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CiVil RETTESION No of co5.

1) Mirn Said Wihid.

ther NiT •Q ... 05oijs of Cndri Niaiij RcSidcnts of Chtur Tehsil Bbzai District; Swat.. .

9 Versus

1

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Nzir Min s/t Qenar Nin(1'te) .

Nt.Gul Sbehr widow of ar M / fl

i( rs/o Reb.rnar Abi Qarilbar Tebsil Bbuzai /DJstr1cL Swat.

/ ttoner@j Miai s/o Poor Ni3i.

'YTme'i r•'lian son of Kariin Nin

Msha1 Niar. L1&Jr

By; h() 6) Gui Jinhr Mien (since .ie) rep:

Mr.Gu1 H2zaraBibi WIdOW.

Nst.Riff2t Jehan Bibi Widow. /; z•i ji5) N1mn Said Kieen. ?jv/v •) .

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Nn Za1r A11L_fl. Y/$46' /

V)aZB2Cra....SQnS.

vii) Mst.Jehn .ra.

4ji I ' ii) Mst.Di]s ibi. .Asia Bibi.

L- •.flf aa M8t Bibi. '., xi) tt.Azrnat Bibi.

xii.) Mt.Sadia Bibi. xiii) Nst. Hisar Bibi xii) ShenC'gai Vibi

XV') t.ThahflPZ.Bib .....Drs/o Gui abor Iiian sicint of Chtour Yaire Teh3.1

'.BbuZ3i District Si

- ?) Badshh Said. - 3) flLcr

. 9) Al saId. Jehin 6 aid...

dSb5fl i....1S cf .Br'ct') - tJaT dr/r rdi(ltc)

fc31cjt5 of KozL1 Cnto r c h s i 1 Bcbuz Dstict

21 PeLi la p against tC judgnnt/ rvs1 r

C'rier -n aec:eo te /7/236 hcicc 1

the appi of the petitipnei' ws ismisc

2 14 s'd tb3t of the jud'ment/decree and cIder tV

the Givi1 TiII/I13q

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1 12u DEC 4 I -

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JUDGMENT SHEET IN THE PESI-IA WAR HIGH COURT, MINGORA BECI1

(DAR-UL-QAZA), SWAT 3 U DICIAL DEPARTMENT

Civil Revision No. 58 7-M/20ü7

Mian Said Wahid and aiwlizer

Vs.

NaZir Mmii and others

JUDGMENT

Date of hearing: 08.02.2017

Eetitioner(s): By Mr. Raza-Lid-Din Khaii, Advot'atc

Respondent(s): By M/S Fazal Rahman, Sycd Izzat Badshah and

Khurshid Ali Khan, Advocates

IKRAMULLAH KHAN, J..- This revision

pclition is directed against the judgments and

AXTEST decrees of learned Additional District Judge-I I Izafi

Peshawa Bench 7

ZilIah Qazi Swat dated 25.7.2006 and that of Ili Swat,

learned Civil Judge-Ill / Illaqa Qazi, Swat dated

28.4.2005, vide which, suit of petitioners was

concurrently dismissed by both the lower courts. 'S

2. Compendium of facts leading to the

filing of instant petition is that plaintifl/petitioners

filed a suit for declaration against the defendants!

respondents to the effect that they are owners and in

possession of the suit land, fully described in the

heading of the plaint and attestation of' mutation in

respect of the suit land in the name of respondents

is illegal and liable to be cancelled and the

revenue record to this effect be also colTected. They

further prayed for permanent and perpewal

ii iiiictioa to the effect that reSpondents be

restrained not to interfere in their lawful possession

and ownership, on the basis of impugned directions

rendered by respondents on different dates as well as

on the basis of impugned mutation.

Defendants/respondents in their

written statement vehemently controverted the

stance of the plaintiffs/petitioners, which reu1tcd

;. into framing of issues, on which both the parties led

their respective evidence as they wished. On

,r ii O 1 conclusion of trial, suit of the plainti1i/petitioncrs

was dismissed and the appeal filed also met the

same fate, hence the instant revision petition.

1 have heard the arguments advanced

by learned counsel for the parties and have also gone

through the record with their valuable assistance.

The perusal of record reveals that

petilioricr had claimed 4/9 shares in the suit property

-j

being ancestral property coming strailit since their

forefath.rs in their possession. The petitioners

thcmselvcs examined the revenue officials, who had

placed on record the revenue papers. According to

the revenue papers, the suit property was originally

owned by cx. Ruler of Swat, known as Bacha Sahib,

Swat. Alter merger of erstwhile set-up of State of

Swat, the Government of Pakistan in order to

distinguish and determine the State properties as

well as the personal properties of cx- Ruler of Swat

promulgated Martial Law Regulation No. 122. For

thc said purpose, the Dir-Swat Land Disputes

Enquiry Commission (Commission) was constituted

vide Notification No.66 dated 8(h October, 1970.

