1986 PLP 246 (MLD)

(5) Whether the suit is barred under section 91, C.P.C. ? (6) Whether this Court has no jurisdiction ? (7) Whether the suit is barred by law of limitation ? (8) Whether village Khanghar, is existing and inhabitative village ? (9) Whether this assignment as an abondoned village of village Kanghar and its disposal as agricultural land by defendants Nos.1 and 2 is ultra vires, unlawful and without: jurisdiction (10) Whether the plaintiff is entitled to any relief ? (11) What should the decree be ? The respondent No.1 examined himself. The appellant examined Rehmat Ali, Muhammad Uris, Ghulam Rasool and Misri son of Ahmed. The learned Second Senior Civil Judge on the basis of the evidence produced by the parties and taking into consideration the arguments advanced by the learned counsel for the parties, decide issues 8 and 9 in the affirmative and issues 1 and 7 in the nagative and decreed the suit, vide his judgment and decree, dated 31‑7‑1974. The appellant being aggrieved by judgment and decree, dated 31‑7‑1974, of the learned Second Senior Civil Judge, filed Civil Appeal No.20 of 1975 in the Court of District Judge, Hyderabad which ultimately transferred to the Court of District Judge, Badin. The learned District Judge, Badin, by his judgment and decree, dated 1‑4‑1976 dismissed the appeal and affirmed the judgment and decree of the learned second Senior Civil Judge, for the reasons given in the said judgment. The appellant abovenamed, being aggrieved by the judgment and decree, dated 1‑4‑1976 has preferred this Second Appeal on the grounds mentioned in the Memo. of Appeal. "The question which falls for determination is:‑

Whether the Revenue Officer was competent to order dis-assignment of a village from 'head village' site to 'head agricultural." The learned Senior Civil Judge as well as the learned District Judge has recorded well‑reasoned out judgments and I do not find any reason to disturb the finding on the points which have been raised before me and had been taken and debated in the Courts below. It had repeatedly been emphasised that the High Courts would not permit a party to raise those very points, which have been duly discussed and decided by the Courts below unless such finding suffers from any apparent defect. In this case the learned District Judge has applied his mind to the facts of the case and has come to the conclusion, and in my view very rightly, that the learned Senior Civil Judge has correctly recorded a finding that the Revenue Officer acted illegally and his power by invoking provision of section 38 of the said Code. The provision of Land Revenue Code and Standing Order X which are relevant for the purpose are sections 8‑A and 38 of the said Code and part 2, item No.4, clause B of Standing Order No.10. "8‑A Notwithstanding anything contained in section 8, the Provincial Government may in any District appoint an Additional Collector. Such additional Collector shall be subordinate to the (Revenue Commissioner) and shall, throughout the district or in such part or parts thereof as the Provincial Government may direct, exercise all or any of the powers and discharge all or any of the duties conferred and imposed upon the Collector by this Act or any other law for the time being in force, as the Provincial Government may direct. Subject to the general orders of (the Provincial Government), it shall be lawful for survey officers whilst survey operations are proceedings under Chapter VIII * * *, and any other time for the (Collector), to set apart lands the (property of the Crown for the purposes of the Province) and not in the lawful occupation of any person or aggregate of persons, in unalienated villages or unalienated portions of villages, for free pasturage for the village cattle, for forest reserves, or for any other public or municipal purpose; and lands assigned specially for any such purpose shall not be otherwise (used) without the sanction of the (Collector) and in the disposal of land under section 37 due regard shall be had to all such special assignments." Section 38 provides that lands assigned or reserved as a village, then it will not be used without sanction of the Collector. This means that a sanctioned village can be disassigned only with the sanction of the collector or the officer competent to exercise the powers of collectors under the Land Revenue Code. It is not disputed that the Revenue Officer is not a Collector under Land Revenue Code. Learned counsel for the appellant has placed reliance on Notification, dated 16‑4‑1959 purporting to invest the Revenue Officer Barrage with the power of a Collector. But this notification shows that the Revenue Officer shall act as a Collector only for the related purposes of exercising powers which have been noted down in the schedule to the notification. The schedule says that such powers which can be exercised by the Revenue Officer will be only under section 8‑A of the Code with regard to disposal of land and matters connected therewith. The schedule is absolutely silent about the powers of dis-assignment under section 38 of the Code. The notification shows that the Revenue Officer has not been invested with the power of a Collector except in cases of disposal of law under section 8‑A of the Code. I am of the view that the learned Courts below rightly, held, that the order of the Revenue Officer dis-assigning the disputed village was illegal, without jurisdiction and nullity in the eyes of law. The net result of the above discussion is that the Second Appeal has no merit and is, therefore, dismissed with no orders as to costs. A. A Appeal dismissed.