IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Civil Revision Appln. No.S-74 of 2020

DATE OF HEARING

ORDER WITH SIGNATURE OF JUDGE

1. For orders on CMA No.372/20

2. For hearing of main case.

Date of hearing 14.03.2022

Mr. Raj Kumar D. Rajput, Advocate for Applicant.

Mr. Abdul Rehman Siddique Advocate for respondent No.2

Mr. Noor Hassan Malik Assistant Advocate General alongwith Ayaz Ahmed Tapadar, Imtiaz Ali Buriro Tapadar and Amir Ali concerned/litigation Mukhtiarkar Office, Rohri.

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J U D G M E N T

MUHAMMAD FAISAL KAMAL ALAM, J; This revision application is filed impugning the two orders of Appellate and Trial Court, rejecting the plaint vide order dated 04.10.2019 which was maintained by the learned Appellate Court vide judgment dated 28^th January, 2020.

2. Essential and undisputed facts are that present applicant is the owner of 22-29 acres of Agricultural land falling in Survey Nos.610 (1-16) acres, 611(7-02) acres, 612 (3-31) acres, 613(4-10) acres, 614 (4-0) acres, 615 (4-0) acres, 616 (6-9) acres, 617 (2-17) acres, 618(5-16) acres, 619 (4-0) acres, 620(4-0) acres, 621(4-0) acres, 622(2-05) acres, 623(5-21) acres, 624(3-29) acres, 625(4-36) acres, 626 (2-0) acres, 627 (3-06) acres, 628(4-21) acres, 629(4-0) acres, 630 (4-0) acres, 631(4-0), 632(7-16), 633(6-08), 634(4-0) acres, 635(4-0) acres, 636(4-0) acres, 637 (4-0) acres, 638(3-28) acres, 639(4-0) acres, 640(6-31) acres, 641(5-19) acres, 642 (4-0) acres, 643(4-31) acres, 647(4-0), 648(5-35), 649(527) acres, 650 (4-0) acres, 651(4-0) acres, 652(4-30) acres, 653(3-02) acres, 654(4-0) acres, 655(4-0) acres, 656(2-25) acres, 657(4-20) acres, 658(4-0) acres, 659(4-0) acres, 660(4-0) acres, 661(4-0) acres, 662(4-0) acres, 663(5-29) acres, 664(5-37) acres, 665(4-0) acres 666(4-0) acres, 667(4-0) acres, 668 (4-0) acres, 669(4-18), 670(2-5) acres, 671(4-0) acres, 672(4-0) acres, 673 (4-0) acres, 674(4-0) acres, 675(6-7) acres 676(6-19) acres, 677(4-0) acres, 678(4-0) acres, 679(4-0) acres, 680(4-04) acres, 681(5-34) acres, 682(4-0) acres, 683(4-0) acres, 684(6-04) acres, 685(5-38) acres, 686(4-0) acres, 687(4-0) acres, 688(5-38) acres, 689(7-18) acres, 644(2-37) acres, 645(4-0) acres, 646 (4-04) acres situated in Deh Kandhri Tapo Kandhra Taluka Rohri District Sukkur. The dispute revolves around the purported entry No.102, whereby an area of 20-11 acres from the above survey No. has been mutated in the name of respondent No.2 (Mst. Yasmeen).

3. In the first round of litigation the applicant has challenged the entry before the learned Assistant Commissioner/respondent No.5 which was of the view that since entries are 30 years old, that is, entry No.102 is of 17.9.1988, therefore, the Revenue Authority does not have jurisdiction to cancel such an entry. This order was maintained by the Revenue hierarchy and finally Additional Commissioner, Sukkur Division vide order dated 10.10.2018 also upheld the same view. In the second round of litigation plaint was filed in F.C. Suit No.45 of 2019 on 10.04.2019, that is, six months from the last decision of Additional Commissioner (ibid). In the plaint it is specifically pleaded that fraud has been played upon the plaintiff and private respondents in collusion with official respondents got mutated the above land in dispute on an oral statement. It is also specifically pleaded that plaintiff acquired knowledge of the said impugned entry when he applied for Sale certificate to dispose of part of his land in September, 2017 (Paragraph No.2 and 3 of the plaint).

