1995 PLP 283 (MLD)

After conclusion of the trial and hearing parties' counsel, the trial Court decided issues Nos.l and 2 in negative, issues Nos.3 to 5 in affirmative and on issue No.6 the Suit No.89 of 1986 was dismissed by judgment dated 19‑1‑1992 and decree dated 25‑1‑1992. Respondent No.l (Noor Muhammad Baran) challenged the above judgment and decree before the appellate Court and the Additional District Judge, Thatta was pleased to accept appeal filed by respondent No.l (R1oor Muhammad Baran) and the judgment and decree of the trial Court was set aside. The Additional District Judge was pleased to decree the suit of respondent No.l (Noor Muhammad Baran) as prayed by him. In the above background this revision application has been filed by the applicant (Noor Muhammad Mirbahar). Mr. Abdul Majeed Khan, learned counsel for the applicant (Noor Muhammad Mirbahar), has contended in support of his case as follows:‑‑ (a) That the orders of the Additional District Judge, Thatta are quite illegal and are not to be maintained at all as the appellate Court has not considered the evidence recorded by the trial Court, Senior Civil Judge, Thatta. (b) That the appellate Court has based the entire judgment on the finding of survey report dated 5‑10‑1985. Thus, the impugned judgment and decree are not legal but a departure from mandatory requirement of principals contained in Order XLI, Rule 3 of the Civil Procedure Code. (c) That the appellate Court has failed to consider that in land revenue matters powers to scrutiny lies with the forum created under the Land Revenue Act. Thus, anything done or purported to be done under the provisions of Land Revenue Act are immuned from scrutiny by the Civil Court under section 172(2)(vi) of the Act. (d) That the appellate Court has failed to appreciate that the land revenue for the year 1991 allegedly paid by respondent No. 1 (Noor Muhammad Baran) is dated 4‑11‑1991 and is in the name of the present applicant (Noor Muhammad Mirbahar). So also the bill (Exh. 47/5) produced by respondent No.l (Noor Muhammad Baran) is also in the name of the applicants (Noor Muhammad Mirbahar). (e) That the applicant (Noor Muhammad Mirbahar) has already paid the land revenue for the year 1991 on 11‑7‑1991 in time as the revenue year ended on 31‑7‑1991 while respondent No.l illegally paid land revenue for the disputed land subsequently on 4‑11‑1991 in collusion with the Tapedar as the land revenue of the disputed land for the year was already paid by the applicant (Noor Muhammad Mirbahar). (f) That the appellate Court misread the evidence and held that the offer of the plaintiff‑respondent No.l (Noor Muhammad Baran) dated 31‑3‑1961 was earlier than the offer made by the applicant (Noor Muhammad Mirbahar) on 4‑4‑1961. Furthermore; the offer of the plaintiff‑respondent No.l (Noor Muhammad Baran) dated 31‑3‑1961 was rejected being a big Zamindar and offer of the applicant (Noor Muhammad Mirbahar) was accepted on 4‑4‑1961 for Survey Nos.57, 58 and 313 from Kharif 1961‑62, and he got possession of the land and continued paying instalments. (g) That the Senior Member, Board of Revenue Sindh in his order dated 2‑10‑1986 in appeal rightly held that allotment of the applicant (Noor Muhammad Mirbahar) was earlier one than that of respondent No.l (Moor Muhammad Baran) and upheld the order of the Additional Commissioner, Hyderabad dated. 9‑7‑1986 cancelling subsequent grant of respondent No.l. Senior Member, Board of Revenue also rightly rejected the appeal of respondent No.l (Noor Muhammad Baran) by his order dated 13‑8‑1987 (Exh.61). (h) That from Village Form VII dated 13‑9‑1986 it is clearly established that the disputed land was mutated in the name of the applicant (Noor Muhammad Mirbahar). As such, the applicant (Noor Muhammad Mirbahar) has acquired ownership rights in the disputed land. (i) That the appellate Court illegally held that the Additional Commissioner, Hyderabad had no jurisdiction, who passed the order dated 9‑7‑1986 cancelling the illegal grant of land in favour of respondent No.l (Noor Muhammad Baran) being duplicate and granted the land in favour of the applicant (Noor Muhammad Mirbahar). (j) That in the contents of para. 5 of the plaint (Suit No.89/86) filed by respondent No.l (Noor Muhammad Baran), himself has admitted that on 4‑4‑1961, defendant No.4, Noor Muhammad Mirbahar, recorded offer for Survey Nos. 57, 58 and 313, Deh Abad Panchoo on Harap basis, and was granted these survey Nos. from Kharif 1961‑62 and is in possession of this land. (k) My attention has also been drawn to the evidence furnished by respondent No.l (Noor Muhammad Baran) being plaintiff in Suit No.89 of 1986, wherein in his cross‑examination carried on by the Advocate for defendant No.4 (Noor Muhammad Mirbahar) in the Court of Senior Civil Judge, Thatta (Exh.41), page 83 of this revision application, he has admitted as under:‑‑ "It is correct