' Instant Civil Revision is directed against the judgment and decree, dated 12-4-1997 passed by the learned District Judge, Attock whereby he accepted the appeal and set aside the judgment and decree, dated 22-2-1995 dismissing the suit of plaintiffs/respondents.
2. Briefly stated the facts are that plaintiffs/respondents filed a suit for possession claiming themselves to be owner of land described fully in para.No,1 of the plaint. They contended that defendant/petitioner had no concern with the suit land and had encroached upon land measuring 10 Kanals and 19 Marlas out of the said land referred above, that said encroachment had been adjudged by Naib Tehsildar vide his demarcation reports, dated 16-6-1991 and 8-7-1991. They requested the defendant/petitioner to handover the possession of land encroached by him. As the defendant/petitioner did not accede to their request, hence they were constrained to file the instant suit for possession. The suit was resisted by the defendant/petitioner who raised some preliminary objections regarding the jurisdiction of the Civil Court, locus standi of the plaintiffs and asserted that demarcation reports, dated 16-6-1991 and 8-7-1991 are tainted with mala fide as he had moved application against Tehsildar with the higher authorities. He, thus, prayed for the dismissal of the suit.
3. From the divergent pleadings of the parties the Trial Court framed the following issues:
(1) Whether the report of demarcation is incorrect, against the facts and illegal? OPD.
(2) Whether the suit is defective due to preliminary objection No,2 of the written statement? OPD.
(3) Whether this Court has no jurisdiction to entertain this suit? OPD.
(4) Whether the plaintiffs are owners of the suit property and defendant has illegally encroached upon the same? OPP.
(5) Whether plaintiffs are entitled to get possession of suit land as prayed for? OPP.
(6) Relief.
4. In support of their respective stand plaintiffs/respondents examined Muhammad Riaz P.W.1, Raja Hameed Akhtar P.W.2 and Abdul Aziz as P.W.3. They also brought on record documents Exhs.P-1 to P-8 and then closed their evidence. In rebuttal defendant/petitioner appeared himself as D.W.1 and brought on record documents Exhs.D-1 to D-10 as well as documents Marks-A and B and closed his evidence. In rebuttal plaintiffs/respondents also produced copies of Jamabandi for the year 1988- 89 Exh.P-9 and Jamabandi for the year 1991-92 Exh . P-10.
5. After going through the evidence produced by the parties, the Trial Court dismissed the suit vide judgment and decree, dated 22-2-1995. Feeling dissatisfied with this judgment and decree, the plaintiffs/respondents filed an appeal which was accepted by the learned District Judge Attock who remanded the case vide judgment and decree. Dated 12-4-1997. The defendant/petitioner has felt aggrieved of the said order of remand and has failed the instant Civil Revision.
6. Arguments have been heard and record perused.
7.
7. The main contention of the learned counsel for the petitioner is that the Trial Court had no jurisdiction to entertain this suit as the matter exclusively fell within the domain of Revenue Court.
His contention is that according to section 117 of the Land Revenue Act, 1967, a Revenue Officer is only competent to define and fix the boundaries of any land, that if as a result of said fixation of boundary, it is found that some land owner has encroached the land then the encroacher can be evicted by invoking the provisions of section 122(2) of the Land Revenue Act whereby Collector is competent to evict such person, that under section 172 of Land Revenue Act, the jurisdiction of Civil Court has exclusively been barred in a case pertaining to the limits of any land and matter can only be agitated before a Revenue Court. He, thus, submitted that the very suit was not maintainable before the Civil Court and in support of his contention relied upon Muhammad Bashir v. Lal Din (1990 M LD 1907). He further contended that plaintiff Abdul Aziz had no locus standi to move an application for demarcation as he had ceased to be owner of land as per his own admission and suit was not maintainable. He further contended that Appellate Court has remanded the suit on the ground that demarcation had not been carried out in the presence of defendant/petitioner and as such the said demarcation report was not a valid document. He contended that even if it is assumed that the demarcation report was not a valid document, it does not make any difference as the Civil Court lacks jurisdiction to entertain the suit, so the Appellate Court was not justified in remanding the case. He, thus, prayed that Civil Revision be accepted and suit be dismissed.
8. Conversely the impugned order has been supported by the learned counsel for the plaintiffs/respondents. His contention is that even if it is assumed for the sake of arguments that Abdul Aziz had alienated his entire land it does not make any difference, as Abdul Aziz is one of plaintiffs/respondents who had filed suit against the defendant/respondent, that question of jurisdiction can be agitated before the Civil Court, that as the demarcation has not been conducted in accordance with law so the Appellate Court has rightly remanded the suit, that there is no force in this Civil Revision and the same be dismissed.
9. Admittedly the plaintiffs/respondents have filed the suit for possession on the ground that a certain peace of land has been encroached upon by defendant/petitioner. They have based their stand on reports of encroachment, dated 16-6-1991 and 8-7-1991 prepared by Naib-Tehsildar.
There is no doubt that both the reports have been prepared in the absence of defendant/ petitioner and as such have rightly been ignored by the Appellate Court. Leaving aside the question whether demarcation reports have been prepared in accordance with law or not. The point to be determined is if the Civil Court had the jurisdiction to entertain the suit, seeking the eviction of encroacher over the suit land. An application under section 122 for the eviction of a landowner found in wrongful possession of a land as a result of demarcation proceedings taken under section 117 read with section 67-A is to be moved under Order 67-B of the Land Revenue Rules, 1968. It is, thus, clear that a specific procedure has been provided under the Land Revenue Act for seeking the eviction of an encroacher. That is why the jurisdiction of Civil Court in such matter has been expressly barred by section 172 of Land Revenue Act, 1967.
10. It is noteworthy that in the repealed Punjab Revenue Act, 1887, in section 101 there was power in the Revenue Officer, on the application of any person interested, to define the limits of any estate or of any holding, field or other portion of estate, but there was no provisions in that Act such as section 122 of the 1967 Act, declaring that settlement of a boundary under the provisions of Chapter X, therefore, shall be determinative to evict any landowner "who is wrongly in possession of any land which has been adjudged in the settlement of a boundary not to appertain to his holding or to the boundary of any person through or under whom he claims". Had the Courts below had their attention invited to section 122, they would have not held, as they did.
11. The plaintiffs' suit, it further appears, was expressly barred, by section 172 of the Land Revenue Act, for the matter of eviction of defendant/petitioner, was a matter which the Collector was competent by the Act to dispose of.
12. Consequently, the revision petition is accepted and the impugned order is set aside.