2003 PLP 1922 (CLC)

(6)??????? Muhammad afar and others v. Amanuel Civil Revision No.3182‑D of 1996. (7)??????? Muhammad Zafar and others v. Muhammad Yousaf Ali Civil Revision No.3183‑D of 1996. (8)??????? Muhammad Zafar and others v. Khurshid Masih Civil Revision No.3184‑D of 1996.

2. Brief facts of the case are that the respondents filed a suit for declaration in the Civil court, Faisalabad challenging the order of the Collector/Deputy Commissioner, Faisalabad, Additional Commissioner and of the Member (Colonies), Board of Revenue, Punjab, respectively, dated 16‑7‑1974, 30‑7‑1983 and 8‑9‑1983 through which the disputed Ahata No.24 measuring 5 Kanals, 16 Marlas and 4 Sarsahi, situated in Chak No.222‑RB Nawabwala, Tehsil and District Faisalabad was allotted to the predecessor‑in‑interest of the petitioners as the respondents' appeal and revision petition against the order of transfer of the Ahata of the Collector dated 16‑7‑1974 were dismissed. It was stated by the respondents in the plaint that they are in possession of the disputed Ahata since 1947 construction of the houses was made by them in the said Ahata and electricity and sui gas connections were also got by them. It was alleged that the petitioners‑defendants being influential persons go the land through the order of the Collector, dated 16‑7‑1974 with collusion of the Revenue Staff by obtaining fictitious and false; reports from the Patwari Halqa about their possession and by the said order, dated 16‑7‑1974 proprietary rights were conferred on the petitioners ?defendants. The grievance of the respondents‑plaintiffs in the suit was that no notice was issued to them in spite of the fact that they were in actual and physical possession of the disputed Ahata since long. After getting the proprietary rights by the petitioners‑defendants, the proceedings under sections 32/34 of the Colony Act were initiated against the plaintiffs for getting possession of the Ahata from the plaintiffs ?respondents, on which the respondents‑plaintiffs were able to know that the order transferring the land in favour of the petitioners‑defendants has been passed by the Collector on 16‑7‑1974. The respondents‑plaintiffs tiled an appeal before the Additional Commissioner, which was dismissed on the grounds that since the proprietary rights have been given to the petitioners the Court had no jurisdiction and that the appeal of the respondents was barred by time. Thereafter the respondents‑plaintiffs filed a revision petition before the Member, Board of Revenue and the same was dismissed on 8‑9‑1983. It was stated .in the plaint of the suit that all the orders in the hierarchy of the Revenue Authorities were illegal, void and ineffective upon the rights of the respondents‑plaintiffs, based on fraud and misrepresentation. The respondents‑plaintiffs further prayed that their possession over the disputed Ahata be regularized under the Government policy on the basis of possession and it was further prayed that a decree for permanent injunction be passed it their favour restraining the petitioners‑defendants from interfering in their physical possession.

3. The suit was resisted by the petitioner3‑defendants by filing written statements controverting the allegations in the plaint.

4. In all the connected civil revisions, eight in number, as listed in para. 1 of this judgment, the petitioners also filed separate suits against the respective respondents. All the ten suits were consolidated by the learned Civil Judge vide order, dated 28‑9‑1985. He proceeded to frame the following consolidated issues in all the suits, i.e. one filed by the respondent and nine by the petitioners:‑‑ (1)??????? Whether the Civil Court has no jurisdiction, to try this case? OPD (2)??????? Whether the plaintiffs have no cause of action or locus standi to bring this suit? OPD (3)??????? Whether the suit is time‑barred? OPD (4)??????? Whether the suit is not maintainable in its present form? OPD (5)??????? Whether the suit has not been correctly valued? If so, its effect? OPD (6)??????? Whether the suit is defective due to mis joinder of parties? OPD (7)??????? Whether the suit is false and vexatious? If so, its effect? OPD (8)??????? Whether the impugned order, dated 16‑7‑1974 passed by Collector and order, dated 30‑7‑1983 passed by the Additional Commissioner and order, dated 8‑9‑1983 passed by member, Board of Revenue, Lahore are illegal and void and inoperative against the rights of the plaintiff? OPD (9)??????? Whether the sale‑deed, dated 4-4‑1981 in question is void, illegal, collusive and based on fraud? If so its effect? OPP (10)????? Whether the defendants (plaintiffs the other suits) are entitled to the possession of the property in accordance with the area specified by them in their respective suite? OPD (11)????? Relief.