4. Learned counsel for the applicant has read the impugned orders and particularly that of Appellate Court wherein it is observed that unless allegation of fraud clearly exists in the pleadings, plaint can be rejected as envisaged under Order VII Rule 11 of CPC. He states that applicant has specifically alleged fraud in his pleadings.

5. Mr. Abdul Rehman Siddique, learned counsel for private respondents has opposed this revision application on the ground that firstly the initial appeal before the Revenue hierarchy was hopelessly time barred, as it was rightly observed in the aforesaid orders of Revenue Authority. Secondly, he states that since the entire remedy was not exhausted by the applicant/plaintiff under Section 172 of the Land Revenue Act, therefore, his plaint was correctly rejected. He states that possession still with respondent No.2 and impugned concurrent findings are proper and within the parameters of law and does not require any interference in this revisional jurisdiction, because no material irregularity has been surfaced.

6. Learned Assistant Advocate General has submitted a Report on behalf of respondent No.6 that record of such an entry is not traceable. In this regard he has also recorded statement of other Revenue staff. Learned AAG has supported the case of applicant’s counsel. He relied upon cases reported in PLD 1987 Revenue 25 (Abad Muhammad through his Legal Heirs and another v. Mst. Sakina and another), PLD 2008 Supreme Court 571 (Mazloom Hussain v. Abid Hussain and 4 others), 1994 MLD 2254 (Muhammad Ishaq v. Member (R), Board of Revenue, Punjab, Lahore and 18 others), and PLD 1986 Rev. 150 (Jan Muhammad and another v. Abdul Aziz).

7. Arguments heard, record perused.

8. Undisputedly, applicant/plaintiff purchased the above land of 22-29 acres by way of registered sale-deed regarding which entry No.196 was kept. A huge portion of said land, that is, 20-11 acres has been purportedly transferred in the name of respondent No.2 merely on oral statement. According to official version, record of such oral statement is untraceable. It has been specifically pleaded in the plaint that when plaintiff acquired knowledge about the alleged fraudulently entry he took steps to safeguard his interest.

9. As far as arguments of learned counsel for respondents is concerned, about non-exhausting the entire revenue remedy, the same is incorrect, in view of the observation made by the Revenue Authorities themselves that they do not have jurisdiction in the matter. Whereafter, the above suit proceeding was initiated by the present applicant/plaintiff. Even otherwise, in my considered view facts of present case are such that even for the arguments sake, if the entire revenue remedy was not exhausted, then considering Section 53 of the Land Revenue Act, that the title disputes is to be adjudicated upon by the Civil Courts; then the plaint of present applicant could not have been rejected in such a cursory and mechanical manner as has been done by the two Courts below. The Courts have to see and evaluate right and interest of a person/ litigant in view of the documents produced by him/her. In the present case the applicant is deriving its title from a registered sale-deed which has been given recognition by the Revenue official/respondent by keeping a mutation entry No.196, then in such matters where prima facie there is a strong case of entitlement in favour of a person, he should not be non suited, merely on the ground that one of the final remedies is not exhausted under the Revenue hierarchy, which remedy otherwise appears to have become illusory in nature.

Conclusion of the above discussion is that there is ex facie triable issues involved in the present case which can only be decided after leading evidence.

The upshot of above is that both judgments are set-aside, case is remanded to the learned Trial Court which will be decided after following due process of law and the following directions;

i) After receiving of this order within two weeks written statements will be filed by all respondents/defendants.

ii) No unnecessary adjournment will be given

iii) After framing of issues evidence will be led and no adjournment during evidence will be granted.

iv) If any witness is not present then the side of that delinquent party will be closed, unless some genuine reason is shown.

v) Decision will be given within three months.

J U D G E

Ihsan