2010 PLP 945 (CLC)

HAFIZ ABDUL REHMAN ANSARI, J.

Through this civil revision filed under section 115 of C.P.C. petitioners have called in question orders passed by two Courts below: First order, dated 16-10-2008 passed by the learned Additional District Judge, Vehari and second order dated 25-4-2008 passed by learned Civil Judge Ist Class, Vehari is impugned in this civil revision.

2. The brief facts of this civil revision are that the dispute between the petitioners Nawab Din etc. and respondent No.3 is with regard to allotment of Ihata No.64 measuring 18 Marlas 2 sarsahis situated in Chak No.303/EB Tehsil Burewala District Vehari. The claim of the petitioner is that A.C. /Collector, Burewala vide order dated 17-4-1996 allotted this Ihata No.64 to petitioners who deposited the price of the Ihata in Government Exchequer, warrants of possession was issued to the plaintiff/petitioners on 16-7-1996 and Rapt No.641 dated 11-8-1996 was entered in Roznamcha wakiati. Mutation No.11 dated 28-8-1996 was also sanctioned in favour of the plaintiffs and names of the plaintiffs were duly incorporated in the revenue record. Aggrieved from this allotment Fazal Din son of Paris respondent No.3 filed an appeal against allotment order dated 17-4-1996 before Additional Commissioner, Multan who vide order dated 27-5-1997 dismissed the same then respondent/ defendant No.3 according to the version of the petitioner filed revision petition bearing ROR No.1142/1997 before the Board of Revenue, Punjab, Lahore which was accepted. Petitioner alleged that the petitioners/plaintiff assailed order dated 29-9-1999 through declaratory suit in the Court of Civil Judge Vehari; that respondent No.3 resisted the suit filed written statement separately controverted factual aspects and also took legal objections. Out of the divergent pleadings of the parties following issues were framed. Issues.

1. Whether the order dated 29-9-1999 is illegal, against facts, void, hence, liable to be cancelled" OPP

2. Whether the plaintiffs are allottees in possession of the disputed Ihata" OPP.

3. Whether the suit is not maintainable in its present form? OPD

4. Whether the civil Court lacks jurisdiction to try this suit? OPD

5. Whether the plaintiffs are estopped by their words and conduct from filing the suit? OPD

6. Whether the plaintiff have come to the Court with unclean hands and the defendants are entitled for special costs?

7. Relief. Both the parties adduced their evidence oral as well as documentary in support of their respective contentions. The plaintiff-petitioner produced Muhammad Arif Patwari who appeared as P.W. and produced rappat rozenamcha No.641 Exh.P-1. Muhammad Younas appeared as P.W.2 and deposed that suit Ihata No.64 was allotteed to the plaintiff-petitioners and they placed `Arori' therein. Allah Ditta P.W.3 corroborated the statement of P.W.2. Muhammad Sharif one of the plaintiffs appeared as P.W.4 and deposed that Ihata in question was allotteed to the plaintiffs in presence of the witnesses and also in presence of the defendant. In documentary evidence the plaintiffs-petitioners also placed have also produced copy of order dated 17-4-1996 Exh.P.2, copy of order passed by ACC, Multan Exh. P-3, copy of order of MBOR Exh.P.4, copy of mutation No.11 dated 28-8-1996 Exh.P-5, copy of register record of right 1997-98 Exh.P.6 and copy of challan Form No.32 (three copies) Exh.P.7.

3. In rebuttal the defendant No.3 appeared as D.W. 1 and deposed that he is in possession of the suit Ihata since 1947. Muhammad Azam D. W.2 and Amanat Ali D. W.3 corroborated the statement of D. W.1. The respondents/defendants produced register record of right for the year 1997-98 as Exh.D-1, copy of order of Board of Revenue dated 29-9-1999 as Exh.D-3, copy of register record of rights 1997-98 as Exh.D-2 and reports of Field Staff of Revenue Department Exh. D-4. They relied upon the evidence produced by defendant No.3.

