IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Civil Revision Application No.S-56 of 2015
Applicants : Qurban Ali Memon & others
through Mr. Ghayoor Abbas Shahani Advocate.
Respondents : Ghulam Rasool Memon & others
Mr. Abdul Khalique Bughio for respondents 1 & 3.
Mr. Sher Ali Chandio for respondents 2 & 4.
Mr. Liaquat Ali Shar, Addl. A.G. Sindh.
Civ. Revn. Application No.S-57 of 2015
Applicant : Haji Mohammad Usman Memon,
through Mr. Altaf Hussain Surahio Advocate.
Respondents : Qurban Ali & others,
Mr. Ghayoor Abbas Shahani for respondents 1 & 2.
Mr. Abdul Khalique Bughio for respondents 3 & 5.
Mr. Sher Ali Chandio for respondents 4 & 6.
Mr. Liaquat Ali Shar, Addl. A.G. Sindh.
Date of hearing : 20-02-2023.
Date of decision : 20-02-2023.
O R D E R
Adnan Iqbal Chaudhry, J.- Civil Revision No.56/2015 has been filed against concurrent orders viz., order dated 09.4.2014 passed by the Senior Civil Judge, Mehar under Order VII Rule 11 CPC in F.C. Suit No.102/2013, rejecting the plaint of said suit filed by the Applicants(Plaintiffs) against the Respondents(Defendants); which was upheld in Civil Appeal No.31/2014 by the II-Additional District Judge, Mehar vide judgment dated 25.6.2015. Having upheld the rejection of plaint, the judgment in appeal also dismissed Muhammad Usman’s application under Order I Rule 10 CPC for addition as party to the appeal, which has been challenged by him in Civil Revision No.57/2015.Both the courts below were of the view that the suit was barred by the provisions of the Sindh Land Revenue Act, 1967.
2. Heard the learned counsel and perused the record.
3. The prayer in F.C. Suit No.102/2013 was as follows:
a) To decree the suit of the plaintiffs against the defendants and declare that the act of the private defendants of forcibly dispossessing the plaintiffs so also trying to sale out the suit land to the strangers is illegal, contrary to law and against natural justice;
b) To direct the defendant No.1 to execute registered sale deed in favour of the plaintiffs from western side to the extent of half share in the above mentioned suit land S.No.385 according to private faisla dated: 27.05.2009 and if he failed to do so, the Nazir of the Honourable Court may be directed to execute registered sale deed in favour of plaintiffs respect share of plaintiffs in the above suit land.
c) To direct the defendants No.1 to 3 to handover the vacant possession of area of 2-00 acres, illegally and forcibly occupied by them.
d) To direct the defendant No.1 to return back the paddy crop of the year 2012-13 (or its value) which was illegally and forcibly taken away by him from the suit land and so also to pay the mesne profits of the suit land (share of plaintiffs) from the year 2012-13 till the possession is restored to the plaintiffs and for that purpose the Commissioner may be appointed to assess the produce of the suit land.
e) To restrain the defendants permanently not to refuse the rights and title of the plaintiffs over the suit land and not to issue threats to the plaintiffs.
f) The costs and any other relief which this Honourable Court deems fit and proper may also be awarded to the plaintiffs.
4. Prayer (b) above, the main prayer in the suit, was for enforcement of a written faisla dated 27-06-2009 said to have been made by the Defendant No.4 to resolve the dispute between the Plaintiff No.1 and the Defendant No.1 over the suit land. All other prayers were consequential. That faisla was that the Plaintiffs and Defendant No.1 would each retain half of the area of the suit land, and that the Defendant No.1 would convey title of half of the suit land to the Plaintiff No.1.It was not the Plaintiffs’ case that the faisla was an arbitration award which was made rule of Court under the Arbitration Act, 1940, rather the case was that the faisla having been signed by the Plaintiff No.1 and the Defendant No.1, it was an agreement between them which was specifically enforceable.
