1992 PLP 1166 (MLD)

This judgment will also dispose of Civil Revisions Nos. 264 of 1986, 265 of 1986 and 266 of 1986 as all these four were disposed of by one judgment by the Ex‑Officio Additional District Judge, Karachi, dated 19‑4‑1986. The facts leading to the filing of the above revision petitions are that the present petitioners filed Suit No.2865/78 in the Court of VIth Senior Civil Judge, Karachi against Muhammad Ishaq son of Gul Muhammad as an unauthorised occupant for possession of Survey No.146, Deh Malh, Tappo Konkar, Taluka and District Karachi measuring 2 acres 16 Ghuntas. The present petitioners also filed Suit No.2866 of 1978 against the same Muhammad Ishaq son of Gul Muhammad in the same Court for possession in respect of Survey No.147, Deh Malh, Tappo Konkar as an unauthorised occupant. The respondent resisted the suits. The respondent pleaded that Ghulam Muhammad, the father of the present respondent, was hair of Hussain son of Molidino as well as of the heirs of Siddiq son of Molidino, who were owners of joint and undivided share to the extent of 4 arenas and 5 and 1/8 pies share in a rupee in the suits land. The respondent claimed that he and his father Gul Muhammad were permanent tenants and haris of this land. It was denied that he was in unauthorised possession of the land in suit. The respondent also look legal pleas that the suit was bad for non joinder for necessary parties because the other occupants and co‑owners had not been joined, the suit was barred under the provisions of Sindh Tenancy Act and that the Court had no jurisdiction to try the suit. The last legal plea was that the suit was also barred under the provisions of MLR 115 and Sindh Land Revenue Act, whereby the cultivators and haris cannot be dispossessed from the land. One Haji Gul Muhammad and his son Muhammad Ishaq filed suit No. 936 of 1980 against the present petitioners in the same Court for declaration and permanent injunction to the effect that the respondents are permanent tenants, haris and cultivators in the land bearing Survey Nos. 146 and 147 of Deh Malh and also permanent injunction restraining the defendants/petitioners or any person or persons claiming through them from dispossessing the plaintiffs/respondents from the suits land. The respondents also filed another Suit No.937 of 1980 against the present petitioners in the same Court for declaration that the partition if any of the said land is illegal and void and that the said land bearing Survey Nos. 146 and 147 of Deh Malh is joint and undivided. The present petitioners contested both the suits. All the suits were consolidated. On the pleading of the parties the trial Court framed the following issues in Suit Nos. 2865 and 2866 of 1978:‑‑‑ (1) Whether the suit is undervalued and insufficiently stamped? (2) Whether the suit is not maintainable under the law? (3) Whether the suit is bad for non‑joinder of necessary parties? (4) Whether plaintiffs are the owners of the suit land as the legal heirs of late Haji Muhammad Ismail? (5) Whether defendant has unauthurisedly occupied the Garden in suit? (6) Whether the predecessors of both the parties and the heirs of Hussain and Siddiq are owners of joint and undivided share to the extent of 0 4‑5‑1/2 annas on the suit land? (7) Whether the land is not in cultivating possession of the defendant and the heirs of Hussain and Siddiq since last about 20 years? (8) Whether the defendant and the heirs of Hussain and Siddiq have spent huge amount on the development of land and they are permanent tenants and Haris over the land? (9) What should the decree be? The Issues in Suit Nos.936 of 1980 and 973 of 1980 are as below:‑‑‑ (1) Whether the suit as framed is not maintainable? (2) Whether the plaintiffs have no cause of action against the defendants? (3) Whether the suit is barred by limitation? (4) Whether the land in question is validity allotted to the defendants? (5) Whether the plaintiffs and their predecessors cultivators, developed the land in question? (6) Whether the alleged partition of land is valid? (7) Whether the plaintiffs are entitled to relief claimed? (8) What should the decree be? The petitioners examined P.W.1 Muhammad Haroon, P.W. No.2 Jameeluddin Siddiqui, P.W. No.3 M. Shoaib, P.W.No.4 Abdul Habib and P.W. No.5 Abdul Sattar and closed their side. The respondents examined D.W. No.1 Muhammad Ishaque. The parties also produced