Civil Revision No.100 of 2004.






Applicant:                 Bahadur through legal heirs and others through Messrs Kalandar Bux Bux M. Phulpoto and Abdul Latif Leghari advocates.



Respondents:               Government of Sindh through District Coordination Officer, Khairpur and others through Mr.Abdul Naeem advocate,

                          Mr.Agha Ather Husssain AAG.



Date of Hearing  19th November, 2012.




                J U D G M E N T.




SALAHUDDIN PANHWAR,J- Through this civil revision application,  applicant/plaintiff Bahadur through his legal heirs, has challenged legality of the Judgment and decree dated 21st June, 2004 and 28th June, 1994 respectively passed by the learned IInd Additional District Judge, Khairpur in Civil Appeal No.10 of 1998, whereby maintaining the Judgment and decree  passed by the learned Senior Civil Judge, Mirwah in F.C Suit No. 38 of 1992.


     2. Briefly, the facts, leading to this revision, are that the applicant filed the instant Suit for Declaration and Permanent Injunction, stating therein that the Bahadur (applicant) was granted agricultural land admeasuring 12-00 acres out of the U.A.No.680 situated in Deh Jalbani Taluka Mirwah District Khairpur. The disputed land, at the time of the grant to the applicant, was barren and uncultivable. The applicant spent huge amount and made hard labour and made the land in shape for cultivation. The disputed land is in cultivable possession of the applicant. The land in question was surveyed. The S.No.1586/2- 34, 1587/1-16, 1588/2-07, 1589/2-03, 1590/2-09 and 1591/3-15, were carved out of the land. The applicant was dragged in the litigation by the respondents. All the cases were decided in favour of the applicant, holding the grant of the applicant lawful and justified. The respondent Nos.5 to 14 filed the revision before the respondent No.4, same was allowed  vide order dated 4.7.1991 and the area under occupation of the respondent Nos.5 to 14 mosque and graveyard was excluded from the land granted to the applicant. The petitioner claimed that order dated 4.7.1991, passed by the respondent No.4 is illegal, malafide, ultra vires and bad in law and claimed that the respondent No.4 ignored the point of limitation. The respondent No.4 also ignored moot-points which have direct bearing upon the merits of the present case.


     3.  Record further reveals that respondent Nos.5 to 14 filed their written statement, wherein, they denied the pleading of plaintiff, while claiming that the respondent Nos.5 to 14 are in occupation of the disputed land; the respondent Nos.5 to 14 have constructed the houses over the disputed land, the graveyard, mosque and other amenities are also available.  The occupation of the respondent Nos.5 to 14 over the said  land is regularized under the Goth Abad Scheme and necessary Sanads have been issued in favor of the respondent Nos.5 to 14. The disputed land was illegally granted to the applicant. the respondent No.4 vide order dated 4.7.1991 appreciated the case of the respondent Nos.5 to 14 and the land under the occupation of the respondent Nos.5 to 14 was rightly excluded from the land in question granted to the applicant.  The respondent Nos.5 to 14 also raised the legal objections to the filing of the suit, that the suit is not maintainable in law, the suit is barred under the law and the Court lacks the jurisdiction to entertain the suit.


     4.  On divergent pleas of the parties, the trial Court framed the following issues:-


1.Whether  there is any village  in existence in suit land under sanctioned by competent authority?


2.Whether the order of defendant No.4 is illegal in case of power and not binding upon the plaintiff?


3.What should the decree be?



