PLJ 2003 SC (AJ&K) 119

[Appellate Jurisdiction]

Present: KHAWAJA MUHAMMAD SAEED AND chaudhry muhammad taj, JJ.

SARDAR KHAN--Appellant

versus

GHULAM HUSSAIN and others-Respondents C.A. No. 46 of 2002, decided on 28.3.2003.

(On appeal from the judgement of the High Court dated 22.3.2002 in Civil Appeal No. 32 of 2001).

(i) Civil Procedure Code, 1908 (V of 1908)--

—0. VII, R. 1-Plaint-Contradiction in main body of plaint and relief
clause-Such contradiction has neither been explained nor correction has
been made in plaint by moving amendment application upto present
time-Pleading was, thus, vague-Plaintiff having sought correction of
revenue entries was bound to explain/disclose that upon what survey
number alleged encroachment was effected by defendants and when such
encroachment took place-Plaintiff was required to have appended report
obtained from concerned revenue staff showing encroachment on the part
of respondents/defendants over the land belonging to appellant and
proforma defendants-Even sketch of relevant part of land which was
taken possession of by contesting respondents/defendants without lawful
entitlement was not appended with plaint-Appellant has thus, rightly
non-suited plaintiffs. [P. 122] A

(ii) West Pakistan Land Revenue Act, 1967 (XVII of 1967)--

—S. 172-Specific Relief Act (I of 1877), S. 42-Correction of revenue record is within exclusive competence of Revenue Department in terms of S. 172 of Land Revenue Act 1967-Jurisdiction of Civil Courts in such.matters stood barred-Civil suit filed by plaintiffs seeking correction of any entry in record of rights, Khasra girdawari in the light of new settlement therefore, can competently be entertained by competent Revenue Officer and not by Civil Court-Suit of plaintiff being not maintainable before Civil Court was rightly dismissed by appellant Court as also in revision.

[P. 122] B 1996 SCMR 230 ref.

Raja Habibullah Khan, Advocate for Appellant. Ch. Muhammad Sabir, Advocate for Respondents. Date of hearing: 24.3.2003.

judgment

Khawaja Muhammad Saeed, J.--This appeal, with leave of the Court, is directed against the judgment of the High Court dated 22.3.2002 whereby the appeal filed by the appellant, herein, was dismissed and the judgment of the District Judge was maintained.

2. Relevant facts culminating into the present appeal briefly stated,
are that the appellant brought a suit for declaration in the Court of Senior
Civil Judge Mirpur, alleging therein, that the land comprising various survey
numbers detailed in paras 1 and 2 of the plaint, measuring 67 Kanals and 17
Marias was in the joint ownership and possession of him and pro-forma
respondents. According to him, the acreage of old survey number 599 was 12
Marias. Now in the new settlement it has been given a new number survey
976 and its acreage has been increased from 12 Marias to 15 Marias. In the
same way the total measurement of the land belonging to the appellant and
pro-forma respondents was 68 Kanals 3 Marias which in the new settlement
has been decreased by six Marias and now the land measurement has been
entered in the revenue record as 67 Kanals 17 Marias. According to him, the
respondents in Survey No. 976 has erected a wall and have occupied three
Marias land by amalgamating the same in their own land. He, therefore,
prayed that he and pro-forma respondents be declared owners of land
comprising various survey numbers total measuring 67 Kanals 17 Marias
and revenue record prepared by the Revenue Department with the
connivance of the contesting respondents be declared ineffective and
inoperative against the rights of the appellant .and pro-forma respondents
and the same be corrected and the contesting respondents be directed to
demolish the wall and deliver the possession of three Marias of land to the
appellant and pro-forma respondents. With the plaint the revenue record
was appended by the appellant.

3. The contesting respondents in their written statement beside
repudiating the contents of the, plaint in detail challenged the maintainability
of the suit on three grounds: Firstly, that the plaintiff-appellants has got no
cause of action; secondly that his suit in the present form is not
maintainable; and thirdly that the Court has no jurisdictional competence to
entertain the suit. At the end of the trial the suit was decreed by the trial
Court vide its judgment and decree dated 30.11.1999. Feeling aggrieved from
the aforesaid judgment and decree the contesting respondents filed an appeal
before the District Judge Mirpur which was accepted vide judgment and
decree dated 17.5.2001. The appellant preferred an appeal before the High
Court on 9.8.2001, which was dismissed vide judgment under challenge
dated 22.3.2002, on the ground that Survey No. 599 was not shown as land
in dispute. Hence, this appeal with leave of the Court.

4. Raja Habibullah Khan, the learned counsel for the appellant,
argued that the judgment of the High Court is the result of mis-reading of
the pleadings. According to him, in the record appended with the plaint it is
proved that land mentioned in Paras Nos. 1 and 2 of the plaint belong to the
appellant and pro-forma respondents. He further argued that the officials of
the Revenue Department in new settlement enhanced the acreage of old
Survey No. 599 by three Marias when they gave it new Survey No. 976. The
respondents have amalgamated three Marias of land in their own land
comprising Survey No. 976 by erecting walls. In these circumstances the trial
Court was justified in law in decreeing the suit of his client. The learned
District Judge, therefore, committed an error in reversing this finding of the
trial Court which was illegally maintained by the learned Judge in the High
Court.

