1986 PLP 603 (CLC)

‑‑O.XXXIX, r.1‑‑Grant of temporary injunction‑‑Re‑entry over suit land, of tenant, after cancellation of lease, held, would not entitle such tenant to interim relief in form of injunction. (f) Civil Procedure Code (V of 1908)‑‑ ‑‑‑S.115‑‑Revisional jurisdiction‑‑View taken by First Appellate Court after scrutiny of plaint being not arbitrary, High Court, declined to interfere in exercise of revisional jurisdiction to set aside such order. Ch. Muhammad Farooq for Petitioner. Ch. Mushtaq Ahmad Khan for Respondents. Dates of hearing: 27th and 28th May and 2nd June, 1985. This revision petition has arisen out of a suit instituted by the petitioner against the respondents for a declaration that the orders, dated 18‑3‑1984 and 13‑5‑1984 passed by the Commissioner, Faisalabad, and the order, dated 27‑5‑1984 of the Board of Revenue terminating the lease of the suit land in petitioner's favour, were illegal, void and without jurisdiction with consequential relief in the form of injunction restraining the. respondents from interfering with his possession over the suit land.

2. The petitioner's allegations are that the suit land was allotted to Jewan Khan deceased father of Muhammad Latif respondent No.l in 1971 under Pedigree Livestock Breeding Scheme but its possession was not delivered to him by the Collector. After the death of Jewan Khan, the land was resumed by the Collector and Mutation No. 204 was sanctioned in respect thereof on 31‑10‑1977. In 1981, the suit land was leased out to the petitioner for five years and its possession was also delivered to him. On 12‑9‑1982, Muhammad Latif respondent applied for the review of order, dated 31‑10‑1977 whereby Mutation No.204 was sanctioned. His application was, however, turned down by the Collector on 28‑11‑1983. On appeal, the Commissioner, Faisalabad, set aside the order of the Collector and after cancelling the lease of the suit land in petitioner's favour, ordered the delivery of possession of the land to respondent No.2, vide order, dated 18‑3‑1984. The petitioner sought the review of the impugned order but his petition was rejected by the Commissioner on 13‑5‑1984. His revision petition against the aforementioned orders was rejected by the Board of Revenue on 27‑5‑1984. After having failed before the revenue authorities, the petitioner instituted suit in the civil Court challenging the aforementioned orders.

3. Alongwith the plaint, he filed an application for grant of temporary injunction restraining the respondents from interfering with his possession over the suit land. The application was opposed by respondent No.l inter alia on the grounds that the suit was not triable by the civil Court; that the lease of the suit land in favour of the petitioner had been cancelled in accordance with law; and that the possession of the land in question had been acquired in pursuance of the order passed by the Commissioner and Board of Revenue. Learned trial Court accepted the petitioner's prayer for temporary injunction, vide order, dated 5‑7‑1984. Muhammad Latif respondent preferred an appeal against the aforementioned order which was allowed by the learned Additional District Judge on 20‑3‑1985 inter alia on the grounds that the orders passed by the Commissioner and the Board of Revenue could not be challenged in the civil Court in view of section 36 of the Colonization of Government (Punjab) Lands Act, 1912 (hereinafter referred to as the Act) and that the petitioner had failed to make out a prima facie case justifying the interim relief sought for by him. The petitioner has challenged the order of the learned Additional District Judge in this Court by filing the present revision petition.

4. Learned counsel for the petitioner has submitted that section 36 of the Act is not applicable to the facts of the present case, because the impugned orders passed by the Commissioner and the Board of Revenue are illegal and not in accordance with the provisions of the Act inasmuch as the lease of the suit land granted in favour of the petitioner could not be cancelled without notice to him as contemplated by section 24 of the Act. The petitioner's right to challenge the impugned orders in the civil Court was, therefore, not affected by section

36. Learned counsel has referred to Khadim Hussain and others v. Ata Muhammad and others 1970 S C M R 127 where it was held that section 36 of the Colonization of Government Lands (Punjab) Act, 1912, did not exclude the jurisdiction of civil Courts in a case where the order passed under the provisions of the Act was bad in law. In support of his contention that the civil Court has jurisdiction to make‑an inquiry to find out whether the order challenged before it is based on existence of circumstances under which the authority making the order is empowered by law to make such order, he has relied on Muhammad Jamil Asghar v. The Improvement Trust, Rawalpindi P L D 1965 SC 698.

