2024 C L C 1797
[Balochistan (Turbat Bench)]
Before Muhammad Hashim Khan Kakar and Rozi Khan Barrech, JJ
MUHAMMAD SALEEM ----Petitioner
Versus
The ASSISTANT COMMISSIONER TURBAT and another ----Respondents
C.P. No.(t) 50 of 2023, decided on 15th November, 2023.
(a) Balochistan Land Revenue Act (XVII of 1967) ---
----S.172(2)(viii) ---Civil Procedure Code (V of 1908), S.9---Dispute regarding ownership of
property leased out for installation of a cell phone Tower ---Allegation of fraud---
Factual/disputed questions qua title, resolution of ---Plenary jurisdiction of Civil Court ---
Scope ---Civil Court is a Court of plenary jurisdiction and disputed question of facts and law
regarding the title of the disputed property cannot be decided by the revenue authorities,
proceedings before whom are summary in nature ---In such like cases, the parties ought to
approach the Civil Courts ---Order passed by Assistant Commissioner was not sustainable in
the eye of the law, having been passed in utter violation of the mandatory provision of the Revenue Act and the same was set aside--- Constitutional petition was allowed accordingly.
Jan Muhammad through Mubarik Ali and others v. Nazir Ahmad and others 2004
SCMR 612; Muhammad Jameel Asghar v. The Improvement Trust Rawalpindi PLD 1965 SC 698 and Hafiz Kalu and others v. Muhammad Bakhsh and others 2019 YLR 1523 rel.
(b) Balochistan Land Revenue Act (XVII of 1967) ---
----S.172(2)(viii) ---'Question of title'--- Meaning and scope ---Question of title is the claim of
a person as to his ownership in some property and it will arise when someone denies his right or interest in his property.
Jadain Dashti for Petitioner.
Khalil Ahmed Lehri for Respondent.
Nusratullah Baloch, A.A.G and Faisal Mengal, A.A.G. for the State.
Date of hearing: 5th October, 2023.
JUDGMENT
ROZI KHAN BARRECH, J. ----Through the instant petition, the petitioner has
sought the following relief:
"A) In view of the above facts and grounds, the petitioner respectfully prayed that the impugned order 15.06.2023 may kindly be set aside and be declared the same nul and
void, and the till disposal of petition order impugned may kindly be suspended, in the interest of justice, equity and fairplay.
B) Any other relief deem fit and appropriate in the interest of petitioner by this Honourable Court.."
2. Brief facts of the case are that Ufone (Mobile Company) desires to install a
tower/system of Communication at the ownership land of the petitioner, due to which a Lease Agreement was executed between Ufone Company and petitioner and the construction works for installation of Tower started. It is further averted in the petition that prior to the agreement and construction works of the tower, Patwari inspected the site and prepared a
map, and certified that the land in question is the ownership of the petitioner and is in the
petitioner's peaceful possession. Respondent No.2 filed an application before respondent No.1/Assistant Commissioner Turbat with the contention that the land over which tower is being installed/constructed is the ownership land of respondent No.2. Subsequently, respondent No.1 passed the order dated 15.06.2023 wherein it was held that the land on
which tower is being installed is the land of respondent No.2.
Being aggrieved from the order dated 15.06.2023 passed by respondent No. 1, the
petitioner filed the instant petition.
3. We have heard the learned counsel for the petitioner, learned counsel for the private
respondent, learned AAGs appearing on behalf of the State, and perused the available record
with their able assistance.
3(sic) For the purpose of this petition, the relevant from the decision dated 15.06.2023
passed by Assistant Commissioner Turbat is reproduced here under:
4. From the pleadings and decision of Assistant Commissioner Turbat, the question in
the instant case arises that whether respondent No.2's suit is barred by Section 172(2) (xviii) of the Land Revenue Act, 1967 or the civil court has jurisdiction to adjudicate upon it ? The answer to the above question is that as a question of title is involved in the case, therefore the civil court is the only forum which can resolve the controversy after recording pro and contra evidence.
5. No doubt, according to the ibid section of the law, a civil court shall not exercise
jurisdiction over a claim for partition of an estate or holding or any question connected with or arising out of proceedings for partition, not being a question as to title in any of the property of which partition is sought but when a question of title is raised in a suit then the provisions of section 172(2)(xviii) of the Land Revenue Act, 1967 would not come in the way of a civil Court to decide the issue so raised by a party in the suit. What is a question of title, and when will it arise? The question of title is the claim of a person as to his ownership in some property, and it will arise when someone denies his right or interest in his property.
6. In the instant case, the plea of both the parties is that they are owners of the property
in dispute. Both the parties denied the claim of each other.
7. It is an established principle of law that proceedings under the Revenue Act are
summary in nature. A Civil Court is a court of plenary jurisdiction, and title can always be challenged before the Civil Court because it is required to be proved through evidence of the parties. Reliance is placed on Jan Muhammad through Mubarik Ali and others v. Nazir Ahmad and others (2004 SCMR 612). It has also been held that the rights of parties qua disputed property require determination after giving them a fair opportunity to adduce evidence. Factual controversies can only be resolved by the Civil Court having plenary jurisdiction.
8. The Superior Courts have repeatedly held it, and similarly, the law itself provides,
that proceedings before the Revenue Courts are of a summary nature. Whenever the complicated question of fact is involved, the exclusive jurisdiction vests in the Civil Court to
decide the same. The Revenue Court has exceeded from its jurisdiction and has erred while
interfering in the complicated question of the title. The factual controversies qua the allegation of fraud should be dealt with by the Civil Court because Revenue Courts have no jurisdiction to interfere in such like matters. The mutation being summary proceedings Revenue authorities could not clinch such a complicated matter in summary proceedings. At
the time of the decision, no detailed evidence is recorded by the Revenue Officer, and it is
otherwise the function of the Civil Court to decide matters after framing of issues and
recording of evidence of both the parties.
In this context, reliance can be placed on the case reported as Muhammad Jameel
Asghar v. The Improvement Trust Rawalpindi (PLD 1965 SC 698), wherein it was held that where the question of fraud, misrepresentation, or want of jurisdiction is raised, the civil court has jurisdiction to adjudicate upon the same. Reliance is also placed on Hafiz Kalu and others v. Muhammad Bakhsh and others (2019 YLR 1523).
10. This Court, in a number of earlier cases, has already declared the exercise of
jurisdiction by the Revenue Courts highly unwarranted and uncalled for because when a person questions the title of a property, he has to file a suit for declaration before the Civil Court as is required under Section 53 of the Revenue Act. The Revenue Courts/Authorities are thus only competent to make the correction of any entry in a record of rights, periodical record, or register of mutations if the wrong entry is the outcome of any correction, omission or inadvertence, demarcation of the agriculture land as is envisaged in Section 172(2)(vi) of the Act.
11. In view of provisions supra as well as the case law of the superior courts, this Court is
of the considered view that the disputed question of facts and law regarding the title of the disputed property cannot be decided by the revenue authorities, proceedings before whom are summary in nature, and in such- like cases, the parties ought to have approached the Civil
Courts under the above provisions of law. Therefore, the impugned order dated 25.06.2023
passed by Assistant Commissioner Turbat is not sustainable in the eye of the law, having
been passed in utter violation of the mandatory provision of the Revenue Act, and the same is set aside.
SA/7/Bal. Petition allowed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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