IN THE HIGH COURT OF SINDH CIRCUIT COURT LARKANA
Civil Revision No.S-42 of 2022
Applicants : (1) Rehmatullah s/o
Muhammad Sallah Khan
(2) Ghulam Murtaza
s/o Muhammad Sallah Khan
(3) Mst.Sharam Naz Khatoon
w/o Muhammad Sallah Khan
(4) Mst.Zainab Khatoon
w/o Abdul Aziz Khoso
(5) Mst.Amina Khatoon
d/o Muhammad Sallah Khan
w/o Abdul Ghafoor Khoso
(8) Mst.Zubeda w/o Ali Nawaz Khoso
w/o Ghulam Sarwar Khan Khoso
(10) Mst.Janat Khatoon
w/o Zulfiqar Khoso,
through Mr. Waqar Ahmed Chandio
Respondents 1(i) to (iv): 1 Inayatullah
s/o Muhammad Sallah Khan (Deceased) through LRs: -
1(i) Mst.Hurmat Khatoon
1(ii) Faiz Ahmed s/o Inayatullah
1(iii) Mst.Aarfa d/o Inayatullah
1(iv) Mst.Seema d/o Inayatullah
through Mr. Rajesh Naraindas D.
Respondents 2 & 3 : (2) Mukhtiarkar Thul
(3) Province of Sindh
through Deputy Commissioner
through Mr. Abdul Waris Bhutto, Asst.
Date of hearing : 04.05.2023.
Date of Decision : 11.05.2023.
ARBAB ALI HAKRO, J.- Applicants Rehmatullah and 09(nine) others through their attorney Rehmatullah have assailed the judgment and decree dated 08.3.2022, passed by the learned District Judge (MCAC) Jacobabad, while disposing of Civil Appeal No.28 of 2021 (Re: Rehmatullah and 09 others v. Inayatullah and others), by modifying the judgment and decree dated 20.10.2021 of trial Court i.e. Senior Civil Judge-II Jacobabad, wherein F.C Suit No.16 of 2016 of respondent No.1 was decreed.
2. The transient features of the case are that Muhammad Sallah (deceased), father of respondent No.1, was the owner of agricultural land bearing Survey Nos.627, 514, 505, 664, 654, 640, 527, admeasuring 23-35 Acres, Survey Nos.511, 510, 504, 639, 635, 513, 362, admeasuring 29-07 Acres, situated in Deh Athri, Tapo Karim Bux, Taluka Thul, District Jacobabad and Survey Nos.425, 417, 416, 515, 423, 424, 415, admeasuring 39-37 Acres, situated in Deh Mehar Ali, Tapo Bahadurpur, Taluka Thul, District Jacobabad, total admeasuring 92-00 Acres (“Suit land”), who passed away on 27.5.2016 due to natural causes, leaving behind respondent No.1 and the applicants as legal heirs. Respondent No.1 claimed that the applicants No.1 & 2 were in possession of the Suit land after the death of Muhammad Sallah. It is claimed that the applicants No.1 to 10, in collusion with each other, are cultivating and enjoying the yield from the Suit land, without paying respondent No.1 his rightful share. Whereas, despite repeated demands by respondent No.1 in person and through intermediaries, the applicants have refused to pay him his dues. Respondent No.1 had approached the Mukhtiarkar Thul(respondent No.2) for assistance but received no response. Consequently, he claims that he was deprived of his rightful inheritance under the Muhammadan Law after the demise of his father, Muhammad Sallah. As a result, respondent No.1 has filed F.C Suit No.16 of 2016, seeking the following reliefs: -
a) That this Honourable Court may be pleased to declare that the plaintiff being one of the legal heirs of deceased Muhammad Sallah as his son, is entitled to inherit his due share from the suit property, which is to the extent of about 14 acres out of the suit property.
b) That this Honourable court may be pleased to grant the decree for partition of the suit property by meets and bounds and award separate possession out of the suit property to the plaintiff to the extent of about 14 Acres share in the suit property through Mukhtiarkar Thul, the defendant No.1, and in case if the suit property is found impartible then the Honourable Court may be pleased to direct Mukhtiarkar Thul, the defendant no.11, for the sale of the property in open auction and proceeds thereof be distributed, among all the shareholders in their respective share to meet with the ends of justice.
c) That this Honourable Court may be pleased to grant decree for the payment of mesne profit at the rate of Rs.100,000/- per year to the extent of share of the plaintiff till the delivery of possession of the share of the plaintiff from defendants No.3 to 10.
d) That this Honourable Court may be pleased to grant the cost of the suit and any other relief which may be deemed fit and proper in the circumstances of the case to meet with ends of justice.
