2020 PLP 37 (YLRN)

ZULFIQAR AHMAD KHAN, J.

Through instant Revision Application, applicant has impugned the order dated 07.09.2018, passed by Member (RA&EP), Board of Revenue, Sindh, where, the order dated 24.01.2018, passed by the Additional Commissioner-II, Hyderabad was maintained and the appeal was dismissed.

2. Brief facts of the case are that the applicant purchased agricultural land bearing Survey No. 219 admeasuring 28-23 Acres situated at Kalo Kohar Taluka Thano Bola Khan, District Jamshoro through public auction from the Banking Court. The Sale Deed in favour of the applicant was also executed through Nazir of that Court. The exercise of demarcation of the subject property was even undertaken on the basis of order of the said Court and through Ghat Wadh Form No.18 an entry in VF-VII-B was made on 20.03.2007 in the Applicant's name. However, per counsel, Additional Commissioner-II, Hyderabad through his order dated 24.01.2018 (page-115) cancelled the said entry without impleading the applicant as a party. Being aggrieved, applicant preferred an appeal, which was also dismissed vide order dated 07.09.2018 passed by Member (RS&EP) Board of Revenue, Sindh.

3. Learned counsel for the applicant drawing Court's attention to sale certificate dated 10.04.2006 (page-79) and possession letter dated 08.06.2006 (page-85), stated that the applicant was given statutory possession of the subject land, and for physical layout of the land, he approached the Inspector of Revenue and City Surveys, Hyderabad for demarcation of the subject land, which was so identified by the Ghat Wadh Form dated 12.08.2006 (page-113), however, the said Gath Wadh Form was cancelled by the Additional Commissioner-II, Hyderabad, which order was maintained by the Member Board of Revenue, Sindh, thus both the orders are illegal, void and without lawful authority; that both the forums below have failed to exercise jurisdiction vested in them in lawful manner; that the impugned orders have been passed without considering the evidence as well as the material documents available on record; that the forums below have ignored the fact that the applicant had acquired property through Nazir of the Banking Court, therefore, the orders impugned are liable to be set aside.

4. Learned counsel for private respondents stated that the lands of Khet Nos.600, 689, 561, 690 and 660, admeasuring. 88-04 acres of Deh Kalo Kohar, Taluka Thano Bola Khan were Qabooli land owned by one Muhammad Ilyas, who sold the same to Noorullah vide entry No.22 dated 13.04.1986, from whom, the private respondents purchased this entire 88-04 acres through registered sale deed, which transfer was effected in the revenue record VF-VII-B vide entry No.101 dated 11.12.2004. However; the applicant forcibly and with connivance of the Survey officials sliced out a portion measuring 28-23 acres out of the said 88-04 acres land after obtaining a fraudulent Ghat Wadh Form No.18; that the land allegedly purchased by the applicant fell in Survey No.219 but when it was found that in reality no such Survey number existed in the said Deh, the applicant by foul means managed to carve out a rectangular piece of land from the respondents' Khet Numbers without joining them as a party. The respondents applied for CTC of the order dated 09.08.2006, passed by the Director, Settlement Survey and Land Records Sindh, after which the Land Record Officer had issued the Ghat Wadh Form No.18, and as a result Survey Nos.1468 to 1475 were formed by the Land Record Officer, admeasuring 28-23 acres that overlapped the land of respondents. Thereafter, on the request of respondent No.1, the Land Record Officer issued a Rubkari informing the respondent No.1 that the order No.GM-1417/1743-A dated 09.08.2006 of the Director Settlement Survey and Land Records Sindh, Hyderabad along with copy of return memo and correspondence were NOT available in his office; thus private respondents filed an appeal challenging the above order before the Additional Commissioner-II, Hyderabad who after calling the representatives of the Director Settlement Survey and Land Records Sindh, Hyderabad and perusing their record, cancelled the Ghat Wadh Form No.18, which order is within four corners of law, legal and passed after having considered all the material points; thus the impugned order dated 07.09.2018, passed by the Member, Board of Revenue Sindh, maintaining the aforementioned order is also legal and does not require interference.

5. Learned AAG adopted the arguments advanced by the learned counsel for the private respondents and supported the impugned orders.

