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Petitioner: ALLAH DINOand 6 others VS Respondent: ALI MUHAMMAD and 9 others
Court Name: Sindh High Court Judge(s): Salahuddin Panhwar, Syed Hassan Azhar Rizvi Title: ALLAH DINOand 6 others vs ALI MUHAMMAD and 9 others Case No.: C.P. No.D-1802 of 2011 Date of Judgment:2015-03-26 Reported As: 2016 YLR 890 Result: Petition dismissed
Judgment ORDER SALAHUDDIN PANHWAR, J.---Petitioners through instant petition have prayed as follows:-- a) That this Hon'ble Court would be pleased to set aside and quash the impugned order dated 28.09.2011 passed in Civil Revision No.35/ 2011 and restore the order of the Trial Court dated 14.02.2011 with the direction to the Trial court to decide the claim of title of the petitioners in respect of the disputed property on merits after holding the full-fledged trial of the suit and conclude the same within shortest possible/reasonable time; b) To restrain the Respondents from interfering with the peaceful possession of the petitioners over the suit property viz survey Nos.113, 153, 157, 158, 166, 185, 353 situated at Deh/Tapo Gidu, Taluka Hyderabad, Survey Nos.190, 191 and 192 situated at Deh Seri, Tapo Gidu, Taluka Hyderabad through themselves, their subordinates, agents, attorneys, assignees, successors or anyone else who claims through them; ' To grant any other relief which is deemed fit and proper under the circumstances of the case; d) Cost of the petition be borne by the Respondents. 2. Relevant facts, giving rise to instant petition, are that respondent No.4/plaintiff had filed an FC Suit No.126 of 1981 against the petitioners and government officials, claiming that "land bearing Survey Nos.113, 153, 157, 158, 166, 185, 353 situated at Deh Tapo Giddu Taluka Hyderabad and land bearing Survey Nos.190, 191, 192 situated at Deh Seri Tapo Giddu Taluka Hyderabad is the ancestral property belonging to Mohammad Siddiq son of Mohammad Bachal Samoon and Basur Khan alias Ahmed Khan son of Dino Khokhar, the predecessor-interests of the petitioners." It was also pleaded that the petitioners (private defendants) entered into sale agreement with plaintiff/respondent
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Mohammad Ramzan; delivery of possession was also claimed and thus he (Mohammad Razraan) sought following relief (s):- a) To declare that the suit property survey numbers situated in deh Sari Tapo Gidu Taluka Hyderabad District Hyderabad is the ancestral and inheritance properties of Mohammad Siddique son of Mohammad Bachal Samoon and Basur Urif Ahmed Khan son of Dino Khokhar since 1914 according to the record of rights maintained and issued by the defendants Nos.12 to 13 even uptil now according to the certificate issued by District Registrar registration Hyderabad 'and after the death of Mohammad Siddique Samoan and Basur Khan Khokhur, the defendants Nos.1 to 7 being the legal heirs are the owners of the said suit land in whose name Foti Khata is to be changed by the defendants Nos.I2 to 13. As per provisions of Land Revenue Act and thereafter under the provisions of Land Revenue Act the name of the plaintiff and of defendants Nos.8 to 11 is to be enter in revenue record by the defendants Nos.12 to 13, as stated in the plaint; b) To direct the defendants Nos.1 to 7 to execute the final sale deed of the suit land in favour of the plaintiff before the Sub-Registrar Hyderabad after receiving remaining balance Rs. One thousand from the plaintiff or this Honourable court may authorize Nazir of the Court to perform the contract and execute the sale deed in favour of the plaintiff in respect of the suit land on behalf of defendants Nos.1 to 7 after receiving the balance Rs, One thousand; c) To grant injunction restraining the defendants Nos.I to 7 through the defendants Nos. .1 and 5 from interfering with the peaceful possession and enjoyment of the suit land of the plaintiff or selling, transferring the same directly or indirectly themselves through their agents, servants, friends, relatives etc. In any manner whatsoever except as stated in the contents of the plaint; 3. The defendants (including the present petitioners) filed their written statements separately, in all three. However, the written statements from the official defendants, not brought on record. On 25.3.1981 the plaintiff/respondent Mohammad Ramzan withdrew suit against official defendants and on same date i.e. 25:03.1981 the parties i.e. Plaintiff and defendants Nos.1 to 11 (including the present petitioners) filed an application under Order XXIII Rule 3, C.P.C. Seeking for a compromise decree in the suit on following terms:-- 1. That the defendants Nos.1 to 7 being the owners of the suit property after the death of their Mohammad Siddique and Basar Khan alias Ahmed Khan as legal heirs have received remaining consideration Rs.2000-00 (Rs.Two thousands only) from the plaintiff is purchaser of the suit property hence the suit decreed by this court in terms of the prayers of the plaintiff with no orders to costs; 2. That the defendants Nos.1 to 7 have also received remaining consideration amount as stated in the contents of the plaint of the suit property from the defendants Nos .8 to 11 and the defendants Nos.1 to 7 as legal heirs of deceased Mohammad Siddique and Basar Khan alias Ahmed Khan have also agreed to execute final Sale deed in favour of defendants Nos .8 to 11 in respect of their sold land within the period of one month for which the plaintiff not raise any objection. ' Accordingly, such application was allowed and on the same date the decree was prepared. 