1999 PLP 422 (CLC)

(ii) Whether the plaintiff is prior and legal allottee of the suit property? (iii) Whether the orders in favour of the defendant No by Settlement Authorities are illegal, mala fide and ultra vires? (iv) Whether the plaintiff is in possession of the suit property? (v) Whether this Court has no jurisdiction? (vi) Whether the suit is not maintainable under the Settlement Laws? (vii) Whether the suit is barred by the provisions of section 42 of the Specific Relief Act? (viii) What should the decree be?

5. In support of their suit, plaintiffs examined Syed Ali Nasir (Rehabilitation Tapedar) P.W.1, Din Muhammad (Kamdar) P.W.2, and plaintiff Sampat P.W.3, while defendant No.l examined Safaid Khan D.W.1, Haji D.W.2 and Amir Bux D.W.3.

6. On assessment of the relevant evidence, Trial Court decided issues Nos.l to 4 in favour of the plaintiff and issues Nos.5 to 7 in negative. Consequently their suit was decreed with costs.

7. This judgment and decree was challenged in Civil Appeal No.57 of 1983, which was heard by an Additional District Judge, Larkana who set aside the same and dismissed the suit. Learned Appellate Court found issues Nos. l to 4 in favour of the appellant and on legal issues came to the conclusion that in view of the finality attached to the orders passed by Settlement Authorities by virtue of sections 22 and 25 of Act, 1958, Civil Court had no jurisdiction to entertain the suit. There is no specific finding with regard to maintainability or otherwise of the suit in terms of section 42 of Specific Relief Act. It is as against this judgment that the present revision was filed.

8. It is settled proposition in law that in the event of a conflict of judgment between the Trial Court and the Appellate Court, ordinarily, the view taken by Appellate Court has to be preferred unless it could be shown on the face of the record that such finding of fact is not supported by material evidence on record; that the conclusion drawn is patently illegal; that the view expressed is against the settled norms for appreciation of evidence or the judgment on the face of it is perverse.

9. In the present case it would appear that the petitioners while seeking declaration of title in their favour are seeking a negative declaration with regard to ownership right and interest of the respondent to the suit land without directly or indirectly assailing various orders passed by Rehabilitation and Settlement Authorities passed more than a decade before the institution of the suit except the last order passed by Settlement Commissioner (Land), Khairpur, dated 23‑10‑1967. In law, petitioners might be justified and legally entitled to seek a declaration of their right to property as envisaged by section 42 of the Specific Relief Act. I have serious reservations whether they were entitled to seek a negative declaration as to the entitlement of respondent No. l without directly or indirectly impugning variety of orders passed in relation to the suit lands in his favour.

10. A glance at the averments in the plaint tends to show that both the parties are claimants under the provisions of Displaced Persons (Land Settlement) Act, 1958 and allotted suit lands at different times in satisfaction of their claim. On their own showing petitioners had challenged the allotment of suit lands in favour of respondent Shitab son of Noor Bux before the Settlement and Rehabilitation hierarchy under the provisions of Act, 1958 but without any success. After failing to obtain relief from Assistant Rehabilitation Commissioner, Dokri as well as Deputy Collector/Deputy Rehabilitation Commissioner, Larkana vide order, dated 18‑1‑1967 admittedly they preferred a revision petition before the Settlement Commissioner (Land), Khairpur Division against the order of Deputy Rehabilitation Commissioner, Larkana on appeal under section 11(1) of the Rehabilitation Act, 1956 read with section 18 of Act, 1958, and obtained a stay order but without any ultimate success. In order to overcome this difficulty petitioners dishonestly pleaded that after the shifting of office of Commissioner, Khairpur Division to Sukkur they were made to believe by the office of Commissioner, Sukkur Division that the papers relating to their revision petition were misplaced and were not traceable. Indeed this averment is belied by the material documents placed on record by the contesting respondents who have placed on record a certified true copy of the order passed by the Settlement Commissioner (Land) Division dismissing the revision petition on 23‑10‑1967 after hearing their counsel and the parties. Even after such categorical written statement by respondent Shitab petitioners did not care to challenge the validity and correctness of such order which has been seriously impugned during the course of arguments before me at this stage. No doubt, Trial Court had settled an issue whether orders passed in favour of respondent No. l by Settlement Authorities are illegal, mala fide and ultra vires and whether the Civil Court had no jurisdiction to entertain the suit, such issue in fact is not borne out from the averments in the plaint and appears to have been erroneously settled at their instance. In fact respondent Shitab had divulged such orders in his written statement which are deemed to be valid, legal, bona fide and passed with jurisdiction. Furthermore, it transpires from the evidence of petitioner's witness Syed Ali Nasir, Rehabilitation Tapedar that the allotment of Shitab son of Roora was cancelled vide order, dated 18‑1‑1967. Indeed it is an order passed by Deputy Collector and Deputy Settlement Commissioner (Larkana), which refers to an order of cancellation of allotment in favour of petitioners by Assistant Rehabilitation Mukhtiarkar, Larkana, dated 5‑1‑1963 which had never been challenged. On the other hand petitioner Sampat in his evidence asserted that Deputy Commissioner, Larkana had cancelled the claim of Shitab son of Roora in 1961 whereafter the suit lands were allotted to him in the same year. Above order was intentionally and deliberately suppressed by the petitioners in the plaint in order to persuade the Civil Court to pass a decree in their favour. Having chosen to adopt this novel attitude, I am of the view that they cannot be permitted to impugn and assail such acts on the part of Rehabilitation and Settlement Authorities before this Court for the first time without appropriate pleadings. In this regard I am also of the opinion that the petitioners cannot succeed in their suit for declaration and injunction on the weakness in the case of respondent Shitab by pointing out that extract from RL‑II or that their Khatooni papers do not bear any date. Authenticity of such documents, however, remains in tact.