3. Upon service of the summons of the subject law Suit, applicants No.1 to 10, filed their joint Written Statement through attorney applicant No.1 Rehmatullah, wherein they vehemently denied the assertions made in the plaint and further stated that the suit of respondent No.1 is not maintainable under Section 42 of the Specific Relief Act, 1877, secondly, hit under Article 114 of Qanun-e-Shahdat Order, 1984 and under Section 135, thirdly Section 172 of the Sindh Land Revenue Act, 1967 ("the Act"). The applicants further asserted that they are not in possession of 92-00 Acres of Suit land. But, they are in peaceful possession of their own share of 65-00 Acres and 03-Poles, and respondent No.1 has already availed his share of the Suit land in the lifetime of his late father; therefore, he has no share in the 65-00 Acres and 03-Poles. It is stated that some of the properties were available by respondent No.1 in the shape of Hiba/Gift on his name as well as his sons namely Fayaz Ahmed (respondent No.1(ii) vide mutation No.466 dated21.01.2007, and such was land of the late father, directly mutated on their names respectively. Moreover, Mst. Arbab Khatoon (Sister of late Muhammad Sallah Khan), the paternal aunt delivered some of her land to Late Muhammad Sallah in lieu of domestic transaction, and that becoming the property of Late Muhammad Sallah was also transferred directly in the name of respondent No.1 as Hiba/Gift availing possession with his consent to relinquish the further demand from the father's property. The applicants, further explained that respondent No.1 had obtained 04-00 Acres and 17-Poles land from his Late Muhammad Sallah in Tehsil Jhatpat, Tapo Saddar, Mouza Mamul, District Jaffarabad Balochistan, even though the record indicates only 2-00 Acres and 27-Poles. They asserted that the actual area of the land 04-00 Acres and 17-Poles, which can be verified through a local inspection. Finally, the applicants stated that 65-03 Acres of land are part of their own property, which was acquired separately from the property that respondent No.1 had received. They also claimed that he had sold out some of the property to other individuals.
4. On the divergent pleadings of the parties, the trial Court settled issues:-
i. Whether suit of the plaintiff is maintainable under the law…?
ii. Whether deceased Muhammad Sallah (predecessor of plaintiff and defendant Nos.1 to 10) was owner of 92 Acres of agricultural land in Deh Mahar Ali Tapo Bahadurpur, Taluka Thul, District Jacobabad and he left the same as inherited property…?
iii. Whether the plaintiff obtained his due share from deceased Muhammad Sallah in his lifetime through gift deed bearing No.466 dated 27.01.2007 and relinquished his right to inheritance, if so what's effect under the law…?
iv. Whether the plaintiff is entitled to the decree for partition as prayed for, if so to what share…?
v. Whether plaintiff is entitled for any relief…?
vi. What should the decree be…?
5. The learned trial Judge, after recording evidence of the parties and hearing pro and contra arguments in the light of record, decreed the Suit of plaintiff/respondent No.1.