'I'hc Commission inquired in respect of t.vo sets or

lands, one owned by the State while the other by cx-

Ruler of Swat. In this respect a Notification

No. 1 0/I -SOTA-l1/HD/72- 1525 dated 29111

September, 1972 was issued and the properties

owned by the ex-Ruler of Swat was out-rightly

mentioned in Appendix 'B' Schedules I, II and Ill.

The suit property is mentioned at Part 'C' of the said

Appendix. According to the said Schedule of the

properties bounded at North Village Batura, South

Village Supal Banday and Village Murghazar, I1ast

Village Islampur and Village Supal Banday, West

4

Village Maniar, Village Ghaligay, Pani Dal, were

declared to be the personal properties of ex-Ruler of

Swat with exception to those properties, particularly

and spceifically mentioned in the said notification

itself.

6. The Government o[ Pakistiii

simultaneously also ISSUCCI another viartia1 [ aw

Regulation No.123 on 12.4.1972, wherein, the

Commission constituted under Notification No.66

dated 8 October, 1 972 was conferred with the

jurisdiction to dispose of, all the disputes relating to

the ownership of, or any right or interest in, any

iniinovable property in the former States of Dir and

Swat to which any of the following persons are

parties:-

Exammer( Peshawar Hicjh Court Benth MigorIORr-UI-QaZa, Swat

the tenants and ex-Rulers of the said former States or their respectively heirs; or

claimant landlords and the cx-Rulers of the said lbrmer States or their respective heirs; or

the landlords and tenants

7. The record depicts that the

respondents approached the concerned Dir-Swat

Land Disputes Enquiry Commission (Commission),

whereby, the suit property was claimed by the

respondeiLs. The Commission, after proper inquiry,

5

rendered its order in respect of the suit property in

favour of the respondents vide its order dated

6.1 0.1972. The ex-Ruler of Swat time and agi ii

under the provisions of Martial Law Regulation

No.123 filed his appeals, revisions and review

petition:; before the concerned Authorities

mentioned in the M.L.R. No.1 23 but lie direction /

order of" the Commission was stood intact. In

pursuance of the direction I order, which is

commonly known as decree, the symbolic

possession of the suit land was handed over to the

respondents by the concerned ievenue Tehsildr,

Tehsil I3abuzai, Swat on 1.9.1 975.

8. It is admitted fact that the settlement

7ne xan

operation was not enforced in district Swat, which

was brought under operation in the year, 1984 and

was completed on 31.12.1986. During the course of PeshaWa

efl

swat settlement, the suit property was preliminary entered

in the name of Land Commission because all the

properties owned by the ex-Ruler of Swat was

- provisionally resumed by the Land Commission

f constitutcd under Martial Law Regulation No.1 15,

but later on, the respondents filed an application in

order to give effict to the decrees I orders /

directions rendered by the Commission constituted

6

vide Nuification No.66 of 1972. 'I'he suit property

was catered in the name of respondents,

accordiigly.

9. It is evident from the record that floliC

of the parties herein are in actual possession of the

suit land. 1-lowever, the suit land is in possession of

various persons, who are cultivating and in

pOSSCSSIOfl of the same and recorded as tenant at will

in the revenue record. The petitioners have not

examined a single person during trial, recorded as

tenant at will in the revenue record of the suit

property to confirm that the produce of the suit

property was receiving by the petitioners. While the

Khasra Girdawari produced and placed on record

did not show that the petitioners were in actual

ATTESrED possession of the suit land because on one hand, the

f I petitioners had failed to prove their possession over E xa iii in r

Peshawar1içjh Coirt Benth the suit land while on the other hand, they did not MingoraiDar-uI'Qaa Swat,

place on record any conceivable, cogent and

documentary evidence that the suit property had

ever remained either in their possession or in their

ownership. However, the petitioners had placed on

record Deed No.517 registered on 3.9.1975 but none

of the attesting witnesses have been produced as

PWs in order to prove the same in terms or Article

79 of the Qanoon-e-Shahadat Order, 19,94 or any

other enabling provisions of the same Order. It is

apparcil. From the record that petitioners had

institutci the instant suit in the year 1994 while the

[)eed, on which, the petitioners had placed their

reliance was allegedly executed in the year 1975 but

in the interregnum period from 1975 to 1994, the

petitioners had kept mum and no plausible

explanal ion furnished by them in respect of long

delay in lodging of the suit, which is beyond the

prescribed period of limitation provided under

j\rticle 170 of the Limitation Act.

10. The petitioners had ilaeed on record

Deed No.5 17 dated 3.9. 1975, although as mentioned

hereinabove, the attesting witnesses of the same

/1' I were no( produced during evidence, even if the same

Exanhine rt Benc1' is admItted as correct, the properties mentioned

Swat

therein well recognized by names and admitted to be

the ownership of petitioners but they failed to

substantiate and prove that infact the properties

mentioned in the said deed were the suit properties.

