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Civil Petition for Leave to Appeal No. Q‑19 of 1985, decided on 30th June, 1985.

(On appeal from the judgment of the High Court of Baluchistan, dated 24‑4‑1985, in Civil Petition 103 of 1982).

‑‑‑Art. 185(3)‑‑Suit for possession decreed‑‑Revision before Member, Board of Revenue‑‑Decree set aside and case remanded for retrial with observations that points at issue should have been framed and referred to Tribunal for adjudication and question of limitation should have been determined‑‑Constitutional petition challenging remand order dismissed‑ Leave to appeal granted to consider questions of law: (i) that Member, Board of Revenue having at one stage expressed strong opinion in respect of merits of case adversely to interests of petitioners, was in law biased and disqualified from hearing revision application; (ii) that none of two points in order of remand was sustainable in law and consequently very foundation of remand order was illegal, as S. 4 of Ordinance (I of 1968) permits Deputy Commissioner to refer whole dispute between parties to Tribunal without framing issues and this objection was never taken during proceedings of trial and even otherwise does not vitiate proceedings in absence of prejudice to party complaining; and (iii) that no plea having been raised in written statement on question of limitation and this being a mixed question of law and fact, it could not be allowed to be raised for first time in appeal or revision.

Yahya Bakhtiar, Senior Advocate Supreme Court with Yakub Khan Eusufzai, Advocate‑on‑Record for Petitioners.

Nemo for Respondents.

Date of hearing: 30th June, 1985.

The dispute in this case pertains to agricultural land measuring 116 Rods‑18 Pole, situated in Mohal Lila Karez, Mauza Karezat Balalli, in the province of Baluchistan. The case of the petitioners is that their father Syed Ibrahim Shah had purchased the disputed land from its Hindu owner by means of two transactions long before the establishment of Pakistan. They also claimed that their predecessor‑in‑title was in possession of the land. However, while the said Syed Ibrahim Shah was away to Sind province in connection with his business for sometime, on his return in the year 1960, he found respondents Nos. 1 and 2 to have forcibly taken over possession of the land. As the possession of the said respondents was illegal and constituted trespass he filed a complaint under section 447, P. P. C. against the said respondents, which was forwarded to the Additional Deputy Commissioner, Quetta, for trial under the F.C.R. Pending the trial, however, the F.C.R. was declared void and was replaced by the Quetta/Kalat Ordinance (No. III of 1965), under the provisions whereof the case was referred to a Tribunal. Before the Tribunal respondent No. 1 disowned any interest in the land but respondent No. 2 challenged the title of Syed Ibrahim Shah and claimed the same to be the evacuee property in his possession. The Tribunal constituted under Act III of 1965 for the trial of the case was presided over by Mr. Agha Nasir Ali who was then the concerned Revenue Officer for the area. The case lingered on until Ordinance III of 1965 was repealed and replaced by Ordinance I of 1968 and the proceedings were continued there under. In 1965 eventually the private Members of the Tribunal unanimously gave their opinion that Syed Ibrahim Shah was the original owner of the property and that respondent No. 2 was guilty under section 447, P.P.C. However, Agha Nasir Ali, the President of the Tribunal gave a dissenting opinion to the effect that Syed Ibrahim Shah had obtained forged entries in the revenue record to claim ownership of the land. The matter then came before the Deputy Commissioner who by his order, dated 24th February, 1970, accepted the unanimous award of the Tribunal Members, and overruled the opinion of the President, with the result that respondent No. 2 was convicted under section 447, P.P.C. and was sentenced to pay a fine of Rs.200 or in default to suffer three months' R.I. Respondent No. 2 did not file any appeal against his conviction or seek any other remedy.

2. As Syed Ibrahim Shah was unable to obtain possession, he filed a suit for possession on 11th July, 1970, against the said respondents under Ordinance I of 1968. This suit was referred to the Tribunal by the District Magistrate. Respondent No. 2 filed written statement once again denying the title of Syed Ibrahim Shah. The trial of the suit was interrupted on account of an order passed by the Board of Revenue declaring the disputed property, as evacuee property. On a consti tutional petition filed by Syed Ibrahim Shah, the order of the Board of Revenue exercising the powers of the Custodian was set aside. Thereafter the Tribunal resumed the hearing of the suit and taking into consideration the documentary evidence gave an award on 3rd January, 1980, recommending that the decree be passed in favour of Syed Ibrahim Shah. The Additional Deputy Commissioner accordingly passed decree for possession in favour of Syed Ibrahim Shah on 2nd February, 1980.

3. Thereafter respondent No. 1 filed an appeal but it was dismissed by the Commissioner, Quetta Division, on 17th November, 1980. Being dissatisfied respondent No. 1 went up in revision before the Board of Revenue, Baluchistan, and this revision came up before Mr. Agha Nasir Ali Khan who was by' then Member, Board of Revenue, Baluchistan. The said learned Member by his order, dated 6th February, 1982 accepted the revision of respondent No. 1 and remanded the case for retrial for reasons which appear in the last paragraph of his order as under:‑‑

"After hearing the arguments of the counsel for the parties and perusal of the records of the case, I find that the case has not been proceeded properly and as laid down under the law inasmuch as that the points at issue should have been framed and referred to a Tribunal for adjudication as well as the point of limitation be also determined. As such the suit is remanded back for fresh trial under the law and the orders of the lower Court are set aside."

4. Syed Ibrahim Shah having died in the meantime, the petitioners challenged the order of the learned Member, Board of Revenue in a constitutional petition in the High Court of Baluchistan which was dismissed by judgment, dated 24th April, 1985. The petitioners now seek leave to appeal from the said judgment of the High Court.

5. Mr. Yahya Bakhtiar, Advocate in support of the petition has, inter alia contended that Mr. Agha Nasir Ali having at one stage expressed strong opinion in respect of the merits of this case adversely to the interest of the petitioners, was in law biased and disqualified from hearing the revision application. He has further pointed out that as would appear from the operative part of the learned Member, Board of Revenue, the case was remanded on two grounds, namely, that "points at issue should have been framed and referred to the Tribunal for adjudication," and the question of limitation should have been determined. It is forcefully contended by the learned counsel that none of the two points is sustainable in law and consequently the very foundation of the order is illegal and groundless. In this connection he has referred us to section 4 of Ordinance I of 1968 which permits the Deputy Commissioner to refer to whole dispute between the parties to the Tribunal without framing the issues. It has been pointed out that in any case this objection was never taken during the proceedings of the trial and even otherwise the same does not vitiate the proceedings in absence of prejudice to the party complaining. As regards the question of limitation learned counsel submitted that no such plea was raised in the written statement and this a being mixed question of law and fact, it could not be allowed to be raised for the first time ire appeal or in revision. We consider that these are important questions of law and deserve consideration. But since the last two contentions were not raised in the petition, we allow the petitioners to amend the petition accordingly.

6. Leave is, therefore, granted to examine the points raised. Security for costs Rs.2,500. Learned counsel pressed for orders on interim application but we are not inclined to do so presently. We order notice of this application for a date in the next session of the Court at Karachi.

M. I. Leave granted.

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