5. Both the parties led evidence. The learned Civil Judge, Faisalabad through a consolidated judgment and decree, dated 31‑1‑1988 dismissed the declaratory suit filed by the respondents and decreed all other nine suits for possession filed by the petitioners, in their favour and against the respondents. The respondents preferred an appeal against the dismissal of their declaratory suit as well as filed other separate nine appeals against the same consolidated judgment and decree, dated 31‑1‑1988. While dismissing the declaratory suit filed by the respondents, the trial Court decided Issues Nos.2, 8, 9 and 10 in favour of the petitioners, whereas the remaining issues, i.e. regarding jurisdiction, question of limitation, maintainability of suit, joinder of necessary parties were decided in favour of the respondents. On the basis of the finding recorded on Issues Nos.2, 8, 9 and 10 the declaratory suit filed by the respondents was decreed, and the suits for possession filed by the petitioners were dismissed. The petitioners did not file any cross? objections against the findings of the learned Civil Judge on Issues Nos. 1, 3, 4, 5, 6 and 7; therefore, in appeal the learned Additional District Judge did not discuss the said issues and maintained the findings or these issues. However, the learned Additional District Judge reversed the findings on Issues Nos.8, 9 and 10, recorded by the Civil Judge, by observing that the disputed Ihata No.24 was never transferred in favour of Sh. Muhammad Amin, predecessor‑in‑interest of the petitioners through registered sale‑deed, dated 27‑11‑1928 (Exh.P.11) because this is an admitted fact that in Exh.P.11 there is no mention of Ihata No.24, meaning thereby the disputed Ihata was not transferred through the sale ?deed Exh. P.11 in favour of Sh Muhammad Amin, predecessor‑in‑interest of the petitioners. It was further observed that neither the number of the Ihata has been given nor there is any mention about the area of the Ihata. All the superstructure of the case made by the respondents stands on this basic document and it is astonishing that when the predecessor of the petitioners did not purchase the disputed Ihata, then how he could be allotted the proprietary rights of the said Ihata. It was further observed that Mubarik Ali and Barkat Ali, from whom the predecessor‑in‑interest of the petitioners, namely, Sh. Muhammad Amin purchased the agricultural land, were non‑agriculturist and their property was self? acquired, they were non‑Dakhildar and Abadkar, therefore, predecessor-?in‑interest of the petitioners could not get better title than the title of the vendor and the petitioners in no way could be treated as Dakhildar and Abadkar. The possession of the disputed Ihata was delivered to the petitioners in violation of the provisions of section 10(4) of the Colonization of Government Lands (Punjab), Act, 1912 without issuing any notice to the respondents. The learned Additional District Judge accepted all tae ten appeals of the respondents and the consolidated judgment and decree of the trial Court was set aside. Resultantly, the suit filed by the respondents for declaration and consequential relief was decreed and the nine suits filed by the petitioners for possession of the disputed property against the respondents were dismissed. Hence this revision petition.

6. The learned counsel for the petitioners contends that the Firs Appellate Court has not touched Issues Nos.2, 8 and 9 can the ground that no cross‑appeal was filed by the petitioners, therefore, there was no need of discussing these issues, which is patently wrong as the appeal is the continuation of the trial and the learned lower Appellate Court is under legal duty to record finding on each and every issue.

7. The learned counsel for the respondents, on the other hand, argued that the findings of Issues Nos.2, 8 and 9 regarding jurisdiction of the Civil Court to see the order passed by the Revenue Authorities, the limitation and the maintainability were rendered against the petitioners. No cross‑objections as required under Order 41, rule 22, C.P.C. had been filed, therefore, there was no legal obligation upon the First Appellate Court to decide the issues and the findings recorded by the Civil Judge against the petitioners became final.

8. Under Order 41, rule 22, C.P.C., any respondent in appeal, though he may not have appealed from any part of the decree, may not only support the decree on any of the grounds decided against him in the Court below, but take any cross‑objections to the decree which he could have taken by way of appeal, provided he has filed such objections in the Appellate Court within one month from the date of service on him or his pleader of notice of the date fixed for hearing of the appeal, or within such a further time as the Appellate Court may see fit to allow. The respondents cannot attack the decree or ask for any variation in tire decree otherwise than by way of cross‑objections. In cases reported as:‑‑‑ Mst. Jantan and others v. Khan Muhammad and others PLD 1954 Lah. 371, Messrs Yousuf & Co. v. Mst. Rasheeda Begun. PLD 1975 Kar. 684, The Directorate of Industries and Mineral. Development and others v. Messrs Masood Auto Stores PLD, 1991 Lah. 174, Khairati and 4 others v. Aleemuddin and another PLD 1973 SC 295 and Kanwal Nain and others v. Fateh Khan and others PLD 1983 SC

53. It has been ruled that respondent cannot attack the decree or ask for variation in the decree otherwise than by way of cross‑objections. While interpreting the provisions of Order 41, Rule 22, C.P.C. the Honourable Supreme Court in the case reported as Muhammad Aslam and 2 others v. Syed Muhammad Azeem Shah and 3 others 1996 SCMR 1862 has ruled as under: "‑‑‑‑Defendant having failed to file any cross‑objections before First Appellate Court was precluded to reagitate such issue in view of Kanwal Nain's case PLD 1983 SC 53 wherein it was maintained that where no cress‑objections had been filed before First Appellate Court to challenge finding on one of the issues involved in the case, finding on that issue attained finality and was not liable to be re‑opened.?

