IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

 

Civil Revision Application No. S- 06 of 2006.

 

Muhammad Hashim and another………………….………….Applicants.

 

VERSUS

 

Ghulam Mujtaba Shah and others…………………..………Respondents.

 

 

Date of hearing:        02.03.2015.

Date of Order:           02.03.2015.

 

 

M/s David Lawrence and Tahir Hussain Mangi for the applicants.

Mr. Abdul Naeem for the respondents No. 1 to 11.

 

 

                                                J U D G M E N T  

 

 

MUHAMMAD JUNAID GHAFFAR J:-   Through instant Civil Revision Application, the applicants have impugned the order dated 19.12.2005 passed by 2nd Additional District Judge, Sukkur, in Civil Appeal No. 75 of 2003, whereby, order dated 25.11.2003 passed by 2nd Senior Civil Judge, Sukkur, was set aside, through which application filed under Order 7 Rule 11 CPC on behalf of the applicants was allowed.

 

2.         Briefly, facts relevant for disposal of instant Revision Application are that respondents No.1 to 11 had filed F.C. Suit No. 34 of 2000 before the 2nd Senior Civil Judge, Sukkur in which the following relief(s) were sought:

“(a) It be declared that the suit land viz. S.Nos. 947 and 948 situated at Deh Kandhra is the ancestors Qabuli land of the plaintiffs and is liable to be mutated in their names in the Revenue Record maintained by the defendant No.3.

 

(b)      That the grant of suit land in favour of the defendant No.4&5, on lease during the year 1998 by the defendant No.2, vide  his order dated 4.9.1998 is liable to be cancelled as it is not na-qabuli land belonging to the Government.

 

(c)      That a permanent injunction may be issued in favour of the plaintiff sand against the official defendants thereby restraining them from disposing of the suit land on lease in any manner to anybody else, and further restraining them from interfere with possession of suit land permanently.

 

(d)      That any other equitable relief which deemed just ad proper under the circumstances of the case may also be awarded to the plaintiff.

 

(e)      Costs of the suit may be awarded to the plaintiffs”.

 

 

3.         The applicants had filed application under Order 7 Rule 11 CPC in the aforesaid Suit for rejection of plaint on the ground that respondents had no locus standi to file the Suit and to seek the aforesaid declaration from the Civil Court. The said application was allowed by the Senior Civil Judge, Sukkur, vide order dated 25.11.2003, against which the respondents had preferred Appeal bearing No. 75 of 2003 before the Additional District Judge, Sukkur, which has been allowed vide impugned order dated 19.12.2005, as aforesaid.

 

4.         Learned Counsel for the applicants has contended that as per averments in the plaint, respondents had stated that one Mr. Ghulam Shabir Shah had sought remedy before the Additional Commissioner, Sukkur Division, by filing an appeal against the order dated 04.09.1998, whereby the Suit land was allotted to the applicants, and such appeal was dismissed for Non prosecution vide order dated 6.1.2000, hence, respondents could not have sought the remedy before the Civil  Court, as alternate remedy as provided under law had already been availed by the predecessor in interest of the respondents. Learned Counsel further contended that the Suit filed by the respondents was also hit by section 42 of the Specific Relief Act, 1877, as the respondents had no title document in their favour in respect of the Suit property. Learned Counsel contended that even otherwise the Suit filed by the respondents was hit by the provisions of Section 11 of the Sindh Revenue Jurisdiction Act, 1876, as the respondents had failed to exhaust the remedy available to them under the law. Learned Counsel further contended that since a legal point was raised by the applicants, therefore, the Appellate Court was not justified in setting aside the order of rejection of plaint, hence, instant Revision Application may be allowed by setting aside the order passed by the Additional District Judge, Sukkur. Learned Counsel further contended, without prejudice, that even otherwise, order dated 4.9.1998 passed by the Colonization Officer, Sukkur Barrage at Hyderabad, had attained finality, inasmuch as the Suit was filed by the respondent No.4 in the year 2000, much beyond the period of limitation as provided under the Sindh Revenue Act, 1967 and was accordingly time barred. In support of his contention, learned Counsel for the applicants has relied upon the case of Kanwar Qutubuddin Khan v. Karachi Development Authority (2002 CLC 634), Iqbal Hussain v. Province of Punjab (2001 CLC 1019), Hawaldar Sarwar Khan v. Province of Sindh and others (1998 CLC 382), Muhammad Nazir v. Muhammad Yousuf (2012 MLD 439), Administrator, Thal Development v. Ali Muhammad (2012 SCMR 730).