4. The learned trial Court after due appraisal of evidence of the learned Civil Judge Ist Class, Vehari dismissed the suit of the petitioners/plaintiffs on 30-6-2006. The petitioner filed an appeal in the Court of learned District Judge, Vehari which was entrusted to Additional District Judge who vide order dated 21-11-2006 remanded the case to Civil Judge/trial Court after framing an additional issue No.6-A which is reproduced below:-- "Whether the disputed Ihata is fixed for mueens and the plaintiffs are not entitled for allotment. If suit Ihata was specified for the mueens then what is its effect? OPD

5. The learned Civil Judge/trial Court, Vehari on 25-4-2008 again dismissed the suit of the petitioners/plaintiffs. The petitioners again filed appeal before the learned District Judge, Vehari against order dated 25-4-2008 which was placed before Additional District Judge, Vehari on 16-10-2008 and the same was dismissed. In this civil revision petitioners called in question both the orders dated 16-10-2008 passed by Additional District Judge and dated 24-4-2008 passed by the learned Civil Judge, Vehari.

6. Learned counsel for the petitioners contended that judgments and decrees passed by both the Courts below are against law and facts of the case. Both the judgments are based on surmises and conjectures. These judgments were passed without application of judicial mind and are based on misreading or non-reading of evidence. The petitioners are in physical possession of the Ihata No.64 situated in Chak No.303/EB and the houses of the petitioners are constructed and they are residing in the said Ihata. Learned counsel further contended that both the Courts below wrongly held that the Ihata in dispute was meant for mueens while the petitioners claim is not for the said Ihata as mueen. They are land owners. This Ihata meant for mueens cannot be allowed to them.

7. I have heard the learned counsel for the petitioners at length.

8. Learned Civil Judge Ist Class, Vehari in his order, dated 30-6-2006 and subsequent order passed on 25-4-2008 after remand of the case from Additional District Judge, Vehari has discussed at length the facts of this case. Learned trial Court on each and every issue after appraisal of evidence reached at a right and correct conclusion specifically with regard to additional issue No.6-A which was framed by the learned Additional District Judge, Vehari while remanding the case to the trial Court. Learned trial Court rightly held that the Ihata in dispute between the parties was meant for mueens and could not be allotted to the petitioners. The ratio cited in case titled "Alam Sher through Legal Heirs v. Muhammad Sharif and 2 others" 1998 SCMR 468 is very much relevant for adjudication of this case. In this case trial Court had decreed plaintiffs' two suits on the basis of possession. The defendants had filed an appeal before the learned District Judge. The learned District Judge allowed the appeal and dismissal the suits on the ground that in view of Section 36 of the Colonization of Governments Lands Act 1912, the civil court had no jurisdiction in the matter and the controversy could alone be decided by the revenue Courts. The petitioner had filed regular second appeals Nos. 67 and 68 of 1981 which were dismissed by the learned Judge of Lahore High Court Multan and had confirmed the judgment of the lower appellate Court. Against order passed by Lahore High Court Multan Bench this CPLA was filed in which leave was refused on the ground of lack of jurisdiction which reads as under:--Section 36 of Colonization of Govt. Lands Act, 1912 is reproduced hereunder:-- "Jurisdiction of Civil Court barred as regards matter arising under the Act.

A civil Court shall not have jurisdiction in any matter of which the Collector is empowered by this Act to dispose and shall not take cognizant,' of the matter in which the (Provincial Government) (Board of Revenue) or Collector or any other Revenue Officer exercise any power vested in it or in him by or under this Act."

9. In the instant case also the dispute of Ihata falls purely within the jurisdiction of revenue Courts. In the ratio settled in the judgment supra the suit could not be filed. The civil suit was not maintainable. The jurisdiction of the civil Court in such like cases under section 36 of the Colonization of Government Lands Act is barred.

10. There are concurrent findings of fact against the petitioner which cannot be disturbed unless some misreading or non-reading is pointed out, for which the petitioner failed. I am fortified from the judgment of the honourable Supreme Court in the case of "Aurangzeb v. Muhammad Jaffar" 2007 SCMR 236(a) "Aurangzeb v. Muhammad Jaffar" (2007 SCMR 236(j), "Shafi Muhammad v. Khanzada Gul" 2007 SCMR 368(a), "Muhammad Khaqan v. Trustees of the Port of Karachi" 2008 SCMR 428(a). This civil revision having no force is dismissed in limine. M.H./N-20/L Revision dismissed.