     5.  Learned counsel for the applicant/plaintiff has inter alia argued that Judgments of both the Courts below are against the pleadings; applicant/plaintiff being aggrieved with the order of the Member Board of Revenue, challenged the same in civil jurisdiction but the trial Court cancelled the whole grant of the plaintiff while dismissing the suit, issued directions to the revenue authorities for re-auction of the suit land; Civil Court was having no jurisdiction to grant such relief to the defendants, even such claim was not pleaded by the defendants in their statements; plaintiff has been deprived of from his legal right; plaintiff was granted land in the year 1986 on full rate condition; all the proceedings were completed, malkana was paid thus the plaintiff became owner of the suit land in the same year but in 1987 under Goth Abad Scheme, some portion of the land was allotted to the villagers without appreciating that Goth Abad Sanads can  be issued from the land, which is owned by the Government and the Qabooli land cannot be granted to other persons.  Trial judge has inspected the suit property therefore he became a witness of the suit property thus on this count the Trial Judge was not competent to pass Judgment in question. He has relied upon the case law reported as Abdul Faheem and 5 others v Pir Muhammad (2001 C L C 795), Malhar v Government of Sindh and others (2005 C L C 285), Muhammad Asghar  v Member Board of Revenue and others (2009 M L D 1023), Altaf Hussain alias Mushtaq Ahmed v Muhammad Din and others (2010 C L C 1646), Muhammad Nawaz Khan v Muhammad Jaffar Khan and others (2010 S C M R 984), Muddasar Qayyum Nahra v Ch. Bilal Ijaz and others (2011 S C M R 80), M. Masood Khan and 39 others v Province of Sindh through Member Land Utilization Department, Karachi and another (2007 C L C 1783) and Nathey Khan v Mehr Din and another (1994 M L D 984).


     6.  Conversely, learned counsel for the respondents have argued that the revisional Court has got limited jurisdiction and this Court cannot enter into the factual aspect of the case; factum of Goth Abad Scheme was not challenged by the plaintiff; suit was time barred as according to prayer the Order passed by the Member Board of Revenue for such limitation is one year, but the instant suit is not filed within time; Sanads issued to the villagers are proper and the same land legally was not to be allotted as the same was surrounding the village. He has relied upon the case law reported as  Ali Muhammad and 6 others v Secretary, Board of Revenue, Sindh, Hyderabad and 9 others (PLD 1977 Karachi 747), Haji Abdul Mateen Akhundzada and another v District Coordination Officer/Deputy Commissioner, Quetta and 5 others (PLD 2012 Balochistan 154), Waryam v Shabal and another (1988 M L D 1980(2)), Sardar Muhammad through Legal Heirs v Sardar Muhammad and 3 others (2000 YLR 433), Shah Muhammad v Mst.Maqsooda Begum and 3 others (1988 CLC 412), Khawaja Muhammad Naeemand others v Tasleem Jan and others (1980 CLC 1483),  Muhammad Mian v Syed Shamimullah and 2 others (PLD 1993 Karachi 146), and Farmanullah and others v Qalander and 5 others (1999 YLR 1610).


     7.  Heard the arguments of the learned counsel for the parties and perused the record.


     8.  Before diving into the merits of the case it will be proper to see the jurisdiction of this Court whether this court under revisional jurisdiction can appreciate the factual aspect of the case or such exercise will be beyond the limits of this Court. In this regards it is also a settled proposition of law that revisional sections empower the High Court to satisfy itself upon three legal aspects (i) that the order of the subordinate Court is within its jurisdiction, (ii) that the case is one in which the Court ought to exercise the jurisdiction and (iii) that in exercising jurisdiction, the Courts have not acted legally that is in breach of some provision of law, or with material irregularity, that is by committing some error of procedure in the course of the trial, which is material in that which may have affected the ultimate decision and without satisfaction of the basic principles this Court has no powers to interference because it defers, however, profoundly, from the conclusion of the subordinate Court upon a question of fact or law. Reference can be made to the case of Ahmed Nawaz Khan (supra).


