2001 PLP 1701 (YLR)

(2) Whether order of the defendant No.2, dated 22-7-1985 is mala fide, void, illegal and nullity in the eye of law? (3) Whether the plaintiff is entitled to the reliefs claimed? (4) Whether suit is not maintainable? (5) Whether the Court has no jurisdiction to try this suit? (6) What should the decree? After recording of evidence adduced by the parties lower Court decreed the suit of the applicant with the observation that he was entitled to plot No.3 at Chak No.4. The appeal preferred by the respondent No. 1 against the aforesaid judgment and decree, being Civil Appeal No.79 of 1986, was heard by the learned Additional District Judge Sanghar, who vide his judgment, dated 17-2-1988, allowed the appeal, reversed the findings of the lower Court and dismissed the suit filed by the applicant. Against the last referred judgment of the appellate Court this revision application has been preferred by the applicant. Mr. Meva Ram Rajput, learned counsel for the applicant contended that there was sufficient evidence on record in favour of the applicant that he was in occupation of the Suit Plot No.3 at Chak No.4 and in such circumstances various orders passed by Respondents Nos.3 to 5 against the applicant were illegal. Referring to the judgment passed by the Court of learned Senior Civil Judge Sanghar, learned counsel further contended that after recording of evidence of both the parties the case of the applicant was found genuine and thus the suit was decreed in his favour but the learned appellate Court without assigning any valid reasons, reversed such findings of the lower Court. Referring to the case of Mian Muhammad Latif v. Province of West Pakistan through the Deputy Commissioner, Khairpur and another (PLD 1970 SC 180), learned counsel also contended that in the facts and circumstances of the case the suit filed by the applicant was not barred under section 11 of the Sindh Revenue Jurisdiction Act, but the appellate Court illegally held so. Learned counsel also contended that the learned Judge of the lower Court, before passing his judgment, dated 30th September 1986, personally visited the site of the suit plot, and with the assistance of the Revenue Staff had verified and found the applicant in possession of the suit plot and therefore findings of the lower Court should have been maintained by the appellate Court which was not done in the instant case. Learned counsel was however unable to show any provision of the law creating any legal right in favour of the applicant on the basis of his possession of the suit plot which was admittedly never granted to him, but was occupied by him because of his large family. Mr. Muhammad Hanif Kaimkhani, learned counsel for respondent No. 1 on the other hand contended that even from the averments made in the plaint it is an admitted position that at no point of time the applicant had any valid or legal title over the suit plot. The perusal of various orders passed by the Revenue Authorities would show that it was so found by the authorities concerned that the applicant had attempted to unauthorizedly occupy the suit plot which was lawfully granted to the respondent No. 1 on 5-4-1969. Referring to the prayer clause of the plaint Mr. Kaimkhani also contended that except the Order, dated 22-7-1985 passed by the Member Board of Revenue on the Review Application of the applicant, other orders passed by the Respondents Nos.3, 5 and 6 and even the order passed by respondent No.4, dated 14-1-1985 were not challenged by the applicant and thus the suit was not maintainable in law. Questioning the jurisdiction of Civil Court learned counsel referred to the case of Raees Dilmurad Khan v. Ali Nawaz and others. (1997 MLD 1309) and contended that the jurisdiction of the Civil Court, as against the orders passed by the Revenue Authorities who had jurisdiction in the matter, was completely barred under section 172 of the. Land Revenue Act. Learned counsel referring to the case of Abdul Ghaffar and others v. Government of West Pakistan and others (PLD 1963 (W.P) Karachi 215) contended that the suit instituted by the applicant was also barred under section 11 of the Sindh Revenue Jurisdiction Act, 1976. With reference to the allegations of mala fide made by the applicant in the plaint. Learned counsel referred the case of Water and Power Development Authority WAPDA House, Lahore v. Amjad Hidayat Butt and others 1986 SCMR 582 and contended that the essential requirements of the plea of mala fide are that it has to be specifically pleaded and proved and mere ipse dizit of a party in this context will not justify assumption of jurisdiction by the Civil Court. In support of his arguments learned counsel also placed reliance on the following cases:-- (1) Sh. Mohammad Anwar v. Ch. Sultan Mohammad Khan and another (1974 SCMR 371). (2) Mohammad Bachal Memon v. Government of Sindh through Secretary Food & 2 others (PLD 1987 Karachi 296). (3) Government of Sindh and 2 others v. Haji Rehmatuallah and 14 others '(1997 MLD 2847). I have carefully considered the arguments advanced by the learned counsel and perused the material placed on record. To judge the merits of the case of the applicant it will be useful to first examine the averments made by the applicant in the plaint of his Suit No.4 of 1986. A careful examination of averments made in the plaint reveals that even the applicant in his suit did not plead any legal right in his favour in respect of the Suit Plot No.3 at Chak No.4, his only case is that he is supporter of a large family, he was allotted Plot No.6 and as the suit plot No.3 was opposite to his plot thus same was occupied by him to meet the requirement of his large family. In his order, dated 21-12-1983 which was passed by the Colonization Officer Sukkur Bariage, after the order of remand passed by the Member Board of Revenue, dated 22-8-1969, the Colonization Officer on his visit of site of suit plot specifically recorded his findings as under:

