2010 PLP 23 (YLR)

ARSHAD NOOR KHAN, J.

The aforesaid C.M.As. has been listed for hearing today C.M.A. 552/2004. C.M.A. 60/2004 and C.M.A. 69/2004 have been filed by the applicant under Order XXXIX, Rules (2) and (3) C.P.C. as well as under sections 3/4 of Contempt of Court Act against the respondents for wilfully and deliberately flouted the order dated 19-12-2003 passed by this Court. C.M.A. 553/2004 has been filed by the applicant for appointment of Commissioner for maintenance of the land in question; C.M.A. 153/2004 has also been filed by the applicant for restoration of possession of land in dispute. C.M.A. 300/2004 has been filed by the applicant stating therein the interim relief of injunction against the respondents and C.M.A. 145/2004 has been filed by respondents for review of order dated 19-12-2003 passed by this Court which according to him has been passed without hearing them. C.M.As. Nos.552/2004, 60/2004 and 69/2004 are the main applications which have been hotly contested by the parties and order passed on these applications would reflect on the other applications as such I propose to discuss these application in the first instance. The applicant Nizamuddin through his L.Rs filed civil revision under section 115 C.P.C. against the respondents challenging therein the judgment and decree passed by learned Additional District Judge Kandiaro dated 31-10-1991, whereby appeal filed by the applicants was dismissed thereby aforesaid judgment and decree passed by the learned Senior Civil Judge Naushahro Feroze in F.C. Suit No.144 of 1986 whereby the suit filed by the applicant's predecessor-in-interest was dismissed. During the pendency of the present civil revision application the arguments were heard on 19-9-2003 and by consent of learned counsel for the parties the revision application was disposed of with the observation which is reproduced hereinbelow for the sake of convenience:-- "The applicant does not press his claim on the basis of adverse possession of the land in question. He, however, being a tenant in respect of the land is entitled to avail his remedy under the Sindh Tenancy Act, 1950. Revision is disposed of in the terms of the above consent order." After passing the aforesaid order, the applicant filed C.M.A. 369/2003 which was allowed on 19-12-2003 by this Court, thereby making the observation that applicant shall not be evicted from the property otherwise than due course of law. After passing of order dated 19-12-2003 the applicant filed application for contempt of order passed by this Court stating therein that the applicant has been dispossessed wilfully and deliberately by respondents on 19-2-2004 and the respondents have forcibly dispossessed him from the land in question as such the respondent wilfully and deliberately flouted the order passed by this Court and have rendered themselves for action under the provision of Contempt of Court Act. The respondents have filed counter-affidavit and have denied the allegations made by the applicant stating therein that the land in question was inspected by the Assistant Mukhtiarkar on 3-12-2003 who after visit of site reported to D.D.O (Revenue) Kandiaro that land is lying vacant. The said inspection was made in the proceedings initiated on the application made by one Muhammad Ramzan who is also applicant No.4 in the present revision application and according to respondents their application was dismissed by D.D.O (revenue) and the appeal preferred against the order of D.D.O. was also dismissed by D.O. (Revenue) Naushahro Feroze and at one stage of proceedings it was never established that the land in question was in possession of the applicant. I have heard Messrs S. Zaheer Hassan and Abdul Haque Kambo learned Advocate for the applicant and Mr. Mukesh Kumar learned Advocate for the contemners. The learned counsel for the applicant have vehemently contended that the respondent have admitted the possession of the applicant over the land in dispute which is clears from the order, dated 9-2-2004 and according to him the respondents have illegally dispossessed the applicant from land in question on 19-12-2003 which is in utter disregard to the order dated. 