to suggest that defendant No.4 has deposited all the instalments and. the T.O. Form has been issued in his favour." The applicant (Noor Muhammad Mirbahar) has produced the order of the Additional Commissioner, Hyderabad Division, Hyderabad, (Exh.59), page 77 of this revision application, in which the Additional Commissioner has held as follows:‑‑ "I, therefore, maintain grant of Noor Muhammad Mirbahar and cancel the grant of subsequent grantee Noor Muhammad Baran." The applicant (Noor Muhammad Mirbahar) has also produced certified true copy of the order of Senior Member, Board of Revenue at page 81 of this revision application, who, after hearing the parties, has held:‑‑ "The allotment of Noor Muhammad Mirbahar is earlier than of Noor Muhammad Baran and takes precedence. I uphold the order of Additional Commissioner, Hyderabad. The appeal is rejected accordingly." Subsequently, review petition filed by respondent No.l, Noor Muhammad Baran, was also dismissed by the Senior Member Board of Revenue vide his order dated 13‑8‑1987. I have also perused order of the Additional District Judge, Thatta and found that actually he had not discussed the evidence adduced by the parties in the suit and has entirely based his findings on the report of Tapedar as discussed earlier and that he has set aside the order of the trial Court without applying his judicial. mind and considering the fact that the disputed land was earlier granted to the applicant. (Noor Muhammad Mirbahar) by the competent Revenue authorities and that the findings of the trial Court on all issues are found to be correct, legal and convincing and based on very sound reasons. I have also heard Mr. Muhammad Rafique Khanzada, learned counsel for respondent No.l (Noor Muhammad Baran), who has contended that the judgment of the Additional District Judge may be upheld and that the findings of the trial Court on the point, that in view of the clear‑cut findings of the Revenue Authorities Civil Court has no jurisdiction, is not maintainable. Mr. Muhammad Rafique Khanzada, learned counsel for respondent No.l (Noor Muhammad Baran), has also placed reliance on the case of Mian Muhammad Latif v. Province of West Pakistan, reported in PLD 1970 SC 180, which states as follows:‑‑ "There is no doubt that under section 11 of the Sindh Revenue Jurisdiction Act, 1876, ordinarily a party in revenue matters should exhaust all his remedies by way of appeal before invoking the aid of the Civil Court. But there are different considerations where the allegation of a party is that the impugned order is a nullity in the eye of law. The Civil Courts have jurisdiction to examine into cases where statutory provisions have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure." Mr. Muhammad Rafique Khanzada, learned counsel for respondent No.l (Noor Muhammad Baran), has also referred the case of Muzafar Hussain v. Nur Ahmad, reported in PLD 1959 (Revenue) 17, which states as follows:‑‑ "Colonization of Government Lands (Punjab) Act (V of 1912), S.30‑‑ Purchase of proprietary rights‑‑‑Proprietary dues deposited‑‑ Conveyance still necessary‑‑‑Delay in conveyance deed‑‑ Consequence‑‑‑Punjab Colony Manual, Vol. II (1922 Edn.), page 57, sub‑clause (3)‑‑‑Words `when any tenant shall have purchased the proprietary right in any lands'‑‑Meaning." I have perused both the authorities cited by Mr. Muhammad Rafique Khanzada, learned counsel for respondent No.l (Noor Muhammad Baran) which are quite clear and distinguishable and do not help the contentions of the learned counsel for respondent No.l but actually the case reported in PLD 1970 SC 180 helps the case of the applicant because orders passed by the Revenue Officers in this case are quite legal and within their jurisdiction I because‑‑‑(a) land was granted in an open Katchery by Revenue Officers; and (b) Appeals, Revision and Review petitions were decided by the Revenue Officers after giving notice and hearing the parties as per spirit of the Land. Grant Policy and purely on merits. Therefore, when there is no nullity in the eye of law, so far grant in favour of the applicant is concerned, the jurisdiction of Civil Court is correctly barred. Here in this case, as per evidence adduced by the parties in the Court of Senior Civil Judge, the cases of the plaintiff‑respondent No.l (Noor Muhammad Baran) was correctly dismissed by the trial Court. The other reported case, PLD 1959 (Revenue) 17, is not applicable on the facts and circumstances of this revision application. After going through the entire evidence, the documents produced by the parties, and perusing the authorities cited above and applying my mind, I had allowed the revision application by setting aside the judgment and decree passed by the Additional District Judge, Thatta by my short order on 11‑10‑1994. Above are the reasons for the same. The parties to bear their own costs. A.A./N‑541/K Revision accepted.