' This civil revision assails judgments and decrees dated 19-7-2001 and 30-10-2003 passed by the learned Civil Judge and learned Additional District Judge, Kasur, whereby suit filed by the petitioner was dismissed and his appeal thereagainst failed, respectively.
2. Precisely, relevant facts are that petitioner migrated to Pakistan at the time of partition of Indo- Pak Sub-Continent and occupied land out of Khasra No.664/665, but respondent in connivance with the Revenue staff reduced it to 5 Kanals without any order from any competent authority.
Petitioner challenged entries appearing in successive Jamabandis, after consolidation operations in the village, where the land in dispute is situated, with the averments that entries came to his knowledge when the respondent initiated partition proceedings against him. He also prayed a permanent injunction against the respondent restraining him from interfering in his possession.
3. Respondent being defendant in the suit, controverted the assertions in the plaint by filing his written statement, wherein certain preliminary objections were raised with regard to non- maintainability of the suit and the same being barred by limitation etc. The learned trial Judge, who was seized of the matter, framed issues arising out of controversial pleadings of the parties and recorded their respective evidence. He on the basis of appraisal of evidence on the file, dismissed the suit of the petitioner vide judgment and decree dated 19-7-2001.
4. Petitioner aggrieved of the decision of the trial Court dated 19-7-2001 filed an appeal before the Additional District Judge, but remained unsuccessful as the same was dismissed vide judgment and decree dated 30-10-2003. Thereafter petitioner filed instant revision petition, wherein respondent in response to notice by this Court has appeared through his counsel.
5. Learned counsel for the petitioner submitted that both the Courts) below have erroneously relied on section 172 of the Land Revenue Act, 1967 to non-suit the petitioner because it is not a barring provision rather is enabling section which in its opening lines mentions that "except as otherwise provided by this Code no Civil Court shall have jurisdiction According to his submissions, the words "otherwise provided" are relatable to section 53 of the Act (ibid.) which envisages that any person aggrieved of an entry in the record of rights or any periodical record as to any right of which he is in possession, he may institute a suit for declaration of his right under Chapter VI of the Specific Relief Act, 1877. In this manner, he urged that both the Courts below have incorrectly returned findings that suit of the petitioner was not maintainable before the Civil Court. He further submitted that entries in the Revenue Record, of their own force, do not extinguish rights of the party against whom such entries had 'been made, especially without any order or document at its back. In this behalf, reliance was placed on the case of Saleem Akhtar v. Nisar Ahmad (PLD 2000 Lahore 385). He further relied on the case of Karachi Metropolitan Corporation, Karachi and another v. Raheel.
Ghayas and 3 others (PLD 2002 SC 446) to urge that since the ownership of the petitioner over the land claimed by him was admitted by the respondent, no further proof was required to be produced by the petitioner, but the two Courts below have not adverted to this aspect of the case.
6. Learned counsel for the respondent refuted the arguments of the petitioner, supported the impugned judgments and argued that both the two Courts below have returned concurrent findings of facts which are immune from scrutiny in revisional jurisdiction. He further contended that land of the petitioner was reduced on account of consolidation of holdings operations in the village of the petitioner instead of having resort to remedies provided under the Consolidation of Holdings - Ordinance, 1960, opted to file instant suit, which could not be entertained, adjudicated upon or decided by the Civil ,Court in view of provisions Of section 26 of the Ordinance (ibid.) and those contained in section 172 of the Land Revenue Act, 1967.,
7. I have anxiously considered the respective arguments of the learned counsel for the parties and have examined the record, appended herewith. Undeniably, suit of the petitioner has been dismissed primarily with a view that jurisdiction of Civil Courts is barred under section 172(2) of the Land Revenue Act, 1967, and that the same is barred by limitation because first adverse entry against him appeared in the Revenue Record in the year 1952-53 while the suit by him was filed in 1995. Though respondent pleaded in his written statement that reduction in the land of the petitioner occurred on account of consolidation of holding operation, which concluded in the year 1976 and the Civil Courts have no, Jurisdiction to adjudicate upon the dispute. This dispute without .Bringing into