 

5.         Conversely, learned Counsel for the respondents has contended that the respondents were and are in possession of  judgment and decree dated 27.10.1951 passed by the Court of Sub-Judge, Rohri in Suit No. 42 of 1948 in respect of the Suit property, whereas, order dated 4.9.1998 passed by the Colonization Officer as well as order dated 6.1.2000 passed by the Additional Commissioner, Sukkur, were without any jurisdiction and lawful authority, therefore, respondents are entitled to seek remedy from the Civil Courts in terms of section 53 of the Land  Revenue Act,1967. Per Learned Counsel the bar contained in section 11 of the Sindh Revenue Jurisdiction Act, 1876, is not applicable in the instant case, as the respondents are in possession of title documents as well as judgment and decree, as referred to hereinabove. Learned Counsel further contended that issues have been framed in the Suit by the trial Court, whereas, evidence is being recorded, therefore, instant Revision Application has become infructuous and the applicants may be directed to proceed before the trial Court by adducing evidence in the matter. In support of his contention, learned Counsel has relied upon the case of Hamid Hussain v. Government of West Pakistan (1974 SCMR 356), Mian Muhammad Latif v. Province of West Pakistan and others (PLD 1970 SC 180), Jewan and others v. Federation of Pakistan and others (1994 SCMR 826).

 

6.         I have heard both the learned Counsel, perused the record and the case law relied upon by the parties. Since a short legal controversy is involved in the instant matter, by consent of both the learned Counsel, instant Revision Application is being finally disposed of at katcha peshi stage.

 

7.         It appears from the record that the respondents had filed F.C. Suit No. 34 of 2000 against the applicants and had sought relief as referred to in para-2 hereinabove. The claim of the respondents is that they are lawful owners of agricultural land bearing Survey Nos. 947 and 948 of Deh Kandhra, Taluka Rohri, and are in possession of the same. It further appears that the Suit land was thereafter leased out by the Colonization Officer, Sukkur  Barrage, Hyderabad, vide order dated 4.9.1998 in favour of the applicants, against which the predecessor in interest of respondents No. 7 to 10 had filed Appeal before the Additional Commissioner, Sukkur Division. However, during pendency of the Appeal, predecessor in interest of respondents No. 7 to 10 expired and the Appeal was dismissed for Non prosecution vide order dated 6.1.2000. Thereafter, respondents filed the aforesaid Suit on or about 17.2.2000, in which the applicants had preferred an application under Order 7 Rule 11 CPC, which was allowed by the Senior Civil Judge, Sukkur, vide order dated 25.11.2003, against which an Appeal was preferred before the Additional District Judge,  Sukkur, who vide order dated 19.12.2005 has allowed the Appeal by setting aside the order passed by the Senior Civil Judge, Sukkur, and has remanded the matter to the trial Court with directions to proceed further, after recording evidence of the parties. It would be advantageous to refer to the relevant findings of the 2nd Additional District Judge, Sukkur, in its order dated 19.12.2005 which reads as under:

“I have carefully gone through the case law as referred by learned advocates for the parties. The case law as referred by Mr. Shaikh the learned Advocate for the respondent’s No. 4&5 mainly speak about the consideration of admitted documents as filed by the defendants along with their written statement by the Court while making any decision on the application U/O VII Rule 11 CPC. And some of the case law speaks rejection of plaint if on the plain reading of the suit it appears that the suit is barred by any law as it will be expedient to reject the plaint at its very inception to save the time of the Courts.

 

The learned Counsel for the appellants has referred two case law namely Mian Muhammad Latif Vs. Province of West Pakistan through the Deputy Commissioner, Khairpur and another PLD 1970 SC 180 and Hamid Hussain Vs. Government of West Pakistan and others 1974 SCMR 356.

