' WA LI MUHAMMAD KHAN, J.--Through this constitutional petition Zarin and Takal petitioners have called in question the order dated 11/3/1980 passed by Assistant Commissioner, Swat (respondent No,3) whereby he, by accepting the award of the jirga constituted under Provincially Administered Tribal Areas Regulation-II of 1975, decreed the suit of Mian Jan (respondent No,4 herein) for produce of the suit land in respect of the crops Rabi and Kharif, 1975 and 1976. He has also assailed the orders dated 6/5/1981 passed by Additional Commissioner Malakand Division (respondent No,2) and that of Additional Home Secretary (respondent No,1) dated 17/1/1984 whereby his appeal and revision were also dismissed.
' The background of the case is that Abdul Wadood alias Badshah Sahib, the then Ruler of Swat claimed ownership of the suit property on account of purchase from Ghamay father of plaintiff/respondent No,4 vide deed dated 9/4/1952. On the merger of State of Swat with the other parts of N.W.F.P., the said Ghamay approached the Deputy Commissioner, Swat for declaring him as the owner of the suit property and annulling the document on account of its having been obtained under duress and coercion. Necessary enquiry was conducted through the Enquiry Commission constituted by the Government for the determination of such disputes and on the basis of their recommendations, the learned Deputy Commissioner vide his order dated 1/9/1973, by holding the sale deed as genuine, dismissed his claim and declared Badshah Sahib as owner of the suit land. This order was challenged before the Federal Land Commission through a revision petition filed by Mian Jan plaintiff/respondent No,9 and a learned Member of Federal Land Commission, vide his order dated 18/5/1975, by accepting the revision petition, set aside the order of the Deputy Commissioner Swat dated 1/9/1973, and declared the suit l;nd as the ownership of Mian Jan and ordered restoration of its possession to him. In consequence thereof symbolical possession was delivered to Mian Jan, plaintiff/respondent No,4 on the spot on 11/3/1976 by the Tehsildar concerned. The petitioners herein being the occupants of the property, aggrieved with the order of the learned Member Land Commission, filed a review petition No,186 before Mr. Justice
(Rtd) Qaisar Khan, then Chairman Tribunal Dir, Swat and Chitral at Mardan but the same was not entertained for the simple reason that the petitioners being not party to the proceedings before the Enquiry Commission or Federal Land Commission were not bound by the decision/orders passed by them and consequently dismissed the same in limine. Prior to the same Mian Jan plaintiff/respondent No,4 herein had instituted a suit for the recovery of produce in respect of the suit land against Zarin and others petitioners pertaining to the crop Rabi and Kharif, 1975 and 1976, which was duly contested and the petitioners, in their written statement denied the title of the plaintiff/respondent No,4 and claimed prescriptive title in themselves. The learned Assistant Commissioner Swat, (respondent No,3) who was seized of the case, constituted a Jirga under PATA Regulation-II of 1975 and after framing necessary issues in the case, directed them to give their finding on the issue so framed and submit their recommendations to the Court. The Jirga probed into the dispute by examining the parties and the witnesses produced before them, inspected the spot and prepared the site plan and submitted their unanimous award in favour of plaintiff/respondent No,4 owner. The learned Assistant Commissioner, agreeing with the recommendations of the Jirga, decreed the suit of the plaintiff/respondent No,4 and the appeal and revision filed against it by the defendants/petitioners herein were dismissed vide impugned orders.
