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Civil Appeal No. 32 of 1983, decided on 29th March, 1984.

‑‑ S. 9‑Land Reforms Act (II of 1977), S. 32‑Civil Courts‑Juris diction‑Exclusion of‑Jurisdiction of civil Courts, extends to all cases of civil nature‑Exclusion of jurisdiction, held, is not readily accepted unless it is explicitly expressed or impliedly barred.‑[Juris diction].

PLD1970AJK44;PLD1961 AJK 29;PLD 1965 SC 671; P L D 1964 S C 126 and P L D i 966 Lah. 1050 ref.

‑‑‑ S. 9‑Land Reforms Act (II of 1977), S. 32‑Jurisdiction‑Civil Courts‑Plea of bar of jurisdiction with reference to subject‑matter- Jurisdiction, held, is to be determined on basis of averments made in plaint and not on basis of any defence taken in written statement . On assumption of correctness of averments in plaint, cause of action as well as point of jurisdiction are initially settled.‑[Jurisdic tion].

Labhua Sao v. Chelan and another A I R 1924 Nag. 275 ; S. Samu Asari v. Anachi Ammal (Kulluppan Asari's wife) A I R 1926 Mad. 37 ; Baru and others v. Niadar and others A I R 1942 Lah. 217 ; Niranjan Lai and others v. Siria an I others A I R 1953 Pepsu 107 ; Ludur v. Ram Raj and others A I R 1954 All. 171 ; Mrs. E. Williams and another v. Yallabh dass A I R 1962 Andh. Prad. 447 ; P L D 1966 Lah. 1050 and A I R 1936 Pat. 572 ref.

--‑‑S. 9‑Land Reforms Act (II of 1977), S. 32‑Specific Relief Act (I of 1877), S. 42‑..Jurisdiction of civil Courts‑Plea of ouster- Pleadings positively suggesting that title to property claimed by plain tiff was disputed by defendant‑Civil Courts alone, were compe tent to set at rest controversy and suit, held, was maintainable under S. 42 of Specific Relief Act, 1877.‑[Jurisdiction].

West Pakistan Land Revenue Act (XVII of 1967)‑‑Object of enactments and provisions relevant to each other discussed.

---‑S. 9‑Land Reforms Act (II of 1977), S. 32‑‑Civil Courts‑Juris diction‑Ouster of‑Provisions of an enactment ousting jurisdiction of civil Courts in matters of civil nature, held, are to be construed strictly.‑[Jurisdiction].

‑‑ Court deciding claim on merits without giving parties opportunity ' to prove or disprove their respective claims to determine jurisdic tion‑Such finding, held, was premature,

A I R 1960 All. 573 ref.

M. Y. Surakhvi for Appellants.

Riaz Akhtar for Respondents.

Dates of institution: 28th July/4th August, 1983.

This appeal raises a question of jurisdiction. The controversy has arisen out of a suit for declaration and perpetual injunction filed by plain tiff‑appellants against the defendant‑respondents, in the Court of Sub- Judge, Bhimber. It was averred that the suit land was in possession of plaintiffs in their right of ownership. Plaintiffs prayed that defendants may be directed to refrain from interfering in their possession. The suit was resisted by the defendants on various grounds. Among others, it was claimed that the suit was not maintainable for omission to implead party to all the co‑sharers in the suit land, and for want of jurisdiction. The trial Court upheld both the objections and ordered the plaintiffs to implead party to the entire class of co‑sharers. On the other objection. the Court came to the conclusion that in the light of averments, it had no jurisdiction to entertain the suit. On acceptance of second objection, the plaintiff's suit was dismissed.

2. It may be stated here that during the pendency of the suit the plaintiff moved an application for amendment of the plaint by asking for permission to implead the local Tehsildar as party and sought permission to introduce a relief in the form of injunction for restraining the Tehsildar from changing entries in the record of rights. The application for amend ment was considered alongwith the preliminary objections, mentioned above and permission for amendment was allowed. As the suit was dis missed for want of jurisdiction, the direction to implead party to all the co‑sharers and to introduce the proposed amendment could not be complied with. However, plaintiffs feeling aggrieved of the order, preferred an appeal before the District Judge. The learned District Judge confined his deliberations to the question of jurisdiction. The learned District Judge felt persuaded to concur with the findings of the trial Court, as a result, the appeal was dismissed.

