2002 PLP 1049 (MLD)

The revision application was admitted to consider the point of law stated in opening para. of this judgment. I have heard Mr. Jhamat Jethanand, learned counsel for the applicants and Mr. Aijaz Ali Hakro, learned counsel for the respondent. Mr. Jhamat Jethanand has contended that under section 30 of the Colonization of Government Lands (Sindh) Act, 1912, the granting officer becomes functus officio, after payment of full price of the land and the tenant no more remains the tenant. According to him, the tenant acquires proprietary rights in the land on payment of full price and the land ceases to be subject to any statement of conditions and Revenue Authorities cease to have jurisdiction in respect of grant of land. He has contended that Revenue Authorities cease to have jurisdiction in respect of such land and they possess no power to interfere, even on the ground of fraud or misrepresentation. He has submitted that Additional Commissioner entertained time‑barred appeal in the year 1969, which was without jurisdiction: He has further submitted that since the Additional Commissioner exercised appellate jurisdiction under section 161 of the West Pakistan Land Revenue Act, illegally and without jurisdiction in respect of a land in which grantee had acquired proprietary rights, therefore, the revision was preferred before Board of Revenue under section 164 of the Land Revenue Act, which was empowered to reverse the order, by holding that Additional Commissioner had exercised the jurisdiction not vested in him. However, the Board of Revenue was not competent to exercise the revisional jurisdiction to uphold illegal exercise of jurisdiction by Additional Commissioner, thereby perpetuating the commission of illegality and assumption of jurisdiction not vested in Additional Commissioner. Mr. Jhamat Jethanand, learned counsel for the applicants has argued that learned Senior Civil Judge and Appellate Court have not adverted to the relevant provisions of law contained in Land Revenue Act, 1967 and thus have failed to exercise jurisdiction vested in them. The learned counsel has urged that in view of the admitted fact, that the grantee had made full payment of land, he had acquired proprietary rights in land and become owner of the same by virtue of provisions contained in section 184(4)(b)(i) of Land Revenue Act and thereby the appellate and revisional authorities ceased to have any jurisdiction to interfere with the proprietary rights of the grantee. According to him the jurisdiction of the Civil Court was barred under section 172 of Land Revenue Act in respect of such matters only, which are within the jurisdiction of Board of Revenue and other Revenue Officers under Land Revenue Act. He has contended that since Revenue Authorities had no jurisdiction to interfere with proprietary rights of the predecessor‑in interest of the applicants; therefore, the jurisdiction of Civil Court is not barred. The learned counsel has submitted that judgment of learned Senior Civil Judge and the Appellate Court are liable to be set aside. Mr. Aijaz Ali Hakro, learned counsel for the respondent has submitted that Colonization of Government Lands (Sindh) Act, 1912 was originally the Provincial Law of Punjab. It was extended to whole of Province of West Pakistan by West Pakistan Ordinance XXXVI of 1969 w.e.f. 7‑11‑1969. He has contended that prior to 7-11‑1969, the. Colonization of Government Lands (Sindh) Act, 1912 was applicable to the territories comprising the Province of Punjab, before creation of the Province of West Pakistan and was not applicable to the areas comprising the Province of Sindh before the creation of Province of West Pakistan. He has submitted that the appeal was entertained by the Additional Commissioner and was disposed of on 25‑7‑1969. He has contended that since the Colonization of Government Lands (Sindh) Act, 1912, was not applicable to the territories comprising defunct Province of Sindh, therefore, the lands were not granted to the predecessor‑in‑interest of the applicants under the said Act and were granted under the Sindh Revenue Code, 1879. He has farther submitted that the Sindh Revenue Code of 1879 was applicable to the territories comprising defunct Province of Sindh till repeal thereof by section 184 of West Pakistan Land Revenue Act, 1967. Mr. Hakro hys submitted that the Colonization of Government Lands (Sindh) Act, 1912 was extended to whole of West Pakistan by West Pakistan Ordinance XXVI of 1969 with effect from 7‑11‑1969. Prior to the said date the Colonization of Government Lands (Sindh) Act, 1912 was not applicable with the result that the Additional Commissioner was fully competent to entertain the appeal under section 161 of