P L D 2023 Balochistan 98
Before Muhammad Ejaz Swati and Nazeer Ahmed Langove, JJ
BANDENAWAZ (PRIVATE) LIMITED through Director ---Appellant
Versus
FEDERATION OF PAKISTAN through Deputy Director Ministry of Defence and
others ---Respondents
R.F.A. No. 38 of 2022, decided on 12th June, 2023.
(a) Balochistan Land Revenue Act (XVII of 1967) ---
----Ss. 3, 117, 135 & 172(2)(xiii) --- Land Revenue Rules, 1968, Rr.67- A, 67 -B---Specific
Relief Act (I of 1877), S. 42--- Civil Procedure Code (V of 1908), O. VII, R. 10--- Suit for
declaration ---Maintainability ---Encroachment, dispute of ---Civil Court or Revenue
Authorities, jurisdiction of ---Scope ---Demarcation of agricultural land ---Scope ---Land of both
the private parties were adjacent to each other and construction of bypass road by the Government resulted into dispute between them ---Both the (private) parties filed separate
suits for declaration, inter alia that the other respective party be declared as tress -passer/land -
grabber and the respondent/Government be directed to forthwith carry out a survey and to demarcate the subject -property ---Civil Court consolidated both suits, however, returned both
the plaints under O. VII, R. 10 of Civil Procedure Code, 1908, for want of jurisdiction under
S. 172 of the Land Revenue Act, 1967---Only the appellants challenged the impugned order before the High Court wher eas the respondents (other private party ) supported the same ---
Validity ---Pleadings of both the parties revealed that they had not challenged the property
having been recorded in their respective names in the revenue record, but their main claim hinged on the controversy that some portion of their property fell in the construction of the road, therefore, the appellants through declaration under S. 42 of the Specific Relief Act, 1877, had actually sought relief of new right of demarcation---In case of contr oversies
between the parties with regard to demarcation of boundaries of agricultural land, Civil Court had no jurisdiction unless demarcation of area had already been conducted by the Revenue Authorities under the provision of S. 117 of the Land Revenue Act, 1967 read with Rr. 67- A
& 67 -B of the Land Revenue Rules, 1968--- Through a declaration in civil matter claimed
under S. 42 of the Specific Relief Act, 1877, a pre -existing right could be declared, but a new
right could not be created by grant of a decr ee by the Civil Court ---Where a claim of
encroachment over his property was made by a person against the adjacent owner, his remedy laid before the Revenue Authorities for demarcation of land under Rr. 67- A & 68 -B
of the Land Revenue Rules, 1968, and in the said respect, the Revenue Officer had ample powers under S. 117 of the Act 1967 to define the boundaries ---In the present case, neither
any demarcation took place prior to institution of the suit, nor the appellants had taken any step to the said effect ---There was no dispute between the parties with regard to title of the
properties recorded in the revenue record ---Both properties were adjacent to each other and
both parties had raised claim that portion of their property fell in the construction of road
made by the Government without specifying the encroached area---Title documents relied
upon by the appellant showed his ownership, which right had not been denied by the respondent ---Pleadings of the parties made clear that matter of demarcation of boundaries of
the agricultural land had been raised by the appellants which fell in the domain of Revenue Authorities and jurisdiction of Civil Court was explicitly barred under S. 172(2)(xiii) of the
Land Revenue Act, 1967---No interference in the impugned order of returning the plaints
was made out by the High Court ---First regular appeal was dismissed, in circumstances.
Director Military Lands and Cantonment Quetta Cantt Quetta and others v. Aziz
Ahmed and others 2023 SCMR 860 ref.