5. Learned counsel for the petitioner has further submitted that the disputed land was allotted to Jewan Khan deceased father of respondent No.l under the Livestock Breeding Scheme and that after his death, it was rightly resumed in 1977. Respondent No.l did not challenge the resumption order for about four years. It was only after the land was leased out to the petitioner for five years that he sought the review of the mutation sanctioned in pursuance of the resumption order. Before filing the review petition, respondent No.l had taken part in the auction in which the petitioner had given the highest bid as a result of which he has given the lease of the land in question for five years. The petitioner had acquired the possession of the land after the lease and had incurred expenses in bringing it under cultivation. According to the learned counsel,, the petitioner had acquired the land in question under a valid lease which could not be cancelled by the Commissioner without notice. The disputed land had not been given to Jewan Khan deceased as a Lambardari grant and as such it could be legally resumed by the Collector after his death. Learned counsel for the petitioner has contended that the petitioner was entitled to retain the possession of the disputed land till the expiry of the period of lease even if it be found that it was not available for leas because the power to re‑call the order of lease under the principle of locus poenitentise could not be exercised in the present case, as the order granting lease to the petitioner had taken legal effect and had created rights in his favour. Reference has been made in this be shall to Pakistan v. Muhammad Himayatullah Farukhi P L D 1969 S C 407.

6. Learned counsel for the petitioner has contended that the possession of the land in question was never delivered to respondent No.l and that the report, dated 16‑5‑1984 made in the Roznamcha Waqiati, which shows the delivery of possession of land to respondent No.l, was factually incorrect, because the petitioner's possession over the land was not disturbed and he continued to occupy the land ever after the aforementioned report, as is evident from the entries of Khasra Girdawari pertaining to Kharif 1984 and Rabi 1985. Learned counsel has submitted that the view taken by the learned Additional District Judge that the petitioner's possession over the land in dispute is unlawful, is contrary to the facts, as the petitioner had never relienquished the possession of the suit land. Lastly it has been contended by the learned counsel for the petitioner that this Court can interfere in its revisional jurisdiction and set aside the order passed by the learned Additional District Judge, as he had not exercised his discretion properly in refusing interim relief in the form of injunction prayed for by the petitioner.

7. Learned counsel for respondent No.l, on the other hand, has submitted that the petitioner has no prima facie case as the disputed land could not be legally leased out to him as it had been given to Jewan Khan deceased father of respondent No.1 as a Lambardari grant on 17‑11‑1971 by the Collector. The resumption of the suit land by the Collector, after the death of Jewan Khan, was illegal and contrary to the instructions issued by the Board of Revenue. After the resumption of the land, respondent No.l had submitted an application on 6‑9‑1981 to the Collector for the restoration of the grant. Before the disposal of the above application, the land was illegally leased out to the petitioner on 23‑12‑1981. The above lease in favour of the petitioner was, however, cancelled by the Commissioner on 18‑3‑1984. After the cancellation of the lease, the possession of the suit land was delivered to respondent No.l on 16‑5‑1984. At the time of delivery of possession, there was no crop in the suit land in respect of which compensation could be paid to the petitioner. After the delivery of possession of the disputed land to respondent No.l, the petitioner alongwith some other persons made murderous assault on respondent No.2 on 23‑6‑1984 for which a case was registered against them. Meanwhile, the petitioner also instituted the suit out of which the present revision has arisen. On 5‑7‑1984 he obtained injunction order from the learned trial Court and thereafter forcibly re‑occupied the disputed land. According to the learners counsel, the entries in the Khasra Girdawari pertaining to Kharif 1984 relied upon by the petitioner do not support his contention that the possession of the suit land was not delivered to respondent No.2 on 16‑5‑1984 because the aforementioned entries in the Khasra Girdawari were made on 27‑10‑1984 by which date he had illegally re‑occupied the land in question Learned counsel for respondent No.l has contended that under the circumstances of the case, noticed above, the petitioner is not entitled to any equitable relief in the form of temporary injunction, as his possession over the suit land is unlawful. In support of his above contention, he has relied on Shahid Coal Agency v. Chairman, Pakistan Railways etc. P L D 1982 Quetta 134.

