1. ' FAZAL ILAHI KHAN, J.---This civil appeal by leave of the Court is directed against the judgment of the learned Peshawar High Court, Peshawar dated 9-6-1990; whereby the respondent No, l's Civil Revision No, 759 of 1986 was allowed, the judgment and decree of the learned District Judge was set aside and that of the trial Court was restored.
2. Leave was granted to consider; whether, the order of the Deputy Commissioner and that passed by Additional Commissioner in appeal were with jurisdiction or coram non judice.
3. ' The facts giving rise to the present appeal briefly stated are that Khater Mani, father of Ghulam Muhammad respondent No, 1 allegedly owned landed property in Village Birmoghlasht and Balach in the former State of Chitral. Some of the land was his ancestral while some was gifted to him by the Ex-Mehtar in lieu of his services rendered to him. Admittedly on the death of his father respondent No, 1 continued in possession of the entire land, though he himself did not render any service to the Mehtar. A dispute had arisen between the late father of the respondent and Muhammad Saiful Mulk Nasir, which was resolved by Wazir Azam Chitral and it was held that father of the respondent was an owner of 21 Chakorum of land in Village Balach but entitled to retain possession of 14 Chakorum but his successor Wazir-i-Azam held the father of the respondent entitled to possession of 21 Chakorum and ordered that he shall be paid "Iwzana" for the land owned by him in Village Birmoghlasht. On the constitution of Dir, Swat and Chitral Land Dispute Inquiry Commission, respondent No, 1 reagitated the matter and prayed for possession of the land from the petitioner in both the villages. The Commission vide its recommendation in Case No, 654/CLC held respondent No, 1 an owner of 21 Chakorum of land in Village Balach and recommended that the case be decided by the Deputy Commissioner, Chitral. The latter in exercise of its power under the provision of Settlement of Disputes of Immovable Property (Chitral Regulation III of 1974 held the respondent entitled to possession of 21 Chakorum of land in Village Balach of which he was found in possession of 13 Chakorum only. It was, therefore, ordered that he be put in possession of the remaining 8 Chakorum of land. Vide order dated 23-5-1982 the appellant was directed to restore possession of the remaining land to the respondent. This order was challenged in appeal before the Additional Commissioner, Malakand which was dismissed on 19-9-1984. The appellant having failed before the forums stated above in seeking his redress, filed a civil suit in the Court of Senior Civil Judge, Chitral on 10-11-1984 for declaration to the effect that the proceedings initiated before the Deputy Commissioner, Chitral and the orders dated 23rd May, 1982 and 19th April, 1984 passed in those proceedings were illegal, without lawful authority and void.
4. It was prayed that a permanent order restraining the respondent from implementing the order dated 23rd May, 1982 of the Deputy Commissioner, Chitral, be passed. The suit was contested whereafter the learned Senior Civil Judge dismissed the suit on 5th August, 1986. However, the appeal filed by appellant was accepted by the learned District Judge, Chitral on 242-1986 and he was granted the decree prayed for in the suit. The revision petition filed by respondent No, 1 in the High Court, challenging the judgment in appeal, was accepted, the judgment and decree of the learned District Judge was set aside and that passed by the learned Senior Civil Judge, Chitral was restored on 9-6-1990.
5. ' It was contended by the learned counsel for the appellant that the learned High Court proceeded on wrong premises that the Deputy Commissioner in exercise of his power under Regulation-III of 1974 has passed the order on the recommendation of the Land Dispute Commission. In fact the Commission's recommendation was as follows:-- "The dispute relates to 6 Chakorum land situated in Balach which is said to have been encroached upon by the defendant Ghulam Muhammad son of Khatirmany in addition to 5 Chakorum granted by the Mehtar. The documents on record show that he was granted 11 Chakorum and later 3 more Chakorums were granted to him by Mehtar Muzaffar-ul-Mulk. Thus he was entitled to 14 Chakoram but actually he was found to be in possession of 21 Chakorum and the order of Wazir-e-Azam and A.P.A. Dated 30-8-1960 shows that A.P.A. After enquiry held that Ghulam Muhammad was entitled to retain 21 Chakorum land. This was done on the ground that some land in Birmoghlasht had been taken away from him on the understanding that he would be given other land in exchange which had not been given. Under the circumstances Ghulam Muhammad is owner of the land in dispute and is not tenant of the present ex-Mehtar whose claim may be dismissed."