3. We have heard learned counsel for the parties and have perused the record of the case with their assistance.
4. The learned counsel for the petitioners referred to the judgment of this Court in case 'Said Ahmad and another v. A.C.Malakand Division' reported as (1984 CLC 1260) and submitted that the land in suit was the ancestral ownership of the defendants/petitioners herein who had in the alternative, also claimed prescriptive title on account of adverse possession for more than 12 years and that in view of the dictum of Their Lordships in the said judgment, the lower forums were bound to refer any of the party to the Civil Court for the determination of the dispute between the parties regarding the title to the suit property and to have stayed proceedings till the result thereof, in the exercise of their powers u/s 70 of the N.W.F.P., Tenancy Act (Act No,XXV of 1950). We have carefully gone through the said judgment and the relevant laws on the subject and are of the considered opinion that the cited judgment is inapplicable to the facts of the instant case. The land in suit is admittedly. Situated in the District of Swat to which certain substantive laws in force in the settled District were extended from time to time. However, for the determination of the dispute between the parties belonging to that area or regarding the properties' situated in that area, PATA Regulation-II of 1975 was promulgated whereby all cases of civil nature were to be referred to the Jirga constituted u/s 4 of the said Regulation and were to be decided in accordance with their findings. However, the suits falling within the ambit of the provisions of N.-W.F.P. Tenancy Act used to be tried by the Extra Assistant Commissioners in exercise of powers as Assistant Collector First Grade by virtue of their post and the appeal and revision used to be heard by the Deputy Commissioner and Additional Commissioner respectively as appellate and revisional Court under the Tenancy Act ibid. Later on section 3 sub-clause (1) of PATA Regulation II of 1975 was substituted by amending Regulation-IV of 1976 and the substituted provision read as follows:- "(1) Notwithstanding anything contained in any other law for the time being in force, all suits by landlord for arrears of rent or the money equivalent of rent, or for sums recoverable under section 7 of the North-West Frontier Province Tenancy Act, 1950 (N.-W.F.P. Act XXV of 1950), and all cases of a 'civil nature shall, save as otherwise provided hereinafter, be referred to jirga constituted under, and adjudicated upon in accordance with, the provisions of this Regulation,"
5. Through the abovementioned amendment all suits by landlord of arrears of rent or the money equivalent of rent under section 7 of the N.-W.F.P. Tenancy Act were taken out of the jurisdiction of the Revenue Court under the Tenancy Laws and entrusted to the hierarchy of Courts functioning under the PATA Regulation II of 1975. It appears that the suit which ultimately led to the passing of the cited judgment was filed when the aforesaid amendment had not come into force because the impugned decisions therein were given by the Courts without the aid and recommendations of the jirga. Obviously they, being Revenue Courts, had no jurisdiction to give any decision about the title of the landed property and thus in the event of any such question arising before it, they were obliged to refer any of the party to the civil Court (Deputy Commissioner under PA TA Regulation) for determination of title in view of the provisions of section 70 of the Tenancy Act. After the amendment, the disputes regarding the title as well as those for recovery of arrears of rent and sums recoverable under section 7 of the Tenancy Act fall within the exclusive jurisdiction of the Courts functioning under PATA Regulation. This change in law has made the provisions of section 70 of the Tenancy Act as inoperative so far as the area governed by PATA Regulation is concerned because one and the same forum has to decide the question of title as well as the recovery of arrears of rent and sums recoverable under section 7 of the Tenancy Act. In this view of the matter, the contention of the learned counsel for the petitioners has no force and is accordingly repelled.
6. As regards the merits of the case the learned counsel for the petitioners vehemently argued that the defendants petitioners were not party to the proceedings before the officers of the Land Commission and were, therefore, not bound by whatever judgments were delivered by them; that the plaintiff respondent No,4 had failed to prove that the land for which the produce was being sought was the very land which was subject matter of the litigation between the plaintiff respondent No,4 and Badshah Sahib of Swat and that there was no basis for the quantum of produce decreed by the lower forums. We have anxiously considered this aspect of the case as well and have found that the jirga constituted for the determination of the dispute between the parties, on the appraisal of the evidence produced before them, and their personal enquiries on the spot have positively recommended that the suit land is the very land which was in dispute between the plaintiff/respondent No,4 and the Ex-Ruler of Swat and that the same was held as the ownership of plaintiff/respondent No,4 by the Enquiry Land Commission. The respondent No,3 had to base his decision on the unanimous award of the jirga under section 10 of the PATA Regulation.
The respondent No,2 as an Appellate Court rightly concurred with him and the revisional Court finding no illegality or material irregularity maintained the same. Needless to mention that the hierarchy of the Courts constituted under PATA Regulation have the exclusive jurisdiction to decide the dispute falling under PATA Regulation and this Court under its constitutional jurisdiction cannot go into the factual aspect of the case unless any jurisdictional error or material illegality resulting in grave miscarriage of justice is pointed out. The learned counsel for the petitioners could not convince us about any such error.
7. In view of what has been stated above there is no merit in the instant writ petition and the same is hereby dismissed, with no order as to costs.