(b) Balochistan Land Revenue Act (XVII of 1967) ---
----S. 3--- Punjab Tenancy Act (XVI of 1887), S. 4(1) ---West Punjab Alienation of Land Act
(XIII of 1900), S. 2(3) ---Land, definition of ---Section 3 of the Balochistan Land Revenue
Act, 1967 ('the Act 1967') excludes land not assessed to land revenue from operation of the
Act 1967---Under Punjab Tenancy Act, 1887 and under Land Reforms Regulations 1972, the term " Land" has been defined as land which is not occupied as the site of a town, village, factory or industrial establishment and is occupied or has been or can be let for agricultural purpose, allied or subservient to agriculture and includes the site of building and other structure on such land--- Section 2(3) of the West Punjab Alienation of Land Act defines land
as land which is not occupied as the site of any building in a town or village and is occupied or let for agriculture purposes or for purposes subservient to agriculture or for pasture etc.
(c) Balochistan Land Revenue Act (XVII of 1967)---
----Ss. 3, 117, 135 & 172(2)(xiii) --- Land Revenue Rules, 1968, Rr. 67 -A & 67 -B---Specific
Relief Act (I of 1877), S. 42---Suit for declaration ---Maintainability ---Partition, demarcation
of agricultural land and eviction of unauthorized land owner ---Civil Court or Revenue
Authorities, jurisdiction of ---Scope ---Subject of partition, demarcation and eviction of
unauthorized land owner is regulated by S. 135 of Balochistan Land Revenue Act, 1967 (' the Act 1967') read with Rr. 67- A & 67 -B of the Land Revenues Rules, 1968 ('the Rules 1968') --
-Provisions of S. 117 of the Act 1967 authorizes Revenue Officer to define the limit of any
estate or any land on application of any interested person and to define limit of boundaries for ascertaining whether or not any outsider has encroached the property of the applicant and as a result such proceedings, a land owner, if found in wrongful possession of land can be
evicted on an application ---Rule 67- B of the Rules 1968, provides a specific procedure for
seeking eviction of an encroacher ---In a matter of demarcation of boundaries of agriculture
land, jurisdiction of Civil Court is barred under S. 172(2)(xiii) of the Balochistan Land Revenue Act, 1967 ('the Act 1967'), but in case where a claim is laid for declaration, permanent injunction and possession of area demarcated by the Revenue Authorities and found encroached by someone, a suit must lie before Civil Court.
Mehram Khan and others v. Fateh Khan and others 1983 SCMR 366 ref.
Muhammad Rehan for Appellant.
Ilahi Bakhsh Mengal for Respondents Nos.3, 4 and 5.
Abdul Zahir Kakar, D.A.G., Muhammad Zubair, Assistant Director, Survey of
Pakistan and Munir Ahmed Sikandar, A.A.G. for Official Respondents.
Date of hearing: 6th June, 2023.
JUDGMENT
MUHAMMAD EJAZ SWATI, J. ---The appellants are aggrieved against order dated
20-08-2022 (impugned order) passed by learned Senior Civil Judge Hub (trial court),
whereby plaint filed by the appellant was returned under Order VII, Rule 10 Civil Procedure
Code (C.P.C.).
2. The facts of the case are that respondent No.3 (Nabi Bukhsh) filed a Suit No.06/2021
against the appellant on 14 -01-2021 and claimed that they were owner of more than 9 acres
land measuring 9- 9-2 in Khasra No.69/3/3 situated Allah Abad town Sakran and the same
was purchased by them from one Riaz Ahmed on 11- 09-2016 in consideration of amount of
Rs.95,00,000/ -. It was further averred in the suit that property of appellants/defendant was
situated toward western side adjacent to their property. The grievance of the respondent No.3
in his suit was that the appellant was merely attempting to encroach upon their land as the northern by pass road was constructed by the Government through their land and revenue
record/report also favour them and appellate was trying to pretend that road was passing in
his land. The appellant besides filing written statement also filed Suit No.28 of 2021 on 05-05-2021 against the respondent No.3 and claimed that they were owner in possession of more
than 101 acres of land measuring 101- 2-28 vide Khasra Nos.413, 39, 50/1, 51, 53, 53/1 and
54/1 since 1960. It was the case of the appellant that bypass road constructed by the Government was falling within their above land, but the respondent No.3 with revenue
official had tampered the record/right and has tried to manipulate passing of road under Khasra No.69/3/3 and sought relief for declaration and to restrain the respondent from interference. Both the suits were consolidated by the learned trial court vide order dated 25.11.2021. The learned trial court after making inquiries in terms of guidelines and principle provided in Punjab High Court Rules, concluded that both the suits filed by the parties are barred under Section 172 of Land Revenue Act 1967 (the Act) and returned the
plaints for presentation before proper forum under Order VII, Rule 10, C.P.C. The appellants
have challenged the impugned order while respondent No.3 supported the impugned order.
