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Civil Appeal No. 7‑P of 1980, decided on 6th November, 1983.

(On appeal from the judgment and order of the Peshawar High Court, dated 8‑11‑1978 in Civil Revision No. 38 of 1977).

-----Art. 185(3)‑N: W. F. P. Pre‑emption Act (XIV of 1950), S. 15‑ Land Reforms Regulation, 1972 [M. L. R. 115], para. 25 [as amended by Land Reforms (Amendment Act (XLVIII of 1976)]--Leave to appeal granted to tenant, a plaintiff in pre‑emption suit to examine whether High Court took a correct view of law that notwithstanding amend ment, introduced in para. 25, M. L. R. No. 115 taking away jurisdiction of civil Court to adjudicate in matter, decision given by such Court was valid and effective in law.‑[Jurisdiction].

‑‑Arts. 246(b) & 247(3)‑Land Reforms Regulation, 1972 [M.L.R. 1151, para. 25 [as amended by Land Reforms (Amendment) Act (XLVIII of 1976)]‑Ouster of jurisdiction of civil Court by Land Reforms (Amend ment) Act, 1976 ‑ Land Reforms (Amendment) Act (XLVIII of 1976) not shown to have been extended and applied to Provincially Administered Tribal Areas in manner required under Art. 247(3), Cons titution of Pakistan (1973)‑Held, therefore, no extension of provisions so far as ouster of jurisdiction of civil Court was concerned in Provin cially Administered Tribal Territory‑Civil Court had jurisdiction to adjudicate matter.‑[Jurisdiction].

Municipal Committee, Bahawalpur v. Sh. Aziz Elahi P L D 1970 S C 506; H. Niamatullah Khan v. Mst. Shabnama and others 1974 S C M R 425 Wahid Bux v. Muhammad Musa and 4 others 1979 C L C 261 and Sat Narain Gurwala v. Hanuman Parshad and another A I R 1946 ( ) 85 ref.

Qasim Imam, Advocate‑on‑Record for Appellant.

M. Saeed Beg, Advocate Supreme Court and Nur Ahmad Khan, Advocate -on‑Record for Respondent.

Date of hearing : 6th November, 1983.

Leave to appeal was granted to the tenant, a plaintiff in a pre‑emption suit to examine whether the High Court of Peshawar has taken a correct view of the law that notwithstanding the amendments introduced in para. 25 of Martial Law Regulation No. 115 taking away the jurisdiction of the civil Court to adjudicate in the matter, the decision given by the Civil Judge, Malakand, was valid anal effective in law.

On the 12th of November, 1972 the defendant Sarfraz Khan purchased from his brother land measuring 3 kanals in Malakand Agency which is a Provincially Administered Tribal Area for Rs. 8,025. This land was in the tenancy of the plaintiff who filed a suit pre‑empting the sale on 30‑10‑1975. The suit was resisted by the vendee on the ground that the vendor had given notice of sale to the appellant and on his refusal he sold it to his brother. The Administrative Civil Judge Malakand Agency at Dargai dismissed the suit filed by the plaintiff on 24‑7‑1976 on the ground that it was filed more than a year after the sale which had taken place on 12‑I 1‑1972 of which the plaintiff had full knowledge. The Civil Judge held so in spite of the fact that the sale was by an unregistered document, and the possession had not changed; and the mutation was entered on 27‑2‑1975. While the suit was pending in his Court Martial Law Regulation No. 115 was amended by Land Reforms (Amendment) Ordinance, 1976, which was enforced on the 19th of May, 1976, ousting the jurisdiction of civil Courts in such suits. The first appeal filed by the appellant was dismissed by the District Judge as time barred by two days and there was no explanation or application for the condonation of this delay. The merits of the case were not gone into. The appellant thereafter filed a civil revision in the High Court. It was found by the High Court that as the suit property was of the value of above Rs. 8,000 a regular second appeal was competent, and as a regular second appeal was competent, a civil revision was not competent as held by this Court in Municipal Committee, Bahawalpur v. Sh. Aziz Elahi (P L D 1970 S C 506). The plaintiff for the first time in the High Court took up the plea that the jurisdiction of the Civil Judge after the promulgation of the amendment in the Martial Law Regulation No. 115 had come to an end the decision given being void, there was no question of the bar of limitation preventing the appellant from challenging it in either the first appellate Court or in revision as the order was wholly without jurisdiction. The learned Judges in the High Court examined at length this contention and ultimately held that as there was no notification under any of the sections 8, 10 and 16 of the Land Revenue Act whereby the Assistant Political Agent, Malakand, or for that matter the Political Agent, Malakand were empowered as Assistant Collector or Collector under Land Revenue Act there was no forum available to the Civil Judge to which he could transfer the proceedings which he was required to do by law. In view of the impossibility of doing what the law required the adjudication by the Civil Judge, was held protected. The decision was held to be binding and not suffering from any jurisdictional defect. Hence the revision petition was dismissed.