The petitioners were required to place on record

some docwnentary evidence in the shape of Aaks

Shajer-i-Kistwar of the suit properties as Nvell as

I: ar(l Jamma Bandis, to prove that the properties

8

mentioned in Deed No.5 17 were included in the suit

1roper1ies. The revenue papers placed on file do not

su)pont the version of the petitioners, however, only

similarity of names of the land could not be treated

to be ilie properties oiven to the petitioners through

the aforesaid deed.

II . The contention of learned Counsel for

rcspoiidents that since the subject matter of the suit

had already been decided by a c01111etent forum i

Commission, as such, the Civil Court has got no

jurisdiclon is concerned. No doubt, in view of

Paragrali-6 of the Martial Law Reguat ion No. 123,

110 court or other authority shall call in question, or

permit to be called in question, any action or

decision taken or order passe(1 under this Regulation

but where any person impugned any wrong entry in

the record of rights, which is tile result of orders /

directions of the Commission during settlement ' 'u t BetLI

operation in Swat, such dispute of a claimant shall

be entertained and adjudicated by the Civil Courts

having plenary jurisdiction in terms of Section 9 of

the CPC. The Sub-Para (I) of Paragraph-3 of the

Martini Law Regulation No. 123 only empowered

the Commission to take cognizance of disputes of

(he perans nientioneci hereinabove in Paragraph-6

MMENOMMM

of this iudgmeiit. So the persons, who were not

mentioned in Sub-Para-1 of Paragraph 3 or the ibid

Regulation, could not approach the Commission.

Apart ftom the above, the Commission was

authorized only to determine and take cognizance ol

disputes, which were mentioned in Paragraph-2 (b)

of the Martial Law Regulation No. 123, which rca

as: -

"Dispute" means a dispute inciutred

into by the Commission and fbi the

determination whereof it has made a

recommendation in its report."

12. In view of aforesaid meaning of

dispute, it is crystal clear that the Commission was

not empowered to adjudicate upon and rendered its

orders in respect of all kinds of disputes regarding

laud in ex-state of Swat but only a specific dispute

which had already inquired by the Commission had

to take co°nizance.

Examifle shiW iql1 coukt Bench 1 S'4Bt 3. As already discussed hereinabove,

pnr to the year 1986 the settlement record was not

niaiiitained in district Swat, so the lands were

recognized by specific names and boundaries and as

such, the properties which were declared to be the

ownership of either ex-Ruler of Swat or private

persons duly mentioned in both the Notificatoiis

10

issued under the Martial Law Regulation Nos. 1 22

and 123 recognizable by names only wilhout

spccifyag the measurement of the area. During the

course ol settlement operation at Swat in the year

1986, a ood number of civil disputes arisen because

SOfl)C liropertics which were declared to be the

ovncrship of ex-Ruler of Swat under Martial Law

Regulation No.122 and tite some were declared to be

the ownership of the claimants / landlords under the

Martial Law Regulation No. 23 and in the garb of

these orders, the adjacent properties, to one

mentio;ed in these orders, were also entered in the

name of' either Commission or claimant/landlord

populaily known as decree-holder. Likewise, in a

estate / mouza, several areas were known by a

common name, so the decree-holder / claimant /

landlord while taking benefit of orders I directions

1TE5I rendered by the Commission under the Martial Law

Exarnnek Regulation No.123 picked and chose valuable

ct h COLrt seftch

a, SWOL lieS ifl view of siniihtiity of names within a

particolar estate / mouza. So, these cases shall be

distinguished from the one in which a specihe order

has b en rendered by the Commission, due to which,

the jurisdiction of Civil Courts is barred to take

cognizance in terms of Paragraph-6 of the Martial

Law egu1ation No.123. 1-lowever, the cases which

were brought before the Civil Court after coitipiction

of the revenue record, wherein, any person

cIiaI1en:i g the wrong entries in the record of rights,

which arc the result of either notification issued

under the Martial Law Regulation No:;. 122 and 1 23

or on the basis of order / direction / decree rendered

by the Commission, shall be entertained and the

court shall afford an opportunity to such claimant /

htigant io prove its assertion and at. th end of trial,

ii the Trial Court arrived at a conclusion that the

disputed land was one which was brought under

consideration and inquired by the Commission then

such like suits are to be rejected in terms of Order

VII Ru!e II CPC and if the conclusion of Trial

Court is otherwise then the Civil Court could not be

restricted to hass an appropriate order in strive of

fair justice.

£xamnBen 14. For what has been discussed above. I

PestlaW thgh Co igorabat.0zaI swat

could not find any illegality or material irregularity

in the impugned judgments nor any jurisdictional

defect. This court normally does not interfere with

the coneulTent findings of facts of t\vo courts below

unless there is misreading of evidence or any patent

illegality in the impugned judgments. 1-lence finding

12

no meriT, this petition is dismissed with no order as

Announced. Sd.Ikranwllah Khan-J

Dated: 08.02.2017

Certi fled to be true copy 101

EXMII shawar I3igh Court, Mingor

,uIioriiCd Under Arlide 071

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