' This judgment shall dispose of two Civil Revisions Nos. 75 and 76 of 1990, as the common questions of law and facts are involved.
2. In C.R. No,75/90, the plaintiffs/petitioners instituted Civil Suit No,219/1 of 1983 against the defendants/respondents claiming declaration therein that they were owners in possession of the suit land measuring 600 Kanals 4 Marlas fully described in the heading of the plaint as having been purchased by them from defendants/respondents 6 and 7 through a Court decree dated 11-3-1969 passed in Civil Suit No,105/1 on the basis of which Mutation No,7345 was attested on 22-5-1971 and that the resumption of land by respondents 1 to 5 under M.L.R.No,115 and the Mutations subsequently attested in favour of defendants 8 and 9 were illegal, void and ineffective on their rights and that the mutations so attested on the orders of partition in the file Nos. 15, 16, 17, 18 and 19 dated 26-3-1979 are void, ineffective and not binding on them. The plaintiffs/petitioners further prayed for permanent injunction restraining the defendants/respondents Nos. 8 to 19 to interfere in their possession.
2-A. In C.R. No,76 of 1990, the plaintiffs/petitioners instituted similar Suit No,220/i in the Court of Senior Civil Judge, Bannu wherein they prayed for declaration to the effect that they were owners in possession of 289 'Canals 12 Marlas of land fully described in the heading of the plaint on the basis of consent decree dated 22-5-1969 in Suit No,136/1 and challenged the Mutation attested in favour of defendants/respondents 8 to 13. In this suit as well, prayer was made for the relief of permanent injunction.
3. The two suits filed by the plaintiffs/petitioners in the Court of Senior Civil Judge,' Bannu were contested by the defendatts/respondents, both on legal and factual grounds. The issues arising out of the pleadings of the parties were framed in the two suits and evidence was also recorded.
Finally after hearing the learned counsel for the parties, the trial Court disposed of the two suits on the view that it had no jurisdiction to entertain the suits in which M.L.R. No,115 was challenged and without discussing the other issues returned the plaints to the plaintiffs/petitioners under Order 7, Rule 10, C.P.C. For presentation before a competent forum vide judgment dated 27-7-1989.
4. The judgment of the trial Court was impugned in two appeals before the learned Additional District Judge, Bannu who vide judgment fated 5-6-1990 dismissed the two appeals concurring with the view taken by the trial Court that the Civil Court had no jurisdiction to adjudicate and entertain he suit. The learned Additional District Judge was of the view that the suit and being claimed on the basis of consent decree dated 22-5-1969, it was within the sole competency of .4..And Commission to declare the transaction to )e bona fide or illegal one and that paragraph 26 of .M.L.R. No,115 barred the jurisdiction of the Civil Courts to adjudicate upon any matter in which the .And Commission was empowered.
5. The aforesaid judgments dated 27-7-1989 of the learned Senior Civil Judge, Bannu and dated 5- 6-1990 of the learned, Additional District Judge, tannu are assailed in these two revisions.
6. S. Zafar Abbas Zaidi, Advocate for the plaintiffs/petitioners and Mr. Muhammad Ali Jan Khan, Advocate for the defendants/respondents addressed arguments.
7. Learned counsel for the plaintiffs/petitioners contended that the lower Courts have not properly appreciated the application of Para. 7 of M.L.R. No,115, as under para. 7, sub-para. (1)(a) of the said Regulation, all transactions were liable to be considered and when the Court decree in favour of the petitioners was passed before !Chard 1969, therefore, M.L.R. No,115 was not applicable. He was of the view that the land could not be resumed as it was not owned by Abdul Sattar. Lastly the contention was that the Civil Court being the ultimate Court of jurisdiction would always come to the relief of aggrieved citizen when an act of a Tribunal or Special Court is challenged to find out whether the act done and orders passed were in accordance with the Statute which created the Tribunal or Special Court. Learned counsel for the plaintiffs/petitioners was of the view that the Court had the jurisdiction to inquire into the matter and, as such, the judgments are liable to be set aside. In support of the contentions so raised, reliance was placed on the following authorities:--
(1) Maula Dad etc. v. Ghulam Muhammad etc. PLD 1978 BJ 71; (2) Sher Zaman v. Muhammad Ishaq etc. PLD 1985 SC 144; (3) Umar Khan and another v. Land Commissioner, N.-W.F.P. And 6 others 1980 CLC 1717; (4) Mst. Nusrat Begum etc. v. The State PLD 1975 Rev. 95; (5) Abu Syed Rashid Bakht Mazumdar v. Mutahar Bakht Mazumdar and another PLD 1968 Dacca 152 and (6) Zafarul Hassan v.
