2001 PLP 891 (YLR)

MUHAMMAD MOOSA K. LEGHARI, J.

Through this petition the petitioners have prayed for the following relief: (a) That the action of respondents Nos. 1 to 3 in bifurcating the original Deh Bindi Taluka Larkana and annexing its major part with Taluka Ratodero, District Larkana is illegal, without lawful authority and of no legal effect. (b) That the grant of the land in petition owned by petitioners by way of Darya Khurdi rights to the respondents Nos.4, 5 and others at large by respondents Nos. l and 2 is without lawful authority and of no legal effect and the petitioners continue to be legal and exclusive owners thereof. (c) To restrain the respondents permanently from interfering with the rights of ownership and possession of petitioners over the land in petition, situated in original Deh Bindi, Taluka and District Larkana as shown in Annexure ' A' to the petition. (d) Costs of the petition. (e) Any other appropriate relief as this Hon'ble Court may deem tit in the circumstances of the case. The facts as narrated in the petition are that the petitioners are Zamindar and owned Kabuli land in Deh Bindi Taluka and District Larkana since their forefathers but due to the auction of the Indus River their lands were .eroded and the said land emerge every year when the flood water of the Indus recedes. In view of the above position the said lands of the petitioners and various other persons have come to be known as 'Katcha' land and the petitioners and others have ownership rights over the said lands, which are called 'Daryakhurdi' or DX Rights. These rights of the petitioners are being recognized and acknowledged by all, including the respondents. These rights are also shown in Deh Form' No.VII-A. The mutation entries in the name of the petitioners Nos.2, 4, 5, 7, 9, 10, 11, 12, 13, 15, 16, 17, 18, 19, 20 still exist in Deh Form No.VII-A while in the case of rest of the petitioners the mutation entries exist in the names of their propitious as 'Foti' Khata Badal has not been recorded. The land in petition is Katcha land which is unsurveyed land and originally it was identified by 'Khet' or 'Tukkar' numbers. The forefathers of the petitioners and after their death the petitioners and others have all along been in possession of the land. Houses of the petitioners are also situated in the said land. The petitioners came to know that the original Deh Oindi, Taluka Larkana had been bifurcated and its major parts of about 2490 acres was included in Taluka Ratodero by giving it new name 're-Bindi' while a minor part thereof about 550 acres was left in its original name as Deh 'Bindi'. The respondents have not given any notice of the alleged bifurcation nor any opportunity of hearing or defending their rights. The petitioners approached respondents for getting the copies of orders relating to bifurcation of Deh Bindi, Taluka Larkana but the respondents are not ready to give any true copy of the abovesaid orders. Hence this petition. In response to the notice respondent No. l filed comments stating therein that the rights of some of the petitioners were recognized erroneously in V.F-VII of 1985-86 of Deh Bindi, Taluka Larkana on Darya Khurdi and possession basis. However, it was asserted that the said recognition of the petitioner was based on wrong presumption of area 3000 acres in Deh Bindi, Taluka Larkana. It was, however, pointed out that the said land is Katcha land. It was specifically controverted that Deh Bindi, has been bifurcated. It was affirmed that no portion of Deh Bindi, Taluka Larkana has been included in Taluka Ratodero adjacent to Deh Bindi was given the name of Katacho Bindi, Taluka Ratodero. The geographical area of Taluka Larkana was intact. It was further stated that since Deh Bindi has not been bifurcated hence there was no need to issue notice to the petitioners. The petitioners subsequently filed affidavit in rejoinder thereby denying the' statement filed by respondents to be factually encouraged. The main relief sought by the petitioners in this petition is to declare the action of respondents in bifurcating the original Deh Bindi, Taluka Larkana and annexing its major part to Taluka Ratodero, District Larkana is illegal. This fact has specifically been controverted by the respondents in their statement/parawise comments. It has clearly been denied that any such bifurcation has taken place. From the perusal of above facts it is absolutely clear that the controversy raised by the petitioners was purely a factual one which could not be decided in the writ jurisdiction. Reference can be made to following authorities: (1) 1993 SCMR 618. (2) PLD 1980 SC 139. (3) 1980 SCMR 933. (4) 1981 SCMR 291 (5) 1989 SCMR 918. (6) PLD 1991 SC 476. (7) 1971 SCMR 110. (8) 1970 SCMR 853. (9) PLD 1964 SC 636. (10) PLD 1983 SC 280. (11) PLD 1983 SC

280. Honourable Supreme Court in the case of Messrs Arshad & Company v. Capital Development Authority, Islamabad reported in 2000 SCMR 1557 was pleased to observe as under:

"It is well-settled by now that the superior Courts should not involve themselves into investigation of disputed question of fact, which necessitate taking of evidence. This can more appropriately be done in the ordinary civil procedure for litigation by a suit. The Constitutional-jurisdiction is intended primarily for providing an expeditious remedy in a case where the illegality of the impugned action of an executive or other authority can be established without any elaborate inquiry into complicated or disputed fact." Almost similar view was expressed by the Honourable apex Court in the case Shah Wali and others v. Ferozuddin and others reported in 2000 SCMR 718 and Revenue Employees Cooperative Housing Society Limited and 8 others 2001 SCMR

155. In view of the above-cited case-law we are of the considered view that indulgence of this Court in Constitutional jurisdiction was not warranted, since the matter involved resolution of factual controversy. The petition is, therefore, dismissed in limine alongwith listed applications. These are the reasons for our short order passed on 10-5-2001. Q.M.H./M.A.K./M-207/K Petition dismissed.