutations No.6876 to 6885 dated 11.06.2012. They have challenged notices dated 13.08.2013 and questioned the demarcation proceedings, report submitted to be ineffective upon their rights. Petitioner of W.P No.740-P/2021 through her suit was seeking declaration to the effect that she being the daughter of Ameer Muhammad, who was the owner of the property bearing Khata No.26, 29, 25, 27, 49/69, 30/40 and 48 of the revenue estate of Reggi Lalma, on whose death, the property was devolved upon her and other legal heirs, as such, she is entitled for her legal and Shari share in the property. The denial on the part of private defendants and the official defendants from her legal and Shari right in the property is inconsistent with her stance, as such, it is ineffective upon her status/right. During pending adjudication of all the suits, the petitioners submitted applications for summary rejection of the plaints on the grounds that no cause of action has been accrued, suits have become infructuous, court has got no jurisdiction and that demarcation proceedings were conducted in accordance with the direction of this Court.
Their applications were resisted by the plaintiffs of the respective suits. Nonetheless, the applications were dismissed by the learned trial court against which the appeals failed. In W.P No.740-P/2021, the petitioner has filed an application for sine-die adjournment of her suit till disposal of the Writ Petitions pending before this Court. Her application was allowed but the judgement was set-aside by the learned revisional court/ADJ-XII, Peshawar on 12.01.2021. She approached this Court questioning the validity of the order of the revisional court. She has sought an interim order on 22.03.2021 when her petition was clubbed with W.P No.1629-P/2017 directing the official petitioners (respondents of the Writ Petition) to maintain the status-quo. She alleged that despite clear directions, her possession of the property was interfered with, and she was dispossessed, which is violative to the direction of the court, as such, the official respondents of her Writ Petition have committed contempt of court, for which she has filed COC No.1038-P/2021. likewise, Haji Syed Haider Shah is also aggrieved of the alleged violation of the order of the court filed COC No.454-P/2021; hence, all these petitions.
4. Mr. Nasir Mehmood, Advocate, learned counsel for petitioners contended that suits of respondents were not maintainable from the very inception as the proceedings were conducted on the direction of the court, wherein, the respondents were found to have encroached upon the property of the petitioners for which they were served with fresh notices. He vociferated that in view of Central Government Land and Building (Recovery of Possession) Ordinance, 1965, civil court had got no jurisdiction to entertain and adjudicate upon the matter and to grant any injunction in favour of unauthorized occupant because the jurisdiction of civil court has specifically been barred under Section 10 of the ibid Act. According to him, no cause of action was ever accrued in favour of plaintiffs/respondents and the learned courts below have failed to appreciate this aspect. In support of his contention, he placed reliance on "Civil Aviation Authority, Karachi Vs. M/S Data International (Data Baggage House). Karachi and 02 others (PLD 1993 Karachi 700), Haq brothers Vs. The Commander Karachi (1990 CLC 489), Director General Pakistan Coast Guards, Karachi Vs. Mst Zarina_Jamshed (1998 MID 1879)". Learned counsel for the petitioners in W.P No.740-P/2021 contended that their application for stay of proceedings sine-die was rightly allowed by the learned trial court vide order dated 18.03.2020 but the Civil Revision of Haji Syed Ali Shah (respondent No.1) has illegally allowed as the controversy was pending adjudication before this Court through connected writ petitions and until the petitions are decided, proceedings before the civil court could not be conducted. Learned counsel for the petitioners in COC No.454-P/2021 and COC No.103-P/2022 contended that the orders of this Court were violated when the petitioners of both the petitions were ousted from the property. Mr. Aimal Khan Barkandi, Advocate, counsel for plaintiffs/respondents contended that the initial demarcation was without associating the petitioners and even thereafter the demarcation proceedings were not conducted in accordance with law he added that, the ownership of the petitioners has not been denied by the petitioners, however, because of illegal demarcation proceedings, they were directed to vacate the possession as alleged unauthorized occupant and in such an eventuality, the plaintiffs were left with no option but to see the declaration in respect of their owned and possessed property. The suits of the plaintiffs were filed under Section 42 of the Specific Relief Act, 1877 where the matter pertaining to ownership which shall be decided in accordance with law because they have never alleged themselves to be owner of the state land or the public property and in view of the above the applications of the petitioners were rightly turned down by the learned courts below.
5. 1 have listened to learned counsel for petitioners, learned AAG, learned counsel for private respondents and record was gone through with the valuable assistance of the parties.