documentary evidence in support of their respective contentions. The learned Senior Civil Judge on assessment of the evidence on record came to the conclusion that Suits Nos.2865/78 and 2866/78 are not maintainable. The suits were bad in law as the necessary parties were not impleaded. The respondents were not unauthorised occupants and without taking recourse to MLR the petitioners could not seek eviction of Haris from the land by way of those two suits. In that view of the matter Issues Nos. 2, 3, 6 7 and 8 were decided in the affirmative and on Issue No.4 there was no finding In that view of the matter both the suits were dismissed. In Suits Nos.936 of 1980 and 937 of 1980, he came to the conclusion that the suits were maintainable. Issues Nos.2 and 5 were decided in the affirmative. Issue No.6 was decided in the negative. On Issue No.3 he held that the suits were within time. He did not give any finding on Issue No.4. In that view of the matter he decreed the suits against the petitioners. The plaintiffs being aggrieved against the common judgment and decree, dated 26‑1‑1985 filed separate appeals which were registered as Civil Appeal Nos. 129/85,130/85,131/85 and 132/85. The learned Ex. officio Additional District Judge on reassessment of the evidence came to the conclusion that the garden land bearing Survey Nos.146 and 147 is joint property in terms of shares of the co‑owners and no decree for possession and partition can be passed in those suits in absence of other co‑owners, namely, legal heirs of late Hussain, the legal heirs of late Siddiq and Haji Gul Muhammad. In that view of the matter he affirmed the finding on Issue No.2. He held that the suits were bad for non joinder of necessary parties because these co‑owners were necessary parties and in their absence no effective decree could be passed and hence the suits were not maintainable. In that view of the matter he held that learned Senior Civil Judge rightly decided Issue No.3 in the affirmative. On Issues Nos. 5 and 6 he held that Gul Muhammad, the father of the respondent Muhammad Ishaq has been in possession of the suit land as Hari in such a situation it cannot be said that the respondent has unauthorisedly occupied the land. On Issues Nos. 7 and 8, he approved the finding of the trial Court. In that view of the matter he came to the conclusion that the above suits have rightly been dismissed by the trial Court. He found that the suits were maintainable. Issue No.2 has been rightly held in affirmative. He held that the suits were not barred by time. He held that findings on Issues Nos.4 and 5 are covered by the findings on Issues Nos.4, 7 and 8 of Suit Nos. 2885/78 and 2866/78. He also found that Issue No.6 is covered by Issue No.4 and issue is rightly held in negative. In that view of the matter he found that the respondents are entitled to the reliefs and decree as prayed. The petitioners being aggrieved by the impugned judgment have filed the present revision petitions:‑‑‑ The learned counsel for the parties have filed written arguments. Additionally I have also heard them. I have perused the R&P of the case and have gone through the impugned judgments. I have carefully considered the written arguments as well as oral submissions. The main contention of Mr. Akhtar Mehmood, the learned counsel appearing for the petitioners is that the partition orders are legal and are not without jurisdiction. On the other hand, Mr. Khalilur Rehman, learned counsel appearing for the respondent submitted that the partition orders are without jurisdiction. The contention is that the Rehabilitation Mukhtiarkar is not competent to partition property jointly owned by the evacuees and non -evacuees. It may be advantageous to reproduce para. 15 of the Rehabilitation and Settlement‑Scheme which reads as follows:‑‑‑

