P L D 2007 Karachi 392 (PLP)

NADEEM AZHAR SIDDIQI, J:

The applicants have filed the present revision against the judgment dated 26-2-2004 passed by the learned 1st Additional District Judge, Larkana, dismissing F.A No:63/2000 filed by the appellants against the judgment and decree passed by IIIrd Senior Civil Judge, Larkana in F.C. Suit No.60/1994. The facts necessary for disposal of the revision are that the respondents Nos.1 and 2 filed suit for declaration and injunction claiming therein that Survey Nos.315, 341, 347 and 352 total 461-04 acres situated in Deh Bagi, Taluka Dokri was granted to one Wadero Jan Muhammad as reward by Government of Bombay on 8-1-1933. It was further stated in the plaint that Suit No.26/62 was filed against District Forest Office, which was decreed on 31-5-1963 and the record of rights was mutated in favour of Wadero Jan Muhammad. The said Wadero Jan Muhammad died leaving behind respondents Nos.1 to 6 as his legal heirs. It was further stated that the applicants Nos.1 & 2 threatened the respondents Nos.1 to 6 for dispossession from the land. The respondents Nos.1 to 6 filed the suit for declaration and injunction. The applicants Nos.1 to 3 contested the suit and filed written statement and submitted that the land in question is the property of Forest Department and also denied that the land was granted by Governor of Bombay to Wadero Jan Muhammad. The decree in Suit No.26/62 was denied. The possession of Wadero Jan Muhammad over the land was also disputed. It was submitted that the property is government forest land as per notifications dated 29-11-1923 and 28-4-1887. From the pleadings of the parties the trial Court had framed the following issues:-- (1) Whether the suit land was granted to Wadero Jan Muhammad as reward with paddy water supply for affording extraordinary help and services rendered by him to P.W.D by Janab Governor Sahib of Bombay. If so, what is its proof? (2) Whether decree passed in F.C. Suit No.26/1962 against defendants Nos.1 to 4 in favour of plaintiff's father is bogus and manipulated? (3) Whether on the basis of decree dated 31-5-63, record of rights mutated vide J-No.74 dated 29-8-1963, in favour of Jan Muhammad. What is its effect? (4) Whether suit property belongs to Forest Department? (5) 'Whether the plaintiffs are entitled for the relief sought? (6) What should the decree be?" The respondent No.1 has examined himself and produced documents and also closed his side. On behalf of the applicants Nos.1 to 4 Abdul Ghafoor was examined who produced the notification dated 29-11-1923 and Aijaz Ahmed, and closed their side. The suit was decreed and the appeal filed by the applicants Nos.1 to 4 was also dismissed. The learned counsel for the applicants has raised the following contentions:-- (1) The suit has been filed against the official designation of the officers of Government of Sindh and that Government of Sindh has not been sued as provided under section 79 and Order XXVII of Civil Procedure Code. (2) The decree in the earlier suit was a result of fraud and since the Government of Sindh was not properly sued in that suit the same was not binding upon the Government of Sindh. (3) The courts below have committed gross illegality in ignoring the statutory provisions and decreeing the suit and that both the Courts below have acted in excess of jurisdiction in decreeing a non-maintainable suit. (4) The Courts below have totally ignored the evidence available on record and have come to a wrong and perverse conclusion causing serious injustice to the applicants. The learned counsel relied upon the following reported case: Abdul Aziz v. Government of Balochistan, 1999 SCMR

16. On the other hand, learned counsel for the respondent No.1 has fully supported the judgments of Courts below and submits as under:-- (1) Both the courts below have rightly decreed the suit and have not committed any illegality in decreeing the suit. (2) He submits that the ground now urged was never taken before the learned Courts below and refers Order VIII, Rule 2, C.P.C. (3) He further submits that even if the Government was not sued properly no prejudiced was caused as the Government Pleader has contested the suit on behalf of the Government of Sindh. (4) He also submits that the appeal and revision were not competently filed in accordance with section 73 and Order XXVII of C.P.C, and concurrent findings of facts by Courts below do not suffer from any illegality, irregularity and jurisdictional defect. He relied upon the following reported cases. (1) Abdul Aziz v. Government of Balochistan, 1999 SCMR. 16. (2) Abdul Karim v. Mirza Bashir Ahmed, PLD 1974 SC 61. (3) Khan Muhammad v. Muhammad Ishaque, 1975 SCMR 471. (4) S.M. Corpn. Ltd. v. New Era Textile Mills Ltd., 1991 CLC 324. (5) Abdul Karim v. Mirza Bashir Ahmed, PLD 1974 SC