6. Heard arguments and perused the material available on record.

7. The appellant/applicant in the appeal itself through paragraphs Nos.6 and 7 has admitted that the exercise of finding physical location of his land commenced afterward the registration of the Sale Deed. In para-6 it is admitted that when the applicant approached the concerned Revenue Officers for mutation of his land he met hindrances, and as a result he approached the Banking Court seeking a helping hand. In para-7, it is stated that it was the Nazir of the Banking Court No.II, who undertook the exercise of demarcation and mutation on behalf of the applicant after issuing several directions to the concerned Revenue Officers, eventually got demarcation and mutation of the subject land completed under the influence of the Nazir of the said Court. Upon issuance of written instructions from the Director Settlement of Survey and Land Records, Sindh through letter dated 09.08.2006, the Ghat Wadh Form No.18 was created within three days thereafter on 12.08.2006. Contents of the said letter dated 09.08.2006 are reproduced as under:- "OFFICE OF THE DIRECTOR OF SETTLEMENTS SURVEY AND LAND RECORD SINDH HYDERABAD. No:GM/417/1743-A of 2006, Hyderabad. Dated: 09-8-2006. To, The Inspector of Revenue and City Surveys, Hyderabad. Subject: MEASUREMENT OF LAND AND AREA OF 28-25 ACRES FROM NO.219 OF DEN KALO KOHAR TALUKA THANO BULA KHAN DISTRICT, JAMSHORO. The Deputy District Officer (Revenue) Thano Bula Khan under his letter No.348 dated 30.06.2006 has sent the measurement papers viz: Alif Survey Challan, Site Plan, VII Form No:VII-B and receipted copy of Bank Challan, in respect of land an area of 28-25 acres from Khet No:219 of Deh Kalo Kohar Taluka Thano Bula Khan, District Jamshoro, which are sent herewith. You are directed to take further necessary action as per rules and current record of this deh and report compliance to this office, if there is no legal hitch/tecl objection and any order against the grant. It should also be noted that the measurement new grant may only be made provided:- i) The land is not situated within "20" chains of village having "10" houses. ii) The land is not situated within the limits of the defunct Municipal/Town Committee or within its prohibited area. iii) Land is being used or available for cultivation only. In other case the papers should be return to office with your report It may also be kept in mind the area within the deh boundary can be utilized and the sketch beyond deh boundary is not to be acted upon. The papers in all ( ) pages are cancelled. DIRECTOR OF SETTLEMENTS SURVEY AND LAND RECORDS SINDH HYDERABAD"

8. As it could be seen, through the said letter directions were given for the measurements of the land falling in Khet No 219 and not in Survey No.219, which belonged to the applicant. To be noted is the fact that the said letter did not provide any direction for the issuance of Ghat Wadh Form. Admittedly, the applicant's claim that the said Ghat Wadh Form was issued in compliance of the above letter issued by the Director of Settlements Survey and Land Records Sindh, Hyderabad which exercise was not mandated by this letter, appears to be illegal. From the perusal of the above reproduced letter, it appears that even the signatory passed no orders for the issuance of Ghat Wadh Form, as he simply directed the Inspector of Revenue and City Surveys, Hyderabad to take further necessary actions as per Rules and as per current record of Deh and report compliance to his office. It also appears from the record that Government of Sindh Revenue Department vide its notification No.49-262-2-Esst-II dated 15.03.2003 (page-189) invested the Secretary/Director, Survey, Settlement, Land Records and Training with powers of District Officer (Revenue). According to Section 161(b) of Sindh Land Revenue Act 1967 an appeal against the order passed by Collector lies with the Commissioner/Additional Commissioner. Therefore, the private respondents filed an appeal against the order / instructions issued by Director Settlement Survey and Land Records Hyderabad for the issuance of impugned Ghat Wadh Form before Additional Commissioner-II Hyderabad who passed the impugned order. The Additional Commissioner-II Hyderabad during proceedings of the case recorded the statement of representative of Directorate of Settlement, Survey and Land Record Hyderabad and Land Record Officer and as well as Nisar Ahmed Dispatcher of office of the Directorate of Settlement Survey and land Record Hyderabad which are reproduced as under:- i. The representative namely Mr. Abdul Latif Abro Revenue Surveyor Mr. Ibrahim Daudpoto Inspector Revenue and City Survey and Imamuddin Larik Land Record Officer Hyderabad as well as Mr. Nisar Ahmed Dispatcher Director of Settlement, Survey and Land Record Office Hyderabad stated that a letter No.GM/417/1743-A of 2006 dated 09.08.2006 of Director Settlement, Survey and Land Record officer Hyderabad addressed to the Inspector of Revenue City Survey Hyderabad along with S. Nos. for taking action as per rules with further directions to send detailed report to his office, but there was no any instructions / directions regarding issuance of Ghat Wadh Form was mentioned or conveyed to Authority concerned in the said letter. ii. Besides above statement they further stated that neither the said letter of the Director Settlement Survey and Land Records Hyderabad along with relevant correspondence in respect of measurement are seems in their office record nor any subsequent order of the Director Settlement Survey and Land Record Office Hyderabad is available in order to keep such entry i-e (18) in Ghat Wadh Form after the demarcation/ measurement conducted by the Inspector City Survey. iii. The Representative of the office of the Land Record Officer Hyderabad as well as dispatcher of Director of Settlement Survey and Land Record Hyderabad in their written statement said that the positions of the out ward register No. GM/417/1743-A dated 09.08.2006 as mentioned in the Director of settlement Survey and Land Records Hyderabad letter as well as in the Ghat Wadh Form was not located. They further pointed out that there is neither any approval / permission available on the record to conduct of such demarcation/ measurement in the light of instructions from Board of Revenue Sindh conveyed vide letter No.DD(E&I)/191 of 2005 dated 02.05.2005 nor any proper procedure was adopted in the instant case in terms of measurement as per procedure laid down in the Law/Rules.