8. One of the considerations, which weighed with the learned Additional District Judge in accepting the appeal of respondent No.1 against the injunction order passed by the learned trial Court, was that the suit instituted by the petitioner in which the aforementioned order was passed by the learned trial Court, was not triable by the civil Court in view of the provisions of section 36 of the Act. There is no doubt that Court's jurisdiction to try the suit is relevant factor for the disposal of application for interim relief made by the, plaintiff, but the expression of firm view on the subject by the Court while deciding such application has to be avoided so that the parties' case is not prejudiced by such expression of opinion at the preliminary stage. Ordinarily, the averments made in the plaint are looked into by the Court for ascertaining whether it has jurisdiction to try the suit. If the averments show that the suit is barred by any provision of law, the plaint is liable to be rejected under Order VII, rule 11, P.P.C. and in such a case, the question of grant of interim relief to the plaintiff hardly arises. But where the facts stated in the plaint do not attract the application of the provisions of any law ousting the jurisdiction of the Court to try the suit or where the question of jurisdiction cannot be determined without allowing opportunity to the parties to substantiate their respective contentions, it would not be proper for the Court to express any opinion with regard to the maintainability of the suit while disposing of the plaintiff's application for grant of interim relief. For instance, in the present case, the averments made in the plaint are that the Commissioner had no jurisdiction to cancel the petitioner's lease while deciding the application filed by respondent No.l against the rejection of his application of review of order of resumption of the disputed land. It is also contended by the petitioner that the order of cancellation of the lease in his favour made by the Commissioner is illegal, as the provisions of section 24 of the Act requiring notice to the lessee before resumption of land, were not complied with. Evidently, the question of jurisdiction of the Court to try the petitioner's suit will be decided only after ascertaining whether, the provisions of section 24 of the Act were attracted in the case oil the lease granted to the petitioner for which it is necessary to final out the terms of the lease. In other words, the question of jurisdiction cannot be decided without factual inquiry. Under the circumstances the learned Additional District Judge was not justified in expressing the view that the petitioner's suit was not maintainable in view of section 36 of the Act. The trial Court may ignore the above view. It should decide the question of jurisdiction independently of what has been stated by the learned Additional District Judge in his order, dated 20‑3‑1985, after hearing the parties and allowing them opportunity to adduce evidence in support of their respective contentions.

