' This revision petition is directed against the judgment of the learned District Judge, Abbottabad dated 26-11-1984 whereby, reversing the findings of the learned trial Court vide his judgment dated 8-12-1982, on issue No, 1 relating to the jurisdiction of the Civil Court, the case was remanded back to the learned Senior Civil Judge Hazara, Abbottabad for the trial of the suit afresh.
2. Feroz Mining Ltd., Abbottabad the plaintiff-respondent herein, instituted a suit against Karam Elahi, the defendant-petitioner herein and 6 others, seeking a declaration to the effect that the decision of the Board of Revenue dated 16-3-1971 pertaining to the land bearing khasra numbers 861 and 863, measuring 9 kanals 19 marlas, situated in the revenue estate of village Sultanpur, Tehsil Abbottabad is illegal, collusive and ultra vires of the jurisdiction of the Revenue Board and of no effect upon the rights of the plaintiff-respondent. It was also accompanied with a prayer for issuing a perpetual injunction restraining the petitioner and 3 others for interfering with the possession of the suit land.
3. The petitioner contested the suit and, finding the parties at variance, the learned Senior Civil Judge, Abbottabad framed as many as 12 issues, including issue No, 1 questioning the jurisdiction of the Civil Court to entertain the suit.
4. After recording such evidence as was adduced by the parties in support of their respective pleas, the learned trial Court, while discussing the question of jurisdiction under issue No,1, arrived at a conclusion that under section 26 of the Consolidation of Holdings Ordinance, 1960 the jurisdiction of the Civil Court, to adjudicate upon the controversy arising out of the consolidation proceedings, stands barred. It also proceeded to hold that the plaintiff had purchased the suit land during the pendency of the litigation between the defendants and the transaction would be hit by the principle of lis pendense as embodied in section 52 of the Transfer of Property Act 1882.
5. Feroz Mining Ltd the plaintiffs-respondents, preferred an appeal against the aforesaid judgment of the learned trial Court and, after hearing the learned counsel for the parties, the learned District Judge, Abbottabad vide his judgment dated 26-11-1984, arrived at a conclusion that the Civil Court had the jurisdiction to decide the suit. Hence this revision petition.
6. I have heard Qazi Abdur Rashid, Advocate, learned counsel for the petitioner and Al-Haj Sardar Bahadur Khan, Advocate, learned counsel for the respondents at length and also perused the record of the case with considerable degree of care.
7. It is contended on behalf of the petitioner that the impugned judgment of the learned District Judge has not proceeded in right direction while holding the Civil Court as a forum competent to decide a suit arising out of and connected with, consolidation proceedings held under the West Pakistan Consolidation of Holdings Ordinance, 1960 (hereinafter referred to as the Ordinance), inasmuch as under section 26 of the Ordinance, there is a specific ouster of the jurisdiction of the Civil Court to entertain any suit or application to obtain a decision or order in respect of any matter which the Government or the Board of Revenue or any Officer is empowered to determine, decide or dispose of. He, therefore, maintained that the learned appellate Court fell into error by wrongly equating the consolidation proceedings under the Ordinance with those under the N.-W.F.P.
Tenancy Act, whereunder the second revision before the Board of Revenue has been held as not in accordance with law and the Civil Courts are held to be competent to look into the matter being the Courts of ultimate jurisdiction.
8. The learned counsel for the petitioner further contended that the transaction having taken place during the pendency of proceedings under the Ordinance, as a consequence whereof the respondents were transferred the rights in the suit land, was again illegal as per section 24 of the Ordinance, which forbids such a transfer during the pendency of consolidation proceedings. He, therefore, urged that in view of this legal position, the impugned judgment of the learned appellate Court is liable to be set aside and that of the trial Court be restored.
9. As against this, the learned counsel for the respondent, while supporting the impugned judgment of the learned District Judge Abbottabad; vehemently argued that the Board of Revenue had no jurisdiction and no second revision could be filed before or decided by the Board of Revenue when the revisionary powers had already been exercised by the Additional Commissioner.
He relied on decisions of this Court in cases of Fazalur Rehman v. Board of Revenue reported in PLD 1983 Peshawar 1 and Ahmad Khan v. Member Board of Revenue reported in PLD 1986 Peshawar 67.
He also refuted, on factual premises, the transfer of the suit land during the pendency of the litigations between the parties and as such contended that there has been no violations of the principle of lis pendense.
10. I have given my serious consideration to the submissions made by the learned counsel for the parties in respect of their respective pleas.
