2016 PLP 46 (CLCN)

AMIN-UD-DIN KHAN, J.

Through this civil revision petitioners have challenged the judgment and decree dated 21.6.2011 passed by learned Additional District Judge, Bhakkar whereby appeal filed by the petitioners was dismissed and the judgment and decree dated 13.5.2006 passed by learned Senior Civil Judge, Bhakkar whereby suit filed by the plaintiffs-petitioners was dismissed.

2. Brief facts of the case are that on 30.9.1991 Ch. Zaheer Ahmad/plaintiff filed a suit for declaration through Khuda Bakhsh his general attorney that order dated 18.10.1963 passed by EACO whereby cancellation of Lot No.140 measuring 1200 kanals with regard to the tube well sinking scheme from the name of Lt. Col. Atta Ullah father of the plaintiff was illegal and plaintiff being the sole legal heir of said allottee is entitled for allotment and for mandatory injunction that defendant Province of Punjab be directed to restore the lot and for permanent injunction that lot may not be allotted in favour of anyone. Written statement was filed wherein preliminary objections were raised that court has no jurisdiction to entertain and try the suit. It was stated that it is a forged power of attorney; that the suit is time barred; that plaintiff is not in possession of the lot and he has not fulfilled the conditions, therefore, he is not entitled to a decree. Subsequently, the persons in whose favour the land was leased out, after the remand by this Court vide order dated 1.7.2003 passed in Civil Revision No. 346-D of 1997 were made party and filed their written statement and contested the suit. Learned trial court framed the issues and invited the parties to produce their respective evidence. Both the parties produced their oral as well as documentary evidence. For the purposes of decision of this civil revision, the judgments of the courts below after remand are relevant. Learned trial court vide judgment and decree dated 13.5.2006 dismissed the suit. Appeal was filed, same was also dismissed vide judgment and decree dated 21.6.2011. Hence, this civil revision.

3. Learned counsel for the petitioners argues that the lot was cancelled without giving any notice to the allottee and the impugned order of EACO is without hearing the allottee. States that against the evidence produced by the plaintiff-petitioner, there is no rebuttal evidence. Further that the documentary evidence produced by the respondent department is not admissible in evidence; that the tender allottees were having no right to become a party in the suit. Further that both the courts below have not discussed the case of tender allottees. States that both the courts below have not applied their independent mind while dismissing the suit as well as appeal. While relying upon "Fateh Muhammad v. Mushtaq Ahmad and 9 others" (1981 SCMR 1061) argues that before cancellation of allotment statutory notice under section 24 of the Colonization of Government Lands (Punjab) Act (V of 1912) was necessary. Further while relying upon "Abdul Khaliq and 8 others v. Assistant Collector/Notified Officer, District Bakhar and 11 others" (PLD 2004 Lahore 521) and "Shah Muhammad v. Administrator" (1993 CLC 902) argues that allotment of State land under a permanent scheme, the tenant in cultivating possession of such land under a Temporary Cultivating Scheme cannot make a grievance against its allotment under a permanent scheme.

4. On the other hand, learned AAG assisted by learned counsel for the allottees argues that when the matter was remanded on the petition of the allottees by this Court in Civil Revision No. 346-D of 1997, therefore, petitioners have no right to challenge their locus standi as being defendants. Further it has been argued that the suit has been filed only on behalf of Zaheer Ahmad who is one of the legal heirs of the original allottee Lt. Col. Atta Ullah. States that without amending the plaint now this revision has been filed on behalf of other legal heirs of the said allottee also and that is without the permission of the court as well as without power of attorney as the power of attorney on the file Exh.P.1 is only on behalf of Zaheer Ahmad, hence, argues that the said Power of Attorney is a forged and fictitious document. States that Khuda Bakhsh the alleged attorney is in the picture and he is doing all the things without any knowledge and he relates to land grabber group; that order of cancellation is dated 18.10.1963 and the original allottee remained alive more than two decades, after the cancellation of allotment he never challenged or agitated the cancellation rather he applied for refund of his money which was refunded to him vide Exh.D.5 and the suit filed after 28 years of the cancellation of the allotment, therefore, was clearly time barred.

5. I have heard learned counsel for the parties at full length and have gone through the record with their able assistance.

