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Petitioner: MIR ALI and 8 others VS Respondent: K.B. DIL ARAM KHAN (deceased) through Legal Heirs JUDGMENT
Court Name: Supreme Court of Pakistan Judge(s): Ajmal Mian, Abdul Qadeer Chaudhry, Shafi-ur-Rehman, Saad Saood Jan Title:MIR ALI and 8 others vs K.B. DIL ARAM KHAN (deceased) through Legal Heirs
JUDGMENT
Reported As: 1992 SCMR 1 Result: Appeals dismissed. Judgment JUDGMENT ' AJMAL MIAN, J.---By this common judgment, we intend to dispose of the above three appeals as common questions of law are involved. In the above appeals, leave to appeal was granted by a common order dated 18-5-1985 on the ground that this Court had already granted leave in C.P.L.A. Nos. 262-P/83, 263-P/83 and 15-R/84, in which same questions of law have been raised. However, the questions of law cannot be spelt out from the above leave granting order. The basic question which has been urged by the learned counsel for the parties is, that since the orders passed by the Chairman/Member, Federal Land Commissioner, were already implemented, review under Clause (2) of Article 6 of the President's Order No,12 of 1980 (Settlement of Disputes of Immovable Property (Chitral) Order, 1980), hereinafter referred to as P.O. No,12 of 1980 was not competent. 2. Before touching upon the above question, it may be pertinent to state the relevant facts of each of the above appeals. (a) Civil Appeal No,112 of 1985. ' The appellants approached the Inquiry Commission constituted under sub-clause (b) of Clause III of the Dir, Chitral and Swat (Administration) Regulation, 1969, hereinafter referred to as the Commission and the Regulations of 1969, respectively, under Notification No,10/5 H.S.L. G-II (TA), dated 13-11-1971 claiming that the appellants belonged to Zurudra tribe of Chitral and were settled there since time immemorial before all other tribes. It was alleged that disputed land measuring about 60 Chakorams, hereinafter referred to as the land, which is situated in Cohaik, Tehsil Kutkoh, District Chitral, remained in possession of the appellants and their ancestors as full-fledged owners. It was further averred that K.B. Dil Aram Khan, since deceased (hereinafter referred to as
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the deceased respondent) and is now represented by his legal representatives - respondents Nos. 1 to 6, being brother of one of the Mehtar of Chitral having remained Prime Minister of the State, used to realise Begar from the appellants. It was also averred that after the abolition of the Begar, the appellants were in fact the owners of the land. The above claim of the appellants was resisted by the deceased respondent. The Commission made the following recommendation:-- "The land in dispute was given to the defendant by the late Sir Shujaul Mulk in 1920. There is nothing to show that it is the property of the plaintiffs. In 1965 when the land was in possession of one Muhammad Ashraf, the plaintiffs entered into a written agreement with him admitting that they would be tenants of Muhammad Ashraf. It is stated by the attorney of the defendant that in 1965 this land was forcibly taken from the defendant by the then Wazir-i-Azam and given to Muhammad Ashraf and that 2-1/2 years later it was restored to the defendant. Recommended that the claim may be dismissed. The land measuring 60 Chakorams and is situated in Gohik." 3. Against the above finding and recommendation, the appellants filed an appeal, which was dismissed by the Additional Deputy Commissioner, Chitral, by his order dated 23-1-1976 inter alia for the following reasons:-- "The application before Land Commission of 15-1-1972 discloses that the land was taken from their grand-father Zor Karim. The Exh. DA. Is the Sanad of lands given by H.H. Shujaul Mulk in 1926 to respondent. The appellants have no Sanad for it. Exh.D.B. Is the written undertaking by appellant for the land being with them for Khidmat. In the presence of documentary evidence and the continuous long and uninterrupted possession of the respondent is in proof of ownership of respondent. The appellants' witnesses namely Shakir alias Lashkar and Mir Ali have admitted the land taken over 40/50 years back by H.H. Shujaul Mulk which necessarily between 1932 and 1922. This confirms the Exh.DA. The appeal fails and is dismissed without costs." 4. Against the above order, the appellants filed another appeal before the Member, Board of Revenue, N.-W.F.P., which was dismissed by an order, dated 16-9-1976 on the ground that the same was time barred by 202 days. Thereafter, the appellants filed a Revision Petition before the Federal Land Commission, which was allowed by a Member of the Federal Land Commission by his order, dated 22-3-1977. The operative portion of the order reads as follows:-- "11. The petitioners being admittedly in possession, there being nothing on record to contradict their peaceful and prolonged possession and there being no good proof of the ownership of any one other than the petitioner, this Tribunal accepts the petition and declares them to be in possession as owners." 