IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Civil Revision Appl.No.S-02 of 2018
Applicants: Ghulam Akbar Chachar, 2. Zain-ul-Abideen Chachar, 3.Mujahid Ahmed Chachar, 4.Mst.Bashiran Chachar,
and 5.Tariq Ali Chachar, through Mr.Ghulam Dastagir Shahani, Advocate.
Date of hearing: 23.02.2018.
Date of Order: 02.03.2018.
O R D E R
IRSHAD ALI SHAH, J.- The instant revision application is directed against judgment dated 22.09.2017 and decree dated 29.09.2017 of learned 1st Additional District Judge, Kandhkot, whereby he has maintained order dated 08.04.2017, of learned Senior Civil Judge, Kashmore, through which he on application under order 7 rule 11 CPC of the respondents rejected the plaint of the suit of the applicants.
2. The facts in brief necessary for disposal of instant revision application are that the applicants filed a suit before learned Senior Civil Judge, Kashmore, stating therein that they are owners of Survey No.611, area (02-32) acres and Survey No.756, area (03-12) acres, of Deh Thalo, Tapa Khahi, Taluka Kashmore, by virtue of entry No.12, dated 16.07.2012 of record of rights and the respondents in order to occupy the above said survey numbers under the pretext that those are acquired by them in year 1998, are trying to construct High Pressure Gas Pipeline for Water and Power Development Authority to supply Gas from Kandhkot Gas field to Turbine of Thermal Power Station, Guddu, without due course of law. They sought for declaration to the effect that they being lawful owners of the above said survey numbers are in its lawful possession and respondents have no right, title or concern over it and all the actions of the respondents taken or intended to be taken for their dispossession from the above said survey numbers to be declared illegal and void. By seeking such declaration, they also sought for cancellation of revenue entry No.210 (which infact is 219), dated 10.07.1998 in record of rights. Beside this, they also sought for permanent injunction against the respondents seeking restraint against them that they may not construct Gas Pipeline to Turbine of Thermal Power Station, Guddu, without due course of law.
3. On service of notice, the respondents put their appearance and by way of an application under order 7 rule 11 CPC sought for rejection of the plaint by submitting therein that an area of (0-02) acres out of Survey No.611, and (0-10)acres out of Survey No.756, of Deh Thalo, Taluka Kashmore was acquired by Water and Power Development Authority in year 1987 through Land Acquisition Officer/Assistant Commissioner, Kashmore, for Thermal Power Station, Guddu, at the rate of Rs.50,000/- per acre, such entry being entry No.219 was affected in Revenue Record on 10.07.1998. By submitting so, they sought for rejection of the plaint, as according to them, it is time barred and is hit by Land Revenue Act. The rejection of the plaint was objected by the applicants by way of filing their objections.
4. On due hearing, the application under order 7 rule 11 CPC filed by the respondents was accepted by learned Senior Civil Judge, Kashmore. Consequently he rejected he plaint of the suit so filed by the applicants. The appeal preferred against the order of rejection of their plaint by learned Senior Civil Jude, Kashmore, was impugned by the applicants by way of filing an appeal. It was also dismissed by learned 1st Additional District Judge, Kashmore.
5. The applicants being aggrieved of above said orders of learned trial Court and learned Appellate Court have preferred the instant revision application before this Court.
6. It is contended by learned counsel for the applicants that the applicants are lawful owners of the above said survey numbers, their plaint was not liable to its rejection as the triable issues were available therein. By contending so, he sought for remand of the matter with direction to the learned trial Court to dispose of the same after recording of evidence. In support of his contentions, he relied upon case of Habib Bank Limited vs.Aizad Hassan and another, which is reported at 2007 MLD-1687, 2).Case of Hamid Hussain vs. Government of West Pakistan and others, which is reported at 1974 SCMR-356, 3). Case of Mian Muhammad Latif vs. Province of West Pakistan through the Deputy Commissioner Khairpur and another, which is reported at PLD 1970 Supreme Court-180, 4). Case of Mst.Miraj Bibi vs. Additional District Judge and others, which is reported at 1991 CLC-1405, 5). Case of Khadim Hussain vs. Jamal Hussain and others, which is reported at 1997 MLD-2952, 6).Case of Moinuddin Paracha and others vs. Sirajuddin Paracha and others, which is reported at 1993 CLC-1606, 7). Case of Pir Shah Mardan Shah and others vs. Chief Land Commissioner Sindh and others, which is reported at PLD 1974 Karachi-375, 8). Case of Dr.Salahuddin Ahmed vs. Ministry of Works and another, which is reported at 1983 CLC-457, 9).Case of Nazir Ali vs. Noorabad Co-operative Housing Society Ltd. and others, which is reported at PLD 1987 Karachi-676 and 10).Case of Jewan and others vs. Federation of Pakistan through Secretary Revenue Islamabad and others, which is reported at 1994 SCMR-826.