6. Learned counsel for the applicants argued that the Suit was barred under Section 172 of the Act and the Civil Court lacks jurisdiction to entertain such reliefs as decreed. It was further contended that the respondent No.1 received his share in the lifetime of his father (Muhammad Sallah Khan) and both the trial as well as the appellate Court illegally held, that no such evidence brought by respondent No.1 and such findings are based on misreading and non-reading of evidence of P.W-1 Faiz Ahmed (Ex.59). Finally, the learned counsel averred that the suit was not maintainable and such exercise is illegal and against the norms of justice. In support of his contentions, he relied upon the cases reported as Noor Muhammad and others vs. Allah Ditta and others (PLD 2009 S.C 198), Khamiso Khan and 6 others vs. Jamaluddin (2015 MLD 356), Qamar Sultan and others vs. Mst.Bibi Sufaidan and others (2012 SCMR 695), Jamaluddin and 3 others vs. Haji Gul Khan and 6 others (2012 CLC 353), Irshad alias Abdul Rahim and 2 others vs. Ashiq Hussain (PLD 2007 Karachi 421), Naveed Ahmad vs. Iqbal Begum and others (2006 YLR 2341) and Syed Musarrat Shah and another vs. Syed Ahmed Shah alias Lal Bacha and 8 others (PLD 2012 Peshawar 151).
7. Conversely, the learned counsel for respondents No.1(i) to (iv), while supporting the judgment of the two Courts below, argued that there are concurrent findings on factual and legal issues and the Suit was quite maintainable, because the applicants deny rightful share in the Suit land specifically in Para-3 of their Written Statement. He further argued that the Hiba/Gift has no relevancy in respect of rightful share in the Suit land and the applicants malafidely have taken such plea to grab the Suit land. Finally, he maintained that both the Courts below have not committed any illegality, while decreeing the claim of plaintiff/ respondent No.1.
8. Learned Asst. A.G. for the official respondent No.2 & 3, while refuting the above contentions, argued that instant Revision against concurrent Judgments is not maintainable under the law. He further averred that there is a dispute in the midst of private parties; thus, no Government interest is involved in the Suit land. Finally, he relied upon evidence of official witnesses (Ex.72 & 73); instant Revision Application is devoid of merits and liable to be dismissed.
the arguments. In order to examine whether, in the concurrent findings recorded
by the Trial Court and Appellate Court,
complete and substantial justice has been afforded or not..?.
I have also scrutinized the exactness and meticulousness of the judgments and decrees of both the lower Courts with a fair opportunity of the audience to the learned counsel for the applicants to satisfy me as to what has acted by the Courts below in the exercise of their jurisdiction either illegally or with material irregularity. Respondent No.1 filed suit for Declaration, Partition, Separate Possession, and Mesne profit. Whereas, a perusal of the prayer clauses reflects that the main relief claimed by respondent No.1 regarding the Declaration being the legal heir of Muhammad Sallah Khan being son entitled to inherit, owing to have share in the suit land to the extent of 14-00 Acres only out of entire Suit land. Learned counsel for the applicants mainly argued that the Suit is barred under Section 172 of the Act, therefore, it would be appropriate to read sub-section 2(xviii) above provision as under:-
“172. Exclusion of jurisdiction of Civil Courts in matters within the jurisdiction of Revenue Officers. (1) Except as otherwise provided by this Act, no Civil Court shall have jurisdiction in any matter which Government, the Board of Revenue, or any Revenue Officer, is empowered by this Act to dispose of or take cognizance of the manner in which Government the Board of revenue, or any Revenue Officer exercise any powers vested in it or him by or under this Act.
(2) Without prejudice to the generally of the provisions of sub-section (1), a Civil Court shall not exercise jurisdiction over any of the following matters namely:‑‑
(xviii) any claim for partition of an estate or holding, or any question connected with or arising out of proceedings for partition, not being a question as to title in any of the property of which partition is sought;
examining the exceeding provision of the Act, it is clear that there is not
complete bar against Civil Courts to entertain matters related to agricultural
land disputes. The Act does not prohibit the civil Court from determining the
title of the plaintiff/respondent No.1 to all land held jointly or from
granting a declaration of joint ownership in disputed
agricultural land. In the present case, the plaintiff/respondent No.1 seeking
relief for Declaration regarding his share to the extent of 14-00 Acres
from the Suit land being the son of deceased Muhammad Sallah Khan and Partition
& separate possession of his share from the Suit land. The applicants have
denied his share in the Suit land and refused to give him a share of the
produce, therefore, the provisions of the Act do not support the disputation of
the learned counsel of the applicants that the suit of respondent No.1 was
the above context,
I may also refer to the case of Nazir Ahmad and another vs. Maula Bakhsh (1987 S.C.M.R 61). In the cited authority, the Apex Court was pleased to hold, inter alia, that "So far as the jurisdiction of civil Court is concerned, it has been held by the trial Court and affirmed by all the Courts where a question of title or ownership of land or any immovable property is involved then the civil Court alone, to the exclusion of the Revenue officer or Revenue Court is competent to decide it. In this case it was not so much the demarcation of the land as the title in immovable property which was in issue. The civil Court rightly took cognizance of the matter and proceeded to decide it."
