1991CLC229 (PLP)

(ii) Restrain the defendants from interfering with the plaintiffs possession of the suit land, through their agents and subordinates directly or indirectly in any manner, by issuance of perpetual injunction.

3. The respondents Nos.l to 3 contested this suit by controverting the allegations based on facts. According to them the suit land was an evacuee property and was transferred to one Farooque Ahmed, a claimant, from whom the respondents Nos.2 and 3 had purchased it through a registered sale‑deed. In short it is the case of contesting respondents that the suit land was not available for grant and the grant in favour of Abdul Khalique alias Khalique Dino, predecessor‑in‑interest of the applicants, if any, was void ab initio. Some legal pleas were also raised on their behalf.

4. The parties went to trial on the following issues:‑ (1) Whether the impugned order passed by defendant No.5 is illegal and without jurisdiction? (2) Whether plaintiff is estopped from claiming ownership of the suit land? (3) Whether the suit is not in proper form, and not maintainable? (4) Whether the suit is undervalued? (5) What should the decree be?

5. Abdul Khalique alias Khalique Dino examined himself (P.W.1), while the contesting respondents examined one of them, namely, Noor Muhammad (D.W‑2).

6. On the assessment of evidence available on record, both oral as well as documentary, the learned IIlrd Senior Civil Judge, Larkana, decreed the suit vide judgment dated 27‑11‑1983. The respondents Nos.l to 3 challenged this judgment and decree in Civil Appeal No.2 of 1984 before District Court, Larkana, which was heard by learned IInd Additional District Judge, Larkana, who allowed the appeal by reversing the decree passed by IIIrd Senior Civil Judge, Larkana. This judgment dated 26‑10‑1985 passed by IInd Additional District Judge, Larkana is the subject‑matter of this revision application.

7. I have heard Mr. G.M. Channa, learned counsel for applicants and Mr. Ghulam Sarwar Abbasi, learned counsel for respondents Nos.l to

3. I have also gone through the record of this case carefully.

8. It is contended on behalf of the applicants that the grant in favour of Abdul Khalique alias Khalique Dino was cancelled by the Colonization Officer, Sukkur Barrage, Hyderabad, without any notice to him, which violated the principles of natural justice. This order dated 5‑5‑1975 was, however, not brought on record. On the contrary the perusal of the record shows that this grant was cancelled by Additional Commissioner, Sukkur, which is evident from the following order (Ex. 94‑B): "Appellant Noor Muhammad with Advocate Mr. Ghulam Sarwar present. Another appellant absent. Respondent with his Advocate Mr. Abdul Rauf Mughal present. Tapedars also present with record. The Advocate for the appellants contended that the land in dispute is kaboli land. It was included in the schedule through mistake. The Deputy Commissioner, Larkana has moved the Barrage Authorities for exclusion of S. Nos. 22, 25, 27 and 29 Deh Sonhari Jagir. Taluka Dokri from the schedule. But since the land was already disposed of by the Barrage Authorities, no orders could be passed by the CO. Sukkur Barrage, Hyderabad. The Advocate for the respondent contended that the land was published in the schedule. The respondent had applied for it and he was granted land in dispute in open katchery. The appellants had not applied for the land in dispute at the time of grant. I have heard the arguments of the Advocates of both parties and perused the record. The Deputy Commissioner Larkana's report No. Reh/209 dated 8‑3‑1977 shows that the S. Nos. in dispute are Kaboli S. Nos. and such a letter was also sent to the Barrage Authorities for exclusion from the schedule. The Barrage Authorities had no right to dispose of this land. I, therefore, set aside the impugned order and cancel the grant of he respondent. The appeal is accordingly upheld. Announced." Quite admittedly the said Abdul Khalique alias Khalique Dino was a party before Additional Commissioner, Sukkur, and he was heard before his grant was cancelled. No adverse order was, therefore, passed at his back. The cases reported as Allah Warayo v. Government of Sindh and 2 others (1984 C L C 2100), Mst. Sardar Bibi and others v. Settlement Commissioner Chief Settlement Commissioner and others (1986 C L C 2452), and Abdullah Khan (deceased) through his L.Rs. v. Mst. Khurshid Begum and others (1987 S C M R 1652), which are cited on behalf of applicants are, therefore, not attracted to the facts of the present case.

9. The scope of the words "failure of natural justice" is apt to be misconceived. The question to be decided would be whether any prejudice has been caused by the fact that the party was not heard at any particular stage and if the cumulative effect is that no such prejudice is caused, then it cannot be taken to be a violation of rules of natural justice.

10. The perusal of orders pas.Wd by Additional Commissioner, Sukkur (Ex.94/B) and Member (Rehabilitation and Settlement) Board of Revenue, Sindh, Hyderabad (Ex.94/C) makes it clear that the suit land was not availble for grant when it was granted to Abdul Khalique alias Khalique Dino, and in fact it stood transferred to one Farooque Ahmed, a claimant, in lieu of his claim.

11. Admittedly Abdul Khalique alias Khalique Dino had filed a suit for pre emption before Collector Larkana, which was dismissed on 8‑6‑1980 vide order (Ex.94/E). The stand taken by Abdul Khalique alias Khalique Dino in his suit for pre‑emption was in fact destructive to his claim of ownership and was dealt with by the learned Additional District Judge in the following words:‑ "It is the respondent himself who submitted himself to the jurisdiction of Collector Larkana under the provisions of M.L.R. 115, whereby he attempted to exercise his right of pre‑emption on the basis of his harap rights. Once he admitted the title of the appellants as owner of the suit land having purchased the suit land from its previous owners, it does not lie in the mouth of the respondent at this stage to say that he is the owner of the suit land. In my view, therefore, the finding of the learned trial Court cannot be sustained, I, therefore, hold issue No.2 in the affirmative."

12. Mr. G.M. Channa, learned counsel for applicants has also invited my attention to cases reported as Aziz Khan v. Haider Khan 1978 S C M R 168, and Nasir Abbas v. Manzoor Haider Shah (P L D 1989 SC 568), in an attempt to show that misreading of evidence or insufficiency of evidence are good grounds in a civil revision. There can be no cavil with the law enunciated in the above authorities. There is, however, no misreading of evidence in this case. The conclusions reached by the first appellate Court are warranted by facts on record. In fact a perverse finding recorded by the trial Court was reversed by the first appellate Court. It may be noted that powers under section 115, C.P.C. are intended to be exercised with a view to sub serve and not to defeat the ends of justice. No case for interference is made out and the revision application is accordingly dismissed with no order as to costs. AA./0G‑219/K Revision dismissed.