P L D 1968 Karachi 52 (PLP)

(4) What was the relationship of Allahdino with deceased Murid ? (5) Is the suit not in proper form? (6) Is the suit not maintainable at law? (7) Is the suit time‑barred ? (8) Are the plaintiffs entitled to relief sought for? (9) What should the decree be?" The defendants 2 to 8 then preferred an appeal which was heard by the Additional District Judge, Nawabshah and in which they impleaded the Province of West Pakistan also as one of the respondents. The learned Additional District Judge maintained the findings of the learned trial Judge and on the said nine issues gave his findings as follows: "(1) Hashim alone. (2) Ibrahim alone. (3) Ahmedali alone. (4) They were brothers. (5) In the affirmative. (6) In the negative. (7) In the negative. (8) In the affirmative. (9) Suit decreed as prayed."

6. In second appeal Mr. Percy Ramchandani appearing for the appellants did not question the findings of the learned Additional District Judge on the first four issues which were on questions of fact. Therefore in regard to these questions which were the subject‑matter of issues 1, 2, 3 and 4 the findings of the Courts below must be sustained with the result that it must be held that the plaintiffs are the only heirs of Murid, Hashim, Ibrahim and Ahmed Ali and entitled to claim whatever belonged to them or to which they were entitled. Mr. Ramchandani, however, pressed the following points: Firstly, that the suit for declaration was not competent; secondly, that the suit was barred by sections 4 and 11 of the Revenue Jurisdiction Act, 1876 and thirdly, that the suit was barred by limitation. I shall now proceed to deal with these three points.

7. With regard to the first point the contention was that having regard to section 37 of the Land Revenue Code the Kutcha land, which re‑appeared from time to time and which was not identifiable as the land of Murid and had not been surveyed, was the property of the Government and it was for the Government in its sole discretion to grant the ijazatnama which was nothing but a permission or a licence for a limited period 'of a year or one season. That being so, the plaintiffs did not have any right to property in respect of which a declaration under section 42 of the Specific Relief Act could be granted. Section 42 in so far as it is material for the consideration of the argument may be reproduced: "

42. Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right and the Court may in its discretion make therein a declaration that he is so entitled and the plaintiff need not in such suit ask for any further relief." It would now be convenient to refer to the nature of the grant in respect of which the Government issues the annual ijazatnama. The matter is governed by the Standing Order No. 10 of the Standing Orders of the Revenue Department. At page 7 of this Order, it is provided that no lease money shall be levied in respect of surveyed or un-surveyed land which had been given out in compensation for lands eroded. This is popularly called a grant in lieu of Darya Khurdi right. Note 1 which is attached to this item states that "the words 'predecessor in title' used in the agreement accompanying G. R. R. D. No. 3462/24, dated 15th October 1935 relating to alluvial land refer to a person from whom lands have passed by inheritance to his legal heirs and not to a purchaser. Thus the heirs of the original grantees from whose Khata the land was eroded and not the purchasers are entitled to get land in lieu of that lost by erosion." It would thus appear that annual leases are granted in compensation of land which was eroded by river action to the heirs of the original owner. In iced, this position is not disputed as would appear from the order of the Additional Commissioner referred to above. It is conceded there that the grant of ijazatnama is to be made to the heirs of Murid. It is no doubt that in so far as the land had not been identified to be that which had been eroded the Kutcha land is the property of the Government. It is for this reason that it is the Government which grants the ijazatnama in respect of it though as the Yazatnama is granted in compensation of the eroded land no lease money is charged. It may, therefore, be conceded that if the Government was to change its policy in respect of such grants by passing a fresh resolution and refuse to make the annual grants in respect of Darya Khurdi rights until the eroded land re‑appeared completely and became identifiable, an action to enforce such a right would not succeed. In that case a claim for declaration would be refused. But that is not the case here. The Government is still continuing to make the grant in compensation for the eroded land of Murid. The Government have not resisted the claim made by the plaintiff's. Indeed, it was the Additional Commissioner who directed the plaintiff's, or at least one of them, to go to the Civil Court so that the question could be decided authoritatively as to who was the heir of Murid and thereafter his son Hashim. The true nature of the plaintiffs' claim as it was pressed before me was that they claimed a legal character, namely a declaration that they were the heirs of Murid and Hashim, etc. Such a claim had been before the Revenue authorities and was contested by the defendants and the Revenue authorities eventually said that the matter was of a Civil nature and had to be decided by a Civil Court. That legal character of the defendants having been disputed in the revenue proceedings and a direction having been given by the Additional Commissioner the plaintiffs filed the suit primarily to obtain a declaration of such a legal character. It is true, the prayer in the suit was rather widely couched but from that it does not follow that such of it as can be granted could be refused The true purpose and effect of the declaration sought in this suit and which has been granted to the plaintiffs by the Courts below would be to enable them to go with it to the Revenue authorities and ask them for the grant of the ijazatnama in respect of the Darya Khurdi right. Mr. Ramchandani referred to a judgment of Qadeeruddin Ahmed, J., in the case of Nek Muhammad v. Province of lest Pakistan (P L D 1966 Kar. 314). But in that case, the Board of Revenue had rejected the plaintiffs' claim for the grant of the land in respect of Darya Khurdi right upon the ground that the portion which they were claiming war not situated in Block No. 4‑A and that they were in unauthorised possession of that land. It is in this context that the judgment of the learned Judge has to be understood. The plaintiff's in that case were claiming that the repeated grant of the land to them by the Government created in their favour a right and title in respect of that land and they were entitled to its grant perpetually. Such a claim, if 1 may say so with respect, was rightly rejected. That, however, is not the position in this case. The plaintiffs in this suit are‑ not challenging the right of the Government. What they are claiming is that they are the heirs of the original owner of the eroded land and are, therefore, entitled to the ijazatnama which the Government grants by an annual lease by way of compensation. I would, therefore, for the reasons giver hold that the plaintiffs' suit is competent.

