' MIR HAZAR KHAN KHOSO, J.---On 1-8-1991 the appellants filed suit against respondents Nos.1 and 2 in the Court of Civil Judge 1st Class, Lorelei, claiming following relief:--
(i) Declaring that plaintiffs are bona fide shareholders of Shamlat Awara and Libza of Mouza Zahar Karez and the lands bearing Khasra No,793 is their share in the Shimla.
(ii) Declaring that the plaintiffs are lawful possession holders of the land bearing Khasra No,793 measuring 188 rods and 27 pols.
(iii) That the entries in the Revenue Record be corrected and the land bearing Khasra No,793 measuring 188 rods 27 pols be entered in the name of plaintiffs.
(iv) (iv) Any other relief which this Honorable Court deems fit may also is awarded.
(v) Costs of the suit be given to the plaintiffs."
2. As the Court of the Civil Judge was lying vacant the suit came up for hearing before the. Court of the learned District Judge, Lorelei. Vide judgment dated 31-12-1992 the learned District Judge decreed the suit of the appellants. No appeal was filed against the judgment and decree.
3. However, during scrutinizing the file of the suit a learned Judge of the High Court observed that issue relating to limitation had not been decided keeping in view section 3 of Limitation Act. He thus exercising powers under section 115, C.P.C. Issued notice to the parties to appear and explain as to why an appropriate order should not be passed. After hearing the parties on 27-6-1993 The learned Single Judge of the High Court observed that primarily it was the duty of the plaintiff to establish that claim brought by him in the Court was within time but section 3 of the Limitation Act creates the obligation upon the Court to consider the question of limitation before embarking upon other aspects of the case. He further observed that the learned District Judge instead of deciding issue No,2 in a summary manner would have considered the relevant facts relating to the maintainability of the suit on the point of limitation. Reliance was placed on case of Hakim Muhammad Butta and others v. Habib Muhammd and others reported in PLD 1985 SC 153. With these observations the learned Judge set aside the judgment and decree dated 31-12-1992 and remanded the case to the District Judge, Lorelei, for re-writing the judgment.
4. The appellants thus filed petition before this Court for leave to 'appeal which was granted with the observations "to consider whether in spite of the fact that an appeal was competent to the High Court which was not filed by any party, the High Court could have pressed into service its suo mote revisional jurisdiction under section 115, C.P.C."
5. We have heard Mr. Muhammad Aslam Chishti, Advocate Supreme Court, for the appellants and Ch. Ejaz Yousaf, Additional Advocate-General, Balochistan, for respondents Nos. I and 2 and perused the record.
6. Mr. Muhammad Aslam Chishti, the learned counsel for the appellants contended that by settlement operation of 1904 the suit land was given Khasra No,38-Min and was part of Shamlat of the Monza. The Shamlat was distributed amongst shareholders. In result whereof the suit land came in share and possession of the appellants. He further contended that during settlement of 1966 the suit land was given Khasra No,793 and was entered as "Bunjer Qadeem" and shown to belong to the State. As the appellants at that time were minors and came to know about the same in the year 1981. As such from 21-2-1981 onwards they made efforts for correction of the entries in the Revenue Record. All subordinate Revenue officials made reports in their favor; but the Deputy Commissioner vide order dated 24-2-1986 held that the correction could not be made as the matter was barred by limitation. The appellants then approached the Board of Revenue, who called for the report of the Deputy Commissioner who also favored them, but no action was taken by him. The appellants, therefore, filed suit challenging the adverse entries in the Revenue Record.
7. It may be observed that the Revenue Officer advised the appellants to apply for allotment of the land. Thus, the appellants simultaneously filed application before the Revenue Authorities for allotment of the land. However, no final decision in that respect was taken by the Revenue Authorities before the appellants filed suit before the Court of the Civil Judge, Lorelei.
8. It may be further observed that during pendency of the suit before the Court on 8-1-1992 the land was allotted to the appellants by the Revenue Authorities on payment of Rs,500 per acre and they paid the same.
9. Further, development arose during pendency of the suit wherein respondent Chan Khan appeared and requested the Court that he may be a party as he was in possession of the suit land and secondly the same was adjacent to Mland. This suit was contested. Seven issues were framed.
Evidence was led by the parties. On 31-12-1992 the appellant's suit was decreed and none filed appeal against the same and the judgment and decree became final for all intents and purposes.
10. The learned counsel for the appellants urged that as none had challenged the judgment and decree the learned Judge of the High Court had no jurisdiction- to interfere with the same in its provisional jurisdiction under the provisions of section 115, C.P.C. He further contended that even on merits the appellants has good case. He explained that as the appellants are in possession of the land, therefore, the question of limitation does not arise at all.
11. The learned Additional Advocate-General strenuously stressed that the High Court has the jurisdiction to take somite action in appropriate cases under section 115, C.P.C. Though alternative remedy by way of appeal/suit, etc. Is open. He placed reliance on the cases reported in PLD 1975 SC 678, PLD 1971 al 53 and 1993 SCM R 647.
12. In the latest case reported in 1993 SCM R 647 this Court has taken a view that "Courts will ordinarily decline to exercise provisional jurisdiction wherein alternative remedy is available but this rule should not be regarded as an inflexible rule to be followed rigidly without exception because in special circumstances of a case, a departure from the said rule could be justified".
13. In the case reported in PLD 1975 SC 678 this Court has taken definite view that the provisional powers of High Court though circumscribed by conditions of excess of jurisdiction, failure to exercise jurisdiction, illegal exercise of jurisdiction, is nevertheless very vast and corresponds to a remedy of certiorari and in fact goes beyond that at least in two respects inasmuch as: Firstly, its discretionary jurisdiction may be invoked by the Court suo mote, and secondly, the Court "may make such order in the case as it thinks fit"
14. In such view of the fact we are inclined to hold that the learned Single Judge of the High Court was competent to take somite action in its provisional jurisdiction under section 115, C.P.C.
15. However, on merits it may be observed that since 1904 the appellants ate in possession of the land. The Qanoongo, Naib-Tehsildar and Assistant Commissioner, Lorelei, submitted their reports in their favor. The Deputy Commissioner declined to interfere with the entries on the ground that the application was time-barred hence correction could not be done. When the appellants filed application before Member, Board of Revenue, he called for report of the Deputy Commissioner, who also confirmed their claim. Besides, the appellants were allotted the land by the Member, Board of Revenue. It is thus established that continuously the appellants are in possession of the land since 1904 till filing of the suit. The suit, therefore, cannot said to be time-barred.
16. Obviously there were no special circumstances which may have called for interference of the High Court in its provisional jurisdiction under section 115, C.P.C. To disturb the judgment and decree.
17. We are, therefore, inclined to accept the appeal and set aside the order dated 27-6-1993 passed by the learned Single Judge of the High Court. The parties to bear their own costs.