9. The objection of the learned counsel for the petitioners on the impugned judgment of the learned Additional District Judge decreeing the suit of the respondents for declaration is that the land which is subject matter of the Colonies Department, only the Revenue e1urt has the jurisdiction to deal with it and when the proprietary rights were granted to the petitioners by the Collector vide the impugned order, dated 16‑7‑1974 and the appeal and revision petition of the respondents were dismissed by the Additional Commissioner and the Member, Board of Revenue vide orders dated 30‑7‑1983 and 8‑9‑1983 the decree could have not been grantee, as the Civil Court had no jurisdiction under section 36 of the Colonization of the Government Lands (Punjab) Act, 1912. To see whether the Civil Court has the jurisdiction to look into the legality of the orders passed by the Collector, reading of section 36 of the Colonization of Government Lands (Punjab) Act, 1912 is helpful, which is reproduced as under:‑‑ "36.????? Jurisdiction of Civil Court barred as regarding matter wising 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 cognizance 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. "

10. From bars reading of the above quoted section, it is cleats that the Civil Courts would ordinarily have jurisdiction to decide whether or not the .act purporting to have been done in exercise of power conferred by the Act No.V could be validly done under the Act and on the language of section 36 of the Act it cannot be held that jurisdiction had been taken away from the Civil Courts by that section. Nor does section 36 of the Act divest the jurisdiction of the Civil Courts to adjudicate what legal effect the order of a Revenue Officer validly passed under Act V of 1912. will have on the rights of the, parties before it. This key question of ousting the jurisdiction of the Civil Courts came for consideration for the first time in case reported as Secretary of State v. Mask & Company AIR 1940 PC

105. The excl6sion of jurisdiction of the Civil Court is not to tie readily inferred that such an exclusion must either by explicitly expressed or clearly implied. It is also well‑settled that even if jurisdiction is so excluded, the Civil Courts have jurisdiction to examine into cases where the provisions of the Act have not been complied, or the statutory Tribunal has not acted in conformity with the fundamental principles of judicial procedure. It has been ruled in case reported as Khadim Hussain and 3 others v. Ata Muhammad and 7 others PLD 1967 Lah 915 and Khadim Hussain and 3 others v. Ata Muhammad and 7 others 1970 SCMR 127 that where the very authority to pass an order under the Colonization of Government Lands (Punjab) Act, 1912 is challenged, section 36 is not a bar to such a suit.

11. On the touchstone of the above stated case‑law, I have examined the evidence on the record. The case of the petitioners before the Court was that their predecessor‑in‑interest Sh. Muhammad Amin purchased the disputed Ihata alongwith agricultural land vide registered sale‑deed, dated 17‑11‑1928 (Exh.P.11). Mutation No.63, dated 26‑2‑1929 (Exh.P.1) on behalf of Mubarik Ali and Barkat Ali sons of Muhammad Sharif, regarding the agricultural land was attested in favour of the predecessor‑in‑interest of the petitioners Sh. Muhammad Amin. The learned Additional District Judge has observed that in Exh. P.11 there is no mention of Ihata No.24 meaning thereby the disputed Ihata was not transferred through sale‑deed Exh. P.11 in favour of Sh. Muhammad Amin, predecessor‑in‑interest of the petitioners. The learned counsel for the petitioners has not been able to demonstrate that this finding is result of misreading of the registered sale-deed Exh.P.11, dated 17‑11‑1928 in favour of Sh. Muhammad Amin, predecessor‑in-interest of the petitioners. The second document in favour of Sh. Muhammad Amin is Mutation No.63 (Exh. D.1). A statement has been incorporated in the mutation, i.e.:‑‑

12. It is nowhere provided in this document that Ihata No.24 was purchased by the predecessor‑in‑interest of the petitioners, namely, Sh. Muhammad Amin from Mubarik Ali and Barkat Ali. It is stated that the sale‑deed Exh.P.11 is in respect of the Ihata situated in Khewat No. 5 and 7/8th share was transferred by Barkat Ali and Mubarik Ali. There is no proof of the fact that the Ihata was situated in Khewat No.5 or 6 as stated by the petitioners.