4. The record further spells out that the respondents Nos.5 to 10 (respondents Nos.6 to 10 were, originally, not parties in suit), through Deputy District Attorney, filed an application under section 12(2), C.P.C. Whereby challenged the compromise decree on the specific plea that suit property is State/government land and it (suit land) was claimed to be NAQABOOLI land. It was also pleaded in such application that S.Nos.113 and 192, Deh Sari were allotted by the Government of Sindh to Revenue Employees Cooperative Society Ltd. Hyderabad for 99 years lease for housing scheme. The objections were filed against such application, such application was dismissed as time barred but in revision matter was remanded back for framing of issues, thus, the learned trial court framed the following issues on the above application:--
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1 . Whether the application under section 12(2), C.P.C. r/w Section 151, C.P.C. Filed in the month of March, 2005 is time barred? 2. Whether compromise decree dated 25.03.1981 in FCS No.126/81 was obtained by practicing fraud upon the Court and mis-representation of facts? 3. What should the order be? 5. The applicant (Government) examined Qazi Mushtaque, Mukhtiarkar, Qasimabad and produced documents, showing land to be government land. From other side, the petitioner Landing, was examined he produced certain documents. The learned trial Court, while recording order dated 14.01.2011, set aside the order dated 25.8.1981 and decree dated 25.03.1981 and fixed the matter on 24.02.2011 for filing of the writtenstatement by the remaining arties. 6. The said order of the trial court was challenged by the present petitioner by filing Civil Revision No.35 of 2011 before the District Judge, Hyderabad who, having heard the arguments, dismissed the same vide order dated 28.9.2011 which is challenged in the instant petition. 7. Learned counsel for the petitioners; inter alia, contended that order of the revisional court is against the law, facts, equity and natural justice as it committed material irregularity while commenting on merits of the case although matter was confined only in 'respect of an application; under section 12(2), C.P.C. Which revolves round 'fraud' and 'mis-representation'. Both inferior courts travelled beyond their jurisdiction. 8. Conversely, AAG, representing the official respondents, inter alia, contended' that whole the structure, so raised by the petitioners, is/was based on fraud and misrepresentation and observation of the revisional court are strictly with reference to law and record therefore, same needs not be scored off, therefore, he prayed for dismissal of the instant revision petition, petitioners have no locus standi to challenge this order, even they failed to file suit for declaration, hence respondent No.4 was not competent to file the suit seeking declaration with regard to property of petitioners. He has relied upon PLD 1993 Supreme Court 147, PLD 2007 Karachi 392, 2010 SCMR 115, 1999 SCMR 146, 1999 SCMR 16 and 2001 SCMR 1822. 9. Heard learned counsel for the parties and perused the record. 10. What scanning of record has brought on record that the present petitioners through instant petition are asking for restoration of order of the trial court which was challenged before the Revisional court through revision petition which, undisputedly, was dismissed. The instant petition rather appears to be confined to seek scoring of the observation of the Revisional court which have been referred in the petition at paras 8 and 9 of the facts and referred as:-- ' The learned District Judge passed strictures against the then City Mukhtiarkar Hyderabad and Mukhtiarkar Qasimabad in the words, "It means at least this fact was concealed (fact of withdrawal of suit) by the then City Mukhtiarkar and Mukhtiarkar Qasimabad that they were no more parties in the suit and they remained oblivion of the fact". The second conclusion of the Revisional court is "Whatever the case may be, I consider that the period of limitation not only starts from the time when the interveners came to know about the disposal of suit, but also from the very time, when they came to know that the suit was withdrawn against them". 9. That the third conclusion reached at by the Revisional Court while relying upon section 79, C.P.C. Read with Article 174 of the Constitution, the learned District Judge held, 'Suit against. Government ought to have been filed through Secretary of the respective department. Non implemented of proper party was with unfair intention as it was not open to such party to raise a plea of knowledge and such plea would have some wait (weight) if proper and necessary authority being concerned Secretary was made party to the suit". 11. Let it be made clear that there is much difference between the terms 'observation' and 'adjudication'. It is never the observation which determines the rights or titles of the parties for