5. Upon the issuance of P.O. No,12 of 1980, the deceased respondent filed a review before the Chairman, Tribunal Land Disputes Dir, Swat and Chitral at Mardan, under Clause (2) of Article 6 of P.O. No,12 of 1980, which was resisted by the appellants. However, the learned Chairman by his order, dated 10-5-1982, set aside the aforesaid order of the Member of Federal Land Commission and restored the aforesaid order of the Additional Deputy Commissioner. The operative portion of the order reads as follows:--- "3. After hearing counsel for the parties at length and going through the record which was summoned, it is abundantly clear that the order of the Federal Land Commission is not sustainable. The record shows that in connection with a contract certain persons had obtained a decree for a huge amount against K.B. Dilaram, property of K.B. Dilaram Khan in village Gohik and other villages was attached and auctioned. None of the petitioners made any objection to the attachment. In the auction the land was purchased by one Muhammad Ashraf Chairman and possession of the land was delivered to him by the Tehsildar. The plaintiffs/respondents were present at the time of the delivery of possession and admitted that they were tenants of Dilaram Khan and that from that time onwards they would be the tenants of Muhammad Ashraf. Later on K.B. Dilaram Khan approached the authorities who cancelled the auction and gave him time to deposit the decretal
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amount. K.B. Dilaram Khan paid the decretal amount and it was ordered that possession of the land be returned to him. The Tehsildar again went to the spot and K.B. Dilaram Khan was delivered possession. At that time again the plaintiffs/respondents were present and they took possession on behalf of K.B. Dilaram Khan declaring themselves as servants and tenants of Dilaram Khan. Now in view of this evidence it cannot be said that the plaintiffs/respondents were owners of the land. K.B. Dilaram Khan was admittedly the owner of the land and consequently accepting the review petition I set aside the order of the Federal Land Commission and restore that of the Deputy Commissioner." 6. Against the above order, the appellants filed Writ Petition No,397 of 1982, which was dismissed by a Division Bench of the Peshawar High Court for the following reasons:- "K.B. Dilaram Khan etc. Respondents were already in possession of Me suit property and the petitioners Mir Ali etc. Were not in its possession. Hence no implementation was required. ' This writ petition is disposed of accordingly with no order as to costs." ' Thereupon, the appellants filed C.P.L.A. No,104-P of 1985 against the above judgment of the High Court, which was granted as above. (b) Civil Appeal No,113 of 1985. 7. The respondent No,1 approached the Commission claiming the ownership of four villages, namely, Gromel, Kalashan Dam, Lavi and Huzar Begandeh, wherein inter alia Imam Din son of Rafique, resident of village Gromel, since deceased (hereinafter referred to as the deceased appellant) and is now represented by his legal heirs - the appellants were impleaded as defendants. The above claim of respondent No,1 was resisted. The Commission, after examining the witnesses, by its order, dated 12-10-1972 made the following recommendations:-- "This is a dispute between Shahzada Hisamul Mulk and his tenants of village Kaloshandah, Gromel, Hazar Bagandah and Lawi. The case has already been decided finally, first by 3 successive A.P.A's and then by PA. And Regent. The review petition of the tenants was also rejected. It is a pity that instead of executing the orders which would have settled things long ago fresh enquiries were started with each application submitted throwing the orders passed into the background. This commission is not competent to re-open cases which have already been decided. All that is required is implementation of orders already passed. So far as this commission is concerned, the case may be filed." 8. Against the above recommendations, inter alia, the deceased appellant filed a joint appeal before the Additional Deputy Commissioner, Chitral, which was dismissed by an order, dated 18-11- 1975. The operative portion of the order reads as follows:-- "From the perusal of the statements recorded in my Court as well as those recorded by the Land Commission, it is crystal clear that the appellants have not proved their claim of ownership of the disputed land. On the contrary it will be found that the Commission, Peshawar's letter No,754-55 dated 10-11-1967 and the Regent, Chitral State Order dated 12-12-1963 in file would lead one to the conclusion that the dispute between the parties has since been decided and as such serves as res judicata. I am, therefore, reconstrained to hold that the findings arrived at by the Commission are maintainable. I, therefore, uphold the same and dismiss the petition filed by the appellants. The parties have been told that in case they wish to file an appeal against this order, they can do so before the competent authority within thirty days." 9. Against the above order, an appeal was filed before the Joint Secretary, Chitral Land Disputes Inquiry Commission, Board of Revenue, N.-W.F.P., which was dismissed in limine on 11-3-1976 as follows:-- "Counsel heard. The Land Dispute Inquiry Commission filed the case as a decided case and so was not competent to re-open it. This was maintained by Additional Deputy Commissioner, Chitral, in