On 6-12-1983, I alongwith the Barrage Mukhtiarkar Sanghar and Tapedar concerned visited the site in presence of both the parties. The parties involved in this case were heard. The councilor, Chak No.4 Chairman Union Council Kahadwari, Numbardar and other residents of the locality are also present. The aged man and other persons of the locality who were present on the site, informed me that Muhammad Sharif is originally resident of this place whereas Raja Muhammad is resident of Chak No. 1 who already holds one plot of 4000 feet which is opposite to this disputed plot No.3. The main plea of Muhammad Sadik is that this plot is under their possession which lies in their Mohag. But on the site, there is road in between Pot Nos.3 & 6 which cuts the Mohag of plot No.6. It was disclosed that Muhammad Sadik originally belongs to Chak No. 1 but he has encroached on this plot unauthorizedly since long and has constructed one Katcha hut. To show his possession he planted three Lemon saplings which in any case contravence the orders passed by the Commissioner. This was also confirmed by the majority of residents, of the locality. The Assistant Commissioner in his site report has reported that Muhammad Sadik has unauthorizedly occupied the plot and raised a Katcha Hut and trees, in order to establish his claim. The majority of the people present on the site also confirmed this report. The applicant had challenged such order in appeal before Additional Commissioner Hyderabad, who vide his order, dated 12-11-1984 disposed his appeal. Thereafter, revision application filed by the applicant before the Member Board of Revenue against the two orders referred above was also dismissed by the Member Board of Revenue vide his order, dated 14-1-1985 and so also the review application thereafter filed by the applicant was dismissed vide order, dated 22-7-1985. The applicant while filing the present suit for declaration and permanent injunction even did not challenge the three earlier orders passed by Respondents Nos.3, 4 and

5. In such circumstances even on the basis of averments made in the plaint the applicant had no legal right which could be adjudged by the Civil Court. If the question of jurisdiction of Civil Court is examined with reference to the provisions of section 172 of the Land Revenue Act, 1967 and section 11 of the Sindh Revenue Jurisdiction Act, 1876, then it will be seen that the arguments of Mr. Mohammad Hanif Kaimkhani have much force. Mere mentioning of word mala fide in the plaint, in such circumstances, did not confer jurisdiction to the Civil Court to sit upon the decisions of the Tribunals having lawful jurisdiction for adjudication of the dispute involved in the matter. The various cases referred above fully support, this legal position. The findings of the learned first appellate Court on the issues of jurisdiction and maintainability viz. Issues Nos.4 and 5, are therefore, fully justified. Learned counsel for the applicant in his arguments repeatedly referred various orders passed by Respondents Nos.2 to 5 and contended that the same were not passed in strict compliance of the order, dated 22-8-1969 passed by the Member (Judicial II) Board of Revenue West Pakistan. I am not impressed with this submission of the learned counsel as the order, dated 21-12-1983 passed by respondent No.5 is a well reasoned and speaking order and there is nothing in the said order to show that the directions contained in the order, dated 22-8-1969 were not followed by the concerned officer. In addition to this, the other orders passed by Respondents Nos.3 and 4 also go to show that at all stages of the proceedings applicant was found in unauthorized possession of suit plot and not entitled for its grant, inter alia, for the reasons that same was already legally granted to the respondent No.

1. On perusal of judgment, dated 30th November 1986, passed by the lower Court, it is evident that the same suffers from gross misreading of evidence and also lack of appreciation of correct legal position. The learned First Appellate Court, in its impugned judgment has examined each and every relevant aspect of the case and rightly set aside the judgment of the lower Court on law points as well as on facts. The learned counsel for the applicant has failed to show any illegality or material irregularity or jurisdictional defect/error in the judgment and decree impugned in this revision application. In such circumstances following the principle laid down in the case of Abdul Hakeem v. Habibullah and 11 others (1997 SCMR 1139) and Anwar Zaman and 5 others v. Bahadur Sher and others (2000 SCMR 431), no case for interference in the revisional jurisdiction of this Court is made out. Accordingly this revision application is dismissed with costs. H.B.T./M-200/K Petition dismissed.