Judgment Sheet

THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANO

Civil Revision No. S-53 of 2025

(Niaz Hussain Leghari v/s. Hidayatullah Leghari and Ors)

Date	Order with signature of judge

Before:

            Mr. Justice Nisar Ahmed Bhanbhro

1. For orders on office objections at flag "A".

2. For orders on C.M.A.No.279/2025  (151 CPC).

3. For orders on C.M.A.No. 280/2025 (151 CPC).

4. For orders on C.M.A.No. 281/2025 (S/A).

5. For hearing of Main Case.

Applicant:                               Niaz Hussain son of Pathan Khan

Through Mr. Zamir Ali Shah, Advocate.

Respondents:                          Hidayatullah and others.

Date of Hearing:                     16.05.2025

Date of Judgment:                  16.05.2025

J U D G M E N T

Nisar Ahmed Bhanbhro J.- Through this Civil Revision Application, Applicant Niaz Hussain Leghari has challenged Judgment dated 12.11.2024, passed by the Court of learned Additional District Judge-II, Kamber in Civil Appeal No.64/2023 (Appellate Court), whereby the Judgment and Decree dated 05.08.2023, passed by the Court of Learned Senior Civil Judge, Warrah (Trial Court) in F.C.Suit No.13/2021 has been set aside with a direction to frame two additional issues mentioned in para-21 of the impugned Judgment and decide the matter afresh after hearing the parties by allowing them to record additional evidence, if so desired.

2.         Perusal of record reflects that Respondents Muhammad Ali and others filed a suit for declaration and permanent injunction with a prayer that the officials defendants/respondents may be directed to change foti-khata of the suit property in the names of the legal heirs of deceased Mato Khan in accordance with law. The Trial Court framed issues, recorded evidence and concluded that application filed by the plaintiff / respondent was pending adjudication before the revenue hierarchy, therefore, suit was hit by section 11 of the Sindh Revenue Jurisdiction Act 1876. Respondents/Plaintiffs filed appeal before the Court of Learned District Judge Kambar – Shahdadkot which was assigned to Appellate Court. The findings of the Trial Court were disturbed by the Appellate Court on the ground that issue of the suit property related to Government of Sindh on account of acquisition of the suit land, which requires proper appraisal after recording of the evidence.

3.         I have carefully perused the pleadings of the plaintiff in the suit, wherein he has claimed relief of mutation of entry in his favour as a right of inheritance, such a claim cannot be adjudicated by Civil Court as its jurisdiction is specifically barred under section 172 of Sindh Land Revenue Act, 1967. The exercise of mutation of entries in the record of right can only be undertaken by the Revenue authorities in terms of Section 41 and other enabling provisions of the Sindh Land Revenue Act, 1967. The mutation of inheritance is a fundamental right of a party, for which revenue authorities in no circumstance can avoid to exercise their powers, as the landed property stands devolved on the legal heirs upon the death of original owner. To that extent, the case of the plaintiff/ Respondent was rightly adjudicated by the trial Court, but Appellate Court did not comprehend this issue and required the additional evidence of the official respondents under a suo motu exercise, which no doubt can be undertaken by the Appellate Court by exercising powers conferred under rule 27 Order 41 CPC, but from the face of record this case did not warrant recording of additional evidence, because the powers to record the additional evidence can be exercised when a party was precluded to produce evidence by an act of the omission on the part of the trial Court.Since the relief sought by the plaintiff/respondent was only to the extent of mutation of record of rights on account of inheritance, therefore, the Revenue Court / Authority was competent to entertain and decide such matters.Trial Court in its judgment dated 05.08.2023 rightly observed that matter was sub judice before Revenue Authority in such circumstances the right course for the parties was to agitate their claims on said forum.

4.         Since the matter has been remanded back to the trial Court for decision afresh and no adverse findings have been given in respect of the title of the applicant in the present proceedings; however, the observations of the appellate Court that applicant/defendant No.7 by no means was affected by the suit proceedings, is not tenable. The impugned judgment to that extent is set aside. The Trial Court shall allow applicant ti participate in the proceedings. The applicant shall appear before the trial Court and may file an application under Order 7 Rule 11 C.P.C, which shall be decided by the trial Court after hearing all the parties,keeping in view the provisions of Section 172 read with Section 41 of Sindh Land Revenue, Act 1967. 

5.         Office has objected the filing of this revision application with a delay and the applicant has also filed an application under section 5 of the Limitation Act; since the order passed by the appellate Court from the face of it appears to be void and the matter has been remanded back to the trial Court for re-trial, therefore, delay in filing the Revision Application is condoned.

6.         This revision application is disposed of, the applicant may appear before the Learned Trial Court and agitate his grievance in accordance with law. The trial court shall decide the issue of jurisdiction first and if is satisfied that the suit can proceed before a Civil Court than shall adjudicate the claim of the parties on merits as orders by the Appellate Court.

            This revision Application stands disposed of in the above terms.

                        Judge

Manzoor