issues was dissolved by the Courts below while returning their findings on Issue No.3 which related to his ownership. Before dealing with the matter with regard to Consolidation of Holdings Ordinance I prefer to deal with power of jurisdiction of Civil Courts, as relied by them under section 172(2) of the Land Revenue Act, 1967. Comparison of both the sections 53 and 172 of the Act of 1967, reveals that section 172 is enabling and excludes jurisdiction of Civil Court only where the matter is not covered by the Act otherwise. A comparative study of both these provisions leaves no roqm for the interpretation offered by the respondent because the West Pakistan Land Revenue Act, 1967 itself gives powers to the Civil Court whenever the dispute relates to record of rights or to the periodical record by virtue of its section 53. No doubt Civil Court cannot assume the functions, performable by a Revenue official under the said Act, but whenever a dispute with regard to title to property comes for determination, the only forum for this purpose is Civil Court. Section 53 equips the Civil Court with the power to grant a declaration of rights whereas section 172 prohibits correction in the Revenue Record A by the Civil Court. It appears that suit for declaration like the one under section 42 of the Specific Relief Act, 1877 has been facilitated by section 53 of the Land Revenue Act and is maintainable but a contrary view by the two Courts below occasioned on account of escape from their notice the latter mentioned provision of law.
8. No doubt acts done, decisions taken and lands given during the consolidation of holdings operation under the Ordinance of 1960 could not be challenged before the Civil Court and were amenable to the Appellate Court/revisional forum provided by it, but there is not an iota of evidence on the file to substantiate this objection of the respondent that the B disputed reduction happened under the Ordinance of 1960. Most probably, this happened, as this point was also not brought into issues and I am clear in my mind that without evidence that holdings of the petitioner reduced because he accepted land of better quality during consolidation operation, bar of section 26 of the Ordinance (ibid.) cannot be applied.
9. Reverting to the objection with regard to limitation, whereunder respondent pleaded in his written statement through paragraph 2 that petitioner has unauthorizedly occupied his land, clearly shows that petitioner is in possession of the land subject of dispute. Under law, a person in possession of the land irrespective of adverse entries in the Revenue Record, will have a right to maintain suit whenever his rights are denied. Petitioner in paragraph 4 of the plaint asserted that cause of action accrued to him a week earlier to its institution and this paragraph was replied by the respondent in his written statement by saying that it is incorrect. Such reply being evasive amounts to admission, under law, and consequently I am constrained to hold that in spite of possession of the petitioner over the land subject of suit, his suit was wrongly said to be barred by limitation, as held in the case of Mst. Izzat v. Allah Ditta (PLD 1981 SC 165) and Fateh Sher and another v. Sharif Khatoon and 3 others (1986 CLC 320).
10. Without relying on the claimed demand on part of the respondent, as argued by the petitioner, I must hold that entries in the Revenue Record do not ipso facto extinguish rights of the party, who originally started with title, without there being any act or omission on their part. Besides the judgment in the case of Saleem Akhtar (supra), I can conveniently refer to the alighted judgment of the Honourable Supreme Court in the caseof Wali and 10 others v. Akbar and 5 others (1995 SCMR 284) and to the cases by the High Courts i.e. Muhammad v. Naseer-ud-Din (PLD 1993 Peshawar 127) and Muhammad Yousaf v. Noor Din and others (1993 MLD 763).
11. For what has been discussed above, I am of the view that all the relevant features of the case and the law applicable were not properly considered by the two Courts below and in this situation it can hardly be argued that concurrent judgments of the two Courts below are immune from scrutiny under section 115, C.P.C. To my mind the case in hand is one of the best cases, wherein interference can be made by this Court, in the aid of justice and to have a fair and just adjudication. Both the judgments and decrees dated 19-7-2001 and 30-10-2003 passed by the learned Civil Judge and learned Additional District Judge, Kasur, being tainted with material irregularities and illegalities, are not maintainable and deserve to be set aside. This revision petition is consequently accepted and by setting aside both the judgments and decrees of the two Courts below, case is remanded to the trial Court for its fresh decision, in accordance with law, in view of the observations made above. There will be no order as to costs.