15. Partition of joint Khatas or joint allotments.‑‑‑The competent Rehabilitation Authority will partition joint Khatas of Muslims and' non‑Muslims in West Pakistan in the manner prescribed below where there is no Hissadari Qabza and allot evacuee area of the partitioned land to the claimant under the Rehabilitation Settlement Schemes:‑‑‑ (1) A Rehabilitation Authority may either of its own motion, or on an application made to it in this behalf, order in writing the partition of the shares of an evacuee out of joint property. (2) ......................... (3) ....................... (4) ......................... It is not in dispute that late Haji Muhammad Ismail a claimant displaced person/predecessor‑in‑interest of the petitioners got the allotment of 2 acres 16 ghuntas of garden land, Survey No.146, Deh Malh, Tapo Konker, Malir (total area being 3 acres 13 ghuntas) in satisfaction of his claim by two Khatoonis issued on 11‑2‑1971 and 15‑7‑1971. The date of Khatooni in respect of Survey No.147 is 8‑4‑1969: The orders for provisional partition of Survey No.146 are, dated 21‑10‑1971 and 3‑8‑1971 and later on confirmed on 22‑10‑1971. Whereas, the order for provisional partition of Survey No.147 is dated 22‑7‑1969 and later on confirmed on 2‑10‑1971. Thus the dates of partition are definitely after the date of issuance of Khatoonis. The parties have produced documentary evidence in support of their respective contentions. A perusal of Form VII (Exh.5/12), Form VII (Exh.5/13) and extract from Form VII (Exh.22/1) would show that garden land bearing Survey Nos. 146 and 147 is joint property of evacuees and non evacuees. The evacuee Hindus were in Hissadari possession in the above two Survey Nos. There could not be partition of the same after the allotment and transfer of evacuee share. A perusal of para. 15 would show that the competent Rehabilitation Authority will partition joint Khatas of Muslims and non‑Muslims in West Pakistan in the manner prescribed below where there is no Hissadari Qabza and allot evacuee area of the partitioned land to the claimant under the Rehabilitation Settlement‑Scheme. In Abdul Ghani v. Settlement and Rehabilitation Commissioner Hyderabad arid Khairpur Divisions and 5 others 1989 MLD 4293, a Division Bench comprising of Inamullah and Wahiduddin, J.J., considered a question as to whether the Deputy Settlement Commissioner or for that matter the Settlement Authorities have power to partition the property so as to separate the share of the non‑evacuee from the evacuee share. That case pertained to Urban property. The discussion equally covers the case of landed property. Reliance in that case was placed on section 8 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, and it was contended that the words of the section were wide enough to authorise the settlement Authorities to partition the property for the purpose of effective management of the same after its acquisition in order to facilitate transfer to the claimants. This contention was repelled and their lordships of the Division Bench observed as under:‑‑‑ "So far as the question of division of landed property or houses is concerned, in the absence any specific power of the Chief S.C., it cannot be so construed. Under the general law the division of agricultural property can be effected by the Revenue Authorities and the other immovable property by the Civil Courts. If the intention of the legislature was to take away this power from the ordinary Courts it would have been so mentioned. In this connection we may make a reference to certain provisions of the Administration of Evacuee Property Act, Act XII of 1957. There it seems the intention of the' legislature was expressly expressed by giving specific power to the Custodian to partition property. In this connection reference may be made to sub‑clause 3 of section 13 of Act XII of 1957. Under that sub clause the Custodian could partition or permit a Rehabilitation Authority to partition any property or rights therein if a share in such property or rights consisted of evacuee property. The learned Advocates for Respondents 4, 5 and 6 had at one stage of the argument contended that the Custodian had delegated the power to partition to the Settlement and Rehabilitation Authorities and, therefore, the partition effected by the Deputy and Rehabilitation Commissioner was a valid one. On being pointed out, however, that once the property had been acquired under section 3 of the Act, it was no longer evacuee property and, therefore, the authority conferred by the Custodian could not be available, the learned Advocates gave by their contention. It is clear from section 13(3) and section 25(2) (w) of the Act that where the legislature wanted to confer a power on an authority it did so specifically. In the absence of any such specific power under section 8 of the Act we are unable to read a power to partition property so as to oust the jurisdiction of the ordinary Courts." This judgment was later affirmed by the Hon'ble Supreme Court as per judgment, dated 24th January, 1969 passed in Civil Appeal No.K‑22 of 1966. Their Lordships of the Supreme Court agreed with the aforesaid view of the High Court of West Pakistan, Karachi Bench, Karachi in the said judgment, dated 26‑1‑1969. In this connection a reference may also be made to the case of Haji Mehtab Khan v. The Rehabilitation Authority and another PLD 1973 SC