5. While controverting the arguments of the learned counsel for the
appellant, Ch. Muhammad Sabir, the learned counsel for the respondents,
argued that the land belonging to the appellant and pro-forma respondents is
not the subject of controversy between the parties. According to him, the
respondent, herein have admitted that the acreage of Survey No. 976 is 12
Marias which is in their ownership and possession but inadvertently the
officials of the Revenue Department, on account of human error, have shown
its acreage as 15 Marias. He further argued that the appellant in his plaint
has not disclosed that out of which survey number belonging to him and pro-
forma respondents, his clients have encroached upon and erected walls, nor
the appellants has mentioned 'any such date when such encroachment was
made by his clients. According to him, the appellant wanted the right of way
from the land of the respondents which was not allowed by them, as such he
involved them in the present suit based on fictitious facts. While relying on
the last line of Para No. 2 of the plaint and on the relied clause, whereby
appellant wants correction in the measurement of the survey numbers, the
learned counsel argued that on account of such relief the suit of the plaintiff-
appellant was not maintainable in the Civil Court. He relied on Section 172
of the Land Revenue Act, 1967, in support of this contention. He further
argued that in presence of the admitted fact and the evider.ce on record, this
case may not be remanded to the High Court merely on the grounds that
certain facts were misstated in the judgment under challenge. According to
him, this Court has got the ample powers to decide this case itself without
burdening the parties with extra expenses by remanding the case to the
High Court. He supported this contention by placing reliance on a case titled
Chairman WAPDA, Lahore and another v. Gulbat Khan [1996 SCMR 230].

6. We have considered the respective arguments of the learned counsel for the parties and gone through the reports of the cases referred to by the learned counsel for the respondents in which it is laid down that this Court can decide the case itself without remanding the same to the lower forum. We agree with the learned counsel for the respondents that the cases cannot be remanded in routine just to prolong unnecessarily the litigation between the parties. The suit has been filed by the appellant to seek the declaration that the land comprising various survey numbers detailed in Paras 1 and 2 of the plaint measuring 67 Kanals 17 Marias be declared in his ownership as well as in the ownership of the pro-forma respondents and the shortage of the land to the extent of six Marias in the revenue record be declared ineffective and inoperative against his rights as well as against the rights of the pro-forma respondents. He has also sought a declaration from the Civil Court that this record to the extent of six marlas is liable to correction. He has also sought the possession of six Marias of land from Respondents Nos. 3 to 6 by demolishing the walls which they have erected over the same. In the plaint it is not mentioned that over which survey number belonging to the appellant and pro-forma respondents the contesting Respondents Nos. 3 to 6 have construed some walls and amalgamated 3 Marias of land in what survey number belonging to them. No doubt in Para No. 3 they have mentioned that the acreage of old survey number 599 was 12 Marias but in the recent settlement, which took place in the years 1989-90, the land was given new survey number 976 whose acreage has been shown 15 Marias and they have erected a walls over this survey number. According to this para of the plaint the encroachment by the pro-forma respondents has been made to the extent of three Marias of land wheres in the relief clause they have shown that the contesting Respondents Nos. 3 to 6 have encroached upon six Marias of land by erecting walls, therefore, a decree for possession to that extent has been prayed for. This contradiction has neither been explained nor the correction has been made in the plaint by moving an amendment application up to this time. Therefore, in our view, the pleading is vague. The plaintiff was bound to disclose that upon what survey number encroachment has been made by the respondents and when this encroachment was effected by them. In this connection they should have appended the report obtained from the concerned 'Revenue staff showing encroachment on the part of the respondents over the land belonging to the appellant and pro-forma respondents. Even the sketch of the relevant part of the land which was taken possession of by contesting respondents without lawful entitlement was not appended with the plaint. In these circumstances the learned District Judge committed no error in setting aside the judgment of the trial Court.

7. The appellant wants the correction of the revenue record which as rightly pointed out by the learned counsel for the respondents is within the exclusive competence of the Revenue Department as has been laid down in Section 172 of the Land Revenue Act, 1967, adopted in this part of the State whereby the jurisdiction of Civil Court in cases where the correction of any entiy in the record of rights or in the periodical record or register of mutations is concerned, has been excluded besides some other matters which are not relevant in the present appeal. These mattere are within the exclusive competence of the Revenue Officers. The suit filed by the plaintiff-appellant seeking correction of any entiy recorded in the record of rights, 'Khasra girdawari' in the light of the new settlement, therefore, can be competently entertained by a competent Revenue Officer and not by a Civil Court.-Even from this angle the suit of the plaintiff-appellant was not maintainable before a Civil Court.

In the light of above reasoning, finding no force in this appeal, the same stands dismissed with costs.

e

(A.A) Appeal dismissed.