19-12-2003 as such they themselves flagrantly violated the order passed by this Court and have rendered themselves liable for action under the provision of Contempt of Court Act. In support of their contention they have relied upon a case of Haji Muhammad Hussain and 4 others v. Muhammad Abbas reported in 2001 YLR 1767. Mr. Mukesh Kumar learned Advocate for the respondents vehemently controverted the submissions advanced by the learned counsel for the applicant and has contended that at no point of time the applicant was in possession of property in question and prior to passing of final order passed by the Court the land was inspected by Assistant Mukhtiarkar (Revenue) who reported to D.D.O (Revenue) stating therein that the present applicants are not in possession of land in question and the D.D.O. (Revenue) dismissed the application filed by one of the applicant, against the dismissal of the application the appeal was preferred before District Officer (Revenue) which was also disposed off and the order passed by the Court has attained finality as such neither any contempt has been committed by the respondents nor any case for contempt of Court has been made out. I have considered the arguments advanced by the learned counsel for the respective parties and have gone through the material available before me as well as case law cited by the learned counsel for the applicant. There is no cavil to proposition that the parties are litigating over a piece of land which was allotted to the applicants' predecessor by the revenue authorities and the said land admittedly was not being cultivated since long as such in the suit of applicant judgment and decree was passed by the Senior Civil Judge, whereby the suit for declaration was dismissed however the prayer regarding injunction was granted. The appeal preferred by the applicants predecessor was also dismissed by the Additional District Judge Kandiaro. The revision preferred by the applicants was disposed of by this Court with the consent of learned counsel for the parties, whereby the applicant was agreed to pursue the remedy under the provision of Sindh Tenancy Act, 1950. The contention of respondents is that the land in question was inspected by Assistant Mukhtiarkar on 3-12-2003 which shows that said inspection was carried out much prior to the order dated 19-12-2003. The perusal of record shows that the applicant was not in possession of the suit land when this Court disposed of the revision application. The said assertion is well worded in the contents of counter affidavit filed by the respondents which has not been controverted by the applicant by filing rejoinder. The learned counsel for the respondents has taken me through the order dated 26-12-2003 passed by the D.D.O (revenue) on the application of applicant Muhammad Ramzan who is also the party in the present revision application before this Court and his application was dismissed under the provision of Sindh Tenancy Act, 1950 by D.D.O (Revenue) and the said applicant Muhammad Ramzan filed appeal against the order passed by D.D.O (Revenue) before D.O. (Revenue) N. Feroze and the D.O (Revenue) passed order dated 23-9-2003 thereby maintaining the order passed by D.D.O (Revenue). The orders passed by both the Revenue authorities does not show that the applicants were in possession of property under Sindh Tenancy Act, 1950. Against the order passed by D.O (Revenue) no appeal has been preferred before the Member Board of Revenue or said order has been challenged by way of filing constitutional petition or suit. Therefore order passed by D.O. (Revenue) attained finality. My attention has also been drawn by learned counsel for the respondents that on same ground the applicant has lodged F.I.R. against the respondents which was thoroughly investigated and the respondents have participated the investigation 'and Investigating Officer finally opined that no offence of dispossession has been made out and submitted such report before Civil Judge and Judicial Magistrate Kandiaro which was accepted and F.I.R. was disposed of in B class as such the allegations of the applicants have not been established in investigation in criminal side also which shows that the applicant was not found in possession of property in question from the date of order dated 19-12-2003 passed by this Court. Case-law relied upon by the learned counsel for the applicant in my humble opinion is distinguishable from the circumstances of the present case and is in applicable. In view of the orders passed by the revenue authorities it has been established that the applicants did not remain in possession when the Assistant Mukhtiarkar inspected the site, as such it is not proved that the respondents have dispossessed the applicants and rendered themselves liable for penal action under the provision of Contempt of Court Act. The case law cited by the learned counsel in my humble opinion is distinguishable to the facts and circumstances of the present case and is inapplicable. The C.M.A. 552/2004, 60/2004 and 69/2004 are therefore dismissed. Consequent upon dismissal of above C.M.As. the other C.M.As. have become in fructuous which are also dismissed. M.H./N-26/K Applications dismissed.