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