ORDER SHEET
IN
THE HIGH COURT OF SINDH, BENCH AT SUKKUR
Civil Revision Application No. S- 105 of 2000
Civil Revision Application No. S- 106 of 2000
Date
of hearing |
Order with signature
of Judge. |
Hearing
of Cases
1.For hearing of CMA
333/2020
2.For hearing of Main
Case
3.For hearing of CMA
680/2000
Date of Hearing: 16-08-2021
Date of judgment: 16-08-2021
Mr.
Aashique Illahi N.Sundrani Advocate for Applicants in both matters.
Mr. Ahmed Ali Shahani, Assistant
A.G-Sindh.
J U D G EM E N T
Muhammad Junaid
Ghaffar J., Through these Civil Revisions Applications, the
Applicants have impugned Judgment dated 21.09.2000 passed by the Additional
District Judge-III, Ghotki in Civil Appeals No.21 & 22 of 1996, whereby Judgment
of the trial Court dated 24.06.1996 and Decree dated 27.06.1996, passed by Senior
Civil Judge, Ghotki in F.C Suits No.141 & 142 of 1989 through which the
Suit(s) filed by the Applicants were dismissed have been maintained.
2. Learned counsel for the Applicants has
contended that the two Courts below have failed to appreciate the facts and
law; that the defendants/respondents had failed to lead any appreciable
evidence; but despite this, both the Courts below have decided the matters against
the present Applicants; that in absence of any proper defence or evidence, Suits
of the Applicants / plaintiffs ought to have been decreed; that the remedy
availed by the respondents before the Additional Commissioner was time barred;
that the order of the said Commissioner is tainted with mala fides; hence Suits
were competent; In support of his contention, he has relied upon the cases
reported as Raees Ahmed v. Abdul Shafiq and others (2001 SCMR 1429), Manzoor Hussain and othrs v. Sajawal and
others (1983 SCMR 465), Sub. Muhammad Asghar v. Mst. Safia Begum and another (PLD 1976 SC 435), Province of
Punjab v. Col. Abdul Majeed (1997
SCMR 1692), Mst. Kishwar v. Abdul Dehyan and others (2004 CLC 203) and Muhammad
Zaman Educational Memorial Society v. City District Government Karachi and
another (SBLR 2008 Sindh 1400).
3. On
the other hand, private respondent’s despite being served through publication
are called absent, whereas, learned AAG has argued that concurrent findings
have been recorded against the Applicants; that it is not a case of any
mis-reading or non-reading of evidence, hene, no indulgence is warranted; that
no documentary evidence was ever led by the Applicants; hence these Civil Revisions
Applications are misconceived. In support of his contention, he relied upon
cases reported as Administrator, Thall Division v. Ali Muhammad (2012 SCMR 730) and Zahid Hussain v. Shamsuddin (2014 CLC Sindh 1334)
4. I
have heard learned Counsel for the Applicants as well as learned AAG and
perused the record. It appears that the Applicants had filed civil suits for
declaration and permanent injunction, whereby, primarily order dated
03.04.1989, passed by Additional Commissioner, on an
Appeal initiated at the behest of private Respondents was challenged. Further
declaration was sought that the order dated 20.06.1987 passed by the
Colonization Officer, Guddu Barrage, Sukkur, in favour of the Applicants was
correct in law, whereby land was granted to the Applicants after cancellation of
the land granted in the name of the predecessor of the Respondents. Learned trial
Court after settlement of issues came to the conclusion that the plaintiffs
have miserably failed to lead any evidence to prove as to how impugned order
dated 03.04.1989 passed by the Additional Commissioner is illegal or without
jurisdiction and it was further held by the trial Court that the plaintiffs
failed to utter a single word in their evidence so as to upset the said order;
and therefore, case of the Applicants does not merit any consideration and accordingly
suits were dismissed. Such dismissal order was then impugned in Civil Appeals and
the said Appeals also stand dismissed through judgment impugned herein.