11. Adverting to the possession of suit lands it is an admitted position that respondent Shitab and after his death his legal heirs have remained in physical possession and enjoyment of the suit lands from the very beginning. Indeed the stand taken by the respondents is that they remained in possession and enjoyment of the suit lands in their own right as allottee and transferee thereof in satisfaction of their verified claim, while the case set up by the petitioners is that deceased Shitab was in possession of the suit lands as their Hari and giving Zamindari share of the produce to them for a very long period. No evidence from the Record of Rights or otherwise has been placed on the record to substantiate this position. On the contrary various documents exhibited in evidence by contesting respondents tend to show that petitioner's complaint for recovery of Zamindari share from the respondents failed before Mukhtiarkar, Dokri as well as Deputy Collector, Larkana. Their representation before the Assistant Rehabilitation Commissioner, Dokri impugning the allotment of suit lands in favour of respondent Shitab as well as their appeal before the Deputy Collector/Deputy Settlement Commissioner (Land), Larkana also failed right up to the level of Settlement Commissioner, Khairpur vide order, dated 23‑10‑1967. Only possible inference that can be justifiably raised is that the respondents have remained in possession of the suit lands in their own right.

12. The matter does not end here. Respondent Safaid Khan son of late Shitab has been able to produce the evidence relating to mutation in the Record of Rights in his favour in addition to a good number of land revenue receipts right from 1961 to 1983 when his evidence was recorded. This circumstance furnishes an additional factor for believing that the petitioners at no point of time remained in possession of suit land as wrongly asserted. They are, thus, not entitled to the relief of injunction as well, and their suit has been rightly dismissed.

13. Learned counsel for petitioners vehemently contended and was at pains to persuade me that the Appellate Court committed a gross illegality by holding that the Civil Court had no jurisdiction to entertain this suit or that it could not examine the vires of various orders passed by Settlement and Rehabilitation Authorities. In this connection, he relied upon cases reported as Sultan Mehmood v. Government of West Pakistan PLD 1964 SC 302, Hamid Hussain v. Government of West Pakistan 1974 SCMR 356, Shafi Muhammad v. Government of Sindh PLD 1993 Kar. 410, Abdul Sattar v. Settlement Commissioner PLD 1981 Kar. 413.

14. On the other hand learned counsel for the contesting respondents referred to Majid Ali Naqvi v. Additional District Judge Ex‑Officio Settlement and Rehabilitation Commissioner 1970 SCMR 375.

15. In Sultan Mahmood's case which was essentially an appeal arising out of service matter of a Government servant, reliance is placed on the paragraph expressing the view that order of Government can be proved by producing original or certified copy of order. It was further observed that letter containing reference to order having been already passed is not legal proof of order. In Hamid Hussain's case Supreme Court laid down that jurisdiction of Civil Courts even if barred and conferred upon Special Tribunals, Civil Courts being Courts of ultimate jurisdiction, have jurisdiction to examine acts of such forums to see if such are in accordance with law, or illegal or even mala fide. In Abdul Sattar's case Zafar Hussain Mirza, J. (as his Lordship then was) speaking for the Division Bench expressed the view that finality attaches to orders passed by Settlement Authorities only when order is passed with jurisdiction, within four corners of Act and in respect of matters Settlement Authorities are empowered under Act to determine. In Shafi Muhammad's case learned Single Judge of Sindh High Court expressed the view that bar of jurisdiction under sections 22 and 25 of the Act, 1958 was not attributed in suit having been filed after repeal of Act XXVIII of 1958.

16. On the other hand in Majid Ali Naqvi's case Supreme Court declined to entertain the question of jurisdiction of Settlement Commissioner as it had not been raised in the Court of first instance and there was no evidence on the record to show as to whether the Settlement Commissioner had been properly authorised by the Chief Settlement Commissioner to hear the revisions.

17. There can be hardly any cavil with the proposition of law laid down by the Superior Courts. There is consensus of opinion that Civil Court is a Court of plenary jurisdiction and entitled to examine the decisions and orders passed by Special Tribunals unless such jurisdiction is expressly barred and provided such Tribunals acted within four comers of the authority vested in them and within the limits of the statute under which they are created. At any rate, this issue having not been agitated before the Trial Court and there being no averment challenging the validity and legality of variety of orders passed by Settlement and Rehabilitation Authorities, this question cannot be raised for the first time before the Revisional Court. Learned counsel strenuously urged that this being a question of law can be raised at any stage but it is not so because it is mixed question of fact as well as law and expression of opinion on the question of jurisdiction would necessarily have nexus to the examination of the factual aspect of the case.

18. No other point was urged in support of the revision application and in my view learned Appellate Court was legally right in disturbing the findings of fact and taking a different view from that of the Trial Court which does not suffer from any legal infirmity.

19. For the aforesaid facts and reasons there is no merit in this revision petition which must fail and is accordingly dismissed with costs. H.B.T./S‑178/K ????????????????????????????????????????????????????????? ??????????????????????????????????? Revision petition dismissed,