6. ' Two appeals were filed against the said recommendation before the Officer (i,e, Additional Deputy Commissioner, Chitral) empowered by the Government under para.4 of Settlement of Disputes of Immovable Property (Chitral) Regulation, 1974 (Regulation III of 1974). These appeals were dismissed on 6-12-1975 and the revision petitions against the same also failed. On 24-7-1976 respondent No, 1 was held to be entitled to 21 Chakorums of land at Birmoghlasht which matter was finally concluded. Respondent No, 1 yet made another appeal to the Deputy Commissioner, Chitral on 28-9-1978 alleging that he was in possession of 13 Chakorums in Birmoghlasht and prayed for the additional Chakorum of which he had been declared' entitled to. The Deputy Commissioner vide his order dated 23-5-1982 held that 7 Chakorums out of 21 Chakorums owned by the appellant in Birmoghlasht be handed over to the respondent No, 1 or cost of such land retained by appellant, shall be paid. This order was challenged in appeal but the same was dismissed on 19-9-1984. The above orders appear to be without jurisdiction, therefore, the appellant approached the Civil Court for seeking declaration as such; and in consequence thereof it was prayed that respondent No, 1 be restrained from implementing enforcing such orders.
7. ' The appellant's suit was dismissed by the trial Court on the ground of lack of jurisdiction in the matter. However, the Appellate Court came to the contradictory finding and decreed the suit. The learned counsel for the appellant pointed out that the order passed under Regulation III, which has attained finality, could enforced by an officer authorised in this behalf under section 7 of the Regulation. Section 7 of Regulation III of 1974 reads as follows:-- "7. Enforcement of Regulation and orders thereunder.--(1) The Federal Government or a person authorised by it may exercise and perform all such powers and functions and issue such general or special instructions as may be necessary for the enforcement of the provisions of this Regulation.
(2) For enforcing or giving effect to a final decision or order made under this Regulation, the Provincial Government or an officer authorised by it may, on an application made to the Provincial Government, order that the decision be enforced or given effect to by the use of such reasonable force as may be necessary."
8. ' The question now raised before us is not with regard to entitlement of respondents Nos. 1 to 3, Chakorums of land undisputedly decreed in his favour and which has attained finality but what has been urged before us by the learned counsel is the competency of the Deputy Commissioner in passing the aforementioned 2 orders. It is not clear from those orders in which capacity the Deputy Commissioner passed the same; whether under Riwaj or as Deputy Commissioner under PATA Regulation. It is also not clearly expressed that he has been authorised to enforce the orders passed under Regulation III of 1974. The Courts below have also not adverted to this aspect of the case. The order dated 23rd May, 1982 passed under Regulation III of 1974 having become final, by which respondent No, 1 has been held entitled to 21 Chakorums of land of which he was found in possession of 14 Chakorums only. In order to get possession of the remaining 7 Chakorums of land he approached the Deputy Commissioner and not the officer authorised by the Provincial Government under section 7 of the Regulation III. For the reason we are constrained to accept this appeal, set aside the judgment and order of the High Court and restore that of the District Judge inasmuch as the Deputy Commissioner independently has not exercised his original jurisdiction either under PATA Regulation or under Riwaj in accordance with law or as an officer authorised under section 7 of the Regulation reproduced above. For the enforcement of final order passed in his favour respondent was to approach the officer authorised by the Provincial Government under section 7 of the Regulation III, 1974.
9. ' Having held that the aforementioned two orders challenged in the Civil Court are without jurisdiction the appeal is accepted and while setting aside the judgment of the learned High Court the judgment of the appellate Court is restored to that extent. However, any finding or observation made by the appellate Court regarding merits of the case shall not be binding on the parties. There shall be no order as to costs.