5. As contended by learned AAG, it is a case
of concurrent findings given by two Courts below against the Applicants, and apparently
does not warrant any interference by this Court in this limited revisional
jurisdiction. Nonetheless, I have even gone through the evidence of the
plaintiffs and it would be advantageous to refer to the evidence of the
plaintiff Arbab Ali in F.C.Suit No.141 of 1989; which reads as under:
“Examination in Chief
Mr. Paryaram Advocate for the
plaintiff.
About 7 years
back the B.No.S.41/4 measuring 4-00 acres deh laluwali taluka Ghotki was
granted to me on permanent tenure by C.O Guddu Barrage Sukkur. In the open
katchery held at the office of D.C.O Ghotki on harap right. I produce certified
true copy of the Register of haries Ex.73 containing the order of Colonization
Officer dated 20th June 1987. I deposited the initial installments
towards the government. I produce original copy of the installment receipt
Ex.74. There were an other persons present in the open
katchery and they were also granted the agricultural land by the C.O on their
own right. The disputed land was previously granted to the ancestor of the
defendants No.4 to 13 which was subsequently cancelled about 15 years back
prior to the grant to me and the defendants No.4 to 13 went in appeal before
the Addl. Commissioner Sukkur who decided the appeal in their favour and the
granted the land to them. I therefore, have challenged the order of the
defendant No.2, before this court through the present civil suit. I produce
certified true copy of the order of defendant No.2 Ex.75. I am in the
possession of the disputed land as yet.
XXX to Mr. Soomardas advocate for the
defendants No.4 to 13.
It is fact
that the disputed land was granted to the ancestor of the defendants on the
right of Islamabad effecties. It is fact that the
B.No.S.41/2,3,4 and 42/1 total measuring 16-00 acres were granted to the
ancestors of the defendant Ghulam Muhammad. I have not produced the document
pertaining to the cancellation of the suit land from the grant of original
grantee Ghulam Muhammad. It is fact that I have not produced the document
showing the programe of open katchery hold by C.O Guddu Barrage at the office
of D.C.O Ghotki disposing of land to me. It is fact that I have not
produced the copy of the schedule showing that the disputed land was brought in
the schedule for disposal. Voluntarily says that it was kept in schedule. It is
incorrect to say that no open katchery was held by the C.O and the disputed
land was secretly grated to me without holding katchery. It is fact that the
C.O Guddu Barrage was Mr. Muhammad Ramzan Chachar at that time. It is incorrect
that the C.O Muhammad Ramzan Chachar was closely related to me. It is fact that
I had engaged Mr. Abdul Latif Shah my advocate before the Additional
Commissioner Sukkur in the appeal preferred by the defendants against my grant.
It is fact that my advocate was heard and he produced the relevant documents
before the Additoinal Commissioner Sukkur. It is a fact that I have not gone before
the Member Board of Revenue challenging the order of defendant No.2. It is fact
that I have not produced the relevant record before this Court regarding my
harap on the suit land. It is fact that I have not produced any land revenue
receipts. It is not fact that the legal heirs of the Ghulam
Muhammad the defendants No.4 to 13 are in the possession of the disputed land.
It is not fact that these defendants are paying the land revenue of the suit
land. I do not know that T.O form has been issued in the name of Ghulam
Muhammad prior to the filing of the present suit. It is incorrect that I have
got no right on the suit land and the Islambad oustees are entitled for the
grant of the suit land. It is not a fact that I have filed false suit with the
intention to usurp the suit land and deprive the legal heirs of Ghulam Muhammad
from their right on the suit land. It is fact that the witness Ahmed resides in
my village and he is my distant cousin. It is fact that there is a village
namely Islambad oustess. Voluntarily says that the people by
caste Chachar resides there. I reside in another village namely Haji
Muhammad Bux Chachar”.
