Demarcation حد براری

      Demarcation         حد براری

        سول کورٹ یا۔ریونیو آفیسر 

     

            1987 S C M R 61

Present: Muhammad Haleem, C.J, Muhammad Afzal Zullah, Nasim Hasan Shah and Shafiur Rahman, JJ

NAZIR AHMAD and another‑‑Petitioners

Versus

MAULA BAKHSH‑‑Respondent

Civil Petition No. 35 of 1986, decided on 21st June, 1986.

(Against the judgment and order, dated 15‑10‑1985 of the Lahore High Court, Bahawalpur Bench, Bahawalpur, in Civil Revision No. 138/D of 1985).

(a) West Pakistan Land Revenue Act (XVII of 1967)‑‑S. 172‑‑

Jurisdiction of civil Court‑‑

Demarcation proceedings‑‑Dispute about ownership of trees‑‑Where a question of title or ownership of land or any immovable property is involved, then civil Court alone, to the exclusion of Revenue Officer or Revenue Court, is competent to decide it.

(b) Constitution of Pakistan (1973)‑‑

‑‑‑Art. 185(3)‑‑West Pakistan Land Revenue Act (XVII of 1967), 5.172‑­Demarcation proceedings

Dispute about ownership of trees‑‑Trial Court accepting plaintiff‑respondents claim that whole of water channel including both its banks was located within his proprietary land, as such he was their owner‑‑Decision upheld by Appellate Courts‑‑Petitioners could not claim any right in one of banks on ground that their land abutted on it‑‑Held, since exact location of trees was not shown in demarcation proceedings, trees on banks would be assumed to be in the ownership of person to whom banks belonged‑‑Finding of fact having been concluded and there being no question of law requiring further examination, leave to appeal refused.

Ch. Muzammal Khan, Advocate Supreme Court assisted by Rana Maqbool Ahmad Qadri, Advocate‑on‑Record (absent) for Petitioners. Nemo for Respondent.

Date of hearing: 21st June, 1986.

 ORDER

 SHAFIUR RAHMAN, J.‑‑The petitioners who have been unsuccessful as defendants in a civil suit, seek leave to appeal against the judgment of the Lahore High Court, dated 15th of October, 1985 whereby a Civil revision petition filed by them against the concurrent judgment and decrees of the two Courts below, was dismissed.

2. At first demarcation proceedings of land took place before the Revenue Officer under section 172 of the Land Revenue Act. The subject‑matter of the dispute were trees standing on one of the banks of a water course which was admittedly located within the proprietary land of the plaintiff‑respondent. The case of the petitioners was that as their land on the northern side abutted on this water channel the trees planted on the banks thereof were their property. The case of the plaintiff‑respondent was that the whole of the water channel, both its banks were located within his proprietary land as such he was their owner. In the demarcation proceedings, the petitioners obtained a decision on their favour. The respondent challenged it by means of a civil suit. It was contested by the petitioners. The following, issues were framed:‑‑

"(i)Whether this Court has no jurisdiction to adjudicate upon this suit in view of the section 172 of Land Revenue Act? 0 . P. D . 1 and 2.

(2) Whether the order of Had‑Barari, dated 7‑2‑1980 passed by the defendant No.3 is illegal, invalid, without jurisdiction ex parte, and ineffective against the rights of the plaintiff, O.P.P.

(3) Which of the parties is owner of the trees in dispute? O.P.P. O.P.D.

(4)Relief.

The trial Court held that the civil Court had the jurisdiction that the demarcation proceedings were not in accordance with law and that the plaintiff was the owner of the trees in dispute.

The appellate Court affirmed it. The High Court in revision declined to interfere.

The learned counsel or the petitioners has defended the demarcation proceedings and his own title to the trees on the ground that his land abutted and the watercourse adjoined it.

A question taken up elaborately in the petition but no argued at the bar was with regard to the jurisdiction on the civil Court so far as the demarcation proceedings under section 172 of the Revenue Act  are concerned.

3. So far as the jurisdiction of civil Court is concerned, it has been held by the trial Court and affirmed by all the Courts where a question of title or ownership of land or any immovable property is involved then the civil.' Court alone, to the exclusion of the Revenue officer or Revenue Court is competent to decide it. In this case it was not so much the demarcation of the land as the title in immovable property which was in issue. The civil Court rightly took cognizance of the matter and proceeded to decide it.

As regard the ownership of the trees in dispute, this being entirely a question of fact stands decided on the basis of the oral evidence led at the trial and the documentary evidence. The very fact that it is the case of the petitioners also that the water‑course is itself     located within the proprietary land of the respondent goes to establish that both its banks are within the proprietary limits of his land. The petitioners could not claim any right in one of the banks on the ground that their land abutted on it. The demarcation proceedings which they wanted to protect does not show the exact location of the trees or distance from the bank. In the absence of it the trees on the banks would be assumed to be the ownership of the person to whom the banks belong. The finding of fact stands concluded and there is no question of law which may require further examination in this Court. Leave to appeal is, therefore, refused.

M.I                                                                                                                  Leave refused.