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Petitioner: NASEEM-UL-HAQ through Attorney and another VS Respondent: RAES AFTAB ALI LASHARI through Guardian ad-litem and 5 others
Court Name: Sindh High Court Judge(s): Muhammad Ali Mazhar Title:NASEEM-UL-HAQ through Attorney and another vs RAES AFTAB ALI LASHARI
through Guardian ad-litem and 5 others Case No.:Suits Nos.167 and 439 of 2012Suit No,167 of 2012Suit No,167 of 2012 and for Plaintiff in Suit No,439 of 2012Suit No,439 of 2012 Date of Judgment:2013-02-12 Reported As: 2015 YLR 550 Result: Order accordingly Judgment ORDER ' MUHAMMAD ALI MAZHAR, J.--- The plaintiff in Suit No,167/2012 has filed two Civil Misc. Applications under Order XL Rule 1, C.P.C. And Order XXXIX Rules 1 and 2, C.P.C. While defendant No,1 in the same suit has moved an application under Order VII Rule 11, C.P.C. In Suit No,439/2012 the plaintiff has also filed injunction application. All aforesaid applications will be disposed of by means of this order. The Suit No,167/2012 has been filed by Naseem-ulHaq against Raees Aftab Ali Lashari and his father Panah alias Perano and others while Suit No,439/2012 has been filed by Panah alias Perano against Province of Sindh, Naseem-ul-Haq and others. Both the suits have been filed vice versa for the one and the same piece of land. Brief facts of Suit No,167/2012 2. The plaintiff in this suit contended that he purchased land bearing Nos.18-B, 19, 20 and 21 Nai- Malir, Deh Dih Karachi East measuring 1.00 acre from Mohammad Races Qureshi through registered conveyance deed dated 30-4-1992. It is also the case of the plaintiff that he purchased land Survey Nos.19, 20 and 21, Nai-Malir Deh Dih, Karachi East measuring 3.00 acres by virtue of another conveyance deed dated 30-4-1992 executed in his favour by M/s.Al-Hamra Trading Corporation. It is further averred that the possession of aforesaid land was handed over to the plaintiff and in the year 1993, the Survey Superintendent conducted demarcation and due to change of Deh the suit land became part of Deh Drigh. By virtue of Ghat Wadh Form, Old Survey No,18-B was allocated new Survey No,77 whereas old Survey Nos.19, 20 and 21 were assigned new Survey Nos.78, 79 and 80. As a result of aforesaid demarcation the plaintiff raised boundary wall. The grievance of the plaintiff is
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that on 6-2-2012, 30 to 40 persons armed with deadly weapons dispossessed the plaintiff. They also demolished the boundary wall and on newly built front side boundary wall the name of defendant No,1 was found painted as owner. The plaintiff has filed this suit for declaration that he is exclusive owner of the suit plot with the relief of permanent injunction against the defendants from changing the status of the suit land or creating any third party interest, charge or encumbrance. The plaintiff has also prayed for mandatory injunction for issuing directions to the defendants to remove the illegal and unauthorized trespassed and encroachment. On 14-2-2012 the matter was placed before the learned Single Judge of this court for orders on injunction application as well as on the application filed for the appointment of Receiver. On Receivership application the notice was issued but meanwhile parties were directed to maintain status quo. However, on 5-3-2012 Nazir was appointed Receiver to take over the suit land. The order dated 5-3-2012 was challenged by defendant No,3 in H.C.A. No,33/2012 and vide order dated 13-3-2012 the said H.C.A. Was disposed of by consent and the impugned order was set-aside. Brief facts of Suit No,439/2012 3. The plaintiff in this case is Panah alias Perano who is also defendant No,3 and father of defendant No,1 in Suit No,167/2012 alleged that he is in possession of land in Deh Drigh, Nai Malir, Karachi and in pursuance of his application the competent authority was pleased to allot 4.00 acres of land in Survey No,131, Nai Malir, Deh Drigh Road Karachi for 99 years lease. It is also stated that the plaintiff has been in uninterrupted possession since 1991. Vide letter dated 4-11-1996, Secretary, Government of Sindh Land Utilization written a letter to the Deputy Commissioner East Karachi in which he verified and