1. WAHEEDUDDIN AHMAD, J.-This appeal by special leave is directed against the judgment of the former High Court of West Pakistan, Karachi Bench, in Writ Petition No. 62 of 1964, dated the 3rd December, 1965. By this judgment, the writ petition was dismissed.
2. The appellants claimed to be the absolute owners and occupants of land measuring 145 acres and 39 Ghuntas in Survey Nos. 50/1 to 4, 103, 403 and 406 to 437 in Deh Sangro, Taluka Mirpur Khas.
3. According to them, it is their ancestral land. It appears that the British Government had created a Jagir of vast land including the disputed land in favour of certain members of Talpur family. But the Zamindari rights of the appellants were recognised. The father of the appellants Jan Muhammad Leghari used to pay land revenue diructly to Jagirdar Mir Budho Khan Talpur. In or about 1937, Mir Budlro Khan had leased his Jagirdari rights to one Sardar Hira Singh who disputed the rights of the appellants initially but subsequently recognised the Zamindari `rights of ownership of the appellants' father. Till 1953, the appellants had been recognised Zamindars in respect of the land in dispute even by the Land Revenue authorities. It appears that the name of Jagirdar Mir Budho Khan was entered in the Revenue Record as Jagirdar and Zamindar as well. The appellants came to know about this fact in 1954. Mir Budho Khan died in the year 1958 and left a son Mir Muhammad A.I Khan and a widow as his heirs. Thereafter, the appellants a Civil Suit No. 28 of 1959 in the Court of Sub-Judge, Mirpur Khas for declaration of their Zamindari rights in the land in dispute arid injunction: This suit was filed before the promulgation of Martial I aw Regulation No. 64. The appellants also filed another Suit No. 30 of 1959 restraining the Collector from selling the land in dispute. Temporary injunction was granted in the second suit and the Collector had excluded the land from auction, In view of this, the appellants withdrew their suit with permission to file a fresh suit.
4. On the 22nd August, 1959, the suit of the appellants seeking declaration and injunction against the heirs of late Mir Budho Khan was decreed. On the basis of the decree, mutation was effected in favour of appellants on the 28th September, 1959. In the meanwhile, Mir Muhammad A.I Taipur and his mother and his sisters surrendered the disputed land to Land Commission. Thereupon, the appellants moved the Land Commission for the release of the property in dispute and to recognise their rights as Zamindars. During the pendency of the said application, the tenants of the appellants filed Suit No. 272 of 1959 and suit No. 285 of 1959 disputing the rights of ownership of the appellants, although the same tenants had admitted the appellants to be the owners in proceedings before the Mukhtiar kar and Deputy Collector.
5. One Muhammad Hussain informed the Land Commission that he had filed a civil suit challenging the validity of the decree obtained by the appellants. The application of the appellants was also forwarded and the respondent No. 2 was directed to treat the matter sub-judice and resume the land provisionally, on the 1st September, 1959. The appellants moved a second application for the release of the land on the 22nd July, 1961. The Land Commission, by letter dated the 30th October, 1962, informed the appellants that the decree obtained by them against the heirs of Mir Budho Khan had not been recognised. The appellants then moved another application before the Land Commission on the 10th November, 1962. This application was dismissed on the 23rd September, 1963, on the ground that the review application was maintainable only within 10 days and as the application had been made after 10 days, the application was not maintain-- able. The appellants challenged this order in Writ Petition No. 62 of 1964 and a Division Bench of the former High Court of West Pakistan, Karachi Bench, dismissed the petition on the ground that the Land Commission bad exclusive jurisdiction in the matter and the civil Court cannot interfere with that decision. Reliance in this connection was placed on thedecision of the Supreme Court in Mst. Bibi Ayesha another v.
6. The Chief Land Commissioner, West Pakistan and another (PLD1946 SC 84). The appellants challenged this judgment in Civil Petition for Special Leave to Appeal No. K-22 of 1966 and this Court granted leave by order dated the 8th March, the question whether after the promulgation of the Constitution, the bar of jurisdiction under paragraph 27 of the Martial Law Regulation was limited to orders which were in substance and form made in compliance with the Regulation. Leave was also granted to consider the question whether the High Court had jurisdiction to declare under Article 98 of the Constitution that the order of the Land Commission was made without lawful authority and was, therefore, of no effect. It is in these circumstances, that this appeal has come before us for hearing.