5. As averred in the plaint, the facts leading to the faisla were as follows:
(i) that the owner of the suit land (Survey No.385, admeasuring 15-00 acres, Deh Umedero, Taluka Mehar) was Mohammad Usman under a registered sale deed dated 08.11.1988, and who delivered possession thereof to the Plaintiffs on harap (partnership in cultivation);
(ii) that the record of rights were manipulated to unlawfully show the suit land as Government land, included in an open kutchery to grant the same for cultivation purposes to landless haris under the Colonization & Disposal of Government Lands (Sindh) Act, 1912, and granted as such in 2005 by the Deputy District Officer(Revenue), Dadu to the Defendant No.1;
(iii) that the order of grant was appealed by the Plaintiffs and Muhammad Usman separately before the District Officer(Revenue), Dadu under section 161 of the Sindh Land Revenue Act, 1967, but since the Defendant No.1 had already filed F.C. Suit No.29/2006 against them for an injunction against dispossession, the Plaintiffs and Muhammad Usman were referred to the civil court by orders dated 24-05-2006 and 21-09-2006 respectively;
(iv) the Plaintiffs then preferred a revision before the Board of Revenue, but in 2007 the Defendant No.1 withdrew F.C. Suit No.29/2006; and thereafter in 2012, in view of the faisla, the Plaintiffs also withdrew the revision from the Board of Revenue;
(v) the subject suit was filed allegedly when the Defendant No.1, with the help of the Defendants 2 and 3, forcibly took away the Plaintiff’s paddy crop from the suit land and dispossessed them from 2 acres of such land.
6. Admittedly, the Plaintiffs were not owners of the suit land, but were entrusted with its possession by the owner, Muhammad Usman, under a contract of harap. Therefore, the Plaintiffs were nobody to concede ownership of the suit land to a third-party (Defendant No.1) by way of said faisla in consideration of an agreement with that third-party for conveying to themselves title of part of the suit land. In other words, it was manifest in the plaint that the faisla/agreement was hit not only by section 23 of the Contract Act, 1872, it was also in excess of the Plaintiffs’ power as trustee of the suit land, the specific enforcement whereof was barred by section 21(e) of the Specific Relief Act, 1877. From the case of Obaidullah v. Habibullah (PLD 1997 SC 835) it is apparent that the word ‘trust’ in section 21(e) is not confined to a trust under the Trust Act, 1882, rather it is used in its general sense.
7. The above of-course is without prejudice to the defense of the Defendant No.1 that Muhammad Usman was not owner of the suit land, and that the faisla/agreement was fabricated. It is settled law that while dealing with an order rejecting the plaint, the Court ordinarily confines itself to the averments in the plaint and annexures thereto and the defense is not to be considered.
8. The other aspect of the matter, and one that prevailed with the courts below, was that in filing suit the Plaintiffs had in fact conceded that the suit land was granted by the Government to the Defendant No.1 under the Colonization & Disposal of Government Lands (Sindh) Act, 1912 for purposes of cultivation, and until such grant was set-aside in favor of Muhammad Usman by resort to remedies provided under the Sindh Land Revenue Act, 1967, the relief sought in the suit respect of the suit land were not available to the Plaintiffs.
9. The grant of Government land made by the Collector under sub-section (3) of section 10 of the Colonization & Disposal of Government Lands (Sindh) Act, 1912, is “subject to the control of the Board of Revenue”, and by virtue of section 7 of the same Act, the provisions of the Sindh Land Revenue Act, 1967 are applicable. Therefore, the grant of the suit land was appealable under section 161 of the Sindh Land Revenue Act. Such appeals were in fact filed both by the Plaintiffs and Muhammad Usman which were not entertained for the reason that F.C. Suit No.29/2006 by the Defendant No.1 was then pending before the civil court. Against that, the Plaintiffs preferred a revision before the Board of Revenue, but then withdrew it. At that time F.C. Suit No. 29/2006 had already been withdrawn by the Defendant No.1 but the Plaintiffs did not attempt to revive their appeal or file it afresh before the revenue authorities. In view of section 36 of the Colonization & Disposal of Government Lands (Sindh) Act, 1912, and section 172 of the Sindh Land Revenue Act, 1967 read with section 11 of the Sindh Revenue Jurisdiction Act, 1876, the Plaintiffs’ suit before the civil court was not maintainable before exhausting the remedy available in the revenue hierarchy. Both the courts below have rightly held so. In that regard reliance can be placed on Administrator, Thal Development v. Ali Muhammad (2012 SCMR 730), and Muhammad Ali v. Province of Punjab (2005 SCMR 1302).
10. The case of Muhammad Usman is that the Plaintiffs had deliberately not made him party to the suit so as to deprive him of his property, the suit land; that since he was a necessary party, his application for joinder in the appeal should have been allowed. However, once the appellate court was inclined to uphold rejection of the plaint and to dismiss the appeal, Muhammad Usman’s joinder to the appeal served no purpose. The rejection of the plaint in fact worked in his favor. However, he never furthered his cause to revive his appeal or file it afresh before the revenue authorities against the grant made to the Defendant No.1 after F.C. Suit No. 29/2006 had been withdrawn by the Defendant No.1. His revision application is misconceived.
11. For the reasons foregoing, both revision applications are dismissed.
Qazi Tahir PA/*