 

In first case (PLD 1970 SC 180) it has been held as under:-

(a)  Sindh Revenue Jurisdiction Act, 1976 , S.11---Order passed by Revenue Officer, a nullity in eye of law---Jurisdiction of  Civil Courts to examine such cases not barred---Civil Procedure  Code (V of 1908), S.9.

There is no doubt that under Section 11 of the Sindh Revenue Jurisdiction Act, 1876, ordinarily a party in revenue matters should exhaust all his remedies by way of appeal before invoking the aid of the civil court. But there are different considerations where the allegation of a party is that the impugned order is a nullity in the eye of law. The Civil Courts have jurisdiction to examine into cases whereas statutory provisions have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure”.

 

          In the second case (1974 SCMR 356) it has been held as under:

(b)  Jurisdiction.

Jurisdiction of Civil  Courts even if barred and conferred upon special tribunals, Civil Courts being Courts of ultimate jurisdiction having jurisdiction to examine acts of such forums to see if such are in accordance with law, or illegal or even malafide (P-359) B”.

 

The appellants vide Para No.8 of the plaint have averred that the suit land is Qabuli land belonging to their ancestors who remained in possession and enjoyment of the same since the creation of Pakistan and it has been illegally treated as Na-Qabuli by the Revenue Authorities. Their ancestors have also obtained a decree from the Civil Court Rohri passed in the year 1951 which has attained finality and treating the Qabuli and to Na-Qabuli by the Revenue authorities behind the back of their ancestors is nullity and illegal. In such case the Civil Courts have jurisdiction to entertain the suit and decide the same on merits affording full opportunities to the parties to lead evidence. The impugned order reveals that the learned lower court has not considered the effect of considering the principle as laid down in the above two authorities of the Honorable Supreme Court. I am  of the considered view that in such case where there is allegation of conversion of Qabuli land into Na-Qabuli by the Revenue authorities the  Civil Courts are competent to determine any illegality in the conversion. Even on the basis of facts as disclosed in the plaint the appellants have prayed for declaration that the suit survey numbers 497 and 498 situated in Deh Kandhra is the ancestors Qabuli land.

 

The result of my discussion is that this appeal is allowed and the impugned order is hereby set-aside and the case is remanded back to the learned lower Court with directions to proceed further with the case and after recording evidence of the parties decide the same on merits. The parties are directed to appear before the lower Court on 7.1.2006. The R&Ps of F.C. Suit No. 34/2000 should be sent back to the learned trial court expeditiously. In the circumstances of the case no order is made as to costs”.

 

 

8.         From perusal of the aforesaid order and the record placed before this Court, it appears that the application under Order 7 Rule 11 CPC was allowed by the Senior Civil Judge, Sukkur, without taking into consideration the fact that the claim of the respondents was that the property in dispute was a Qabuli land, which could not have been abruptly declared to be a Na-Qabuli land by the Revenue Authorities. The order dated 4.9.1998 appears to have been passed in haste by the Colonization Officer, Sukkur Barrage, and without affording any opportunity of hearing to the respondents. It is further observed that the Learned trial Court also failed to take into notice that the judgment and decree dated 27.10.1951 passed by the Civil Court, Rohri, in Suit No 42 of 1948 in respect of the Suit property was already available on record and the dispute with regard to ownership of the said property could only have been adjudicated upon after recording of evidence in respect of the said land by both the claimants. Further the Suit filed by the respondents is not merely against the Revenue Authorities, as the land in question was not resumed in favor of the Government by order dated 04.09.1998 passed by the Colonization Officer, Sukkur Barrage, but was allotted to the applicants who now claim ownership of the said property on the basis of the said order as against the respondents. Therefore, on this fact of the matter, the plaint could not have been rejected by the Trial Court on the premise that the same was hit by the provisions of Section 11 of the Sindh Jurisdiction Act, 1876. The learned trial Court appears to have fallen in error by rejecting the plaint in haste and in a slipshod manner without taking into account the averments made by the respondents in the plaint. The trial Court while hearing the application under Order 7 Rule 11 CPC was not required to deeply appreciate the material available/placed on record by the applicants through written statement and only the averments made by the respondents were required to be examined for deciding such application. Reliance in this regard may be placed on the case of Mst. Bano alias GUL BANO and others Vs Begum DILSHAD ALAM and 4 others (2011 CLC 88). 