7. Mr. Abdul Sattar Pirzada, learned counsel for the appellants, has contended that the decision of the Supreme Court in the above case of Mst. Bibi Ayesha, related to an order which was passed by the Land Commission before the promulgation of the Constitution of 1962 and, therefore, it was distinguishable. According to the learned counsel. Para 27 of the Martial Law Regulation, which is as under, could not b , a bar for the High Court under Article 98 of the Constitution to consider the question whether such an order was passed with lawful authority :-- "Paragraph 27. Bar of jurisdiction.-(1) 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 appoint--ed under this Regulation, and no such Court or authority shall have jurisdiction in respect of any matter which the Commission of an officer acting under the authority of the Commission is empowered to determine.
(2) No such Court or authority as aforesaid shall be competent to grant any injunction or other order in relation to any proceeding before the Commission or before any officer exercising any power or discharging any function under this Regulation or the rules or orders made there--under, in relation to anything done or intended to be done by or at the instance of the Commission or such officer."
8. "As a result of the above discussion, we are satisfied that the order, of Mr. I. U. Khan is not one that can be made within the powers given by the Regulation. By paragraph 27 of that Regulation, it is provided that no order made thereunder shall be called in question in any Court including the High Court and the Supreme Court, The words are not "any order purporting to be made", but "any order made" and therefore the requirement is that any order in respect of which immunity may be claimed under paragraph 27 must be an order made in accordance with the Regulation in its relevant provisions. Before the 7th June, 1962, there were in force certain Martial Law Regulations which had effect to save actions of e.g., the Land Commission authorities, which merely purported to be made under the Regulation, even though not in compliance with its relevant provisions, but these Regulations ceased to have force err the promulgation of the present Constitution, and the bar of jurisdiction under paragraph 27 was limited thereafter to orders which were in substance and form made is compliance with the Regulation. Therefore, the High Court had jurisdiction under Article 98 of the Constitution to declare that the order of Mr. 1. U. Khan was made without lawful authority and was, therefore, of no effect."
9. We would now consider the question whether the order of the Land Commission was within the regulation of the Land Commission. It will he noticed that the appellants filed Suit No. 28 of 1959 on the 4 February, 1959, before the Martial Law Regulation No. 6 was promulgated. The heirs of Mir Budho Khan were served and they did not put in appearance. The suit was decreed on the 22nd August, 1959. This decree was sought to be set aside by the heirs of Mir Budho Khan. A civil suit was filed for setting aside the ex parte decree but it was withdrawn on the 18th July, 1961. The rights of the appellants were also challenged by their harts before the Mukhtiar kar and Tribunal Tenancy.
10. Their application was accepted by order dated the 19th October 1939. The appellants filed an appeal before the Collector which was allowed by order of the Collector which is at page 61 of the record. Thereafter, the tenants challenged the rights of Zamindari of the appellants in two suits, namely, No. 272 of 1959 and No. 285 of 1959. These suits were dismissed on the 16th February, 1961 and 31st August, 1961, respectively.
11. The above-mentioned facts proved beyond doubt that the appellants are the Zamindars of the land in dispute and their rights had been recognised by the civil Court. It further shows that the decree obtained by them e against the heirs of Mir Budhu Khan was not collusive or fraudulent and their title had been recognised by the civil Court in other proceedings also In view of this, the Land Commission should have recognised the decree and released the land in dispute.
12. After carefully considering the facts of the present case, we are satisfied that the Land Commission did not pass the impugned order in accordance with the provisions of Martial Law Regulation.
13. Under rule 12, promulgated Ruder Martial Law Regulation, it is clearly provided that if the land as a result of the civil suit, is awarded to a person other than the declarant-owner, the rent realised from such land shall ba given to such person. It will be further noticed that the order passed by the Land Commission was passed in the absence of the appellants and suffers from the principles of natural justice. We would, therefore, set aside the order of the Land Commission and direct that the land in dispute be released in favour of the appellants. 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.