2010 PLP 120 (CLC)

GULZAR AHMED, J.

By this Revision Application applicant has assailed the order dated 13-3-2009 passed by the learned IVth Senior Civil Judge, Hyderabad, by which the Applicants' application under Order VII, rule 11, C.P.C. for rejection of plaint was dismissed.?????????? Learned counsel for the applicant has contended that in terms of section 172 of the Land Revenue Act, 1967 the suit was barred and the learned trial Court has altogether omitted to consider such aspect of the matter. An objection was raised by the Counsel for the private respondents that the Revision Application ought to have been filed in the District Court and not directly in the High Court against the impugned order. Learned counsel for the applicant in reply submitted that section 115, C.P.C. confers concurrent jurisdiction upon the High Court as well as the District Court to entertain Revision Application and that it is a matter of choice of an aggrieved party. In support of his submission he has relied upon the cases reported in 1993 SCMR 618, PLD 1991 Lah, 314, 1988 CLC 1812 and PLD 1995 Lah. 15.?????? Learned counsel for private respondents apart from raising the preliminary objection as noted above has further contended that there are disputed facts regarding claim of ownership of the land and such facts cannot be decided without recording of evidence. In support of his submissions he has relied upon the cases reported in PLD 1980 Revenue 27, 1984 SCMR 228 and 1991 MLD

345. On the point of maintainability of Revision, he has relied upon the case reported in 2001 CLC 200 and contended that in exceptional cases the Revision Application may directly be filed in the High Court and not ordinarily. Learned Additional Advocate-General Sindh has supported the impugned order contended that the Civil Court has jurisdiction in the matter and the dispute raised in the plaint requires recording of evidence. It appears that the private respondents have filed a First Class Suit No.50 of 2008 (New F.C.S. No.293 of 2008) in the Court of Vth Senior Civil Judge, Hyderabad, for Declaration, Mandatory and Permanent Injunction challenging the order dated 15-3-2008 passed by the Executive District Officer (Revenue)/Land Commissioner Matiari, whereby he has cancelled Entries Nos.170 and 171 dated 8-11-1966 existing in the name of Umar son of Wali Muhammad and Muhammad son of Wali Muhammad. The private respondents claim themselves to be predecessor of Umar and Muhammad and they have pleaded that they are the owners and in cultivating possession of the 1cnd in question. It appears that in respect of the property in question earlier Suit No.812/1959 was filed by Umar son of Wali Muhammad against Muhammad Ali Shah and another in the Court of Sub-Civil Judge, Hyderabad for Declaration and Injunction and such suit through ex parte judgment dated 30-1-1960 was decreed. The effect of such ex parte judgment appears to be that the plaintiff in the said suit was declared as owner of the land in question. Subsequently, on 5-12-1966 an order was passed by the Assistant Rehabilitation Mukhtiarkar and A.S.C. (Land) Hyderabad District Hyderabad, by which it was noted that the original copy of decree passed in Civil Suit No.812/1959 has not been produced and even if such be taken to be correct, the land in question will remain on the Khata of an Evacuee. He therefore maintained that the existing allotment in favour of the predecessor of the applicant cannot be cancelled. It further appears that another order dated 9-7-1966 was passed by the Assistant Rehabilitation Mukhtiarkar and A.S.C. (Land) Hyderabad District Hyderabad, whereby one Muhammad Ali was informed that the allotment of suit-land has already been cancelled from the name of Syed Mushtaque Hussain, the predecessor of the applicant pursuant to Additional Custodian (Judicial) of Evacuee property Karachi's Order dated 2-6-1961 passed in Appeal No.23 of 1961. Further as noted above, through suo motu order dated 15-4-2008 the entries have been cancelled from the name of Umar by the Executive District Officer Revenue Matiari. Private respondents claim to be in possession of the suit property which act is not disputed by the applicant with an addition that such possession of the private respondents is on the basis of a Lease given by the predecessor of the applicant to the predecessor of the private respondents. There being disputed facts regarding the title suit property, apparently, the same will require recording of evidence in the suit. So far the question of jurisdiction is concerned, section 53 of the Land Revenue Act, 1967 is as follow:--

53. Suit for declaratory decrees by persons aggrieved by an entry in a record.- If any person considers himself aggrieved by an entry in a record-of-rights [or in a periodical record] as to any right of which he is in possession, he may institute a suit for a declaration of his right under Chapter VI of the Specific Relief Act, 1877 (Act 1 of 1877). The reading of the above provision shows that a person who is aggrieved by a entry in the record of rights and claims right of which he is in possession can institute a suit for declaration of his right under I Chapter VI of the Specific Relief Act, 1877. The Private respondents who are plaintiffs in the suit have claimed right and possession of the suit property and are aggrieved of cancellation of entry from record of rights and therefore, in my view, the provision of section 53 as noted above will squarely be attracted to the facts and circumstances of the case and the suit will not be barred under section 172 of the Land Revenue Act, which also makes exception to the provision of section

53. As regards the maintainability of the Revision Application, as the counsel for the private respondents has himself conceded that the Revision Application can be filed directly in the High Court against an order in exceptional cases, this in itself amounts to negating the objection raised by the counsel for private respondents. In any case, I have gone through the provisions of section 115 of C.P.C. and find that it gives concurrent jurisdiction to the High Court as well as the District Court to entertain Revision Applications against the order passed by the Courts subordinate to it. Subsection (2) of section 115, C.P.C. is the provision by which such concurrent jurisdiction is conferred upon the District Court, but such conferment of concurrent jurisdiction is limited where the amount or value of subject matter does not exceed the limits of its appellate jurisdiction. This being limitation ,s placed upon the District Court for entertaining the Revision Application, it has no application to the High Court nor such provision takes away the jurisdiction of the High Court from entertaining the Revision Application against the order passed by a Court subordinate to it. For these reasons I find this revision Application to be maintainable. However, as on merits, I have already stated above that the suit filed by the Private Respondents is not barred by law, consequently I find no merit in this Revision Application which, after hearing the learned counsel for the parties, by a short order passed today was dismissed. Above are the reasons for the said short order. H.B.T./S-114/K?????????????????????????????????????????????????????????????????????????????????? Petition dismissed.