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his order of 18-11-1975. It was decided by three successive A.Ps and by the Political Agent and Regent. It was rightly not re-opened and the appeal does not stand. Hence is dismissed in limine." 10. Inter alia the deceased appellant filed a revision before the Federal Land Commission, which was allowed by the Chairman, Federal Land Commission, by his order, dated 20-12-1976. The operative portion of the order reads as follows:-- "4. From the above discussion I feel convinced that petitioners have been in occupation of the disputed land since long. There is also no doubt that petitioners have been making transfers from this area by way of sale, gift etc. In their capacity as owners and the respondent have not raised any objection against those transfers. It also stands proved that the petitioners did not pay any rent to the respondent nor they accepted themselves as tenants of the respondent who had approached the Enquiry Commission to establish that petitioners were his tenants in respect of these lands, but his claim was filed. All this goes to show that the respondent has never been owner of the land in dispute. In view of these facts, I accept the revision petition, set aside the orders of lower Courts and hold that the petitioners' tribe is owners of the land in dispute." 11. Against the above order, respondent No,1 filed a review petition under Clause (2) of Article 6 of P.O. No,12 of 1980. The Chairman of the Tribunal took up the review petition in respect of the aforesaid four villages on 20-1-1982, when respondent No,1 and the representatives of the residents of three villages, namely, Lavi, Kalashan Dam and Huzar Begandeh, filed a compromise, which was accepted by the Chairman and the review petition in respect thereof was dismissed. No one appeared in respect of fourth village Gromel though on the preceding date of hearing, the counsel for the residents of the above village were present. The Chairman, after perusing the record, allowed the review petition in respect of the above fourth village. The operative portion of the order reads as follows:-- "4. After hearing the petitioner and going through the file, it is abundantly clear that the order of the Federal Land Commission is not sustainable. There was enough evidence on file to show that the case has already been decided by the authorised authorities in the State and it had been held that the petitioner was the owner of and the residents of village Gromel are his tenants. There is no evidence worth the name of the residents of the said village regarding their ownership. Consequently I accept this Review Petition to this extent that the order of Federal Land Commission with respect to the land in village Gromel is set aside and that of D.C. Restored." 12. Against the above order, the deceased appellant filed Writ Petition No,115 of 1982, which was dismissed through a judgment, dated 10-3-1985 on the ground that the deceased appellant had not pressed the objection before the Chairman, Tribunal that the review was not competent on the ground that the order of the Federal Land Commission was implemented. Thereupon, the deceased appellant filed C.P.LA. No,105-P of 1985, which was granted. (c) Civil Appeal No,115 of 1985. 13. Respondents Nos. 1 to 5 approached the Commission claiming 80 Jarabs of land situated in Kashindol Patigat, Jabin Drosh in Shishi Koh, District Chitral. The above claim was resisted by the present appellants. The Commission, after recording the evidence, made the following recommendations:-- "Their overwhelming documentary evidence including the written agreements of the defendants themselves show that the plaintiffs are owners and the defendants their tenants have been rendering services to them and are liable to do service. The documents Exh.D/A, Exh.D/B produced by the defendants themselves prove this. The defendants may be treated tenants of the plaintiffs. In future, however, they should not do any service but instead should pay rent at the rate of 2/5th produce for irrigated land and 1/4th for unirrigated land." 14. Against the above recommendations, the appellants filed Appeal No,18 before the Additional Deputy Commissioner, Chitral, which was dismissed by an order dated 9-12-1975. The operative