6. Having heard the arguments and perusal of record would reveal that the plaintiffs/private respondents were seeking declaration in respect of their owned and possessed properties described in the plaint, the petitioners being served with the notice put appearance and submitted their written statement by refuting the contents of the plaint and alleging therein that the plaintiffs have encroached upon the public property. The factum as to whether the plaintiffs arc the owners of their owned land and has never amalgamated the boundaries of their property with the contiguous ownership of the petitioners requires recording of evidence. Any such suit even with injunction is dealt with under Section 42 of the Specific Relief Act, 1877 when the right, status is denied or intended to be denied by a person declaration is granted, if the stance of the former is proved and the possession, if any, found in possession of the plaintiffs is directed to be surrendered in favour of actual owners/possessors. The Ordinance of 1965 on one hand is excluding the jurisdiction of the civil court in respect of the property on which a person is found in possession but unauthorized, then off-course in such an eventuality, neither the suit could be entertained nor adjudicated upon. It is well established principle of law that incompetency of suit is required to be determined from day first by the learned trial court as the incompetent suit requires burial from its inception. The court while considering the contents of the plaint and written statement may decide the matter even without recording of evidence if the facts were not controverted. This Court in the case "Muhammad Zaman and others Vs. Shah Wazir Khan (PLD 2002 Peshawar 45)", wherein, it was observed that; "incompetent lis requires to be buried from its inception". Moreover, the august Supreme Court in the case of "Raja Ali Shah Vs. Messrs Essem Hotel Limited and others (2007 SCMR 741)" has observed that; "if the contents of the plaint does not discloses cause of action, suit has not been valued properly or it is undervalued but not corrected or if the court fee has not been affixed on the plaint on its presentation and within the period provided by law, the deficiency has not been made good and lastly if the suit is barred by law may reject the plaint from its inception". In such an eventuality, the court is equipped with the power to nip the evil in the bud.
However, rejecting the plaint at the inception is a drastic penal provision restraining the plaintiff from seeking the remedy of his grievance from the court of competent jurisdiction. The Hon'ble Supreme Court in the case of "Misree Khan and others Vs. Abdul Ghafoor and others (PLD 2025 SC 24)", wherein, it was observed that; "Therefore, the conditions precedent to exercise power under Order VII, Rule 11, CPC are stringent. This Court has consistently held that the averments in the plaint must be read as a whole to determine whether it discloses a cause of action or whether the suit is barred under any law. This includes a bar created due to the lapse of the limitation period.
At the stage of exercise of power under Order VII, Rule I1 CPC, if the averments in the plaint ex-facie do not disclose a cause of action or on a reading thereof; the suit appears to be barred under any law; the plaint can be rejected"
7. Significantly, accrual of cause of action and disclosure of cause of action are two different phenomenon which cannot be amalgamated with each other. Non-disclosure of cause of action results into rejection of the plaint, whereas non-accrual of cause of action results into dismissal of the suit. Former does not preclude a person from institution of the fresh suit on the basis of same cause of action except in certain cases as specifically provided in the code, whereas the latter debars the plaintiff from institution of the fresh suit under the same cause of action within the purview of Section 11 of the code of Civil Procedure, 1908. Reliance may be placed on "Shaheen Nasir Khan Vs. Mst Asmat Ara and 06 others (PLD 2002 Karachi 408)". The application of the petitioners/defendants is mainly based upon the provision of the Ordinance of 1965 and the grounds taken therein manifests that non-disclosure of cause of action improper valuation and affixation of the court fee have not been alleged in the application; thus, the application of the petitioners under Order VII Rule 11 (1) (a) (b) and (c) could not be invoked. Even otherwise, the contents of the plaint do disclose a cause of action and when the contents of the plaint were controverted through written statements on different legal and factual objections then the trial court has got ultimate jurisdiction to decide the fate of the suit. In so far as the bar of the suit under the Ordinance of 1965 is concerned, suffice it to say that the plaintiffs have made reliance on the entries of the revenue papers and have sought declaration that to the extent of their owned and possessed property and in such an eventuality, civil court of ultimate jurisdiction could try the suit and no such specific bar has been provided in the Ordinance of 1965.
It is worth mentioning that the Ordinance of 1965 was repealed in 2021 by Federal Properties, Public Properties; Removal of Encroachment Ordinance, 2021 was promulgated providing a forum for determination of unauthorized possession but even within the lifetime of the Ordinance of 2021 no Tribunal was constituted for determination thereof. Neither the Ordinance of 2021 through its extension holds the field nor it converted into enactment and after the expiry of 120 days as extended later, it has come to an end and when so, the Ordinance of 1965 has been revived but alarmingly the Ordinance of 1965 provides no forum for determination of the issue of unauthorized person. It is not understandable that in the Ordinance of 1965 on one hand the jurisdiction of civil court was barred but on the other hand, in the Ordinance, there is no provision to address the issue of alleged unauthorized occupation.
8. Be that as it may, the above are the instances when the plaint is returned for its presentation before court of competent jurisdiction. Intriguingly, the alleged encroachment is based upon demarcation, the validity of which is to be determined by the court where the suits are still pending.
