Judgment Sheet

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Civil Revision No. S – 08 of 1998

 

 

Date of hearing:                   30-08-2021

 

Date of order:                        30-08-2021

 

 

Mr. Abdul Mujeeb Shaikh, Advocate for the applicants.

Mr. Sarfraz A. Akhund, Advocate for respondents No.1(b) & 1(d).

Mr. Ahmed Ali Shahani, Assistant Advocate General Sindh.

 

.-.-.-.-.-.-.-.-.-.-.

 

 

J U D G M E N T

Muhammad Junaid Ghaffar, J. – Through this Civil Revision Application, the applicants have impugned judgment dated 31-10-1997 passed by the 1st Additional District Judge, Sukkur in Civil Appeal No. 101 of 1994, whereby, judgment dated 28-09-1994 passed in F.C. Suit No. 86 of 1978 by the Senior Civil Judge, Ghotki, through which the Suit of respondent No.1 was decreed, has been maintained.

2.         Learned Counsel for the applicants submits that the two Courts below have erred in law; that they have not appreciated the evidence; that the Suit by itself was not maintainable under Section 22 and 25 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958; that the order of the Settlement Commissioner in favour of the applicants was binding and could not have been challenged before the Civil Court; that the property in question belongs to the applicants, and therefore, this Revision Application merits consideration. In support, he has relied upon the cases reported as Sardar Muhammad Ayub v. Pakistan through Secretary, Ministry of Resettlement and Rehabilitation, Rawalpindi and others (1969 SCMR 96 (2)), Habibullah v. Settlement Commissioner etc. (1982 SCMR 4), Umar Din v. Ghazanfar Ali and others (1991 SCMR 1816), Major (Retd.) Syed Baqar Hussain Shah v. Mst. Rashida Begum (1992 MLD 2515), Zafarul Hassan and others v. Muhammad Kalim and others (1993 SCMR 2028) and Mst. Gul Begum and 17 others v. Mst. Rehmat Jan and 8 others (1995 CLC 1643).

3.         On the other hand, respondents’ Counsel has supported the impugned judgments of the Courts below and submits that no case for interference is made out.

4.         I have heard both the learned Counsel and perused the record.

5.         It appears that the respondent filed a Suit for declaration & injunction, and initially sought the following prayers:

a)                  That this Honourable court be pleased to declare that the plaintiff is the rightful owner of the property bearing No. D-267 and redenomination of D-266 belonged to Tharomal s/o Bachumal situated at Panoakil.

b)                  That this Honourable court be pleased to restrain the defendant No.1 by way of permanent injunction from claiming or interfering with the enjoyment and possession of the above property.

c)                  Costs of the suit be awarded to the plaintiff.

d)                  Any other relief that this Honourable court deems fit and proper may also be granted in the circumstances of the case.

6.         Thereafter, an application for amending the Plaint and the prayer clause was filed, and the following prayers were sought:

a)                  That this Honourable court be pleased to declare that the plaintiff is the rightful owner of the property bearing No. D‑267 and redenomination as D-266 belonged to Tharomal s/o Bachumal, situated at Panoakil.

AA)      For declaration the PTD No.08525 dt. 21.6.68 issued in favour of defendant No.1 in respect of house under denomination by D-266 demarcated by defendant No.2 under his order dated 21.2.1972 is illegal, ultravires, without jurisdiction and malafide and of no consequence.

b)                  That this Honourable court be pleased to restrain the defendant No.1 by way of permanent injunction from claiming or interfering with the enjoyment and possession of the above property.

c)                  Costs of the suit be awarded to the plaintiff.

d)                  Any other relief that this Honourable court deems fit and proper may also be granted in the circumstances of the case.

7.         It is not in dispute that the amendment was allowed in favour of the respondent and it was never challenged any further by the applicants. The Trial Court, after exchange of pleadings, settled the following issues:

1)                  Whether the suit is barred by section 22 and 25 of displaced persons (Compensation and Rehabilitation) Act, 1958, and also hit by the principle of resjudicata and those of estoppel and acquiescence?

2)                  Whether the suit has brought is in competent and not maintainable in law?

3)                  Whether this court has jurisdiction to entertain the suit?