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portion of the order reads as follows:-- "The parties adduced evidence before the Land Commission. The plaintiff/respondent has proved by ample documentary evidence in Exh. PB, Exh. PC to PJ that they are owners of the land and that the appellants have been rendering services to them. That there have been consistent orders of the various authorities holding the Appellants to be tenants and the defendants as owners. Even Exh. PA. Is a written undertaking by the 20 signatories to be Shermozhi. In view of this abundant documentary and oral evidence, I am convinced that there is no substance in the Appeal which fails and is dismissed. The Land Commission recommendations are upheld." 15. Against the above order, the appellants went in appeal before the Joint Secretary, Chitral Land Disputes Inquiry Commission, Board of Revenue, N.W.F.P., who dismissed the appeal in limine by his order, dated 7-2-1976. 16. After that, the appellants filed a revision before the Federal Land Commission, which was allowed by its Chairman by his order, dated 25-7-1976 for the following reasons:- "3. The petitioners have been declared as tenants only on the ground that it has been established that they had been rendering services to the respondent. I have held in case No,157/CLC that rendering of services to a person in authority, rulers or their families, was a forced labour or Begar and cannot be termed as Batai or rent. The forced labour could be taken from, the land owners as well. Since the petitioners have been in possession since generations, on the principle that title follows the possession unless contrary is proved, the petitioners will be deemed to be the owners of the land as the respondent has not been able to produce any evidence of his title." 17. Thereupon, the above private respondents filed a review petition under clause (2) of Article 6 of P.O. No,12 of 1980, which was allowed by the Chairman of the Tribunal by his order, dated 10-11-1981 for the following reasons:-- "4. After hearing the parties in person and going through the record it is abundantly clear that the order of the Federal Land Commission is not sustainable. There is more than enough documentary evidence on file to prove that the respondents were Sharmozi tenants of the petitioners. They had admitted themselves as Sharmoz on a number of occasions and had as a matter of fact entered into a compromise with the petitioners admitting their position as Sharmozi tenants, Sharmozi tenancy from the owner. This is evident from the report of the Enquiry Commission in Part III Chitral Vol. I which was accepted by the Provincial Government and under these circumstances, the respondents were, therefore, admittedly tenants of the petitioners. I, therefore, accept this petition, set aside the order of the Federal Land Commission and restore that of the D.C." 18. Against the above order, the appellants filed Writ Petition No,438 of 1981, which was dismissed on the ground that the appellants had not pressed the objection before the Chairman, Tribunal that the review was not competent on the ground that the order of the Federal Land Commission was implemented. Thereupon, the appellants filed C.P.L.A. No,107-P of 1985, which was granted as above. 19. In support of Civil Appeal No,112 of 1985, Mr. Anwar H. Mir, learned Advocate Supreme Court appearing for the appellants, has vehemently contended that as the High Court has held that the deceased respondent was already in possession of the land and the appellants were not in its possession, no implementation was required. It must, therefore, follow that under Clause (2) of Article 6 of P.O. No,12 of 1980, the deceased respondent's review petition was not competent. ' On the other hand, Mr. M. Aman Khan, learned Advocate Supreme Court appearing for the respondents, has urged that since the appellants had not raised any objection before the Chairman of the Tribunal as to the competency of the review petition on the ground of implementation of the order, the appellants are not entitled to agitate the above question before this Court. He has further submitted that the question, whether the order was implemented or not, was a question of fact. His further submission was that as per High Court's above judgment, the
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appellants were not in possession of the land and that the respondents had been in possession of the same and, hence, their above appeal is not competent. 20. Mr. S.M. Zaffar, learned Senior Advocate Supreme Court in support of Civil Appeals Nos. 113 and 115 of 1985, has urged as under:-- (i) that the respondents' review petitions were not competent before the Chairman of the Tribunal under Clause (2) of Article 6 of P.O. No,12 of 1980 as the orders of the Chairman/Member of the Federal Land Commission already stood implemented; (ii) that the High Court was not justified in dismissing the appellants' writ petitions on the ground that they had not pressed the question of implementation before the Chairman of the Tribunal; (iii) that the appellants in Civil Appeal No,113 of 1985 were not heard and proceeded ex parte though a telegram was sent intimating the Chairman of the Tribunal inability to reach the Court. ' On the other hand, Mr. M. Sardar Khan, learned Advocate Supreme Court