11. It will be pertinent to note that mostly it is section 56 of the North-West Frontier Province Tenancy Act which came up for examination in a number of cases before this Court as also before the Supreme Court of Pakistan and it has been consistently held that once the Commissioner/Additional Commissioner exercises the jurisdiction conferred upon them thereunder, the Board of Revenue A would not be competent to exercise the same powers with respect to the same case under this section. In the case of Ahmad Khan v. Member, Board of Revenue North-West Frontier Province reported in PLD 1986 Peshawar 67. I find a reference to section 164 of West Pakistan Land Revenue Act whereby the revisionary powers of Board of Revenue and the Commissioner under section 164 of the West Pakistan Land Revenue Act 1967 have been treated at par to the revisionary powers conferred on the said authorities under section 56 of the N.-W.F.P. Tenancy Act, 1950 and the second revision was found incompetent.
12. A reference to the provisions of law relevant to the matter in issue may be useful towards resolving the controversy, which reads as follows:-- N.-W.F.P. Tenancy Act, 1950: ' Section 56. Power to call for, examine and review proceedings of Revenue Officers and Revenue Courts.-- (1) The Board of Revenue or the Commissioner may at any time call for the record of any case pending before, or disposed of by, any Revenue Officer or Revenue Court subordinate to it or him.
(2) A Collector may call for the record of any case pending before or disposed of by, any Revenue Officer or Revenue Court under his control.
(3) If in any case in which a Collector has called for a record he is of opinion that the proceedings taken or the order or decree made should be modified or reversed, he shall submit the record with the opinion on the case for the orders of the Commissioner.
(4) If, after examining a record called for by himself under sub-section (1) or submitted to him under subsection (3), the Commissioner is of opinion that it is inexpedient to interfere with the proceedings or the order or decree he shall pass an order accordingly.
(5) If, after examining the record, the Board of Revenue or the Commissioner is of the opinion that it is expedient to interfere with the proceedings or the order or decree on any ground on which the High Court in the exercise of its revisional jurisdiction may, under the law for the time being in force, interfere with proceedings of an order or decree of a Civil Court, he shall fix a day for hearing the case, and may, on that or any subsequent day to which he may adjourn the hearing or which he may appoint in this behalf, pass such order as he thinks fit in the case.
(6) Except when the Board of Revenue or the Commissioner fixes under subsection (5), a day for hearing the case, no party has any right to be heard before the Board of Revenue or the Commissioner when exercising its or his powers under this section.
' WEST PAKISTAN LAND REVENUE ACT, 1967: ' Section 164. Revision.--(1) The Board of Revenue, may, at any time, on its own motion, or on an application made to it within ninety days of the passing of any order, call for the record of any case pending before, or disposed of by, any Revenue Officer subordinate to it.
(2) A Commissioner or Collector may, at any time, of his own motion or on an application made to him within ninety days of the passing of any order, call for the record of any case pending before, or disposed of by, any Revenue Officer under his control.
(3) If in any case in which a Collector has called for a record he is of opinion that proceedings taken or order made should be modified or reversed, he shall report the case with his opinion thereon for the orders of the Commissioner.
(4) The Board of Revenue may, in any case called for under sub-section (1) and a Commissioner may in any case called for under subsection (2) or reported to him under subsection (3) pass such orders as it or he thinks fit: ' Provided that no order shall be passed under this section reversing or modifying any proceedings or order of a subordinate Revenue Officer affecting any person without giving such person an opportunity of being heard."
' WEST PAKISTAN CONSOLIDATION OF HOLDINGS ORDINANCE, 1960: ' Section 13. Power to call for and examine record.--(1) The Board of Revenue may:-
(a) at any time of its own motion call for the record of any proceedings under this Ordinance pending before or disposed of by any Revenue Officer or Consolidation Officer; or
(b) on application made to it in that behalf by a person aggrieved within 90 days of the passing of an order in any proceedings under this Ordinance by any Revenue or Consolidation Officer, and after giving such person an opportunity of being heard, call for the record of such proceedings.
(2) A Commissioner or Collector may call for the record of any case under this Ordinance pending before, or disposed of by any Revenue Officer or Consolidation Officer under his control.
(3) If in any case in which a Collector has called for the record under subsection (2), he is of opinion that the proceedings taken or order made should be modified or reversed, he shall report the case with his opinion thereon for the orders of the Commissioner.
(4) The Board of Revenue may in any case called for under sub-section (1) and a Commissioner may in any case called for by him under subsection (3), pass such orders as it or he thinks fit: Provided that no order shall be passed under this section reversing or modifying any proceedings or order of a subordinate Revenue Officer and affecting any question of right between private persons without giving those persons an opportunity of being heard."