3. Mr. Muhammad Yunus Surakhvi, the learned counsel for the appellants addressed the Court exclusively on the question of jurisdiction. It was argued that the subordinate Courts misconstrued pleadings and fell in error by refusing to entertain the suit for want of jurisdiction. He cited PLD 1970 AJK44, PLD 1962 AJK29,PLD 1965SC671, P L D 1964 S C 126 and P L D 1966 Lah. 1050.

4. Mr. Riaz Akhtar who represented the respondents, emphasised that as plaintiffs claimed that they acquired title in the land under the Land Reforms Act, in presence of section 32 of the Land Reforms Act, the jurisdiction of civil Court in matters likely to be decided under the Act was explicitly excluded.

5. It is time honoured rule that Courts always watch the domain of their jurisdiction jealously and let no one encroach upon the realm of their jurisdiction, even impliedly. . It is equally accepted that disputes of civil character are cognizable by civil Courts. The general power of civil Court to entertain cases of civil nature is always adhered to, and the exclusion of jurisdiction is not readily accepted unless it is explicitly expressed or, impliedly barred. The principle is well‑elucidated in P L D 1970 A J K 44. The relevant part is as follows :‑

"Civil Court are the Principal Courts in the country to adjudicate upon civil rights of the citizens either between themselves or between them on the one hand and the Government on the other. Their jurisdiction to entertain disputes of civil nature is plenary. It has been very often said that they should not throw away their jurisdic tion, of course, not because that may mean any diminution of their authority but because at stake are the rights of citizens, a matter of fundamental importance in the modern political State. So, within the bounds of law, the right of interference by the civil Court is not only permissible but also desirable in the best interest of the State itself." .

6. The jurisdiction is classified ,as (i) local, (ii) personal, (iii) pecuniary, and (iv) with reference to subject‑matters. Like others classes of jurisdiction, the jurisdiction with reference to subject‑matter is decided on the basis of averments in the plaint. The consensus is that the nature of a suit for the purpose of determining jurisdiction has to be decided in the light of averments in the plaint and not on the basis of any defence taken in the written statement or likely to be taken up. There is volume of authorities in support of the view.

In Labhua Sao v. Chetan and another (A I R 1924 Nag. 275), it was observed as under :‑

"The jurisdiction of a Court to entertain and decide upon a cause of action depends upon the nature of the claim put forward by the plaintiff as his cause of action and the matter involved in it does not depend upon what the defendants may assert by way of defence. It may turn but the trial that the subject of contest between the plain tiff and defendant is not properly represented by the form in which the plaintiff has chosen to put his claim, but the occurrence of that contingency may only render the plaintiff's suit liable to be dismissed as not proved. It will not affect the jurisdiction under which the suit as brought by the plaintiff fell."

In S. Samu Asari v. Anachi Ammal (Kullapan Asari's wife), (A I R 1926 Mad. 37) it was analysed as under:‑

"The question whether a suit lies in the small cause side or on the original jurisdiction depends upon a construction of the plaint only. What the defence of the defendant in his written statement will be or what attitude the defendant assumed with reference to a demand made by the plaintiff prior to suit is really an irrelevant consideration in the determination of this question " ..

In Baru and others v. Fiadar and others (A I R 1942 Lah. 217), the learned Judges con stituting Full Bench, laid down that :‑

"The nature of a suit for the purpose of determining jurisdiction has to be decided on the basis of the averments in the' plaint and not on the basis of any defence that maybe taken up."

In Niranjan Lal and others v. Siria and others (A I R 1953 Pepsu. 107), it was observed as below :‑

"For determination of the question whether or not a particular suit is cognizable by a civil Court or a Revenue Court, only the allegations made in the plaint have to be looked to and not the pleas raised by the defendant." X34;

In Ludur v. Ram Raj and others (A I R 1954 All. 171) it was laid down as under :‑

"Primarily the forum is to be decided on the allegations made in the plaint. A finding on the plea raised in defence may also affect the jurisdiction, but mere allegations made by a defendant should not be enough to decide the forum of the suit."

