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Civil Petition for Leave to Appeal 273‑P of 1983, decided on 4th Febru ary, 1984.

(On appeal from the judgment and order of the Peshawar High Court 22‑11‑1983 in W. P. No. 358 of 1982).

---Arts. 185 (3) & 199‑‑Dasturul Amal, Dir, Provincially Administered Tribal Areas Regulations, 1975 and Frontier Crimes Regulations (1.11 of 1901), Reglns. 8 & 11‑Dispute over area of Shamilat land‑Order passed under PATA Regulation found to be in conformity with law on subject supported by facts on record and unexceptionable‑No misreading or non‑reading of evidence on record‑leave to appeal refused.

Sardar Khan, Advocate Supreme Court and Jalaluddin Khan, Advocate- on‑Record for Petitioners.

Akhunzada B. Saeed, Advocate Supreme Court and Safdar Hussain, Advo cate‑on‑Record (absent) for Respondents.

Date of bearing: 4th February, 1984.

Facts stated in this petition are that the father of the petitioners reclaimed some land in the mountainous area which is in dispute and built some property in the nature of shops and small huts to be used by Carvans of mules and donkeys on their way to Chitral and other far‑fetched place9. After the death of petitioners' father the petitioners succeeded to the property and improved it further by building more houses and godowns shifted from their ancestral village Khal and permanently settled on the disputed land; that after about 80 years having received the rent of the shops and other built‑up area as sole owners, respondents preferred a claim as joint owners of the same and as such entitled to their share in the same. The petitioners set up the plea of adverse possession having remained in occupation of the property in question for 80 years, and it was claimed by the petitioners that according to Islamic law as well as custom ('Rivaj'1 they have become full owners of the property in dispute.

2. The matter came up before the Assistant Commissioner, Wari, who appointed a Jirga to go into the respective claims of the parties. The Jirga members submitted an award which was approved by the A. C. Wari vide order dated 30‑7‑1979. The petitioners then filed an appeal before the Additional Commissioner, Malakand, who after bearing the arguments, disposed of the appeal upholding the finding of Jirga consisting of local leaders, per order dated 7‑4‑1980. The petitioners then filed a revision petition before the Additional Home Secretary who maintained the finding of the lower forums but directed that the total area under the shops may be worked out and the expenditure involved in the development of this area by the petitioner be estimated in order to facilitate the process of the execution of decree and it was further directed that as far as possible the same Jirga should undertake this task and to complete the job as per his direction within a period of 2/3 months. Thereafter the petitioners filed a writ petition in the Peshawar High Court which was dismissed in limine vide the impugned order.

3. The learned counsel contended that the provisions of Dasturul Amal, Dir and PATA regulations, 1975, are analogus to sections 8 and 11 of the P. C. R. and as such the A. C. was required to form issues on the pleadings of the parties and then direct the Jirga to give its finding on the same. The A. C. has failed to adopt this procedure and the learned High Court has also not appreciated that the A. C. has failed to adopt the procedure as required by law and even on this score no proper reference was made to Jirga, and lastly, the learned counsel contended that the Jirga was not properly constituted as contemplated by the V.ATA Regulation and as such the award approved by the A. C. was in excess of the jurisdiction of the Tribunal that even the Jirga did not ask the parties to produce evidence nor any inspection of the spot was carried out as required by law.

4. We have examined the contentions raised by the learned counsel and find that the argument are not well founded. It was rightly observed by the lower forums that the question of limitation was not involved as the property was Shamilat and joint property of Mazid Khel, Mula Khel and Hafiz Khel tribes, which was in excess of the share of the petitioners. The respondents could claim their share in it being the joint owners. As regards the second objection, the Jirga members were appointed with the consent of the parties and during the pendency of the proceedings for four years no objection was raised to the credibility of any of the members of the Jirga. Furthermore we find that there is no misreading or non‑reading of the material on record. The orders passed under PATA Regulation are in conformity with the law on the subject supported by the facts on record and as such unexceptionable. A reference may be made to the proceedings conducted by the A. C. where in it is recorded:

"The report of the Jirga members was read out to the parties and they were afforded opportunity to raise objections in case anyone had any objection to the appointment of Jirga members. None of the parties raised any objection, nor produced any concrete objection to the appointment of Jirga or alleging it to be one‑sided or in contravention of the provisions of PATA Regulation."

Therefore, we find that the proceedings carried out in the lower forums were conducted correctly and in accordance with the provisions of law. Leave refused. Petition dismissed.

S. Q. Petition dismissed.

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