13. A bare reading of the aforequoted provisions of law would reveal that the language of section 56 is significantly different from that of section 164 of the Land Revenue Act and, for that matter, from that of section 13 of the Ordinance as well in that in the former enactment the very subsection
(1) thereof contemplates the Board of Revenue or the Commissioner as simultaneously empowered to call for the record of any case pending before or disposed of by any Revenue Officer or Revenue Court subordinate to it or him and thus the second revision to the Board of Revenue against a revisionary order of the Commissioner, is held by the superior Courts as inconsistent with the law and accordingly incompetent against a revisionary order of the Commissioner.
14. It is also noteworthy that under section 56 of the Tenancy Act, besides the heirarchy of the Revenue Officers, there are Revenue Courts, to the proceedings whereof Civil Procedure Code is applicable as per section 5 (ibid). It was in this context that the principle embodied in section 115, C.P.C., when applied to the proceedings of section 56 of the Tenancy Act, the second revision to the Board of Revenue was held as barred. In fact it is on the said premises that the decision in case of Fazalur Rehman v. Board of Revenue N.-W.F.P. (PLD 1983 Peshawar 1) has proceeded.
15. On the other hand, section 164 of the Land Revenue Act as well as section 13 of the Ordinance vis-a-vis section 56 of the N.-W.F.P. Tenancy Act prima facie appears to be essentially different in that while under the Tenancy Act the Commissioner has been bracketed with the Board of Revenue in exercise of their revisional powers, the nomenclature of Commissioner is conspicuously absent in subsection (1) of section 164 of the Land Revenue Act and in fact, under subsection (2) of section 164, the Commissioner has been vested with the revisionary powers severally and independent of the powers of Board of Revenue. Such being the case, there is no escape from concluding that a second revision under section 164 of the Land Revenue Act, before the Board of Revenue, is competent, valid and in accordance with law.
16. At this stage, it will be pertinent to note that the provisions as contained in section 13 of the Ordinance are more akin to section 164 of the Land Revenue Act in matters of revisional powers of the Board of Revenue and appear to be at pari materia to each other.
17. In this context of the matter I have no hesitation in holding that having regard to the similarity of language used in section 13 of the West Pakistan Consolidation of Holdings, Ordinance, 1960 with that of section 164 of the Land Revenue Act, a second revision under the Ordinance is competent.
18. This would lead me to yet another point in issue which relates to the jurisdiction of the Civil Court in entertaining a civil suit in respect of any matter which the Government or any officer under the Ordinance is empowered to decide. In this regard section 26 of the Ordinance needs reference:- ' "WEST PAKISTAN CONSOLIDATION OF HOLDINGS ORDINANCE,1960.
' Section 26. Jurisdiction of Civil Courts barred as regards matters arising under this Ordinance. No Civil Court shall entertain any suit or application to obtain a decision or order in respect of any matter which Government or the Board of Revenue or any Officer is by this Ordinance, empowered to determine, decide or dispose of."
' A plain reading of the aforequoted provision would indicate that any matter which the Government, the Board of Revenue or any Officer is empowered to determine, decide or dispose of in the heirarchy of the Ordinance, cannot be called into question by way of civil suit and there is specific ouster of jurisdiction of Civil Courts to entertain such a suit.
19. In this view of the matter the learned appellate Court in the instant case seems to have fallen in error to have assumed the jurisdiction which on the face of it, is contrary and violative of section 26 of the Ordinance and I hold it accordingly.
20. Regarding the applicability of principle of lis pendense of the transaction of sale made in favour of respondent during the pendency of litigation between the parties, I do not feel the necessity of entering into the merits of the same in view of my findings arrived at as above. For, it will be rather more academic discussion than having any material bearing on the fate of the case and more so when its determination would require me to enter into the realm of disputed questions of fact.
21. Viewed in the perspective of the foregoing discourse, I am of the considered opinion that under section 13 (1) of the Consolidation of Holdings Ordinance, 1960, the second revision before the Board of Revenue is competent and in the instant case, the Board's decision dated 16-3-1971 does not suffer from any incompetency, jurisdictional error or other legal infirmity. As a matter of fact the Board of Revenue was vested with and has rightly exercised the powers of revision, against revisional order of the Additional Commissioner dated 29-8-1970 and his order of 16-3-1971 is in accordance with law and made validly as such. Similarly I am of the firm view that under section 26 of the Ordinance, the Civil Court had no jurisdiction to entertain the suit and while the learned Senior Civil Judge, Abbottabad had rightly held so, the learned District Judge, Abbottabad had erroneously assumed the jurisdiction which legally did not vest in him.
22. Resultantly, I hereby allow this revision petition with cost, set aside the judgment and decree dated 26-11-1984 of the learned District Judge, Abbottabad and restore that of the Senior Civil Judge, Abbottabad dated 8-12-1982.