ASSISTANT COMMISSIONER KHWAZAKHELA vs MUHAMMAD RASHAD S — 2025 CLC 159 PESHAWAR-HIGH-COURT

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ASSISTANT COMMISSIONER KHWAZAKHELA VS MUHAMMAD RASHAD S. 12---Tribunal, jurisdiction of---Scope---Suit for declaration filed by respondent No. 1 before the Tribunal constituted under Khyber Pakhtunkhwa Public Property (Removal of Encroachment) Act, 1977, was decreed---Respondent No.1, being served with a notice dated 28.02.2014 issued by Assistant Commissioner, filed civil suit before the Tribunal seeking therein declaration to the effect that khasra No.233 of the revenue estate measuring 04-marla was the ownership of his father, on whose death, it was devolved upon him---Entries of the revenue papers in favour of Provincial Government required rectification as the petitioners/defendants could not deny the ownership right of the plaintiff---Prayer for cancellation of notice issued by petitioner No.1 was also sought, with a further prayer that the petitioners/defendants be perpetually restrained from altering the nature of the property and transfer thereof through any means---Prayer for recovery of possession of the disputed property was also sought in case the plaintiff had lost possession during pendency of the suit and lastly, an amount of Rs.40,00,000/- and damages caused to his construction and household articles were also sought---Suit was resisted by the petitioners through their written statement on different legal and factual objections---Completion of evidence resulted into a decree in favour of the respondent/plaintiff for declaration, cancellation of notice, perpetual injunction and recovery of Rs.20,00,000/- as damages/compensation of the construction etc.---Validity---Tribunal could only grant negative declaration that the property reflected in the notice was not a public property but to the extent of rest of the reliefs that the entries in favour of Provincial Government in the revenue papers were inoperative upon the right of the plaintiff or for the recovery of damages caused to his construction, did not falling within the domain of the Tribunal and in such an eventuality, the judgment and decree of the Tribunal to the extent that the notice issued to respondent/plaintiff was against the law could be maintained but the intriguing aspect of the matter was that after the acceptance of writ petition and before approaching the Tribunal in the year 2016 through the suit by the plaintiff, his alleged owned property had been demolished by the petitioners/defendants and now at the spot, there was no constructed house, thus the notice issued by the petitioner No. 1 and served upon the respondent/plaintiff had lost its efficacy, and there was no need for any decree perpetual in nature restraining the petitioners/defendants from altering or demolishing his property as it was done earlier to the institution of the present suit---In such circumstances, resolution of the controversy was required from the civil Court that the entries in the revenue papers in favour of Provincial Government were ineffective upon the right of the plaintiff/ respondent No.1 along with other ancillary reliefs, which was the sole domain of the civil Court---Since the decree of the Tribunal for declaration, injunction and recovery of damages had been set aside, therefore, the judgment of the Tribunal shall in no way be a bar against the plaintiff and shall not create any obstacle towards his relief, which suit, if any, filed by the plaintiff shall be decided on its own merits by the Court without being influenced by the observation of the High Court---Constitution petition was disposed of accordingly.

ASSISTANT COMMISSIONER KHWAZAKHELA vs MUHAMMAD RASHAD S — 2025 CLC 159 PESHAWAR-HIGH-COURT

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