7. I have considered the above arguments and perused the record.
8. As per the respondents, an area of about (0-20) acres out of Survey No.611 and (0-10) out of Survey No.756 of Deh Thalo, Tapo Khahi, Taluka Kashmore was acquired by Water and Power Development Authority through Land Acquisition Officer/Assistant Commissioner, Kashmore. The record of right was mutated under entry No.219 dated 10.07.1998. Such entry in record of right in no case could be cancelled at the instance of the applicants being subsequent purchasers, ignoring the fact that the very land acquisition proceedings were neither challenged by them nor by the previous owners to be illegal, which has rendered their suit to be barred by the provision of section 42 of the Specific Relief Act. In that situation their plaint was rightly rejected by learned trial Court to be not maintainable at law and such rejection was rightly upheld by learned Appellate Court in proper exercise of their jurisdiction.
9. The case law which is relied upon by learned counsel for the applicants being on distinguishable facts and circumstances is hardly helpful to their case.
i). In case of Habib Bank Limited, the issue of recovery of loan was involved, it was dismissed for non-prosecution. Its restoration was declined by trial Court. On appeal it was concluded by Honourable High Court of Sindh that limitation being mixed question of facts and law could not be decided without recording evidence. In the instant matter, no issue of recovery of loan or dismissal of the suit for non-prosecution is involved.
ii). In case of Hamid Hussain, issue of claim of land under rehabilitation and settlement scheme was involved. In that case, it was held by Honourable Supreme Court of Pakistan that the Civil Court being Court of ultimate jurisdiction have to examine acts of other forums if those are found to be illegal patently. In the instant matter, no issue of claim of the land under rehabilitation and settlement scheme is involved.
iii). In case of Mian Muhammad Latif, the issue of collection of octroi tax was involved. It was sought to be resolved by Revenue Officers, their orders were found to be illegal. In that context it was concluded by the Honourable Supreme Court of Pakistan that the order passed by Revenue Officer if are found to be illegal and nullity in eye of law then those could be examined by a Civil Court having jurisdiction. In the instant matter, no issue of collection of octroi tax is involved. On the contrary, the land acquisition proceedings whereby the respondents acquired the land are not challenged by the applicants.
iv). In case of Mst.Miraj Bibi, the plaintiff prayed for decree for possession of the property by way of filing a suit for Specific Performance of Contract. The defendants sought for rejection of the plaint. The rejection was declined. In that context the Honourable Lahore High Court held that the issue involved could not be decided without framing of issues. In the instant matter, no issue of Specific Performance of Contract is involved.
v). In case of Khadim Hussain, an issue with regard to contract being agreement to sale or being sale deed was involved. In that context, it was held by Honourable Supreme Court (AJ&K) that the plaint could only be rejected when the plaintiff was not found entitled to any relief. In the instant matter, no issue of contract being agreement to sale or sale deed is involved.
vi). In case of Moinuddin Paracha and others, the issue of partition of the property was involved. In that case, it was held by the Honourable High Court of Sindh that the plaint in subsequent suit could not be rejected as in previous suit all the co-owners were not party. In the instant case, no issue of partition of the property or filing of first or second suit is involved.
vii). In case Pir Shah Mardan Shah and others, the issue of land reforms rules 1972 was involved. In that case, it was held by the Honourable High Court of Sindh that order of the Revenue Officer if is alleged to be malafide then such allegation could only be resolved by way of recording evidence. In the instant matter, no issue of land reform or malafide is involved.
viii). In case of Dr.Salahuddin Ahmed, the issue of allotment of official residence was involved, it was held by the Honourable High Court of Sindh that allegation of malafide could not be resolved without recording of evidence. In the instant matter no issue of allotment of official residence or malafide is involved.
ix). In case of Nazir Ali, it was held by the Honourable High of Sindh that a simple suit for injunction could be maintained if there is no dispute on ownership. In the instant matter, the ownership of the applicants over above said survey numbers at least to the extent of area which was acquired by the Water and Power Development Authority through land acquisition proceedings is under dispute.
x). In case of Jewan and others, it was held by the Honourable High Court of Sindh that Courts while rejecting the plaint cannot take into consideration the plea of the defendants. In the instant matter, the plaint is rejected being barred by Section 42 of the Specific Relief Act, as the applicants have not challenged the land acquisition proceedings, whereby the Water and Power Development Authority has acquired title.
10. In view of the facts and reasons discussed above, the instant revision application is dismissed in limine.
S.Ashfaq/-.
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