9. Additional Commissioner-II, Hyderabad Division, Hyderabad in his order dated 24.01.2018 also observed that from the above statements it emerged that the Ghat Wadh Form No.18 was issued fraudulently and proper procedure was not adopted in issuing it; that the letter of Director of Settlement was received by Inspector Revenue and Survey and they completed work within one day i.e. 10.08.2006 which documents were found mostly without any date, which showed that those papers were fraudulent and fake because these papers were not available in the office of the Land Record Officer who already informed the respondent No.1 by way of Rubkari about non-availability of such papers.

10. It was admitted that on the basis of the letter dated 09.08.2006, the Settlement Survey and Land Record Officer issued Ghat Wadh Form No.18 and the respondents filed an appeal under section 161 of Sindh Land Revenue Act, 1967 challenging the said ex parte order alleging that U.A. Nos. 600, 689, 561, 690 and 660, admeasuring 88-04 acres of Deh Kalo Kohar, Taluka Thano Bola Khan were Qabooli land which was duly purchased by the respondents and their rights were effected in the year 2004 through Entry No.101 dated 11.12.2004. The said appeal was taken up initially by EDO (Revenue) as Suo Motu on the basis of the Inspection Memo drawn by the Board of Revenue, which in fact issued show-cause notice under section 164(2) of Sindh Land Revenue Act, 1967, involving entire area requiring the appellants (present respondents) to submit their reply, however, the said Suo Motu Reference was transferred to Additional Commissioner-II, Hyderabad on revival of Commissionerate System in Sindh, who passed the initial order dated 16.04.2013. A review of the said order shows that Additional Commissioner-II called Representatives of the concerned Departments namely Mr. Abdul Latif Abro Revenue Surveyor Mr. Ibrahim Daudpoto Inspector Revenue and City Survey and Imamuddin Larik Land Record Officer Hyderabad as well as Mr. Nisar Ahmed Dispatcher Director of Settlement, Survey and Land Record Office Hyderabad, who during proceeding of the said case stated that a letter No.GM/417/ 1743-A of 2006 dated 09.08.2006 of Director Settlement, Survey and Land Record Officer Hyderabad addressed to the Inspector of Revenue City Survey Hyderabad along with S. Nos. for taking action as per rules with further directions to send detailed report to his office, but no any instructions/directions regarding issuance of Ghat Wadh Form was mentioned or conveyed to Authority concerned in the said letter. Besides above statement, they further stated that neither the said letter of the Director Settlement Survey and Land Records Hyderabad along with relevant correspondence in respect of measurement was seen in their office record nor any subsequent order of the Director Settlement Survey and Land Record Office Hyderabad was available in order to keep such entry i-e (18) in Ghat Wadh Form after the demarcation / measurement conducted by the Inspector City Survey. The Representative from the office of the Land Record Officer Hyderabad as well as dispatcher of Director of Settlement Survey and Land Record Hyderabad in their written statements further stated that the positions of the out ward register No.GM/417/ 1743-A dated 09.08.2006 as mentioned in the Director of Settlement Survey and Land Records Hyderabad letter as well as in the Ghat Wadh Form was not even located. They further pointed out that there was neither any approval / permission available on the record before conducting such demarcation / measurement in the light of instructions from Board of Revenue Sindh conveyed vide letter No.DD(E&I)/191 of 2005 dated 02.05.2005, nor any proper procedure was adopted in the instant case in terms of measurement as per procedure laid down in the Law/Rules.