6. The facts are very relevant. Learned counsel for the petitioners has referred Para 11 of the judgment passed by this Court while remanding case in Civil Revision No. 346-D of 1997 on 1.7.2003 to show that this Court has actually given findings against the petitioners, therefore, both the courts below were influenced by these findings.

7. First of all I take legal point that when there is a mechanism and hierarchy given in the Statute i.e. Colonization of Government Lands (Punjab) Act (V of 1912) for challenging the order of the first forum before the further forum and then in the other higher forum that right of appeal etc. must be exercised unless it is visibly a futile exercise. As this Court as well as august Supreme Court of Pakistan in such like cases held that if the forum of appeal given in the Statute is just a wastage of time and is not proper then a party can ignore that forum and can adopt the alternate forum available to it in the shape of suit or constitutional jurisdiction of this Court but when the forum provided in the Statute is a proper forum for adjudication of matter in issue, without exhausting that forum invoking the jurisdiction of alternate remedy is not proper. In this case as it was a case of fulfilling the conditions of allotment of the Tube Well Sinking Scheme, the proper forum to agitate the matter, against the order passed by the EACO, was to file an appeal before the higher forum was a proper remedy available to the allottee whose allotment was cancelled. In this case it is visible that the order of cancellation of the lot is dated 18.10.1963 and the suit has been filed without exhausting the remedies provided in the Colonization of Government Lands (Punjab) Act (V of 1912). When the remedies available under the law have not been exhausted, therefore, the bar contained under section 36 of the Colonization of Govt. Lands (Punjab) Act (V of 1912) is applicable and suit was not competent unless the plaintiff-petitioner could show that the jurisdiction exercised was not available with the forums. If the orders passed by the forums under the Colonization of Government Lands (Punjab) Act (V of 1912) were without jurisdiction only then the plaintiff was having right to invoke the jurisdiction of civil court. If the authority has exercised jurisdiction vested in it under the law then the provisions of the Statute barring the jurisdiction of civil court come into force and civil court certainly has no jurisdiction.

8. Even otherwise there are no defects in the proceedings, the plaintiff has not come to this court with clean hands, by stating that he is the only legal heir of the allottee and now he has joined the other legal heirs of his father/allottee and it is visible from the proceedings of this case that all the proceedings revolves upon Khuda Bukhsh and Walli Muhammad the alleged General Attorneys as attorney has filed the suit, all the appeals as well as this petition and also appeared as PW-3. The case law relied by learned counsel for the petitioners is not applicable to the facts of this case as the original allottee has never challenged the cancellation though he remained alive even 21 years after the cancellation of his lot and never disputed issuance of notice before the cancellation rather he applied for refund of money deposited by him, he received back the money. So far as findings of this court in order dated 01.07.2003 while deciding C.R.No.346-D of 1997 are concerned, the original record as well as the keeper of record was before the court, therefore, this court has recorded some factual findings, petitioners have never challenged those findings before the august Supreme Court of Pakistan and without proving that the said findings are against the record, they cannot agitate against the said findings. As I have noted above that the proper forum for challenging the cancellation was the forum provided under the Colonization of Government Lands (Punjab) Act (V of 1912), plaintiffs-petitioners opted not to invoke the jurisdiction of the proper forum and came to the civil court. In the civil court for proving a claim evidence is required, the evidence produced by both the sides clearly show that the lot was cancelled from the name of original allottee after giving him proper notice and the original allottee moved for refund of his money deposited with the respondent-defendant department and he received back the same and even the original allottee remained alive even after more than two decades of cancellation of the lot and he never disputed the cancellation in his lifetime. There are findings of two courts below with regard to the above mentioned facts and further that petitioners are not in possession of the land, therefore, certainly their suit is hopelessly barred by time. Further the point that the tender holder cannot dispute the rights of the allottee, I am afraid the law cited by learned counsel for the petitioners is not applicable to the facts of this case as after cancellation of the lot from the name of the allottee and after he received back his deposited money when there was no charge of allottee on the land it is the prerogative of the respondent department to allot the same or give the same on tender to any person. Petitioners have no right to challenge that action of the respondent department.

9. Resultantly, for what has been discussed above, when there are concurrent findings recorded by the learned courts below and no case for interference has been made out, this civil revision stands dismissed with costs throughout. ZC/Z-18/L Revision dismissed.