1980 PLP 261 (SCMR)

MUHAMMAD HALEEM, J.‑The petitioners seek special leave to appeal against the order of the High Court of Sind dated 3rd of October 1979, by which Miscellaneous Appeal No. 169 of 1979 was dismissed. Respondent No. 1 herein, was granted State land measuring 13.15 acres in March 1975, as he was a landless Hari by the Colonization Officer, Sukkur Barrage. The land is situate in Deh Tharid, Hajran Taluka Wara, District Larkana, and forms part of Survey No.

174. The petitioners preferred an appeal against this grant to the Additional Commissioner, Sukkur Division, who dismissed it by order dated 27th of November 1975. The petitioners next filed a revision before the Board of Revenue, Sind, and a learned Member, by an ex parte order dated 2nd of January 1978, set aside the order of the Additional Commissioner and granted the disputed land to the petitioners in equal shares. Thereafter, by notice dated 21st of June 1978, the Mukhtiarkar ordered respondent No. 1 to hand over the possession of the land failing which he would be dispossessed forcibly. Respondent No. 1, thereupon, filed a civil suit in the Court of the Senior Civil Judge, Larkana, on 26th of June 1978, in which he sought the relief of declaration and permanent injunction against his forcible dispossession. By order dated 11th of February 1979, he was granted temporary injunction; and in appeal this order was upheld by the District Judge. The petitioners next filed a revision in the High Court of Sind. The principal argument advanced was that the civil Court had no jurisdiction to entertain a suit in view of section 36 of the Colonization of ' Government Lands (Punjab) Act, 1912, as applicable to Sind. Reference was also made to section 172(i) of the Sind Land Revenue Act, 1967, to impress that the civil Court was not competent to question the order of the Member, Board of Revenue, Sind. But the High Court repelled the contention on the short ground that the order of the Member, Board of Revenue, Sind was obtained by fraud as the service of notice was effected on "some bogus person"; and that it was falsely represented to him that respondent No. 1 was a Zamindar owning about 50 acres of land although he was a landless Hari. In seeking leave to appeal the learned counsel for the petitioners raised the same contention as was urged before the High Court that the suit was barred. Till the filing of this petition, the petitioners had not filed the written statement and this plea was neither raised before the trial Court no before the first appellate Court. Both these Courts have, on merits, held that respondent No. 1 had prima facie established his case for the grant of temporary injunction as he was in possession of the land in dispute. This objection was for the first time raised in the High Court which was rejected on the premise afore stated. The learned counsel was not able to convince us that the suit was barred even if the order was colourable or in excess of the four corners of the law under which it was passed; and as for the maintenance of this objection evidence will have to be led. Therefore, it is appropriate that this plea should be raised before the trial Court as, in our opinion, the decision on it is tentative. While dismissing this petition we would observe that he is permitted to raise this specific plea before the trial Court and the suit should be decided on merits within a year. Petition dismissed.