3. The learned counsel for the appellant contended that findings of the trial court with
regard to bar of jurisdiction under Section 172 of West Pakistan Land Revenue Act, 1967 is contrary to Section 9 of C.P.C. that suit for declaration and injunction against the trespasser is solely lies within the jurisdiction of civil court and return of plaint under Order VII, Rule 10, C.P.C. is patently illegal. That the learned trial court has failed to exercise his jurisdiction under Section 75 read with Order XXVI, Rule 9 of the C.P.C. to appoint a commission to
investigate and provide a report regarding the demarcation of the appellants property.
4. The learned counsel for the respondent No.3 contended that the appellants have not
challenged the holding of the respondent No.3, but raised a dispute with regard to uncertain
portion of land belong to him without support of any existing documents. He placed on record C.P. No.368 of 2022 decided by this Court vide order dated 30- 12-2022, wherein this
Court directed the official respondents to pay the compensation amount to the rightful owner of the land consumed in the construction of road. He further supported the impugned order of
the learned trial court.
5. We have heard the learned counsel for the parties and perused the record. The
appellant in their suit has claimed following relief,
"it is therefore most respectfully prayed that this Honorable Court may be pleased to
pass the judgment in favour of the Plaintiff and may graciously be pleased to:
A. DECLARE
(i) That the plaintiff is the owner of the following Khasra/Survey Nos. in the Hub District, Lasbela, admeasuring a total of 101- 2-28 acres in Mouza Sakran, Tehsil Hub,
Khatoni No.367/1 86 and Khayoot No.336/3.
Khasra/Survey Nos. Acres
(i) 4/3 25-0-16
(ii) 39 18-2-19
(iii) 50 1-2-37
(iv) 50/1 5-2-38
(v) 51 3-2-39
(vi) 53 15-2-3
(vii) 53/1 20-3-11
(viii) 54/1 10-1-25
(ii) That the Defendant No.3 and Defendant No.4 are trespassers and land grabbers who are illegally and maliciously encroaching upon the Subject Property.
B. RESTRAIN
(i) The Defendants jointly and severally from carrying out any construction work and/or allowing any construction work whatsoever at the Subject Property and from creating any third party interests in respect of the Subject Property and from taking any action whatsoever which adversely affects the right, title and interest of the Plaintiff in the Subject Property.
C. DIRECT
(i) The Defendant No.1 to forthwith carry out a survey and demarcate the Subject Property.
D. GRANT
(i) Costs.
(ii) Any other relief that this Honorable Court may deem fit in the facts and circumstances of the Subject Suit."
6. From the divergent pleadings of the parties, it appears that there is no dispute between
the parties with regard to their owned properties/Khasra number and area mentioned in the pleadings. Land of both the parties were adjacent to each other and construction of road by the Government resulted dispute between the parties. The appellant in their plaint has
nowhere pleaded the area of their property encroached or intended to be encroached by the
respondent No.3. The pleadings of both the parties reveals that they had not challenged the property recorded on their respective names in the revenue record, but their main claim hinges on the controversy that some portion of their property falls in the construction of the road, therefore, appellants through declaration under Section 42 of the Specific Relief Act,
1877 have sought relief of new right of demarcation and the trial court vide impugned order
returned the plaint under Order VII, Rule 10, C.P.C. of both the parties for want of
jurisdiction under Section 172 of the Act.