There is no cavil with preposition that in determining the boundaries of the property three permanent points are taken for erecting the boundaries and determination thereof. Reliance is placed on "Col. Mahboob Khan Vs. Abdur Rashid and another (1993 MLD 1599, Lahore).
The trial court where the suits are still pending will dilate upon this legal aspect because record reflects alleged encroachment. likewise, the Ordinance of 1965 does not provide any forum for determination of the boundaries of the property and the remedy against unauthorized person or redressal thereof against the officials. Though the case before this Court is not under the provision of the Act of 1977 (Khyber Pakhtunkhwa Public Property [Removal of Encroachment]) Act, 1977 read with Rules of 1966. However, if any public property is allegedly encroached upon by a private individual, the jurisdiction of Tribunal is limited only in respect of the issue as to whether the property for which the notice was served upon the private individual is not public property?
Reliance is placed on "Mian Hakim Ullah and 02 others Vs. Additional District Judgge/Tribunal, Nowshera and 02 others (1993 SCMR 907)". In this peculiar aspect, when there is a Tribunal to decide the factum of unauthorized possession or alleged encroachment is limited and tribunal, if any, is not competent to determine the ownership of the individual, which is the sole job of the civil court. Reliance is placed on "Muhammad Farid and others Vs. Municipal Committee (PLD 1999 SC 41) wherein it was observed 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 license 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 visuali7Pd 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 Ace 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. In the present case, the Tribunal appears to have dealt with issues which did not fall within its exdusive domain. It, therefore, had no jurisdiction to decide the same:
9. Yes, in certain suits of private individuals, notices were challenged but they too based upon the ownership of the plaintiffs. It would not be out of context to mention that determination of the private ownership is not the job of the Tribunal, if any, and without providing an opportunity within the parameters of the code and the procedure provided could not be decided by the Tribunal.
Thus, their suits were competent, which shall be adjudicated upon by the Court.
10. In so far as the contention of Mr. Nasir Mehmood, Advocate, who is representing the petitioners that petitioners have encroached upon the public land but in the entire record there is no sketch of the alleged encroachment against each and every individual, therefore, his submission is misconceived. Though the submission of Mr. Nasir Mehmood, Advocate, being defendants before the trial court may be the ground for dismissal of the suit but in no circumstance, it provides any credit to the petitioners for rejection of plaint. Another aspect is that once the encroachment is found based on demarcation report then recovery of possession was the sole job of the civil court except when another forum is provided in the statute. Reliance is placed on "Ghularn Haider & others Vs. Masoud & others (PU 2013 Pesh 240)".
11. Next, turning to the fate of the petitions filed by Mst. Niaz Meena and COC for and against by private individual. In the suit, an application was submitted for stay of the suit but till the determination of these writ petitions and since the petitions have been decided today, therefore, the application has become infructuous, and the suit shall be decided after recording of pro and contra evidence.
12. Admittedly, the petitioners are in possession of the property, which was alleged by them on the basis of the demarcation report then only thing which is required to be determined from the civil court as to whether the plaintiffs were unauthorized occupant of the property or they were in possession of their owned property and when the respondents of the instant petition are in possession of their own land wherefrom they have been allegedly dispossessed, their grievance shall be redressed by the court. Both the learned courts below rightly dilated upon the issue and have reached to the conclusion that the application submitted by the petitioners was not filed within the format of Order VII Rule 11 to which learned counsel for the petitioners could not point out any illegality, legal error, jurisdictional defect, non-reading and misreading of record; hence, for the foregoing reasons, this and connected petitions along with COCs are dismissed. No order as to costs. Announced.
Table S. No. Case Number Case Title
1. C.R No.245- P/2017 Military Estates Officer, Peshawar Circle, Peshawar Cantt & others Vs. Haji Syed Ali Shah & others.
2. W.P No.1630- P/2017 Military Estates Officer, Peshawar Circle, Peshawar Cantt & others Vs. Haji Muhammad Nawaz & others.
3. W.P No.1631- P/2017 Military Estates Officer, Peshawar Circle, Peshawar Can't & others Vs. Syed Muhammad Ashraf Shah & others.
4. W.P No.1633- P/2017 Military Estates Officer, Peshawar Circle, Peshawar Cantt & others Vs. Haji Nail( Muhammad & others.
5. W.P No.1634- P/2017 Military Estates Officer, Peshawar Circle, Peshawar Cant: & others Vs. Habib Ullah & others.
6. COC No.454- P/2021 in C.R.
No.245-P/2017Haji Syed Ali Shah & others Vs. Military Estate Officer, Peshawar Circle, Peshawar Cantt & others.
7. W.P No.740- P/2021 Mst Niaz Meena Vs. Said Ali Shah & others.
8. COC No.103-P/2022 In H'.PNo.740-P/2021Msz Niaz Meena Vs. Said Ali Shah & others.