The Republic of Pakistan through Cabinet Secretary, Government of Pakistan PLD 1960 SC (Pak.) 113.
8. Mr. Muhammad All Jan Khan, Advocate for the defendants/respondents in reply submitted that the impugned judgments of the Courts below are perfectly valid, for, it is the exclusive jurisdiction of the Land Commission to see whether a particular transaction is hit by paragraph 25 of M.L.R.
No,115 and since the matter in issue in the two suits was whether transfer of the land in favour of the plaintiffs/petitioners was valid, it could only be decided by the Land Commission. Reliance was placed on Nisar Ahmad Khan v. Mst. Ismat Jehan Begum 1968 SCMR 667. The learned counsel further contended that the Commission is not bound to act in accordance with the Civil Court decree and the power of final decision in respect of every disputed matter vests in the Commission. The cases reported as Mst. Bibi Ayesha and another v. The Chief Land Commissioner, West Pakistan and another PLD 1966 SC 84; Mst. Hajiani etc. v. West Pakistan Land Commission, Lahore PLD 1966 SC 114 and Sadiq Ali v. Taj Din and others PLD 1992 Lah. 158 were referred.
9. I have heard learned counsel for the parties and have also studied the case-law cited at the Bar.
The Courts have held the view that they have no jurisdiction to adjudicate upon the matter in view of the provision of Martial Law Regulation No,115. Para. 3 of Martial Law Regulation No,115 (hereinafter referred as Regulation), relates to the restriction on ownership and possession of land. Para. 7, sub- para. (1)(a) of the Regulation declares certain transfers as void. Para.7, sub-para. (1)(b) is a saving clause whereby the transfer of any land may be declared valid if the Commission is satisfied that it was a bona fide transaction. Explanation (iii) to para.7 of the Regulation narrates the factors to be taken into consideration by the Commission in determining whether the transaction referred to in clause (b)(1) was bona fide or not.
' Para. 26 of the Regulation bars the jurisdiction of any Court including the High Court and Supreme Court to call in question the proceedings of Regulation or any Rules or orders made thereunder. No Court or Authority shall have jurisdiction in respect of any matter which the Commission is empowered to determine. Keeping in view the aforesaid provision, it is abundantly clear that it is the function of the Commission to determine whether a particular transaction is bona fide or otherwise and the Statute places bar on the jurisdiction of Courts in respect of any matter which the Commission is empowered to determine. This brings us to the argument of the learned counsel for the petitioners that if the act done or orders passed are not in accordance with the provision of the Statute, the Civil Courts will interfere and assume the jurisdiction. That may be true, but the question is whether the Land Commission has violated the provisions of Statute which created the Commission. I think no. Plaintiffs/petitioners never approached the Land Commission to tell them that the land could not be resumed as it was not owned by Abdul Sattar. The Land Commission could not take up the matter itself. In the case of Sher Zaman v. Muhammad Ishaq etc. PLD 1985 SC 114, it has been held that there is nothing wrong if plaintiff was referred to Land Commission for resolving the dispute raised before the Civil Court. Further it has been held that though the Ciyil Court would be competent to decide the various questions but subject to condition that where the Commission was also competent to determine the matter, final decision shall always remain of the Commission. The authority cited is of no help to the petitioners and instead it supports the contentions of the learned counsel for the respondents. In Umar Khan's case 1980 CLC 1717, the order of allotment of the Land Commission was challenged in writ and it was declared illegal and sitting tenant was held entitled to the land. The facts involved were absolutely different. In the case of Mst. Nusrat Begum PLD 1975 Rev. 95 Sindh, the decision of the Land Commission was challenged and it was found that the Commission hid not followed the principle for dater mining the bona fide transfer under para.7 