11. On the basis of aforementioned submissions and after considering the position as well as statement recorded by the aforementioned Representative from the office of Director of Settlement Survey and Land Records Sindh, Hyder-abad, the Additional Commissioner-II reached to the conclusion that the necessary procedure for demarcation and measurement of disputed land as shown in Ghat Wadh Form was not adopted properly and according to law and rules, as well as, being in contravention of the instructions dated 02.05.2005 issued by the Board of Revenue, the Ghat Wadh Form No.18 had no sanctity in the eyes of law and the same was cancelled. Reasons of reaching to the said conclusion are reproduced hereunder:- "(1) Director Settlements, Survey and Land Record Officer Hyderabad vide his Office Letter No.GM/ 417/1743-A Dated 09.08.2006 only obtained report from Record of Revenue and City Survey Hyderabad. There is no only Order / Instructions in order to issuance of Ghat Wadh Form is issued in the said letter. (2) That the Rubkari vide letter No.LRO/No. 535 / 2017 dated 13.09.2017 Dated 09.08.2006 of Director Settlement Survey and Land Record Hyderabad regarding measurement of disputed Land along with other Correspondence is not seemed in his office. (3) As the Board of Revenue Sindh, vide his order No.191/2005 dated 02.05.2005 issued wherein it was clearly mentioned that the Ghat Wadh Form of the disputed land of the Deh may not be issued by Director Settlement Survey and Land Record Officer Hyderabad, but the said Ghat Wadh Form (18) was issued against the instructions/interdict of Board of Revenue Sindh without any approval. (4) As the entry of Ghat Wadh Form (18) shows that same entry again suspended vide Order No:G-Misc/ 1569/2017 dated 12.07.2017 under the order of Director Settlement Survey and Land Record Office, Hyderabad but there is no any signature is seemed on the cancellation of said entry. (5) That, as per available record produced by the Land Record Officer and Re-representative of the Director Settlement Survey and Land Record Officer as well as statements given by them, no any procedure adopted regarding measurement / demarcation of said land as per their rules in the instant matter. (6) The position of outward register of the outward No.GM/417/1743-A dated 09.08.2006 as mentioned in the Ghat Wadh Form is not located as per ambiguous statement of the Dispatcher of Director Settlement Survey Office Hyderabad. (7) That, there is no any order of Director Settlement Survey and Land Record Officer Hyderabad is available on Record in respect of the keeping entry in Ghat Wadh Form after measurement conducted by Inspector City Survey and Land Record Office, Hyderabad. (8) Order of Executive District Office (Revenue) in Suo-motu Reference No.1004 of 2009, under Section 164(2) 07 Sindh Land Revenue Act, 1967 regarding vacated the Show Cause and Suo-Motu reference.

12. Against the said order, the applicant/appellant preferred an appeal bearing Case No.SROA-44/2018 challenging the aforementioned order on the following grounds:- a. Sale deed of the subject property and its demarcation, as well as subsequent re-demarcation, was undertaken based on the court order dated 29.03.2006 passed by the Banking Court No. II Therefore, cancelling the entry is violation of the court order and, in my submission, would amount to contempt of Court. b. Entry No.18 was entered into the Chat Wadh Form on 12.08.2006. This was an act undertaken by a Government Officer in his official capacity. It could be challenged only within time limit of one year alone. Right after the end of that one year, it became time barred under Article 14 of First Schedule read with Section 3 of the Limitation Act, 1908. However, learned Additional Commissioner has not even discussed the issue of limitation in his order. He has entertained a matter which was decided around 12 years ago without realizing that it was time barred for at least 11 years now. c. It is critical for any court and any party filing a suit or an appeal to implead (make a party) necessary parties under Order I, Rule 9 of Civil Procedure Code. It is established in number of authorities by Hon'ble Supreme Court of Pakistan a well. Some of these authorities are cited here: i. It is fatal not to implead necessary party for case reported in 1986 SCMR 680 Supreme Court. ii. If necessary party was not impleaded, no order could be passed against the said party reported in 2014 CLC 758 Supreme Court. iii. Supreme Court set aside the Judgment of the Tribunal and directed the lower courts to implead necessary party first, then provide the impleaded parties opportunity of being heard, and then proceed with the matter reported in 2010 SCMR 970 Supreme Court. d. In light of the above cited authorities of the Hon'ble Supreme Court, which are binding on all courts of Pakistan, it is submitted that a necessary party has to be impleaded before passing the order. It goes without saying that the learned Additional Commissioner-II, Hyderabad is misguided, he is not told that the Appellate has derived title through a court order only. His sale deed was executed through the Nazir of the Court himself. Demarcation was also done in compliance of the court order. Someone aggrieved by it should have pursued the matter before High Court, that too 12 years back; rather now before the learned Additional Commissioner-II. Learned Additional Commissioner-II should have at least made the appellant a party provided him opportunity to defend himself and bring his version before the Court. e. Respondents should have approached the Banking Court No.II as impleaders just like Bharat Kumar Manglani, within time, rather filing their case after 12 years. Learned Additional Commissioner-II should have also considered the issue of Limitation Act, 1908. It is settled statutory law that a time barred matter cannot be entertained by the Court, unless it falls under any exceptions which is pleaded by the Appellant and accepted by the Court. Even after such application of condonation is accepted, that order itself can be further challenged. f. Appellate should have been made parties, as they are necessary parties in light of cited authorities of Hon'ble Supreme Court. He would have been able to put up his title documents, explain how he derived them, and how he got the entry into Ghat Wadh Form. Learned Additional Commissioner-II should have realized that he could not entertain a matter, which was time barred some 11 years ago. It is illegal to ignore statutory provisions of Limitation Act, 1908 for any court of Pakistan as these are binding on every court of the country. g. It is also imperative to mention here that the learned Additional Commissioner-II was misguided for a purpose by the respondents before him. They approached the learned Additional Commissioner once they knew that appellant had entered into the sale agreement for the sale of his subject property with third party. These respondents are actually trying to milk some money from appellant. If they had genuine grievance, they would have approached 12 years bank, rather now after being time barred."