11. It is a well-settled exposition of a law, that the Jurisdiction of Civil Court in a civil suit should not be readily inferred to be ousted. It will continue to vest in the Civil Court unless expressly and impliedly taken away. Apparently, Revenue Courts do not confer jurisdiction in partition proceedings where question of title is involved amongst the parties as envisaged in the provision of the Act. The above view expressed by me is fortified in the case of Messrs SUI NORTHERN GAS PIPELINES LIMITED (SNGPL) VS. Messrs NOOR CNG FILLING STATION (2022 SCMR 1501). In the above case, it was held by the Hon’ble Supreme Court that under Section 9 of C.P.C., the Civil Courts have the jurisdiction to try all suits of a civil nature except suits of which their cognizance is either expressly or impliedly barred. The ouster of civil court jurisdiction cannot be straightaway inferred or congregated in a routine, save as the conditions laid down are fulfilled. The presumption of lack of jurisdiction may not be gathered until the specific law enacted by the legislation debars Court from exercising its jurisdiction with a specific remedy within the hierarchy which may attain the finality of order or the controversy involved.
12. Another legal aspect of the case of respondent No.1 regarding substantial relief claimed by way of Declaration and Partition/separate Possession is merely incidental or ancillary to substantial relief. The above view is also expressed by the Hon'ble Supreme Court in the case of Hamida Begum vs. Murad Begum (1975 PLD S.C 624). Moreover, any person who feels himself aggrieved of the entries in the record of rights as to any right to which he is in possession, he may institute a Suit for a declaration of his right before the Civil Court under Section 53, of the Land Revenue Act, 1967 or in other words under section 42 of the Specific Relief Act both the reliefs available being of the same nature and identical. In Case of Rasta Mal Khan and others v. Nabi Sarwar Khan and others (PLD 1996 Supreme Court 78), it was held by the Apex Court that: “Regarding bar of jurisdiction of the Civil Court under section 172, subsection (2), clause VI of the Land Revenue Act, 1967 it may be pointed out that exclusion of jurisdiction of Civil Court relates to the correction of the entries made by the Revenue Officer in performance of his duty without touching the right of the persons in the land, but whenever such entries interferes with the rights of a person in the land record in the Record of Rights, and such person feels aggrieved, for correction of such entries he has to approach Civil Court for declaration under section 53 of the Act or in other words under section 42 of the Specific Relief Act both the reliefs available being of the same nature and identical”.
13. The learned counsel for the applicants, unable to cite any case in which the Suit involved the determination of the disputes as pleaded herein with the reliefs as claimed, could be declared as barred under the Act.
14. The case law relied upon by the learned counsel for the applicants is of no relevance as the facts and circumstances of this case are clearly distinguishable from the facts of the case law relied upon in respect of a simple suit for partition/possession of the land, whereas the Law Suit of the subject land pertaining substantial relief of Declaration in respect of legal share inherited by respondent No.1/plaintiff from his deceased father.
15. So far, the contention of learned counsel for the applicants about the factual issues No.2 & 3 is concerned, it is not disputed that respondent No.1/plaintiff is the son of deceased Muhammad Sallah Khan; the only dispute regarding share inherited by him from the estate of his father. The learned trial Judge observed in its’ finding on issues No.2 & 3, that the applicants and respondent No.1 are entitled to inherit their respective shares in the Suit land admeasuring 39-27 Acres in Deh Mehar Ali, Taluka Thul along with an unpaid loan of Rs.552,480/- of Zarai Taraqiati Bank Ltd (ZTBL) and some land (without determining specific area) in Deh Athri, Taluka Thul as mentioned in mutation entry No.11 dated 15.01.1994 and respondent No.1 is entitled to transfer of the specific share in said land as per his Shariah share out of entire estate left by deceased Muhammad Sallah Khan, after paying his due share of loan proportionate his Shariah share out of liabilities of ZTBL, such finding of learned trial Court was modified by learned appellate Court in the impugned Judgment as under: -
A. The Plaintiff is entitled for inheritance share through partition from 33-33 paisa share of his father in suit lands bearing S.No.627, 514, 504, 664, 654, 640 and 527 total admeasuring 23-35 acres in Deh Athri Taluka Thul.
