2024 CLC 493 PESHAWAR-HIGH-COURT

Full text

MUHAMMAD YASIN VS LOCAL GOVERNMENT through Secretary Local Government Khyber Pakhtunkhwa at Peshawar Ss.3, 11, 12 & 13---Specific Relief Act (I of 1877), S.42---Suit for declaration---Public property, dispute over---Title or ownership, question of---Entries in the revenue record---Scope---Jurisdiction of the Tribunal constituted under Khyber Pakhtunkhwa Public Property (Removal of Encroachment) Act, 1977 ('the Tribunal')---Scope---Plaintiffs were served with the eviction notices by the defendants (Provincial/District Government)---Plaintiffs, claiming themselves owners-in-possession of suit-property on the basis that their predecessor had purchased the same, filed before the Tribunal a suit for declaration which was dismissed---Said judgment had been assailed by the petitioners/ plaintiffs before the High Court---Contention of the petitioners / plaintiffs was that during the settlement the Revenue Officials had incorrectly entered suit-property in favour of the Provincial Government as Ghair Mumkin thoroughfare---Validity---Petitioners/ plaintiffs, during the trial before the Tribunal, produced the concerned Patwari who placed on record an extract from Jamabandi of relevant revenue estate for the year 1977-78 in which entries were, inter alia, shown as ownership-in-possession of the provincial government (status) being Ghair Mumkin thoroughfare---Said entries of revenue were based upon the first ever settlement of the concerned district, thus, from the very inception the suit-property was recorded in favour of respondents regarding which the petitioners/ plaintiffs had invoked jurisdiction of the Tribunal---Presumption of truth was attached with the documents (entries of Jamabandi, colourful copy of masavi and attested copy of aks-as-masavi), though the same rebuttable---Right, character and status of a person pertaining to a property could be determined (declared) in consonance with the provisions of the S.42 of the Specific Relief Act, 1877 ('the Act, 1877') when the same was denied or intended to be denied, whereas, no such declaration could be granted under provisions of the Khyber Pakhtunkhwa Public Property (Removal of Encroachment) Act, 1977 ('the Act, 1977'), except that the Tribunal was vested with the powers to declare that any property was not a public property---Petitioners / plaintiffs could challenge the entries-in-question before the Civil Court of competent jurisdiction for proper determination and deliberation through recording of evidence and/or production of documents---Impugned judgment having been rightly passed by the Tribunal, constitutional petition was dismissed, in circumstances.