451. It was contended on behalf of the appellants that the Custodian continued to have jurisdiction to deal with the property which was once evacuee property in spite of its acquisition under section 4 of the Displaced Persons (Land Settlement) Act. This contention was repelled and it was held that the provision with regard to section 25(2)(w) of Administration of Evacuee Property Act was intended for the purpose of protecting, preserving and administering evacuee property and cannot be stretched to mean that the Custodian has been given jurisdiction to continue to deal with the property which ceases to be evacuee property. This question has been considered by Mr. SA. Nusrat (as his lordship then was) in his unreported judgment, dated 13‑9‑1978 in Constitutional Petition No.9 of 1971 Ghulam Muhammad and another v. Additional Commissioner (Revenue) and 5 others in which he came to the conclusion after giving cogent reasons, which are fully supported by the various authorities discussed by him in the said judgment that the partition effected by the Settlement Authorities was without jurisdiction. This judgment pertained to agricultural land. This question has also been considered by Mr. Ajmal Mian, J., (Now Judge Supreme Court) in the case of Mst. Salina Abbasi and another v. Ahmed Suleman and 2 others 1981 CLC 462 in which Mr. Ajmal Mian, J., has come to the conclusion after giving cogent reasons, which are fully supported by the various decisions (which are already reproduced herein above) discussed by him in the above judgment that after having transferred the evacuee interest, the Rehabilitation Mukhtiarkar could not have exercised the power of partitioning under aforesaid para 15, of the Scheme as the evacuee interest stood transferred to allottee. It was held that the partition orders are prima facie without jurisdiction and are not legal. I am in respectful agreement with this decision and as such I am of the opinion that the learned Senior Civil Judge has come to the right conclusion that the Assistant Rehabilitation Mukhtiarkar had not jurisdiction to partition the suit land. Mr. Akhtar Mahmud cited a decision reported in 1984 SCMR‑599 in support of his contention. In this decision two contentions were raised on behalf of the appellant. It is advantageous to reproduce the relevant portion from the judgment which reads as follows:‑‑‑ Page 601. "The case of the appellant is based on two assumptions of fact the first is that the respondent No.1 had not only obtained the allotment of the evacuee 1/4th share but that land had been permanently settled on him in terms of rule 7 of the Displaced Persons (Land Settlement) Rules, 1959. The land having been permanently settled the Settlement Authorities had lost jurisdiction over the same and the partition mutation had to be initiated and. attested in accordance with the Land Revenue Act. The other assumption on which the learned counsel for the appellant has proceeded is that it was not a case where the co‑sharers were not in Hissadari possession. His contention is that they were in Hissadari possession and on that account para.5, Part II of the Rehabilitation Scheme was not in terms applicable and conferred no authority on the Rehabilitation Settlement Officer to partition the joint Khata." These contentions were repelled. It was held as under:‑‑ Page 601 " So far as the two assumptions of facts on which the learned counsel for the appellant has proceeded are concerned we do not find any material to support it. From the mere fact that in the Jamabandi the Central Government is not recorded as a co‑sharer but instead respondent No.1 has come to be recorded it cannot be assumed that the land was permanently settled on him. The order of the first appellate Court reproduced shows that in the first instance 1/4th evacuee share was allotted to respondent No.1 and thereafter partition of the joint Khata was taken up. Para. 16 Part II of the Rehabilitation Scheme