8. With regard to the objection based upon sections 4, and 11 of the Sind Revenue Jurisdiction Act of 1876, let us refer to these provisions in the first instance. Section 4 provides that subject to the exception appearing in the section no Civil Court shall exercise jurisdiction as to any of the matters enumerated therein. Mr. Ramchandani relied on clause (f) which relates to claim against Crown to hold land wholly or partially free from payment of land revenue . . . . . under the provisions of any law for the time being in force. There is no doubt that such a claim against the Government would be barred. However, claim as to the declaration of a legal character as the heir of the owner of the land for the purposes of seeking an fjazatnama from the Government which it grants in compensation of the c eroded land does not come within the mischief of this provision. It was held by a Division Bench of the Bombay High Court to a somewhat similar situation in the case of E. G. Patil v. g. M. Patil (A I R 1936 Bom. 301), that there was nothing in the Act (Bombay Revenue Jurisdiction Act, section 4 which is in part materia to the section 4 of the Sind Act) which would debar a Civil Court from granting a declaration that the plaintiff is the nearest heir of the deceased holder in preference to the defendant. It was further held that the Civil Courts have, jurisdiction to decide a dispute between persons claiming to be watandars inter seas to their status in the Watan family. With this view I am in respectful agreement. I, therefore, hold that this suit is not barred by section 4.

9. The objection with reference to section II need not detain us. This section provides that no Civil Court shall entertain any suit against the Crown on account of any act or omission of any Revenue Officer unless the plaintiff first proves that previous to bringing his suit he has presented all such appeals allowed by law for the time being in force. In the present case, this suit has not been brought on account of any act or omission of any Revenue Officer. But if the refusal of the Additional Commissioner or the Subordinate Revenue authorities to grant ijazatnama to the plaintiffs is to be treated as an omission within the meaning of this section then it is sufficient to say that against the decision of the Additional Commissioner Mr. S. M. Kazi there was' no further appeal provided under the Land Revenue Code. This was conceded' by Mr. Ramchandani but he said that the plaintiffs could have further gone to the Board of Revenue. That, however, cannot be the reason for holding that the suit is barred under section 11, because that section provides only for exhausting all remedies by way of appeals.

10. I then come to the last point which was with regard to the limitation. It was common ground that Article 120 of the Limitation Act would govern this suit. This Article provides for a suit for which no, period of, limitation is provided elsewhere in the Schedule. The period of limitation provided is 6 years commencing from the date when the right to suit accrues. The question is as to when did the right to sue accrue to the plaintiffs anal whether this right is barred by the expiry of the period of limitation as provided in this Article. The contention of Mr. Ramchandani was that the defendants had been getting this ijazatnama since 1941 and since the plaintiffs' right at best was to get an ijazatnama from the Government it should be held that when the defendants obtained such ijazatnama this was in denial of the right of the plaintiffs and in this view of the matter the right to sue accrued to the plaintiffs in the year 1941 when the defendants first obtained the ijazalnama in respect of the darya khurdi rights. The arguments proceeded that either the plaintiffs have no right at all and if this is so they would not be entitled to a declaration under section 42, but' if they bad a right then this right must be held to have been barred by limitation. I have given my most careful consideration to this argument, but have not been able to accept it. As regards this question the answer is two‑fold. In the first place, no one can claim an Ijazatnama as of a right. It is true, the Government in pursuance of their resolution and standing orders have been granting such annual leases in compensation to a person or his heirs whose land has been eroded by the section of the river but if they declined to do so no right against them could be enforced by way of a civil suit, because there is no doubt that the unidentified Kutcha land, which temporarily forms a river bed, is the property of the Government. Therefore, when the ijazatnama, cannot be had as a matter of a right, the grant of such ijazatnama by the Government does not provide a right to sue. The limitation, therefore, did not run against the plaintiffs. Secondly, the ijazatnama is granted every year. It is, having regard to the nature of its terms, nothing more than a licence though it is described as a lease. Therefore, even if a right to sue accrues upon the grant of an ijazatnama this would be a recurring right because the ijazatnama is granted every year. Moreover, it must be noted that the Government has not resisted the suit, which indeed was instituted when the Additional Commissioner held that the plaintiffs may obtain a decision from the Civil Court. In this view of the matter considering that the suit was filed in the year 1962 soon after the decision of the Additional Settlement Commissioner, it is not barred by time.

11. In the result I would grant a declaration to the plaintiffs in the following terms: That they are the legal heirs of the original owner of the land, namely Murid, and have inherited his rights as well as those of his descendants in respect of the land which was eroded by river which gave rise to the Darya Khurdi rights. It is further declared that the plaintiffs are entitled to the grant of ijazatnafra in respect of the Darya Khurdi rights of the land of Murid so long such an ijazatnama is granted. From this the consequential relief would follow that the defendants 2 to 8 or their legal representatives shall not, in view of the declaration granted to the plaintiffs hereafter, set up their claim in respect of the said land of Murid or in respect of the Darya Khurdi rights thereof. A decree in these terms shall follow. Costs of the appeal shall be borne by the appellants. A. H. Order accordingly.