of M.L.R. No,115. This is exactly what we interpret the Regulation that it is the Commission who would determine the bona fides of the transaction as stated above. Similarly, in the case of Abu Syed Rashid Bakht Mazumdar PLD 1968 Dacca 152, the jurisdiction of the Civil Court was held as barred provided the action under the Statute is mala fide and not in accordance with the provisions of the Statute. The case was under East Pakistan Wakf Ordinance (I of 1962), in which the order of renewal of Mutwalli was passed without notice to him and the order was found to be against the express provisions of section 32(1) of East Pakistan Wakf Ordinance (I of 1962). In the instant case, the plea of mala fides has not been taken. The plaintiffs/petitioners claim the suit land as having been purchased by them on the basis of consent decree and if the land was resumed, they could approach the Land Commission for the redress of their grievances. In the case of Zafrul Hasan PLD 1960 SC (Pak.) 113, conditions to be satisfied for ouster of jurisdiction to operate are laid down as under:-- "If a Statute provides that an order made by an authority acting under it shall not be called in question in any Court, all that is necessary to oust the jurisdiction of the Court is that the authority should have been constituted as required by the Statute, the person proceeded against should be subject to the jurisdiction of authority, the ground on which action is taken should be within the grounds stated by the Statute, and the order made should be such as could have been made under the Statute. These conditions being satisfied, the ouster is complete even though in following the statutory procedure some omission or irregularity might have been committed by the authority. If an appellate authority is provided by the statute, the omission or irregularity alleged will be a matter for that authority, and not for a Court of law."
' In the instant case, the authority, i,e, the Land Commission, could pass the order under the Statute.
Learned counsel for the plaintiffs/petitioners has not been able to point out any provision in the Regulation requiring issuance of notice to the petitioners so as to say that order could not be passed without notice.
10. The matter in issue in the present case whether the transfer in favour of the plaintiffs/petitioners was valid may be decided by the Land Commission. The question whether a particular transaction is hit by the provision of para.25 of M.L.R. No,64 is the exclusive function of the Commission. It has been held in the case of Mst. Ayesha v. The Chief Land Commissioner PLD 1966 SC 84 that the Commission is not bound to act in accordance with the Civil Court decree, although the Commission had itself permitted the females to have their rights declared by the Civil Court. The Land Commission may get assistance of Civil Court in the resolution of dispute, but the power of final decision in respect of every disputed matter is vested in the Commission. The case reported as Mst. Hajiani, Mst. Jannat and Mst. Mirzadi appellants v. West Pakistan Land Commission, Lahore etc PLD 1966 SC 114 is referred. In the case of Sadiq Ali v. Taj Din PLD 1992 Lah. 158, the dictum of the Supreme Court in Nisar Ahmad Khan's case reported in 1967 SCMR 667 was referred which reads as under:-- "Paragraph 27 bars the jurisdiction of all Courts including the High Court and the Supreme Court or of any other authority other than an authority appointed under the Regulation, in respect of any matter which the Commission or any Officer acting under the authority of the Commission is empowered to determine. It would thus appear that the question whether para.25 invalidates the transaction or not is one falling within the exclusive function of the Commission or of the Chief Land Commissioner who are charged with the duty of implementing the provisions of the Regulation:
11. From what has been stated above, it is clear that the impugned orders of the lower Courts do not suffer from any illegality or material irregularity calling for interference by this Court in revision under section 115, C.F.C.
12. For the foregoing reasons, these two C.Rs, Nos.75 and 76 of 1990 are dismissed with no orders as to costs.