enjoins that a specific portion of land has to be allotted and not merely a share in the joint Khata as such." It was further held that:‑‑ "There is nothing on record to indicate that the evacuee was in Hissadari possession of the land or that specific Khasra number, as distinguished from 1/4th evacuee share, was allotted to respondent No.1. In the absence of proof of these two facts it cannot be said that the Rehabilitation and Settlement Authorities had no jurisdiction in the matter to partition the joint Khata or that the land stood permanently settled on respondent No.1 " This case does not help the petitioners. The fording on this issue is proper and the learned Additional District Judge has rightly affirmed and I do not find any reason to interfere with it. The other important issues are Issues Nos. 5 and

6. Both these issues were discussed together by the appellate Court. The respondent produced documentary evidence in support of his contention that he is not an unauthorised occupant. Exh.22/4 is extract from village Form No.6 called Abadgari Register showing Gul Muhammad as Hari for the year from 1947‑

48. Exhs.22/2 and 22/3 are two extracts from File Book called Girdawari Register for the years 1972‑73 to 1979‑

80. Exh.22/5 is the extract in two leaves Rent Form No.1 from rent Jamabandi Register for the period of 1947‑48 to 1970‑71 and Exh.22/61 is the Land Revenue Receipt for the year 1962‑

63. A perusal of these documents would show that Gul Muhammad the father of Muhammad Ishaq has been in possession of said land as Hari of the suit land. I have perused Mashirnama Exh.5/15 as well as order dated 22‑1‑1977 passed by Assistant Commissioner Karachi East (Exh.5/16). It is pertinent to note that this order (Exh.5/16). was passed on the application dated 28‑10‑1976 of Haji Muhammad Ismail, the predecessor‑in‑interest of the petitioners. A perusal of these two documents would show that actual possession of the suit land was not delivered to late Haji Muhammad Ismail. There is nothing on the record to show that possession of land in suit was delivered to late Haji Muhammad Ismail. In these circumstances the Courts below rightly came to the conclusion that the respondent has not unauthorisedly occupied the gardens in suit. The burden was on the petitioners to prove that they were dispossessed unauthorisedly. The Courts below held that the petitioners have; failed to prove that the actual possession was delivered to them by the competent authority. It seems that the finding on these issues is in accordance with the evidence. The contention of Mr. Akhtar Mehmood is devoid of force that the Courts below have misread the evidence. Mr. Akhtar Mahmood contended that the Suit No.937 of 1980 was barred by time. He placed reliance on Article 14 of Limitation Act. Article 14 of Limitation Act prescribes a period of one year to set aside any act or order of an officer of Government in his official capacity, not herein otherwise expressly provided for and the period starts to run from the date of the act or order. It has come on record that the Partition was confirmed on 22‑10‑1971. The Suit No.937 of 1980 was filed on 4‑3‑1980 to challenge the partition of evacuee and non‑evacuee shares confirmed on 22‑10‑1971. Article 120 of Limitation Act provides that any suit for which no period of limitation is provided elsewhere in the schedule. The period is six years. The learned Senior Civil Judge found that the suit was within time. On appeal by the defendants, the learned Additional District Judge affirmed this finding. After perusing the written arguments I am of the opinion that the revision petition should be dismissed. An examination of the plaint makes it very clear that the suit as instituted was based on the allegation that the respondent came through the plaints in Suits Nos.2865 of 1978 and 2866 of 1978 filed by the petitioners that the shares of Muslim non‑evacuees and Hindu Evacuees were partitioned. It has come on record that the Suits Nos.2865 of 1978 and 2888 of 1978 were filed in the year 1978. In these circumstances it appears that the Courts below rightly held that Suit No.937 of 1980 is not barred by limitation. I would accordingly affirm the judgment and decree of the learned Additional District Judge but having regard to all the circumstances I would leave the parties to bear their own costs. AA./S‑778/K Revision dismissed.