13. The aforementioned appeal was dismissed by the Member (RS&EP) Board of Revenue Sindh vide order dated 07.09.2018, by observing that despite the fact that applicant side had striven hard to get the impugned order set aside on technical grounds but absolutely shunned to answer / rebuff the findings in impugned order with concrete reasons / grounds as evidence. He came to the conclusion that the applicant had completely failed to establish his case and reaffirmed that the procedure necessary for demarcation and measurement of the disputed land as shown in Ghat Wadh Form No.18 was not adopted in accordance with law as well as was passed in contravention of the instructions of Board of Revenue Sindh dated 02.05.2005, and dismissed the said appeal.

14. A review of the record reveals that admittedly the applicant purchased agricultural land bearing Survey No.219 admeasuring 28-23 Acres situated at Kalo Kohar Taluka Thano Bola Khan, District Jamshoro through Banking Court by Sale Deed dated 13.06.2008 (page-69 to 77), where even full particulars and description of the said land was not mentioned in the Schedule of the property attached to the said Sale Deed and only Survey No.219 measuring 28-23 acres, situated in Kalo Kohar, Thano Bola Khan, District Jamshoro was mentioned and its neighbouring properties or bounds were not mentioned. As it is noted from the description of the said property, the description given in the Bank documents, including Sale Deed mentions "Survey No.219" whereas per report of the concerned Mukhtiarkar, the land was shown falling in "Khet No.219". Bank documents and Sale Deed do not describe where the land was physically located since no Survey No.219 was available in Deh Kalo Kohar. When a land is not fully described in a registered documents, Section 21 of the Registration Act, 1908 come into play which requires that no non-tesamentary document relating to immovable property shall be accepted for registration unless it contains a description of such property sufficient to identify the same. It is evident that the description provided in the Sale Deed was insufficient to identify the land of the applicant, if was not even identified when the possession of the same was handed over through possession letter dated 08.06.2006. It is surprising to note that after taking possession of the land via order dated 08.06.2006, the applicant reached to the Survey Authorities to fish out his land and the same was identified through Ghat Wadh Form-18, which converted Khet No.219 land into Survey Nos.1468 to 1475 carved out from the lands of the respondents.

15. Under law and equity, it is always responsibility of the buyer to acquaint himself of the ground reality as to which land he is about to purchase. The concept of "Buyer Beware" is enshrined through various orders as well as judgments as it is mandatory that the ground reality be ascertained. In the present case, no specific land was available to be transferred through Ghat Wadh Form No. 18, which itself could have created any title. The applicant has clearly superimposed his land over the lands of the respondents. Admittedly, the applicant had an option to file review of the impugned order under section 8 of the Board of Revenue Act, but he approached this Court by filing instant revision application, which for the aforementioned reasons being meritless, is dismissed.

16. Before parting, it is worth pointing out that time and again cases come to these Courts where Banks, on the basis of property documents, which fail to fully describe the property, grant loans. The borrower(s) willfully defaults and then through Banking Court's decrees title to such properties is cemented. However, when no detailed description is found, with the connivance of land officials, public and private lands are marked as if those lands were the same on the security of those financial facilities were provided by Banks. This model of land grabbing is prevalent without fail. Let a copy of this judgment be sent to the State Bank of Pakistan to ensure that before granting loans, properties are fully identified and physically surveyed. SA/S-88/Sindh Revision dismissed.