Friday, 17 October 2014

All owners in Shamlat Deh land are necessary party to the suit

PLJ 2014 AJ&K 267
Present: Sardar Abdul hameed Khan, J.
C.A. Nos. 45 of 2008 and 01 of 2009, decided on 2.5.2013.
----Disputed land was converted into shamlat deh land--Entries in reveue record in favour of forest were wrong, baseless and against factual position--Transfer of crown land or shamlat deh land by way of sale or gift-deeds or by compromise or consent decree or where necessary parties were not arranged--Validity--Transfer of crown land orshamlat deh land by way of sale, or gift-deeds or by compromise or consent decree, or where necessary parties were not arrayed--To avoid prejudice to any party, with expressing opinion of the Court to entries of revenue record suffice to mention that record filed with original suit to extent of a khasra number, it transpires that trial Court had not read documentary evidence with original file--Basically suit relates of correction of entries of revenue pertaining to crown land which is not within jurisdiction of Civil Courts--Where crown land is converted or recorded in revenue record as shamlat deh all land owners of Deh were necessary party in suit--Impugned orders were passed correctly by giving chances of proper hearing to both parties in a legal manner--Thus, no case was made out by appellants for interference in impugned orders.     [Pp. 270 & 272] A, B, C, D & E
Sardar Ghulam Mustafa, Advocate for Appellants in both the appeals.
AAG for Respondents No. 1 to 3 (in Appeal No. 45/08) and for Respondents No. 12 to 14 (in Appeal No. 01/2009).
Raja Imtiaz Ahmed, Advocate for Respondents No. 4 and 5 (in Appeal No. 45/08) and for Respondent No. 15 (in Appeal No. 01/2009).
Ch. Manzoor Ahmed, Advocate for Respondents No. 1 to 11 (in Appeal No. 1/2009).
Date of hearing: 2.5.2013.
As the above titled appeals are filed against the same subject land and between the same parties against a consent decree passed by Senior Civil Judge Kotli, therefore, these both appeals shall be disposed off through this single judgment.
The precise facts giving rise to the instant appeals are that Muhammad Sabir/appellant has filed a suit for declaration in the Court of Sub Judge Kotli on 09.1.1999 it is averred that the total land comprising Khewet No. 136, Khata No. 1107, Khasra Nos. 987, 988, 1044 is 2443 Kanals 04 Marlas out of which land measuring 100 Kanals 14Marlas situated in Village Sehr Mandi Tehsil Sehnsa District Kotli is in the possession and ownership of plaintiff and his brother Proforma-Defendant No. 6/Muhammad Fazalas "ArhakkDaar". It is further averred that the dispute land was basically "Khalsa Sarkaar". It is also averred that now the disputed land is converted into Shamlat Deh land vide Mutation No. 496. The plaintiff stated that he and Proforma-Defendant No. 6 (Petitioner No. 2 herein) are the owners of land in the Village, therefore, they are owners-in-possession over the suit land being sharers. The plaintiff submitted that the entries record in the revenue recorded in favour of forest within "Burjiat" Nos. 35, 36, 37, 38, 39 and 40 are wrong, baseless and against the factual position. The plaintiff prayed that the above said entries of Forest may kindly be declared without lawful authority and the suit land be converted into "Khasa Sarkar" or "Shamlat Deh" land.
After hearing the parties, the learned Sub Judge Kotli passed a consent decree vide its judgment dated 10.04.2000 in favour of petitioner/Muhammad Sabir and MuhammadFazal sons of Faqeer Muhammad and against Defendants No. 1 to 5 i.e. Azad Government and others official respondents. Against this consent decree and judgment dated 10.04.2000, the official respondent i.e. Forest Department and others choose to file an appeal before the District Judge Kotli vide Appeal No. 06/08 dated 26.01.2008, which were accepted by the learned Additional District Judge Sehnsa vide order dated 28.10.2008; feeling aggrieved from the said order the plaintiff/appellants has filed the appeal before this Court through Civil Appeal No. 45 dated 21.11.2008.
Whereas the respondent Muhammad Zulfiqar and others filed a suit against the consent decree & judgment of Senior Civil Judge Sehnsa on 20.04.2006 which was dismissed on 31.01.2007. Against which the respondents filed an appeal before the Additional District Judge Sehnsa on 07.02.2007 which was accepted by the learned Additional District Judge vide its order dated 15.08.2011 and the case was remanded to the trial Court. Feeling aggrieved by the order (ibid) the respondents filed this Civil Appeal No. 01/09 on 16.01.2009.
I have heard the learned counsel for the parties.
As in both the appeals basic dispute is against the consent decree and judgment of the Senior Civil Judge Sehnsa dated 10.04.2000, hence clubbing both the appeals, I propose to dispose off by this single order.
Sardar Ghulam Mustafa Advocate learned counsel for appellants argued that the impugned orders passed by the Additional District Judge Sehnsa is without lawful authority and against the rights of the appellants. He further argued that the first Appellate Court illegally remanded the appeals back to the trial Court without applying judicial mind and without considering the evidence brought on record by the appellants. The learned counsel prayed that the impugned orders may be set-aside. The learned counsel placed reliance on:-
1.         2011 SCR 214;
2.         PLD 2000 SC (AJK) 271;
3.         2008 CLC 1319;
4.         2003 SCMR 1050;
5.         PLD 2004 SC (AJ&K) 223; AND
6.         PLD 1997 Supreme Court 397.
While controverting the arguments of the learned counsel for appellants, M/s. Ch. Manzoor Ahmed Advocate and AAG for respondents argued that the impugned orders are based on sound, cogent and strong reasonings, these do not require any interference by this Court. They further argued that the order of trial Court dated 10.04.2000, is illegal and without lawful authority, therefore, the first Appellate Court has rightly accepted the appeals and remanded the cases for fresh decision. They prayeed that the instant appeals may be dismissed. The learned counsel for respondents placed reliance on the following case law:-