the Land Revenue Act, 1967. He has contended that since Additional Commissioner had jurisdiction to entertain the appeal under section 161 of ‑the West Pakistan Land Revenue Act, 1967 and the Board of Revenue had the jurisdiction to entertain and hear the revision application tinder section 164 of the said Act, therefore, the jurisdiction of Civil Court was barred by virtue of the provisions contained in section 172 of West Pakistan Land Revenue Act, 1967. The attention of the learned counsel for the respondent was drawn to the provision contained in section 184(4)(b)(i) of the West Pakistan Land Revenue Act, 1967. The learned counsel reiterated his contention that the Colonization of Government Lands (Sindh) Act, 1912 was not extended to the whole of West Pakistan before 7‑11‑1969 and therefore, sections 15 and 30 of the said Act are not applicable to the circumstances of the present case. He did not agree with the proposition, that by virtue of provisions contained in section 184(4)(b)(i) of West Pakistan Land Revenue Act, 1967, the predecessor‑in‑interest of the applicants became owner of the land under consideration and acquired the proprietary rights. He persisted with‑the contention that predecessor‑in‑interest of the applicants was merely possessing grant in the land and had not acquired the ownership of land. However, a proposition of law was put to him as to what would be the position of jurisdiction of Revenue Authorities, in case, a grantee becomes owner of the land and is conferred with proprietary rights in the land and whether the Civil Court shall have jurisdiction vis‑a‑vis such land. The learned counsel for the applicants conceded that in such situation a suit has to be filed before Civil Court under section 53 of Land Revenue Act and the Civil Court shall have jurisdiction to entertain suit for declaration under section 9, C.P.C. However, the learned counsel again insisted that in the present case, there was merely a grant in favour of predecessor‑in‑interest of the applicants and no proprietary right was conferred on him with the result that Revenue Authorities continued to hold the jurisdiction to interfere with the grant and as such the learned two Courts below have rightly held that the appellate and revisional Authorities under Land Revenue Act, continued to hold the jurisdiction in respect of grant of land in question and have rightly cancelled the grant and that the' Civil Court has no jurisdiction in the matter. I have carefully considered the contentions raised by the learned Advocates for the parties. Mr. Jhamat Jethanand, learned counsel for the applicants has not disputed the contention that Colonization of Government Lands (Sindh) Act, 1912, was extended to entire erstwhile Province of West Pakistan w.e.f. 7th November, 1969 and the appeal was decided by the learned Additional Commissioner prior to the said date. I am persuaded to agree with the contentions of Mr. Aijaz Ali Hakro, learned counsel for the respondent that prior to 7‑11‑1969 the provision contained in Colonization of Government Lands (Sindh) Act, 1912, was not applicable to the‑ territories comprising defunct Province of Sindh, by its own force. It is an admitted fact that the land in question was granted to the predecessor‑in‑interest of the applicants in the year 1960‑

61. At the relevant time the Sindh Land Revenue Code, 1879 was applicable to the territories comprising defunct Province of Sindh and consequently the land under consideration was granted under the provisions of said Code. However, the Sindh Land Revenue Code, 1879 was repealed by section 184 of West Pakistan Land Revenue Act, 1967. Under subsection (4) of section 184 of West Pakistan Land Revenue Act, 1967; the savings were provided on repeal of Bombay Land Revenue Code, 1879 and Sindh Land Revenue Code, 1879 and certain deeming provisions were also enacted. In order to determine, whether in the year 1969 when the Additional Commissioner entertained appeal at the instance of respondent the Revenue Authorities had the jurisdiction in respect of the land under consideration, the crucial point is whether the predecessor‑in‑interest of the applicants had acquired proprietary rights in the lands. Mr. Aijaz Ali Hakro, learned counsel for the respondent has vehemently contended that the predecessor‑in‑interest of the applicants was mere grantee of the land under consideration when the Additional Commissioner entertained the appeal against the grant of land and cancelled the same and the similar position continued when Board of Revenue dismissed the revision at the instance of predecessor‑in‑interest of the applicants and the similar factual position continues till now. However, he has not disputed the proposition