     9.  What comes out, as root of the litigation is that per petitioner there was an allotment in his favour which was challenged in appeal by respondent Nos.5 to 14 but their appeal was dismissed who, then, resorted revisional jurisdiction of the Member Board of Revenue, wherefrom, it was ordered that the portion of the allotted land which comes within the area of village, mosque, graveyard and Alam should be excluded. The respondent Nos.5 to 14 did not challenge such order and supported the same in their written statement meaning thereby that they were satisfied; however, the same order was challenged by applicant/allottee in civil suit. This background makes it clear that order of the Member Board of Revenue was challenged before the Civil court to extent of exclusion of land falling within area of village, mosque, graveyard and Alam.  However, the trial court, while responding to the Issue No.3, issued direction for re-auction of the land.


     The position, being so, give rise to a proposition that:

Whether the civil court(s) have suo-moto jurisdiction and in exercise of such jurisdiction can grant the relief beyond the pleadings?


Having examined the relevant law, it is manifest that under the Code of Civil Procedure, 1908, no where vests suo-moto jurisdiction of the Civil Court because by provision of Section 9 of the Code the Civil Court(s) has been vested with jurisdiction to ‘try’ all suits which are filed/brought before the Civil Court hence the first part of the above provision can safely be answered as in negation i.e The Civil Court has no suo-moto jurisdiction. Now reverting to other part of the proposition, I can safely endorse here that Civil Court(s) have to exercise its jurisdiction according to law and within the pleadings of the parties because the Civil Court(s) can determine the rights of the parties only by framing the issue(s) which come on surface, out of the pleadings of the parties alone. I am also quite conscious that Civil Court(s) can grant adequate relief, even if not sought yet such relief should be within the pleadings and controversies, involved in the matter. Thus the outcome of second part of the proposition is also in negation. But it is quite shocking and surprising that trial Court as well as appellate Court while responding to the issue No.3, ordered for re-auction of the whole land though this was neither the issue before the court(s) below nor such counter claim was agitated by respondents; hence it is evident that both the court(s) seriously departed from very settled principle of law while exercising their jurisdiction. 


11.  Regarding to the objection of the learned counsel for the applicants to the effect that since the trial court inspected suit property hence it ought to have not recorded the judgment/order in the matter. The relevant provision of Order XVIII of the Code itself negates such presumption because had there been any such intention of the legislature they would surely have brought such changes in the Code more particularly when the inspection note does not supersede the evidence on record. Moreover, site was inspected by consent of both parties and none has filed any objection on site inspection conducted by trial Judge. Accordingly, I do not find any substance in such objection.


12.  As regard to the revisional jurisdiction of the Member Board of Revenue, it would be suffice to say that in revisional jurisdiction the authority is always competent to see the patent illegality and jurisdiction defect and since the Village, Mosque, Alam and graveyard are/were never available for allotment, therefore, the Member Board of Revenue, in exercise of their revisional jurisdiction, cannot be said to have committed any illegality while maintaining the allotment in favour of the petitioner being prior in time but excluding portion having such amenities only because the law always vests jurisdiction to correct any jurisdictional illegality else the object of creation of such jurisdiction would loose its purpose and an illegality will go protected by the law. The law is nothing but to endorse legality and to correct an illegality by declaring it so. Thus I am of clear view that order of the Member Board of Revenue was legal and valid one.


13.  Though Civil Court and appellate Court have exceeded their jurisdiction while dismissing the suit with an order to re-auction the whole land, which is unwarranted under the law therefore such part of the Judgments of the both the Courts below cannot be endorsed hence will not sustain under the law. Since from careful examination of the whole evidence on record I have not found any defect, error, or infirmity   passed by the Member Board of Revenue as the same is within jurisdiction; Member Board of Revenue has extra ordinary powers to check the factual and legal position and one cannot dispute that the village, mosque, Alam or graveyard cannot be allotted to any person thus this allotment to the extent of village, mosque and graveyard will not be  counted legal, therefore, the order of the Member Board of Revenue is legal and correct and both the Courts on this count have properly exercised their jurisdiction and dismissed the suit. Therefore this revision is dismissed but with modification that instructions/directions for re-auction of the suit land shall stand excluded in the Judgment(s) of lower courts below. The parties are left to bear their own costs.