6. From perusal of aforesaid evidence led by
the plaintiff, it appears that he claims the land in question purportedly
allotted on permanent tenure by the Colonization Officer, Guddu Barrage, Sukkur
in some open katcheri held in the office of DCO, Ghotki on harap basis; however, he has
admitted that there was nobody else present in the open katcheri, whereas grant
of land prior to this to the private respondents has not been denied, but it
has been asserted that it stood cancelled and then it was granted in open katcheri
to him. Admittedly, said order of cancellation was impugned by the private respondents
in appeal before the Additional Commissioner, who decided the matter in favour of
the Respondents, and instead of taking recourse to a Revision under the Sindh Land
Revenue Act, 1967, the Applicants chose to impugn the same by way of Civil
Suits and while confronted, the Counsel for the Applicants has argued that the said
order was tainted with mala fides; therefore, Civil Suits were competent. To
that, there is no cavil; however, by merely making a statement as to the order
in question being tainted with mala fides does not suffice. Applicants/plaintiffs
had full opportunity to adduce evidence to this effect, but they have failed to
do so, and therefore, this argument is misconceived. Moreover, it is also a
settled law that once recourse has been taken to departmental proceedings and
legal remedy has been availed, then it cannot be aborted in between by invoking
the jurisdiction of a Civil Court. Further, plaintiff in his evidence has also
admitted that he has not produced any revenue record before trial Court
regarding any harap on the suit land, whereas, he further admitted that he has
not produced any land revenue receipt as well. He even failed to satisfy with
any supporting document that any open katchery was ever scheduled for such date
when the land was allotted to the Applicants. It is also a matter of record, that the land in question was already allotted to
private Respondents, and was cancelled without any notice to aggrieved parties
and was done by an officer who otherwise was not competent to do so. These
admitted facts have neither been denied; nor any contrary
evidence has been led on behalf of the Applicants. On the basis of such
evidence, the trial Court as well as Appellate Court have come to a fair and
just conclusion that the plaintiffs have not been able to substantiate and
prove their claim.
7. As to argument of counsel for the Applicants
that in absence of any proper defence or evidence led by the respondents, trial
Court ought to have decreed the Civil Suits also appears to be misconceived,
inasmuch as this is not the right course to be adopted in every run of the mill
case. It is always dependent on the facts and circumstances of the case. If a
Court is confronted in a like manner, then perhaps the proper course is to
examine the record and evidence so produced and then arrive
at a decision. Though the respondents had failed to lead any evidence in the instant
matter; however, cross examined the plaintiffs and its witnesses and also led
any arguments so as to defend their case. As noted, Courts in like matters has
an additional burden and duty cast upon it, to ensure that the ends of justice
are met and the interest of the party who has not been able to defend its case
for any reason whatsoever, shall be protected and must be dealt with in
accordance with law. The Court is required to examine the material before it
including the evidence led by the Plaintiff and to see that the contention so
raised is supported by evidence and supporting material or not. It is the duty
of the Court to see whether the Plaintiff is entitled to the relief being
claimed and if yes, then to what extent. The Suit cannot be decreed as prayed
in such matters, until and unless the Court is satisfied in this regard.
Reliance in this regard may be placed on the case of Nisar Ahmed & another Vs.
Habib Bank Limited (1980 CLC 981) and Messers Al-Pak Ghee Mills through
Managing Partner Vs. Zeeshan Traders through Proprietor (2008 CLC 120) In the case in hand, the trial Court has arrived
at a conclusion on appreciation of the evidence that no case is made out;
therefore, there cannot be any cavil to this and the contention of the Applicants
Counsel is not based on any cogent reasoning.
6. In view of hereinabove circumstances of
the case and for the reason that these civil Revision Applications have been
filed against concurrent findings recorded by the two Courts below, the Applicants
have failed to make out any case warranting exercise of any discretion in their
favor. Hence, by means of a short order passed in the earlier part of the day,
these Civil Revision Applications were dismissed. These are the reasons
thereof.
JUDGE
Ahmad