1.         1997 SCR 149;
2.         PLD 1997 Supreme Court (AJ&K) 28:
3.         2008 SCR 207; and
4.         2010 SCR 280.
I have heard the learned counsel for the parties and gone through the record with my utmost care and caution.
The moot point between the parties is a consent decree by virtue of which some crown land (Forest Land) has been converted into Shamlat Deh land and in the name of appellants. The transfer of crown land or Shamlat Deh land by way of sale, or gift-deeds or by compromise or consent decree, or where the necessary parties are not arrayed. Such like decrees/deeds are not approved by the apex Court. To avoid prejudice to any party, with expressing my opinion to entries of revenue record suffice to mention that the record filed with the original suit to the extent of a Khasra number, it transpires that the trial Court has not read the documentary evidence with the original file.
It is also crystal clear that basically suit relates of correction of entries of revenue pertaining to crown land which is not within the jurisdiction of Civil Courts.
Another aspect of the case is where the crown land is converted or recorded in revenue record as Shamlat Deh etc. all the land owners of the Deh are necessary party in the suit.
Some other facts and aspect of the case take into consideration by the Court below and giving concurrent findings on the matter in dispute leaves no room for interference by this Court. The findings of Additions District Judge Sehnsa in both the impugned orders i.e. dated 28.10.2008 and 15.11.2008 are based on cogent reasons and our above view as well as of the learned Additional District Judge finds support from the following case:-
1.         1997 SCR 14
            Lt. Col. Sana Ullah Raja Vrs. Muhammad Shafi and 2 others. On the point of condonation of limitation it was observed "if delay in filing appeal etc. stands explained by the record then there is no need of separate application" and "that delay should be condoned without any formal application when the fact constituting sufficient cause fully proved on record.
2.         2008 SCR 207
            Khalid Hussain and 3 others VrsHaji Muhammad Rafique and another. It is observed that:- "The Courts should avoid to grant a declaration in respect of possession of crown land and Shamlat Deh without first determining the title of owner to transfer and the exclusive possession.
3.         2010 SCR 102
            Abdur Rasheed and 4 others vs. Muhammad Younas and another. The apex Court observed that: "The Civil Court admittedly has no jurisdiction to pass judgments or decrees in respect of crown land and the jurisdiction of the Civil Court stands excluded by law. Similarly where rights in respect of ownership are claimed in the crown land, the civil Court has no jurisdiction to entertain a civil suit by holding that the right of the plaintiff is of civil nature, therefore, triable by a civil Court. Admittedly permanent injunction cannot be issued against the official functionaries of the Revenue Department where necessary party is concerned, it is also correct that in absence of necessary party a valid decree cannot be passed by the Civil Court.
4.         2010 SCR 280
            Muhammad Shafi vrs. Bashir Ahmed and 6 others. The apex Court held that. Jurisdiction of civil Courts ousted--Crown land was not included in the suit land which was bone of contention between the parties and was only introduced in the compromise decree. Admittedly the Civil Court whether the trial Court or High Court has no jurisdiction to entertain a suit claiming any rights in the crown land. Held. If a decree cannot be passed by the Civil Court in respect of crown land and award its ownership to a private individual, it cannot be given to a party by a "compromise decree"---Further held: the first requirement for filing a civil suit in a Civil Court is that it should be possessed of powers to grant a decree in respect of suit land or suit property. Similarly the compromise must be a lawful compromise--It, therefore, follows that if the trial Court has no jurisdiction to entertain a suit in respect of crown land, High Court as well lacks jurisdiction.
5.         2011 SCR 214
            Muhammad Bashir Khan vs. Muhammad Sharif and 2 others. It was observed by the apex Court that Consent decree--its cancellation by filing civil suit or application Section 12(2), CPC--Powers of Civil Courts--Consent decree inoperative on the rights of plaintiff--Question can be resolved after taking evidence--Questions of fake and fictitious decree and fraud can be looked into by the Court under Section 12(2), CPC but the other questions can be resolved by a Court in civil suit--Held; the Civil Courts are the Courts of ultimate jurisdiction, possess vast powers to entertain the suits for cancellation of collusive decrees and resolve the same including the question of fraud--Further held: an application under Section 12(2), CPC as well as the suit for setting aside an ex-parte/consent decree is competent.
(c)        Limitation--
            --Ex-parte decree/consent decree--setting aside of--Application under Section 12(2), CPC--Limitation for setting aside an ex-parte/consent decree by way of an application under Section 12(2), CPC is three years--Held: if a person is not a party in a case, then there is no limitation for filing a suit for cancellation of decree adversely affecting him.
The other case law need not to be discussed because in the light of above case, question related to transfer of crown land is of basic importance. Hence the order of remand was the ultimate course as has been done by the First Appellate Court.
Keeping in view the above case law and the concurrent findings of the Courts below, it is found that the impugned orders have been passed correctly by giving the chances of proper hearing to both the parties in a legal manner. Thus, no case is made out by the appellants for interference in the impugned orders.
Therefore, finding no force in these appeals, both the appeals are hereby dismissed with no order as to costs.

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