4)                  Whether the plaintiff is in possession of property bearing No. D-267, and whether same belonged to evacuee Tharomal s/o Bachumal and was purchased by him in auction of Rs.600/- as per PTD No.07832 dated. 11.4.1967?

5)                  Whether property card for the premises No. D-266, was subsequently manipulated to show the same as belonging to Tharomal?

6)                  Whether any cause of action has accrued to the plaintiff to file the suit?

7)                  To what relief it any plaintiff is entitled?

8)                  What should the decree be?

8.         The learned Trial Court decreed the Suit of the respondents after appraisal of the evidence, and the Appellate Court through impugned judgment has maintained the same. When the finding of the learned Trial Court in respect of maintainability of the Suit including the objection regarding res judicata is examined, it appears that such objection was correctly dismissed by the learned Trial Court inasmuch as the plea of res judicata was pressed on the basis of orders passed in some rent proceedings, which admittedly, could not decide the title of a property. Insofar as the other objection regarding bar of Suit under section 22 and 25 of The Displaced Persons (Compensation and Rehabilitation) Act, 1958 is concerned, it is settled law that the jurisdiction of a Civil Court cannot be ousted by such clauses in the Act, and if the impugned action is without jurisdiction or is tainted by mala fide, the jurisdiction of the Civil Court remains alive and cognizance can be taken by the Civil Court. Reliance may be placed on the cases reported as Muhammad Ismail v Abdul Khaliq (2001 SCMR 1350), Azam Ali v Custodian of Evacuee Property (PLD 1968 Lahore 148) and Isab Khan v Muhammad Sher (PLD 1975 Lahore 833).

9.         Insofar as the other issues are concerned, it is very important to see that what evidence was led by the parties and the deposition of the concerned Tapedar Nawab Ali is very relevant. The same reads as under:

EXAMINATION IN CHIEF TO MR. LACHAMANDASS ADVOCATE FOR THE DEFENDANTS.

            I have brought the register of Dhal Kharij on ‘B’ Form-15 for the period from 1965 to 1967-68. I produce the original entry No:246 serial No:10 of the mutation register deh Pano Akil for perusal and its photo state copy is produced as Ex:245. (Original seen and returned). This entry was made on the basis of P.T.D issued by the custodian authority in respect of the property No:D-267. The copy of the P.T.D is not available with record as voucher and there is no entry in respect of the property No:D-266 in the present register of mutation. The entry No:246 was made on 25.6.1968 but I can not say about the signature of Tapedar on it as to who made the entry. There is no record available in our office in respect of the custodian numbers included S.No:13000. Voluntarily says that it is available with custodian authority.

XXX TO MR. UMED ALI CHACHER ADVOCATE FOR PLAINTIFF

            It is mentioned at the original entry that the property bearing No:D-267 was originally owned by Tharomal S/O Bachomal Hindu. I am serving since last 3 years at my present posting.

            Perusal of the aforesaid evidence of the Tapedar very clearly reflects that insofar as the property being claimed by the applicants is concerned, the copy of his PTD was not available on record, whereas, no entry in respect of the property bearing No. D-266 is available in the present register of mutation. Surprisingly, when this evidence went against the applicants, they chose not to cross examine him, and on the other hand, in response to a question on behalf of the respondents, it has come on record that the original entry of the property bearing No. D-267 was originally owned by Tharomal son of Bachumal, and it is the case of the respondents that they had purchased the property from such person.

10.       Insofar as reliance on the orders passed by the Settlement Commissioner is concerned, firstly, it has come on record that pursuant to such orders, if any, no record is available in the office of the concerned Mukhtiarkar. Secondly, notwithstanding this, it was obligatory upon the applicants to prove the existence of such allotment and orders of the Settlement Commissioner by calling supporting witnesses. Mere production of a document in their written statement does not suffice. Such document has to be proved in evidence in accordance with law, and if not, then no reliance can be placed on such a document. While confronted, the Counsel for the applicants conceded that it is only the applicant who had examined himself. In that case, the Court cannot consider such evidence in isolation inasmuch as the official respondents have come before the Court and have supported the case of the respondents.

11.       In view of hereinabove facts and circumstances of this case and the concurrent findings of the two Courts below, no case for indulgence is made out so as to upset such findings, and therefore, the Revision Application being misconceived is hereby dismissed along with pending application(s), if any.

 

 

J U D G E

Abdul Basit