In Mrs. E. Williams and another v. Yallabhdass (A I R 1962 Andh. Pad. 447), it was held as under .‑

" . the jurisdiction of the civil Court was not ousted merely because the defendants pleaded in their written statement that they were tenants and that plaintiff was their landlord. The Court would have to try the issue of jurisdiction after taking evidence and then decide whether the defendants were tenants under the plaintiff and only if it came to the conclusion that such relation existed that it could hold that it had no jurisdiction."

The leading case from Pakistan jurisdiction is P L D 1966 Lah. 1050. An identical objection relating to jurisdiction was resolved by Mr. Justice Sardar Muhammad Iqbal, J. in the following manner: ‑

"It is a well‑established principle that the nature of a suit for the purpose of determining jurisdiction has to be decided on the basis of the averments in the plaint and not on the basis of any defence that may be taken up." , . .

7. The other aspect of the case is that question of jurisdiction is ascertained from the cause of action raised in the plaint and the substantive relief to which the plaintiff would be entitled if he succeeded in the suit. The cause of action and substantive relief eligible to plaintiff on his success in the suit, again, is tested by the averments made in the plaint. Thus, from both angles, the objection to jurisdiction is resolved by reference to the allegations made in the plaint. Hence it may also be made clear that in order to take cognizance or to entertain a plains, the averments made thereunder are initially persumed correct, On the assump tion of correctness of the averments, the cause of action as vrell as the point of jurisdiction are initially settled. The authority in support of the view is A I R 1936 Pat. 572. The principle laid therein is as:‑

"The question of maintainability of a suit is to be dealt with on the footing of the case as presented by the plaintiff and on the assump tion that his allegations are correct. If afterwards they are found to be incorrect, the suit is liable to be dismissed not on the ground that it is not maintainable, but on its merits."

8. In the instant case, the plaintiff averred that they were owners in possession of the suit land. In para. 2 of the plaint, it was further stated that the suit land was in possession of plaintiffs since the time of their forefathers and plaintiffs acquired title in the land under the Land Reforms Act and were continuing in possession as owner, co‑sharers. In answer to the averments raised in the plaint, the defendants denied the claim of the plaintiffs and replied in answer to para. 1 of the plaint that the possession of the plaintiffs was as tenant‑at‑will under the defendants. The defendants also raised four preliminary objections. In their first objection, it was alleged that entry in the record of rights, showing plaintiffs as owners of land in dispute, was illegal, (ii) that land was Shamilat, as such, entire class of owners was necessary party, (iii) that section 32 of the land Reforms Act expressly ousted the jurisdiction of civil Courts, and (iv) that plaintiffs were tenants‑at‑will on payment of batai', as such no cause of action vested in them. It is evident from the pleadings of the parties that the right to possess the suit land by virtue of ownership was contro verted. Likewise, the status of the plaintiffs was disputed as, according to the defendants, the possession of the plaintiffs was in their capacity as tenant‑at‑will. Section 42 of the Specific Relief Act provides that .any person entitled to any legal character, or to any right, as to any property, may institute a suit against any person denying or interested to deny his title to such character or right: The pleadings of the parties positively suggest that the title to the property, claimed by the plaintiffs was disputed by the defendants. In the circumstances, civil Court alone is competent to set at rest the controversy.

9. As stated earlier, in order to determine the question of jurisdiction, the subordinate Courts were under an obligation to resolve the controversy in the light of averments made in the plaint. Instead of adhering to this principle, the trial Court as well as the District Judge adverted to the entries of Record of Rights appeared with the pleadings and inferred that the plaintiffs who alleged to have acquired in the land, (as in their view the claim of the plaintiffs rested on the provisions of Land Reforms Act), were not eligible to bring their case in civil Court.