61. I have heard the learned counsel for the parties and perused the record. The suit was decreed taking into consideration the reward and the decree of the earlier suit and the gazette notification dated 29-11-1923 was totally ignored. The learned trial Court has decreed the suit mainly on the basis of reward and earlier decree. The learned trial Court has recorded its findings that the applicants have failed to prove the ownership and while recording such findings failed to consider the gazette notification produced by the applicants. The trial Court has not framed any issue regarding non-maintainability of the suit and the trial Court has totally ignored the provisions with regard to filing of suit against the Government. The appellate court has written a lengthy judgment consisting of 13 pages, out of which eleven pages were consumed in discussing the pleadings and contention of the parties and the discussion is hardly on last two pages. The appellate Court was impressed by the facts that the applicants have failed to produced sufficient evidence to prove that the documents are forged and has based its findings on the decree of earlier suit. While placing reliance on the earlier decree both the Courts have failed to notice that the suit was not properly filed against Government of Sindh and since the Government of Sindh was not properly sued, the said decree was not binding upon Government of Sindh in view of section 43 of Specific Relief Act. Both the learned Courts have totally failed to consider that the suit was not properly and competently filed as provided under section 79 and order XXVII of C.P.C. and. by ignoring statutory provisions have committed an illegality which goes to the root of the suit. Both the Courts have also acted in access of jurisdiction in decreeing a non-maintainable suit. The contention of the learned counsel for the respondent No.1 that the objection of the non-filing the suit against the Government in terms of section 79 and Order XXVII cannot be taken at revisional stage has no force for the reason that this is a legal objection going to the merits of the case and can be raised at any stage. The pure question of law which can be decided without any investigation and evidence can be raised at any stage of proceedings. It is true that the written statement is silent with regard to the objection raised in this revision, but it is the duty of the Court to see and to examine the plaint whether the same has been properly filed in accordance with the provisions of C.P.C. and to see whether the suit, as framed, could legally be proceeded. The Court should always not depend upon the assistance of the parties and their Counsel and whatever law is applicable the same has to be given effect whether or not same has been relied upon by a party to proceedings. The ignorance of legal provisions amounts to committing illegality. Since the suit was itself not maintainable, no relief can be granted and by granting relief in a non-maintainable suit the Courts below have acted in excess of jurisdiction. Furthermore, both the Courts below have ignored the official Gazette dated 29-11-1923 and failed to consider that in 1933 when the land was given in reward the same was not available for grant. The other contention of the learned Counsel for the respondent is that the appeal as well as this revision are not maintainable, as Government has not been properly sued. This argument has no force, as the defendants to the suit if aggrieved from the judgment and decree may file the appeal and that appeal may be treated as appeal on behalf of the defendants in the suit and not from the Government. In reported case of Haji Aziz v. Govt. of Balochistan, 1999 SCMR 16, the Honourable Supreme Court has held as under: "Therefore, the learned Judge in the High Court, while exercising revisional jurisdiction, was empowered to take notice of the defects which were apparent on the face of the record. The failure of the appellant to sue through a proper person was a defect which went to the root of the matter, and, but for interference by the High Court, serious prejudice would have been caused to the respondent. Therefore, in our view, the order passed by the learned Judge in Chambers is not open to exception." In the above reported case the issue with regard to non-maintainability of the suit was raised before the High Court in revisional jurisdiction. Since both the Courts below by overlooking the provisions of law have committed illegality and have also failed to exercise the jurisdiction vested in them properly and in consonance of law, I set aside both the judgments and decrees passed by the learned trial Court as well as the appellate Court. However, keeping in view the facts and circumstances I direct the Member, Board of Revenue to hold enquiry in the matter and after hearing the parties decide the matter without taking into consideration the decree passed in Suit No.26 of 1962. With the above observations the revision application is allowed with no order as to costs. S.A.K./D-8/K Revision accepted.