2017 PLP 193 (CLCN)

FAHIM AHMED SIDDIQUI, J.

The applicant has assailed the impugned judgment dated 27-1-2011 and decree dated 2-2-2011 passed by the Additional District Judge-I, Shikarpur in Civil Appeal No.34/2010 whereby allowing the appeal and setting aside the judgment and the decree of F.C. Suit No.70/2006 passed by the 1st Senior Civil Judge, Shikarpur. The result of the impugned judgment was that the suit filed by the applicant against the respondents was dismissed.

2. The facts of the case, as per Memo of instant civil revision are that the applicant filed a suit for declaration, permanent injunction and a mandatory injunction in respect of the agricultural land's measuring 2 -34 acres out of S. No. 432 (5-34), Deh Mahmooda, taluka Khanpur, district Shikarpur being suit land along with some other land belonging to Hindus. After migration of Hindus in India, the said land was allotted to claimant Kousar Ali Khan in the year 1972 by settlement department. The said land was later on purchased by the applicant in the year 1974. In the year 1981 another person namely Abdul Shakoor claimed to be allottee of the suit land along with some other survey numbers and record of rights was also changed in his favour. Thereafter the subsequent allottee Abdul Shakoor sold out the suit land to respondent Khan Muhammad. The applicant after coming to know about these subsequent developments, approached the concerned Deputy District Officer (Revenue), Shikarpur for cancellation of subsequent allotment, who directed him to approach the civil court for redressal of his grievance. However, the said Deputy District Officer (Revenue) directed the respondents Nos. 2 and 3 to stop payment of compensation of natural gas discovered in the suit land anybody including the respondent No. 8 (Khan Muhammad). The applicant then filed a civil suit before the court of first instance which was ultimately decreed in his favour. The respondent No.8 challenged the wording of the court of first instance in an appeal which was heard and decided against the applicant through the impugned judgment and decree.

3. The learned counsel for the applicant made his submission at length. According to him the land was allotted to claimant Kousar Ali Khan in the year 1972 and it cannot be re-allotted to anyone and the allotment to Abdul Shakoor is not proper. He submitted that the trial Court has decreed the suit after calling record and as per the statement of concerned official of Revenue Department, the record of rights was in the name of the original allottee Kousar Ali Khan and name of subsequent claimant Abdul Shakoor is not there and the claim file of the original claimant Kousar Ali Khan is available in the office. According to him, the suit was rightly decreed and the judgment and decree of the appellate court is misleading and contrary to law. He submitted that the chapter of allotment of evacuee property was closed under Settlement Act, as such it cannot be allotted to Abdul Shakoor.

4. Conversely, the learned counsel for the respondent No.8 submitted that the land is actually a settlement land and the same was rightly allotted to Abdul Shakoor who sold it out to the respondent No.8. According to him, the respondent No. 8 is in possession of the suit land and the applicant could not produce any document pertaining to suit land in his favour. He pointed out that the suit is not maintainable as the cause of action was beyond the period of limitation. He emphasized upon the propriety and correctness of the judgment of Appellate Court.

5. In the instant matter, now the land in question is no more available to enjoy the ownership by anyone of the parties. After discovery of the natural gas reservoirs, the said land has already been acquired to establish a gas field. Now the only question is to determine, who was the actual owner of the disputed land as such who is entitled for the compensation of acquiring proceedings. The said land was actually belonging to the Hindus and after their migration it was gone to the Custodian Department for the purpose of settlement of claimants of migrants from different parts of undivided India. It is the case of the applicant that he had purchased the land from the person whom it was allotted as claimant. As a plaintiff before the trial Court, the applicant tried to establish his claim by taking plea that he had purchased the property from the owner (whom it was allotted as claimant) from his attorney but he could not produce the original documents of the property including the power of attorney issued by the first claimant namely Kousar Ali Khan. After closure of the side of plaintiff (applicant), an official of Evacuee Property Branch of District Officer Revenue, Shikarpur was called as witness, who produced a Clearance Certificate, Parchee Taqseem Khatooni and Claim File in the name of Kousar Ali Khan. If these documents are accepted as gospel truth, even then at the most it can be said that sometime back in the year 1972, a claim of one Kousar Ali Khan was handled in the Department as no proper allotment in the name of allottee was produced. At the most, it can be said that a process was initiated but not completed, as neither it is established from the record that physical possession was handed over to him and/or any revenue was ever collected from him or on his behalf even the applicant could not produce a single 'Dhall Receipt' of the said property. It could also not be established by the applicant that the alleged allottee of the land in question has ever executed a 'Power of Attorney' to Mr. Ishrat Ali Khan from whom he allegedly purchased the land in question.

6. On the other hand, the respondent has produced all the relevant documents including the allotment of the land in the name of one Abdul Shakoor from whom he purchased the land. He had produced witness who supported the version of respondent before the trial Court. It has also come on the record that the respondent Khan Muhammad was declared by the authorities as owner and the compensation amount has already been paid to him. The learned Appellate Court has considered all these aspects in his well-reasoned judgment. It is worth noting that the compensation amount has been paid to respondent after inquiry, which is sufficient to substantiate the case of the genuineness of the ownership of the respondent. It has also come on record through the mouth of the witness of the respondent before the trial court that respondent has improved and developed the land to make it cultivable. It is also mentioned by him that he used to cultivate the land since mid 80s and pay the revenue of the land. On this point, this witness of the respondent was not controverted during cross-examination. The appellant was looking all these things but he did not bother to make a complaint. Since mid 80s to 2003, the appellant remained calm and did not put forth any claim. On this score alone, the case of appellant is liable to failure being badly hit by law of limitation.

7. The upshot of the above discussion is that the instant Civil Revision merits no consideration, hence dismissed, with no order as to cost. MH/M-92/Sindh Revision dismissed.