2023 YLR 2522 PESHAWAR-HIGH-COURT

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GOVERNMENT OF KHYBER PAKHTUNKHWA through Deputy Commissioner, Swabi VS SAID AMIN Ss. 3 & 13---Public property, dispute over---Title or ownership, question of---Entries in the record, challenging of---Jurisdiction of the Tribunal constituted under Khyber Pakhtunkhwa Public Property(Removal of Encroachment) Act, 1977 ('the Tribunal')---Scope---Plaintiffs were served with eviction notices by the defendants (District Government Departments)--- Plaintiffs / respondents, claiming themselves to be owners-in-possession of suit-property, filed before the Tribunal a suit for declaration, possession and permanent injunction, and challenged the eviction notices as well as a mutation having been attested in favour of the defendants(' mutation-in-question')--Suit was decreed as prayed for in plaintiffs' favour which was assailed by the petitioners/defendants before the High Court---Held, that plaint of the present suit revealed that the Tribunal was approached when one of the petitioners served notices under S. 3 of the Khyber Pakhtunkhwa Public Property (Removal of Encroachment) Act, 1977 ('the Act 1977')---Impugned judgment showed that while granting decree in favour of the respondents not only the eviction notices were cancelled but at the same time mutation-in-question having been attested, more than thirty years ago, in favour of petitioner/Education Department had also been cancelled---Cancellation of the mutation-in-question was beyond the competence and jurisdiction entrusted to the Tribunal under S. 13 of the Khyber Pakhtunkhwa Public Property ( Removal of Encroachment) Act, 1977---Section 13 of the Act, 1977 stipulated that the Tribunal could only determine the question as to whether a property was a public property or otherwise, whereas the Tribunal could not enter and decide the question of title/ownership which was the exclusive jurisdiction of the Civil Courts---Respondents were to challenge the mutation-in-question before the Civil Court of competent jurisdiction---High Court set-aside the impugned judgment and decree passed by the Tribunal---Constitutional petition was allowed, in circumstances.