appearing for the respondents in Civil Appeals Nos.113 and 115 of 1985, has contended as follows:-- (i) that the question, whether the orders of the Chairman/Member of the Federal Land Commission were implemented, was a question of fact, which should have been agitated by the appellants before the Chairman of the Tribunal and since they have not agitated the above question before the Chairman of the Tribunal, the High Court was right in dismissing the writ petitions of the appellants on the above ground; (ii) that factually the orders of the Chairman/Member of the Federal Land Commission were not implemented; (iii) that the learned counsel for the appellants in Civil Appeal No,113 of 1985 had appeared before the Chairman of the Tribunal on the date preceding to the date on which the matter was heard and that the appellants and their counsel remained absent on the date of hearing without any intimation. It has been further urged by him that at no point of time, the appellants in the said appeal had brought on rcord a copy of the alleged telegram or the receipt of despatching the same. 21. Before dealing with the above contentions, we may observe that the learned counsel for the parties have referred to the material on record on the question, whether factually the appellants were the tenants or not? In our view, it is not necessary for us to dilate upon the above question as the same stood concluded before the competent forums which is evident from the extracts of the orders reproduced hereinabove while narrating the facts of the above three appeals. In this regard, it may be pertinent to mention that the States of Dir, Chitral and Swat were abolished and were merged into erstwhile West Pakistan by Regulation No,1 of 1969 issued by the Administrator, Martial Law Zone 'A' on 15-8-1969 in exercise of powers of the Governor of West Pakistan. Paragraph 7 of the above Regulation provided that "Subject to this Regulation, all Laws, including Regulations, Orders, rules, notifications and customs having the force of law, with respect to any matter within the legislative competence of the Provincial Legislature, as were in force in the specified territories or any part thereof, immediately before the commencement of this Regulation, shall, so far as applicable, continue in force, until altered, repealed or amended by the competent authority'. It is, therefore, evident that the laws and customs which were in force at the time of issuance of the above Regulation No,I of 1969 were saved. It must, therefore, follow that the above orders passed by the various forums provided under the laws then in force, namely, Political Agent, Regent, Deputy Commissioner etc. Were also saved. It may also be pointed out that by virtue of Clause (3) of Article 6 of P.O. No,12 of 1980, the Chairman of the Tribunal while deciding a review petition under Clause (2) of the above Article, was to exercise the power of an appellate Court under the Code of Civil Procedure, 1908, and, therefore, he was competent to record a finding of fact on the question, whether the appellants were the respondents' tenants or not, which finding of fact was supported by the material on record. Even otherwise, the above factual controversy cannot be gone into in
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these appeals, firstly, for the reason that the High Court had not examined the factual controversy while dismissing the writ petitions, and secondly, leave has not been granted for examining the above factual aspect. 22. Adverting to the above contention that the review petitions were not competent under Clause (2) of Article 6 of P.O. No,12 of 1980 before the Chairman of the Tribunal on the ground that the orders of the Chairman/Member of the Federal Land Commission were already implemented, it may be observed that it is an admitted position that none of the appellants had raised the above objection before the Chairman of the Tribunal. The question, whether a particular order has been implemented or not, is a mixed question of fact and law, the same should have been raised before the Chairman of the Tribunal, who would have been in a better position to probe into the above question by summoning the relevant record and the witnesses, if any, required. However, the contention of Mr. S.M. Zaffar was that the orders passed by the Chairman/Member of the Federal Land Commission were in the nature of a declaratory decree, which is not required to be implemented as it stands implemented once it is passed. In furtherance of his above submission, he has referred to sections 42 and 43 of the Specific Relief Act and the relevant provisions of the C.P.C. As to the execution, discharge and satisfaction of a decree. 23. At this juncture, we may observe that prior to the issuance of P.O. No,12 of 1980, Regulation No,II of 1974 i.e, Distribution of Property (Chitral) Regulation, 1974, and Regulation No,3 of 1974 i.e, Settlement of Disputes of Immovable Property (Chitral) Regulation, 1974, were issued on…
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