B. The plaintiff is also entitled for share of inheritance through partition from suit lands bearing S. No.510, 511, 504, 639, 635, 513 and 362 of Deh Athri, admeasuring19-27acres at time of death.
C. The plaintiff is also entitled for inheritance share through partition from suit lands S. No.425, 417, 416, 515, 423, 424, 415 admeasuring 39-27 acres of Deh Mehar Ali mortgaged with ZTBL Thul Branch subject to payment of outstanding amount loan by plaintiff as well as private defendants, as per their respective shares.
16. Such findings of the appellate Court are based on the oral evidence of DW-1 Akbar Ali (Ex.72) and DW-2 Colonel Kazafi @ Sabir (Ex.73), who are Revenue officials and produced documentary evidence viz: mutation entries in the record of rights of respective Dehs and learned counsel for applicants was unable to point out any illegality committed by the appellate Court in exercising it’s jurisdiction vested under the law. The only contention is that respondent No.1 has already received his due Shariah share from the estate of deceased Muhammad Sallah Khan by way of Hiba/Gift during his lifetime, thus he is not entitled to any share as claimed in the suit. In this regard, the learned counsel for the applicants has failed to produce pictorial evidence to show that the respondent No.1/plaintiff relinquished his Shariah share in the suit land through Gift/Hiba in the residual estate left by the deceased Muhammad Sallah Khan. Diversely, scanning of the documentary evidence i.e. mutation entries (Exhibits P-72/B & C & P-73/A & B), does not reflect that respondent No.1 has abdicated his share in Suit land on the basis of said Gift/Hiba. In absence of a valid gift or relinquishment of lawful share in an inheritance under Muslim Personal Law, it cannot be said whether the respondent No.1/Plaintiff relinquished his share in subject property. In Case of Mst. Parveen (Deceased) through LRs v. Muhammad Pervaiz and others (2022 SCMR 64), it has been held by the Honourable Supreme Court of Pakistan that: “However, if any heir seeks to exclude the other legal heirs, as in the instant case by relying on a purported gift the beneficiary of such gift must prove it. The gift in this case is stated to have been witnessed by three persons, namely, Rana Muhammad Azeem, Nazir Ahmad and Khursheed Ahmad, and even if it be accepted that two of the said witnesses had died by the time the evidence was recorded, the third witness, namely, Rana Muhammad Azeem, was alive but he was not brought to testify as a witness in support of the gift. Therefore, an adverse presumption may be drawn that if he did come to testify he would not have supported the gift”. It has further been held that: “We may once again state that, we are dismayed to observe the all too frequent practice in Pakistan of male heirs resorting to fraud and other tactics to deprive female heirs from their inheritance. While this deprivation causes suffering to those deprived, it also unnecessarily taxes the judicial system of the country, resulting in a needless waste of resources. Each and every day that a male heir deprives a female heir is also an abomination because it contravenes what has been ordained by Almighty Allah”.
17. Over and above that it is well-settled law that concurrent findings of the two Courts below supported all a preponderance of claims are not to be interfered in Revisional jurisdiction, unless extraordinary circumstances are demonstrated by the applicants. It is also trite law that a Revisional Court does not sit in reappraisal of the evidence and is thus distinguishable from a court of the appellate jurisdiction.
18. For the foregoing reasons, the findings of the Courts below are not appearing to be suffering from jurisdictional defect nor it is established that the same suffer from any misreading or non-reading of evidence, which may have caused a miscarriage of justice, therefore, I am clear in my view that the instant Revision application is devoid of merits, which is accordingly dismissed. However, the parties are left to bear their own costs.
J U D G E