7. Section 3 of the West Pakistan Land Revenue Act 1967 (the Act) exclude land not
accessed to land revenue from operation of the Act. Under Punjab Tenancy Act, 1887 and under Land Reform Regulation 1972, the term "Land" has been defined as under,
"Land means land which is not occupied as the site of a town, village, factory or industrial establishment, and is occupied or has been or can be let for agricultural purpose allied or subservient to agriculture and include the site of building and other structure on such land (PLD 1972 Central Statute 288."
8. Section 2 (3) of the West Punjab Alienation of Land Act defines "land" as under,
"the expression 'land' means land which is not occupied as the site of any building in a town or village and is occupied or let for agriculture purposes or for purposes subservient to agriculture or for pasture etc. "
9. The subject of partition, demarcation and eviction of unauthorized land owner is
regulated by Section 135 of the Act read with Rules 67 -A, 67 -B of the West Pakistan Land
Revenue Rules, 1968. The provision of Section 117 of the Act authorizes revenue officer to define the limit of any estate or any land on application of any interested person and proceed to define limit of boundaries for ascertaining whether or not any outsider has encroached the property of the applicant and as a result of such proceedings, a land owner, if found in wrongful possession of land can be evicted on an application. Rule 67- B of the West
Pakistan Land Revenue Rules 1968, provides a specific procedure for seeking eviction of an encroacher.
10. Undoubtedly in a matter of demarcation of boundaries of agriculture land jurisdiction
of civil court is barred under Section 172(2)(xiii) of the Act, but in case where a claim is laid for declaration, permanent injunction and possession of area demarcated by the revenue authorities and found encroached by someone, a suit must lie before civil court. Reliance in this respect is made to case title Mehram Khan and others v. Fateh Khan and others (1983 SCMR 366).
11. From the above it appears that in case of controversies between the parties with
regard to demarcation of boundaries of agricultural land civil court has no jurisdiction under the provision ibid, unless possession of area demarcated by the revenue authorities under the provision of Section 117 of the Act read with Rules 67 (A) and 67 (B) of the West Pakistan Land Revenue Rules, 1968. It is well settled that through a declaration in civil matter claimed under Section 42 of the Specific Relief Act 1877, a pre-existing right can be
declared, but a new right cannot be created by grant of a decree by the civil court. Reliance
in this respect is placed on case title Director Military Lands and Cantonment Quetta Cantt
Quetta and others v. Aziz Ahmed and others (2023 SCMR 860).
12. A claim of encroachment made by a person in his property by the adjacent owner, his
remedy lies before the Revenue authorities for demarcation of land under Rule 67 -A of West
Pakistan Land Revenue Rules, 1968 and in this respect, the Revenue Officer has ample power under Section 117 of the Act, 1967 to define the boundaries.
13. In the instant case, neither any demarcation took place prior to institution of the suit
nor appellants have taken any step to this effect. There is no cloud between the parties with regard to title of the properties recorded in the revenue record. Both properties are adjacent to each other and both parties have raised claim that portion of their property falls in the construction of road made by the Government without specifying the encroached area. As per sale dead (title documents) dated 19th February 1966 relied upon by the appellant. They are owner of a plot of agriculture land measuring 100 acres at Deh Sakran, Sub Tehsil Hub Nadi, District Lasbella and this right of the appellants had not been denied by the respondent No.3. As stated above, the pleading of the parties make it clear that matter of demarcation of boundaries of the agricultural land have been raised by the appellants which fall in the domain of revenue authority and jurisdiction of civil court was explicitly barred under Section 172(2)(xiii) of the Act. Thus, the impugned order warrants no interference by this Court.
In view of above, R.F.A. No.38 of 2022 is dismissed. Parties are left to bear their own
costs.
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