At the very outset the learned counsel for the respondent contended that the amendment relied upon by the appellant for contending that the decision of the. Civil Judge was without jurisdiction, was not applicable to the proceedings as it was not shown to have been extended to the provincially administered tribal territory in terms of Article 247(3) of the Constitution.

As regards the merits of the adjudication by the High Court, the learned counsel for the appellant contended that because the sale was not evidenced by a mutation or by a registered document or by change of possession till 27th May, 1975, when a mutation was attested a suit instituted on 13th October, 1975 will be within one year of the attestation of the mutation and an extended period of limitation would be available as held in H. Niamatullah Khan v. Mst. Shabnama and others (1974 S C M R 425), Wahld Bux v. Muhammad Musa and 4 others (1979 C L C 261) and Sat . Narain Gurwala v. Hanuman Parahad and another (A I R 1946 ( ) 85) were neither a mutation nor a registered deed evidenced the sale. It is, therefore, contended that the suit was not barred by time. The learned counsel for the appellant has generally contended that the amending law stood extended to the provincially administered tribal territory and undertook to produce necessary notification in support of this contention but none has been forthcoming.

Martial Law Regulation No. 115 enforced on 11th of March, 1972 conferred on the tenant by para. 25 the first right of pre‑emption in respect of the land comprised in his tenancy. Martial Law Regulation No. 10 by para. 1(2) was extended to the provinces of Baluchistan, the North West Frontier, Punjab, Sind and the Islamabad Capital Territory, but was not to apply to the centrally administered tribal areas. Provincially Administered Tribal Area was defined under Article 246(6) of the Constitution as comp rising, inter alia. Malakand Protected Area. Thus, Martial Law Regulation No. 115 on its promulgation extended to the Provincially Administered Tribal Area except, of course. Chitral in respect of which a special postponement clause was contained in para. 1 of the Regulation, namely, Clause (4) of that para. The amendment in para. 25 which is sought to be invoked by the plaintiff himself for invalidating the decision of the civil Court was promulgat ed on 19th of July, 1976 by Land Reforms (Amendment) Act (XLVIII of 1976). This amendment is not shown to have been extended and applied to the Provincially Administered Tribal Area in the manner required under sub Article (3) of Article 247 of the Constitution. For facility of reference and understanding the sub‑Article is reproduced hereunder ‑--

"(3) No act of Parliament shall apply to any Federally Administered Tribal Area or to any part thereof, unless the President so directs, and no Act of Parliament or a Provincial Assembly shall apply to a Pro vincially Administered Tribal Area, or to any part thereof, unless the Governor of the Province in which the Tribal Area is situate, with the approval of the President, so directs and in giving such a direction with respect to any law, the President or, as the case may be, the Governor, may direct that the law shall, in its application to a Tribal Area, or to a specified part thereof, have effect subject to such excep tions and modifications as may be specified in the direction."

There was, therefore, no extension of the provisions so far as the ouster of the jurisdiction of the civil Court is concerned in the Provincially Adminis tered Tribal Territory. The result is that this contention of the plaintiff appellant that the decision of the civil Court was without jurisdiction must fail.

As the first appeal filed by the appellant before the District Judge was not within time and there was no application seeking condonation of the delay, we do not consider it necessary to go into the merits of the case and in view of the dismissal of the appeal by the District Judge on the ground that it was time‑barred there was left no remedy for the appellant.

For reasons different than those recorded by the High Court, we dismiss this appeal with no order as to costs.

M.Z. M. Appeal dismissed.

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