10. Here, to appreciate the point, is imperative to examine the relevant provisions of Land Reforms Act (hereinafter to be referred as the Act). The Land Reforms were enforced in 1960. The object of the Land Reforms was to prescribe maximum limit of individual holding as well as to abolish the occupancy by conferring proprietary rights on occupancy tenants subject to fulfilment of relevant conditions. Section 8 of the Act provided that no person shall, at any time, own or in any capacity possess land in excess of 500 Acres of cultivated land or 1,000 Acres of uncultivated land. Sections 9, 10 and 11 are ancillary to section 8. The other aspect of the law pertains to extinction of occupancy. Sections 25, 26, 27 and 28 provided a scheme for extinction of occupancy tenancy. The scheme of law, therefore, suggest that the Land Commission constituted under the Act was clothed with the jurisdiction to undertake proceedings and decide the disputes arising between the land‑owners and the State and the landlords and the occupancy tenants within the frame work of the Act.

11. It is a settled rule of interpretation that a provision of law ousting' jurisdiction of civil Court is strictly construed. Section 32 of the Act provides that no provision of the Act or rules, orders made thereunder, shall be called in question in any manner and no Court shall have jurisdiction' in respect of any matter which the Commission or an Officer acting under the authority of the Commission was empowered to determine. Subsec tion (2) lays down that no Court or authority shall be competent to grant any injunction or order in relation to any proceeding before the Commission or before any Officer exercising any power or discharging any function under the Act or the rules, orders made thereunder or in relation to anything done, or intended to be done by or at the instance of the Commission or such Officer. It is clear from the aforesaid provision of law that the contro versy raised in the case, in no manner, falls within the purview of the Act, rules, or orders made thereunder. The simple proposition raised in the pleadings is that the plaintiffs claimed as owners of the land. It is un-denied that the Land Reforms Act has nothing to do with the rights and liabilities of tenants‑at‑will or the question of ownership claimed by a party. The analysis of the relevant provision of law and averments made in the plaint safely lead to an inference that section 32 of the Act is not attracted to the present case.

12. Reverting to the controversy raised in the instant case, the allega tions made in the plaint neither bring the case within the ambit of first part nor in second part of the scheme of Act. Here, the plaintiffs rested their claim on their independent title to their right of ownership and alleged that they were in possession of the land in their own right. Conversely, the defendants challenged the claim of the plaintiffs by disclosing that the plaintiffs were enjoying possession in the capacity as tenant‑at‑will. Thus, on one hand, a title' to ownership was claimed and on the other hand, status as owners was denied. In the circumstances, the nature of rights disputed between the parties was exclusively determinable by the civil Court within the frame of section 42 of the Specific Relief Act.

13. A study of the impugned order reflects that the objection to jurisdiction was derided on the basis of allegations made in the written statement‑cum. entries of record of rights and order of Financial Commis sioner, by treating it as conclusive evidence. The approach was erroneous as there is an obvious difference between the averments raised in the plead ings and their ultimately proving as true. It is one thing to make an, allega tion of a question of fact in the plaint and it is another thing to prove such allegation by convincing evidence. The subordinate Courts misdirected themselves by immediately adverting to the entries of the Jamabandi and Khasra Girdawari appended with the pleadings and treating it as conclusive evidence. The entries in Jamabandi and some of the entries in the Khasra‑Girdawari reflect that the plaintiffs were in possession of the suit land as tenants‑at‑will. Apart from the fact that the entries of the record of rights do not positively support the claim of the plaintiffs, the fact remains that at a stage prior to evidence, it is not permissible to decide the claim on merits unless parties were given due opportunity to prove or disprove their respective claims. It is agreeable that they relied upon the record of rights appended with the plaint but at the same time, the plain tiffs cannot be excluded to prove their case by other evidence (documentary or oral). In fairness to the parties, it was desirable to ask the plaintiffs to establish their claim by providing opportunity to do so. Here, the subordi nate Courts, while deciding the question of jurisdiction, expressed their opinion on merits of the case by declaring that in presence of entries in the revenue record and the order of Financial Commissioner, the claim of the plaintiffs was not well‑founded. In the view of this Court, such a finding was premature. The principle enunciated above finds an answer in A I R 1960 All. 573.

14. In the light of what has been stated above, the appeal succeeds. The findings of the subordinate Courts are hereby set aside and the case is remanded back to the trial Court for decision in the light of observations made above. The parties are left to bear their own costs throughout.

M. H. A.

Appeal accepted.

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