13. Total land of Ihata No.24 is stated to be 6 Kanals, 13 Marlas and 1 Sarsahi and was purchased by the grandfather of the petitioners and thereafter proceedings of partition took place between the co‑sharers on the application of the petitioners, which was accepted through the order of the Collector Exh.P.5 and the partition proceedings took place through Exh.P.6. Thereafter the property was demarcated by Qanungo who was admittedly not a Revenue Officer and his report was exhibited as Exh.D‑8 under objection. The site plan Exh.D.9 was prepared and it was incorporated in the field book Exh.D.10 and the Jamabandi Exh.D.11 was prepared in 1960‑

61. Demarcation report Exh.D.8 by the Qanungo is admittedly not by a Revenue Officer of either grade. Neither any notice was issued to the respondents who were admittedly in possession of the Ihata, nor their statements were recorded. Three fixed (Pukhta) points on different sites of the disputed Ihata were to be fixed by the Local Commissioner from where the measurements had to be taken. In case reported as Col. Mahboob Khan v. Abdur Rashid and another 1993 MLD 1599 it has been ruled as under:‑‑ "... Property in question, was not demarcated in accordance with provisions of High Court (Lahore) Rules and Orders on the subject which required that measurement had to be taken from three points which were to be fixed by Local Commissioner‑‑‑In absence of such procedure, demarcation report would be of no evidentiary value."

14. From the documents Exh.P.11, registered sale‑deed in favour of Sh. Muhammad Amin, Mutation No.63 attested on 26‑2‑1929 Exh.D.1, partition proceedings on the application of the petitioners Exh.D.4 and order on it Exh.D.5, the demarcation report by Qanungo Exh.D.8 the, petitioners could have not been considered as owner‑in‑possession of the land in dispute. The Ihata was in possession of the respondents, No.1 opportunity of being heard was granted to them by the Collector before dated 16‑7‑1974. Moreover, the respondents possession was gang to be disturbed by ejecting then in exercise of the powers under sections 32/34 of the Colonization of Government Lands (Punjab) Act, 1912 without issuance of any notice to them. Provisions of section 32 do not exclude the right of hearing to the persons likely to bell affected. Determination under section 32 cannot be made at the back of the person in possession. Principle of `Natural Justice' ought to be read as part of every statute unless specifically excluded. In case of Muhammad Sharif and others v. A.C. Samundri and others 1990 ALD 152(1), the dispossession order passed by the Assistant Commissioner, Samundri against the persons who were in possession, was declared to be without lawful authority being violative of principle of natural justice. Similar view was taken by this Court in case of Madad Ali Shah v. Revenue Minister and others 1991 MLD 2394 whereby the writ petition was accepted and the order directing eviction of an encroacher passed without giving him an opportunity of being heard and declared to be without lawful authority. In case reported is Fateh Muhammad v. Dilawar Khan and 3 others 1989 SCMR 1145 the person who was shown as to occupation of the Ihata in dispute in: that cast without an inquiry and notice to him, his possession was held to be unauthorized and the Ihata was allotted to some other person than the person who was in possession. The Board of Revenue in the hierarchy maintained that allotment order but the order of the Board of Revenue was declared to be without lawful Authority by the High Court on the ground that the Ihata could have not been allotted without an inquiry and notice to the occupant and the occupant's possession could have not been declared as unauthorized. The petition for leave to appeal was dismissed.

15. This being so, the order of the Collector regarding proprietary rights was void, illegal and with no legal effect upon the rights of the respondents The appeal and revision were also dismissed by the Additional Commissioner and the Member, Board of Revenue without exercise of proper jurisdiction. In this view of the matter, section 36 of the Colonization of the Government Lands (Punjab) Act, 1912 did not oust the jurisdiction of the Civil Court to examine tile correctness and legality of the order passed by the Collector. The learned Civil Judge by misreading the evidence in general and particularly the sale‑deed Exh.P.11, dated 17‑11‑1928, Mutation No.63 dated 26‑2‑1929 Exh.D.1, demarcation report Exh.D.8 and by non‑reading of the Revenue Record dismissed the suit of the respondents and granted decree for possession to the petitioners, which has been rightly set aside by the learned Additional District Judge by accepting their appeal. No illegality or irregularity has been committed by the First Appellate Court in accepting the appeal and decreeing the suit for declaration and permanent injunction filed by the respondents. The petitioners could have not proved the title of the property on the basis of the proprietary rights granted to the petitioners through the order, dated 16‑7‑1974 of the Collector. They were not entitled for decree for possession of the suit Ihata under section 8 of the Specific Relief Act. No exception can be taken .to the consolidated judgment and decree passed by the learned Additional District Judge, Faisalabad. Resultantly, this revision petition alongwith other connected revision petitions fails, which are dismissed with costs. S.A.K./M‑1993/L??????????????????????????????????????????????????????????????????????????????? Petitions dismissed.