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which an 'action' is brought before the court for 'adjudication'. The Courts cannot be deprived to consider and decide a 'legal' or 'factual' question/plea, if raised, even before appellate authority. It is always the series of facts or circumstances which are used to infer a 'conclusion' which may either be in 'far' or 'against'. While adding a little to explain that the abstract terms such as 'fraud', ' mala fide', 'bona fide', fraud' or even misrepresentation etc. Cannot be 'determined' without considering the facts, circumstances and documents, so referred for proving or disproving the same, therefore, the plea of the learned counsel for the petitioners that the learned Revisional Court erred while commenting upon merits of the case cannot be stamped as valid more particularly when the same were raised before the learned Revisional Court by respective parties and the observations, if any, were not beyond the available material. An 'observation' shall not equate the status of 'adjudication' unless intention is otherwise. The moment the observation ends into determining any factual or legal issue it would attain the status of 'adjudication'. ' The structure, if any, against the Mukhtiarkar (Rev) regarding his conduct and attitude should not have been a cause of grievance for the present petitioners because it, no way, relates with petitioners or their case. Even otherwise, when the land was claimed to be the government/ State land then in such eventuality every official, on acquiring the knowledge of rights, interests and claims of the Government, is expected to be on his toes to protect such rights, interests and claims being an official of the State regardless of his status. The duties of an official is not only to discharge his routine obligations/ duties but also to react as a responsible public officer whenever a question of government interest comes before it else the belief of public official 'a trustee of public rights' shall loose its value and substance. Thus, the Court, being ultimate guardian of the public rights can competently pass appropriate observations and even directions with regard to attitude and conduct of public officials so also of the private parties and should never become a tool in letting the parties to achieve indirectly what' they can not receive directly. If a court records such observation with reference to obligations and duties required to be performed by the officials, in particular, the same cannot be termed to be excessive on part of the Court which, otherwise, is and should be believed to be a breathing one. 12. As regard to the observations of the learned Revisional court with reference to section 79, C.P.C. Or that of Article 174 of the Constitution, cannot be termed to be An 'excess' because the observations/opinions of the learned Revisional Court were with reference to the requirement of the law and procedure which has made it a mandatory requirement that proper representation of the Provincial government could only be through 'its Secretary'. An affirmation to what the law insists can never be said to be illegal or incorrect. 13. Above all, the 'observation', in no way, was/is going to cause any harm to the present petitioners particularly, when the learned Revisional court while dismissing the revision of the petitioners, in all judicial senses, had endorsed the order of the learned trial Court whereby the 'trial' was to be processed. The legal position, being so, leaves nothing to discuss about the maintainability of the instant petition, which, is prima facie, not maintainable. However, let me make things a little obvious for which a reference to main prayer of the instant petition, being material, is reproduced hereunder:-- e) That this Hon 'able Court would be pleased to set aside and quash the impugned order dated 28.09.2011 passed in Civil Revision No.35/2011 and restore the order of the Trial Court dated 14.02.2011 with the direction to the Trial court to decide the claim of title of the petitioners in respect of the disputed property on merits after holding the full- fledged trial of the suit and conclude the same within shortest possible/reasonable time; ' The above prayer is sufficient to show that the petitioners, themselves, not only acknowledging the legality and conclusion drawn by the trial court but also seeking enforcement of such order of trial court passed on 14.02.2011. The concluding para thereof is reproduced hereunder:-
