' Akbar son of Ali Zaman and Ghulam Sarwar son of Sikandar residents of Chitta Maira, Tehsil and District Abbottabad brought a civil suit against District Council Abbottabad for a declaration to the effect that they were owners of land measuring 33 Kanals and 13 Marlas, detailed in the plaint and situated in Village Almaira Tarla and that the District Council had unlawfully possessed and claimed titile to the suit land on the basis of an unlawful mutation No, 1054 attested on 12-9-1989 and that such mutation was ineffective against the rights of the plaintiffs.
2. The District Council contested the suit and through application prayed for the rejection of plaint under Order 7, Rule 11 of the C.P.C. While the plaintiffs sought temporary injunction. Learned Civil Judge Abbottabad vide his order dated 11-3-1996 granted temporary injunction in favour of the plaintiffs and refused to reject the plaint. It was upheld by the learned Additional District Judge on 25-9-1996 and hence the District Council Abbottabad has come up in revision before this Court.
3. The plaintiffs had come up with a positive assertion that the property in dispute was not a public property. It was in this background that the petitioner/defendant sought for the rejection of the plaint on the ground that the jurisdiction to determine the question in dispute vested exclusively in the Tribunal constituted under N . -W . F . P . Act V of 1977. Learned counsel for the respondents/plaintiffs relied upon "Sahibzada Habib-ur-Rehman v. District Council Peshawar" (PLD 1988 Peshawar 158) where a Single Bench of this Court had observed that where the action is initiated by the authority first (under section 3 of the aforesaid (Act) the jurisdiction to determine the disputed question vests in the Tribunal but where no such action is initiated and the aggrieved party comes to seek declaration, such party should resort to the Civil Court. I am afraid, the aforesaid view is not a correct expositoin of law and the same is taken completely a different view by a Division Bench of our own High Court subsequently in "Nawabzada Hamidullah Khan v. Deputy Commissioner D.I. Khan" (PLD 1993 Peshawar 53). In the latest ruling of the Division Bench it is held that whenever the question to be decided is with regard to the public property, the jurisdiction vests in the authority constituted under the special law.
4. I believe and hold that the latter view taken by the Division Bench of this Court is a perfectly correct view. The plain and simple wording of section 13 of Act V of 1977 clearly provides and in categorical terms that a Tribunal shall have the exclusive jurisdiction to adjudicate upon a dispute that any property is not a public property. With the same words and with the same expression the jurisdiction of civil Court is barred by section 11 of the Act.
5. A-perusal of section 11 subsection (2) provides further support to the view. It is quite interesting to note that under subsection (2) all suits, appeals and applications relating to encroachment or disputes referred to in subsection (1) and pending in any court were held to have abated on the coming into force of this Act. Subsection (1) of section 11 refers to any dispute that any property is not a public property. The cumulative effect of both the subsections is that all civil suits seeking declaration qua a public property had abated with effect from the coming into force of the Act.
Obviously, such civil suits brought by the litigants were with regard to the claim of title. Such claim amounted to saying that certain property was not a public property. Though before the enactment of Act V of 1977 there was no idea of a Tribunal and any dispute regarding public property could naturally be raised before a civil Court and though such suits were already pending yet they were declared to have abated and the party aggrieved was allowed a period of 30 days from the coming into force of the Act, to file a suit before Tribunal. When the pending suits before the Civil Courts were also not allowed to continue, how the institution of a suit before civil Court could be contemplated of, after the coming into force of the Act in question. The very claim of title in a civil suit concerning a public property amounts to saying that it is not a public property.
6. In the instant case, the disputed one, prima facie, is a public property since the attestation of mutation No, 1054, and thus, the jurisdiction to declare that it is not a public property, vests exclusively in the Tribunal. Both the courts below have not properly appreciated the port in question and have failed to exercise the jurisdiction vested in them.
7. A District Council functions under the Provincial Government and is controlled and managed by the Department of Local Government and Rural Development. In order to keep the Government informed of what is happening in the District Council, the Provincial Government should always be impleaded as a party. In view of the concluding part of this judgment, the Government of N.-W.F.P.
Is to be impleaded as such, if the suit is brought before the Tribunal.
8. When it is held that the civil Court had no jurisdiction to entertain the suit, the grant of temporary injunction by both the Courts below was illegal.
9. Consequently, the revision petition is accepted, the concurrent findings of both the Courts below are set aside and the plaint of the original suit is hereby rejected under Order 7, Rule 11 of the C.P.C.
The plaintiffs, if aggrieved and if advised, may resort to the Tribunal concerned. The return of plaint is declined because it is done between equal forums and plaint is returned only when it is required to be submitted before another forum which also happens to be a Court.