9. The most relevant factor which has to be kept in view, while considering the petitioner's prayer for the grant of temporary injunction, is whether the petitioner has made out a prima facie case. Admittedly, the lease of the suit land in his favour has been cancelled. He has exhausted his remedies on the Revenue side by taking the matter upto the Board of Revenue. No doubt he has challenged the order whereby the lease of the suit land in his favour has been cancelled. But whether he has made out a prima facie case has to be judged from the averments made by him and the material placed on the record. His contention that the suit land was not leased out to the father of respondent No.l as a Lambardari grant is not supported by order, dated 17‑11‑1971 of the Collector whereby the land in question was leased out to Jewan Khan father of respondent No.l. His further contention that the order of resumption of the suit land passed by the Collector in 1977 .after the death of Jewan Khan was justified, as he had failed to take possession of the suit land, has been challenged by respondent No.l, who has produced copy of Khasra Girdawari containing entries to the effect that his father Jewan Khan had cultivated the land in question in Kharif 1971. It would be for the trial Court to determine whether Jewan Khan had acquired possession of the suit land after it was leased out to him in 1971 or whether he had failed to take its possession, as contended by the petitioner and observed by the Collector in his order rejecting the application of review of Mutation No.204, dated 31‑10‑1977, whereby the suit land was resumed. Prima facie, the entries in Khasra Girdawari relied upon by respondent No.l indicate that Jewan Khan deceased had acquired possession of the suit land. After the death of Jewan Khan, respondent No.l has succeeded him as Lambardar. He has claimed the disputed land being Lambardari grant on the basis of his appointment as Lambardar. Whether the suit land could be leased out to the petitioner for a period exceeding one year, even if it were to be assumed that it did not form part of Lambardari grant, would of course be determines by the learned trial Court, but the Commissioner and the Board of Revenue have expressed the view that the disputed land could not be leased out to the petitioners for a period exceeding one year. The principle laid down in Pakistan v. Muhammad Himayatullah Farukhi that where the order passed by an authority has taken legal effect and certain rights have been created in favour of a person the authority which made the order, cannot withdraw or rescind it, is not applicable in the present case, as the period of five years for which the lease was granted to the petitioner has not been expired and as such it cannot be said that the order of the Collector granting lease to the petitioner for five years has taken legal effect. Even otherwise, under the statute, the right of resumption of the State land from the' lessee is available to the authority granting such lease. Thus, in view of the facts noticed above, it can be said that the petitioner has no prima facie case on the basis of which he can ask for temporary injunction against the respondents.

9. There is also controversy with regard to the implementation of the impugned orders as regards the delivery of possession of the disputed land. The respondent's case is that possession of the suit land was delivered to him in pursuance of the impugned order of the Commissioner on 13‑5‑1984 whereas the petitioner's contention is that his possession over the suit land has remained undisturbed. The petitioner has relied on copy of Khasra Girdawari to show that in Kharif 1984 paddy ornp was sown by him. He has also relied on the report of Naib‑Tehsildar, dated 9‑1‑1985 according to which the paddy crop was sown by him in the suit land. In the copy of Khasra Girdawari relied upon by the petitioner, there is a note in red ink showing that possession of the suit land was delivered to respondent No.l on 16‑5‑1984; that the petitioner obtained temporary injunction from the Court of Senior Civil Judge, Toba Tek Singh on 5‑7‑1984; that the appeal of respondent No.l against the above order was accepted by the Additional District Judge on 20‑3‑1985; and that on 27‑3‑1985 injunction order was passed by the High Court. It has been rightly pointed out by the learned counsel for the respondents that the date on which the inspection of the crop is carried out by the Revenue Officer, is the relevant date to show the possession of the cultivator and that no presumption can be D drawn from it that at the time of sowing the crop also, the cultivator! was in possession of the land. In this connection, he has referred to Ghulam Hussain v. Sarfaraz Khan P L D 1956 S C 309, where it was held that the Khasra Girdawari would be presumed to relate to the state of things prevailing on the date on which it was prepared and not to the time the crop in question was sown. But even if it be assumed that the petitioner had cultivated the paddy crops, as stated by him and as reflected from the report, dated 9‑1‑1985 of the Naib‑Tehsildar, it would not prove that the possession of the suit land was not delivered to respondent No.l on 16‑5‑1984 in execution of the order passed by the Colony Assistant, Toba Tek Singh on 14‑5‑1984. The note in the red ink in the Khasra Girdawari regarding delivery of possession to respondent No.l and reference to that effect in the note E of the Naib‑Tehsildar show that the possession of the disputed land was delivered to respondent No.l. Subsequently how the petitioner managed to assume the possession and enjoyed protection under the ode, of temporary injunction passed by the Senior Civil Judge, is not relevant, because the fact remains that his re‑entry over the suit land after the cancellation of lease in his favour does not entitle him to the interim relief in the form of injunction prayed for by him. Keeping in view the facts noticed above, it cannot be said that the learned Additional District Judge has exercised discretion in the F present case arbitrarily and that it calls for interference by this Court in the exercise of its revisional jurisdiction. The revision petition is accordingly dismissed with costs. A.A. Revision dismissed.