 

9.         Insofar as the objection raised by the learned Counsel for the applicants, with regard to availing remedy before Revenue Authorities and bar of approaching a Civil Court in terms of Section 11 of the Sindh Revenue Jurisdiction Act, 1876, is concerned, I am of the view that though this is a settled proposition of law, however, if an order has been passed by any Revenue Authority without jurisdiction or considering the material available on record and without the following the norms of judicial proprietary, Civil Court can and has the jurisdiction to examine such orders. It would be relevant to refer to the provisions of Section 11 of the Sindh Revenue Jurisdiction Act, 1876, which reads as under:

No Civil Court shall entertain any suit [against the Government] on account of any act or omission of any Revenue officer unless the plaintiff first proves that, previously to bringing his suit, he has presented all such appeals allowed by law for the time being in force as, within the period of limitation allowed for bringing such suit, it was possible to present.

 

 

10.      From perusal of the above, it appears that the provision of Section 11 of the Sindh Revenue Jurisdiction Act, 1876, is an exception and merely provides that no Suit shall be entertained unless the remedies as provided under the law are exhausted, and under no circumstances the jurisdiction conferred on a Civil Court is completely ousted, as an order without jurisdiction or authority can always be examined and annulled by the Civil Court. Further various provisions of Sindh Revenue Jurisdiction Act, 1876, have been repealed through promulgation of Land Revenue Act, 1967, vide section 184 of the Sindh Revenue Jurisdiction Act, 1876, read with part two of the Schedule, thereto, including Sections 4, 5 and 6 of the Act of 1876. When these provisions are read in juxtaposition, it appears that after promulgation of the Land Revenue Act, 1967, the provision of section 11 of the Sindh Revenue Jurisdiction Act, 1876 is no more stricto senso applicable, so as to Non-Suit a party on the basis of an order which has been passed Ex-Parte and Appeal against which has been dismissed in Non Prosecution. The provisions of Sections 4, 5, & 6 of the Sindh Revenue Jurisdiction Act, 1876, stands repealed which in fact provided a rather strict bar on the exercise of jurisdiction by the Civil Courts in respect of Revenue matters, which is now being governed under the Land Revenue Act, 1967. A party in such proceedings cannot be Non-suited by an order which has been passed without following the due process of law. In the instant matter order dated 4.9.1998 was passed by the Colonization Officer, Sukkur Barrage, Hyderabad, behind the back of respondents, and without affording them any opportunity of hearing, whereby land in possession and claimed to have been inherited from their ancestors was abruptly cancelled in favour of the applicants. Similarly, the Appeal filed by the predecessor of interests of respondents was also dismissed by the Additional Commissioner, Sukkur Division, vide order dated 6.1.2000, in default and Non prosecution without adjudicating the merits of the case. In my opinion, such conduct of the Revenue Authorities, whereby adverse orders have been passed against the respondents Ex-parte, can be examined and assailed before the Civil Court in terms of Section 53 of the Land Revenue Act, 1967. Further, as observed earlier, the land in question was not resumed in favor of the Government vide order dated 04.09.1998 by the Colonization Officer, Sukkur Barrage, rather it was granted to the applicants, on the ground that the predecessor in interest of respondents No 7 to 10 was a resident of Mohalla Shanullah, Rohri Town, whereas the land in question was situated in Deh Kandhra Taluka Rohri. Hence, I am not impressed with the contention of the learned Counsel for the applicant that in view of the bar contained in Section 11 of the Sindh Revenue Jurisdiction Act, 1876; no Civil Court can take cognizance in such matters until and unless all remedies as provided under the law are exhausted. To me, instant case appears to be an exception. Therefore, in view of hereinabove discussion I am of the view that the objection with regard to ouster of jurisdiction of Civil Court in terms of section 11 of the Sindh Revenue Jurisdiction Act, 1876, is misconceived in facts and law and is hereby repelled. Reliance in this regard may be placed on the case of Muhammad Latif (supra) wherein the Hon’ble Supreme Court while examining the provision of Section 11 of the Sindh Revenue Jurisdiction Act, 1876, has observed as follows:-

“There is no doubt that under it ordinarily a party in revenue matters should exhaust all his remedies by way of appeal before invoking the aid of the civil Court. But there are different considerations where the allegation of a party is that the impugned order is a nullity in the eye of law. There is ample authority that in such cases the Jurisdiction of the civil court is not barred. This aspect of the question was considered by the Privy Council in the case of Secretary of State v. Mask & Co. (1). It was held in that case-

 

“It is also well settled that even if jurisdiction is so excluded, the civil Court have jurisdiction to examine into cases where provisions of the Act have not been complied with or the statutory tribunals has not acted in conformity with the fundamental principles of judicial procedure.”