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"Thus I am satisfied that the compromise decree is obtained by misrepresentation of facts as such I allow the application under section 12(2), C.P.C. And set-aside the order dated 25.8.1981 and decree dated 25.03.1981. The matter is to be decided on merits. The matter is fixed for hearing on 24.02.11 for written statement by the remaining parties This means that the present petitioners themselves stamp such decree to have been obtained, as was opined by the learned trial Court Judge whose order (referred above) is being insisted to be restored in its letter and spirit. 14. The above, in all meaning and sense, makes it undisputed that compromise decree is not holding field as even through instant petition the order of trial court was not challenged which has brought the litigation to the stage of trial. Needless to say ,that 'question of maintainability of the suit can be examined competently even by appellate or revisional court because the object and scheme of 'administration of justice' is not to keep things hanging but to make efforts to give due either after proper trial or to bury an incompetent lis at its inception. Such powers of the courts are not subject to an invitation by the parties but the law itself insists to exercise such powers whenever the situation demands so. Reference can be made to the reported case (2007 SCMR 741), wherein honourable Supreme Court held that:-- It is pertinent to mention here that in view of the Order VII Rule 11, C.P.C. It is the duty of the Court to reject the plaint if, on a perusal thereto, it appears that the suit is incompetent, the parties to the suit are at liberty to draw courts' attention to the same by way of an application. The Court can, and, in most cases hear counsel on the point involved in the application meaning thereby that court is not only empowered but under obligation to reject the plaint, even without any application from a party, if the same is hit by any of the clauses mentioned under Rule 11 of Order VII, C.P.C. 15. Let us insist that the courts while admitting the suit must go through the contents of the pleading (plaint) towards its maintainability though, this should be prima facie without detailed inquiry towards the factual controversy but legal questions at the same time be not ignored. In short, the suits be not admitted in a mechanical manner because admitting a lis brings subject matter i.e. Legal character or interest of one in property into controversy/ dispute. Since the people and officials do have honour for the Courts proceedings hence admission of an incompetent suit may result in keeping legal and normal course into prejudice. Thus, an incompetent or legally unsustainable lis, appearing so from its very face, should not be 'admitted' rather dismissal thereof or return for presenting before proper court/ forum or in proper shape was/is the demand from one who is believed to be having all laws on his sleeves.We are conscious that this has been the basic principles but the peculiar facts of instant case compelled us to reiterate in view of the principle, laid down by a larger Bench comprising of five learned Judges of the Honourable Supreme Court, in the case of Mansab All v. Amir and 3 others (PLD 1971 SC 124) was pleased to hold that:- "it is an elementary principle that if a mandatory condition for the exercise of jurisdiction by a court, tribunal or authority is not fulfilled, then entire proceedings which follows become illegal and suffer from want of jurisdiction; and, any order passed in continuation of such proceedings in appeal or revision, equally suffer from illegality and are without jurisdiction' 16. The above principle, allow us to say that it can neither be in the spirit of safe administration of justice or even equity that an incompetent suit be kept pending or be remanded to the lower courts where the maintainability on touchstone of legally established principles is barred. In to the case of Muhammad lqbal v. Muhammad Ahmed Ramzani and 2 others (2014 CLC 1392), it was held that:-- 14. We are of the view that Article 203 of the Constitution of the Islamic Republic of Pakistan, 1973, has conferred the general power upon the High Court, without any limits, fetters or restrictions, to supervise and control all subordinate courts in all administrative as well as judicial matters, and has made the High Court the custodian of justice within the territorial limits of its jurisdiction. There