of law, that if the predecessor‑in‑interest of the applicants had acquired the proprietary rights in the land, the Revenue Authorities shall cease to have jurisdiction and the Civil Court only shall have the jurisdiction to interfere with the concluded transaction. Thus the issue in controversy has been narrowed down to the point, whether the predecessor‑in‑interest of the applicants had acquired the proprietary rights over the land in dispute or not, before the Additional Commissioner entertained the appeal. It is art admitted fact that the predecessor‑in‑interest of the applicants had already paid full price of the land, before the respondents preferred appeal before the Additional Commissioner. In order to determine the effect of full payment of the price of the land under consideration, it would be appropriate to reproduce the provisions contained in section 184 (4)(b)(i) of the Land Revenue Act, 1967, which reads as follows:‑‑ "Section 184(4).‑‑Notwithstanding anything to the contrary contained elsewhere in this Act, or in any other law, or in any order or decree of a Court or other authority, or in any rule of custom or usage, or in any contract, instrument, deed or other document, any person who immediately before the commencement of this Act, was the holder of any land under the provision of the Bombay Land Revenue Code, 1879 (Bom. Act V of 1879), or Sindh Land Revenue Code, 1879 (Sindh Act V of 1879), as the case may be (hereinafter in this subsection referred to as the Code), shall‑‑ (b) if such land was granted by the Government to any person on or after the first day of January, 1928, otherwise than on lease (i) be deemed, if he has paid the, full price on which the land was granted to him, the owner of such land, and be subject to all the rights and liabilities of the proprietor under the Colonization of Government Lands Punjab Act, 1912 (Punjab Act V of 1912);" A perusal of the above section clearly shows that if any person, immediately before the commencement of West Pakistan Land Revenue Act, 1967, was holder of any land under the provisions of Sindh Land Revenue Code, 1879 and such land was granted by Government, on or after the 1st January, 1928, otherwise than on lease and if the said person had paid the full price on which the land was granted to him, he shall be deemed to be the owner of such land and be subject to all rights and liabilities of proprietor under Colonization of Government Lands (Punjab) Act, 1912 (the word 'Punjab' has been substituted by the word `Sindh' by the Sindh Adaption of Laws Order, 1975). At this juncture, it would be appropriate to reproduce sections 15 and 30 of Colonization of Government Lands (Sindh) Act, 1912, which read as follows:‑‑ "Section

15. Purchaser to be tenant pending payment in full of purchase money.‑‑A purchaser from Government of land who has been placed in possession of the land by order of the Collector shall be deemed to be a tenant of such land until the full amount of the, purchase money with any interest due thereon has been paid and the other condition set forth in the statement of the conditions or sale issued by the Collector have been fulfilled." Section

30. Acquisition of proprietary rights.‑‑Notwithstanding anything entered in any statement of conditions under the Government Tenants (Punjab) Act, 1893, a tenant who, either in pursuance of any condition or otherwise by agreements with, or under rules issued by the Provincial Government has acquired proprietary rights in any land included in his tenancy shall in respect of such land cease to be subject to any statement of conditions issued under the abovementioned Act: provided always he shall in respect of such land be bound by the condition set out in Schedule 11 of this Act and be bound by the other provisions of this Act applicable to proprietors of land." A perusal of the above sections shows that by virtue of provisions contained in section 15 of Colonization of Government Lands (Sindh) Act, 1912, a purchaser from Government, of land who has been placed in possession of the land by order of the Collector shall be deemed to be a tenant of such land until the full amount of the purchase money with any interest due thereon has been paid, while under section 30 a tenant, who has acquired proprietary rights in any land included in his tenancy shall in respect of said land cease to be subject to statement of conditions attached to the tenancy rights. Mr. Jhamat Jethanand, learned counsel for the applicants has pointed out that an amendment has been made in the Province of Punjab by Colonization of Government Lands (Punjab) Amendment Ordinance, 1978, whereby a new subsection (2) has been added (sic) of proprietary rights by any person, if