 

In our opinion this well established principle also applies to the facts of the present case. The allegation of the appellant is that the impugned certificate for various reasons mentioned above is a nullity in the eye of law and has not been passed in accordance with the provisions of the relevant law. On the above principle, the civil Court have jurisdiction to examine these questions. We would, therefore, hold that the learned Courts below, in these circumstances, were not justified in holding that the appellant’s suit was not competent”

 

11.        Insofar as the case law relied upon by the learned Counsel for the applicants is concerned, with respect, I may observe that barring one, all are either of Single Judges or pertain to other Court(s), hence having a persuasive and not a binding effect. Insofar as the judgment of the Hon’ble Supreme Court in the case of Administrator, Thal Development (Supra) is concerned, the facts of that case were on a different footing. In that case the land was allotted to the respondents (Plaintiff in Suit) on fulfillment of certain conditions, whereas the same was cancelled on failure of the respondents in fulfilling such conditions. The respondents against such cancellation had filed a Suit before a Civil Court which was dismissed after recording evidence in the matter against which an appeal was also dismissed by the District Judge, Bhakkar. However, in revision, the learned Lahore High Court, had set aside the concurrent findings of facts recorded by the two Courts below against which the Government had preferred an appeal before the Hon’ble Supreme Court which was allowed by the Hon’ble Supreme Court on merits and it was also held that the Suit was not maintainable in view of the bar of jurisdiction in terms of section 36 of the Colonization of Government Lands (Punjab) Act, 1912. It would be pertinent to observe that in that case the respondents had filed the Suit against order of resumption of land, whereby the land was resumed for non-fulfillment of certain conditions of allotment, which is not the case in hand. Secondly, the Suit of the respondents was decided on merits after recording of evidence, and the plaint was not rejected in terms of Order 7 Rule 11 CPC. Thirdly, the Hon’ble Supreme Court had in fact decided the appeal on merits of the case after summoning the entire record of the case which reflected that the respondents had concealed material facts from the Courts below as well as before the Hon’ble Supreme Court and while deciding the appeal on merits, the Hon’ble Supreme Court also took notice of the jurisdiction issue as in that case the respondents before the Hon’ble Supreme Court had challenged the order of resumption of land in favor of the Government without exhausting the alternate remedy as provided under the law. Therefore I am of the humble opinion, that the facts and circumstances of the instant matter are altogether different from the case of Administrator, Thal Development (Supra) therefore not applicable to the facts of the instant case in which the respondents have sought declaration in respect of the land in question and have not merely challenged the order of Colonization Officer, Sukkur Barrage as the land of respondents was not resumed, but was allotted to the applicants from which the primary grievance of the respondents arises.

 

12.     Having considered and perused the material on record I am of the view that the impugned order dated 19.12.2005 is correct in law and does not suffer from any illegality and perversity which could be agitated before this Court in its revisional jurisdiction, as the same has been passed after considering the entire material on record and has merely allowed both the parties to lead their evidence in respect of the Suit property which would ultimately decide the question of ownership of the land in dispute. Needless to mention that the observations made hereinabove are tentative in nature and shall not have any effect on the trial of the Suit which shall be conducted strictly in accordance with law and on the basis of the evidence led by the parties, whereas the applicants are not precluded from raising all such legal objections as may be advised, at the time of leading evidence and or final arguments in the Suit.

 

13.    Accordingly, in view of hereinabove facts and circumstances of the instant case, I had dismissed instant Civil Revision Application by means of short order dated 02.03.2015 and the above are the reasons for the short order.

 

 

                                                                                           JUDGE