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is no doubt in our minds that in cases where there is a total absence of jurisdiction or the manifest excess of jurisdiction, the High Court will not refrain in exercising its power under Article 203(ibid) by remedying the error, mistake, wrong or illegality committed by a subordinate court. The error committed by the lower appellate court in the respondent's Civil Appeal No.84 of 2004 was of such a nature that it cannot be ignored by this Court. Due to the said error, multiple errors crept into all subsequent proceedings resulting into not only multiplicity of proceedings, but also grave miscarriage of justice. Since the judgment and order impugned in this petition are the outcome of the aforementioned illegal and coram non judice judgment dated 31.3.2007 passed in the respondent's Civil Appeal No.84 of 2004, the same cannot be allowed to remain in the field. (underlining is ours for emphasis) 17. Since the peculiar facts of instant case, came to our notice during hearing of the instant petition, therefore, we feel it proper to give a brief reference thereof. Per, the record of the rights, the subject land happened to be either 'NAQABOOLI LAND' or 'DARYA KHURDI'. Such claim of the State/Government is well within active knowledge and notice of the private parties as allotment of S.Nos.113 and 192 by Govt. To Revenue Employees Co-operative Housing Society were challenged by the petitioners i.e. Mst. Bachoo alias Bachal and others through C.P. No.D-49/1985 which was accepted by this Court, however, honourable Supreme Court of Pakistan, on appeal by government, while disposing of the Appeals Nos.782-K and 783-K of 1990 observed as:-- "The admitted position in these appeals is that all the documents on the basis of which the claim of the respondents has been accepted were not admitted by the appellants-Government functionaries. All the documents filed in the constitutional petition on the basis of which the declaration was granted to the respondents are disputed and that they were said to be forged and fabricated." ' It might not be proper to express opinion about the admissibility, legality and authenticity of the documents produced by the respondents in support of their claim made in the constitutional petition by the respondents at this stage as it might affect the case of the respondents at the subsequent stage before another forum, but it could be said that the question of title in respect of land in question could not have been decided by the High Court in the constitutional jurisdiction in view of the disputed questions of fact and the documents alleged to be forged and fabricated." ' In same, it was held that:- ' In the instant case the disputed questions of fact as to title are based on the documents which are said to be forged and fabricated, which would require evidence to arrive at a correct conclusion, therefore, the High Court could not have decided the same in exercise of its constitutional jurisdiction. In the circumstances, the impugned judgment of the Division Bench of the High Court is set aside and the appeals are allowed. The respondents, if they desire, can seek their remedy before the competent forum in accordance with law. 18. It is, however, a matter of record that petitioners i.e. Mst. Bachoo and six others and even present private respondents, never challenged the claim of the government-State nor have challenged the record of the rights which prima facie deny or least make their claim disputed, as was observed by the Honourable Supreme Court in clear terms while leaving the given advise to seek necessary legal remedy, at their desire. At this juncture, it would be relevant to refer the relevant provision of the Specific Relief Act dealing with 'Declaratory Decree'. 42. Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief: The above provision through its plain language gives a right to a person to seek a 'Declaratory Decree' where his legal character or any right to any property is either denied or necessity arose to
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deny any such claim or. Interest, if raised by other person. The right to seek such a decree, the discretion is left upon the person by using the word 'may' but it does not change the legal position that omission towards such right will not be an excuse from escape of legal consequences of such deliberate omission. The moment a right to seek a decree arises it becomes obligatory upon the person to avail such right else his/her deliberate omission will bring the legally known terms 'waiver', limitation, estoppel and laches into play with their own legal consequences because every right to seek a decree is subject to 'limitation Act' which, undeniably, is a law meant to have an early action from the person, whose legal character or right to a property is denied or under threat. In the instant matter the present petitioners never bothered to resort to such legal remedy and letting the claim of the State/Government continues which completely denies title document and even claims it as fraudulent. Having acquired such notice and knowledge, it was legal liability of the petitioners to get the same adjudged or least a declaration/adjudication of their claim over land in question but they have chosen otherwise, hence shall have to face the consequences of their such omission. Here,…
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