the said person has acquired the land by means of fraud or misrepresentation or is not eligible to have such right for any reason whatsoever. Mr. Jhamat Jethanand, learned counsel for the applicants has submitted that the new subsection (2) to section 30 was added in the Province of Punjab in order to overrule the consistent view of the Board of Revenue that once proprietary rights are acquired by a person, the Civil Court alone could interfere in the matter and the Revenue Officers were not competent to exercise appellate and revisional jurisdiction. However, no such law has been enacted in the Province of Sindh, with the result that even a person has acquired proprietary rights by means of fraud or misrepresentation or without being eligible to have such right, the Revenue Authorities shall have no jurisdiction to interfere with the proprietary rights of the owner of the land. The Civil Court alone is competent to adjudicate upon such matter. There is considerable force in the contentions of Mr. Jhamat Jethanand, learned counsel for the applicants and I entirely agree with the proposition of law canvassed by him. Consequent to the above discussion, it is held that in view of the admitted fact that predecessor‑in‑interest of the applicants had paid full price of the land in question before the commencement of West Pakistan Land Revenue Act, 1967, the predecessor‑in‑interest of the applicants shall be deemed to be the owner of the said land by virtue of the deeming provisions contained in section 184(4)(b)(i) of West Pakistan Land Revenue ct, 1967. It is further held that although Colonization of Government Lands (Sindh) Act, 1912 was not applicable to territories comprising the defunct Province of Sindh before 7‑11‑1969, but by virtue of the provisions contained in section 184(4)(b)(i) of West Pakistan Land Revenue Act, predecessor‑in‑interest of the applicants, who became owner' of the land on payment of full price on which the land was granted to him by the deeming provisions, further acquired all the proprietary rights under the Colonization of Government Lands (Sindh) Act, 1912, in pursuance of the legislation by reference. Consequent to the finding that, predecessor‑in‑interest of the applicants acquired the proprietary rights and became owner of the land in question on payment of full price and in view of the concession made by Mr. Aijaz Ali Hakro, learned counsel for the respondent on the proposition of law that in case a person becomes owner of the land and acquires the proprietary rights then the Revenue Authorities cease to have .any jurisdiction to interfere with the proprietary rights, it is held that learned 1st Senior Civil Judge, Nawabshah and learned 1st Additional District Judge, Nawabshah did not consider the relevant provision of law and thereby fell in error in coming to the conclusion that the Revenue Authorities had the appellate and revisional jurisdiction in. respect of lands of which the predecessor‑in‑interest of the applicants had acquired proprietary rights. It is further held that as a consequence, both the learned Courts below came to the wrong conclusion that the Civil Court had no jurisdiction in the matter and that the order of cancellation of grant in favour of predecessor‑in‑interest of the applicants does not suffer from an illegality. It is further held that the learned two Courts below have failed to exercise the jurisdiction vested in them, with the result that the impugned judgments and decrees of the two Courts below are not sustainable, which are hereby set aside. Consequent to the finding that the predecessor‑in‑interest of the applicants acquired proprietary rights in the suit‑land and became owner thereof on payment of full price of the land by virtue of deeming provisions contained in section 184(4)(b)(i) of the West Pakistan Land Revenue Act, 1967 and the suit‑land ceased to be subject to the appeal and revision contained in West Pakistan Land Revenue Act, 1967, the suit is hereby decreed in the terms that the Additional Commissioner and Board of Revenue had no jurisdiction to entertain the appeal ‑and revision in respect of .the suit‑land. It is further declared that the order of learned Additional Commissioner and Member, Board of Revenue West Pakistan, Lahore cancelling the grant in favour of the predecessor‑in‑interest of the applicants were illegal and without jurisdiction, which are hereby set aside. It is further declared that the applicants/plaintiffs are owners of the suit‑land and the respondents /tenants are restrained from interfering with the possession of applicants/plaintiffs over the same. The revision application is allowed accordingly, with no order as to costs. S.A.K./Z‑27/K Application allowed,