confirmed that the land in question is in possession of the plaintiff. After promulgation of Sindh Government Lands Ordinance III of 2001 the plaintiff's land was resumed and subsequently it was regularized by order dated 3-11-20111 on payment of deferential amount. According to the plaintiff the land claim by the plaintiff in Suit No,167 of 2012 is situated in Nai Malir Deh Dih and he also raised allegation that the defendant No,5 has manipulated the Survey Nos.77 to 80 Nai Malir Deh Dih which have been cancelled by the competent authority vide order dated 14-1-20.12. The plaintiff has also sought declaration that he is lawful owner of the same land and he is in uninterrupted physical possession and also prayed for permanent injunction that the defendants be restrained from interfering, interrupting and or dispossessing the plaintiff from the land in question. 4. Learned counsel for the defendants Nos.1 and 3 has filed this application under Order VII Rule 11, C.P.C. (C.M.A. No,2731/12) in Suit No,167/12 for rejection of plaint. Learned counsel argued that the suit is barred under section 11 of Sindh Revenue Jurisdiction Act, 1876, section 36 of Colonization of Government Lands (Sindh) Act, 1912, section 172 of Land Revenue Act, 1967. He further argued that the plaintiff has no cause of action and the suit has been filed on concealment of facts that survey numbers were cancelled by Director Settlement Board, Hyderabad. He further argued that land of the plaintiff is situated in Nai Malir, Deh Dih, Karachi while defendant No,l's land is situated in Nai Malir, Deh Drigh, Karachi. Learned counsel further argued that suit is also barred by sections 42, 54 and 56 of Specific Relief Act. Learned counsel referred to supporting affidavit of application in which it is stated that defendant No,3 is lawful allottee/owner of land in question by virtue of Allotment Order dated 16-10-1996. Learned counsel also referred to the Letter dated 3-11-2011 and argued that after allotment of this land through due process of law, the Sindh Government Land Committee in its meeting held on 29-6-2011 considered the request and in pursuance of section 5 of the Sindh Government Land (Cancellation of Allotments, Conversions and Exchanges) Ordinance, (III of 2001) was pleased to regularize the land measuring 4 acres out of 8 acres land in favour of the defendant No,3. Learned counsel also referred to copy of differential amount which was paid by the defendant No,3 for the purpose of regularization. Learned counsel also referred to Village Form-II showing entry of 4 acres of land in Survey No,131. Learned counsel also pointed out
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the order dated 14-1-2012 passed by. Director of Settlement, Survey and Land Records Sindh Hyderabad who cancelled Ghat Wadh Form bearing Nos.25 and 26 in respect of Survey Nos.77, 78, 79 and 80 of Deh Drigh Road in the public interest. Learned counsel submits that against this cancellation, proper remedy was to file an appeal and not this suit which is according to the learned counsel, is barred under section 11 of Sindh Revenue Jurisdiction Act, 1876. Learned counsel further argued that nothing has been mentioned in the plaint whether against the cancellation of Ghat Wadh Form any appeal was preferred or not by the plaintiff either under the provisions of Sindh Revenue Jurisdiction Act or under the Land Revenue Act. 5. Learned counsel further argued that since the competent authority has cancelled the Ghat Wadth Form and unless such order is recalled or set-aside, the plaintiff has no locus standi or legal character to file this suit which is no more available after cancellation of Ghat Wadth Form, therefore, he has no right or entitlement to seek any declaration that he is exclusive owner of land and or other reliefs including permanent injunction, mandatory injunction and or mesne profit. Learned counsel also referred to an order dated 17-4-2012 passed by the learned Single Judge of this court, which shows that the learned counsel for the Board of Revenue stated that he will be satisfied if statement is made on behalf of plaintiff that there is no claim against the Government or the Board of Revenue. The order further shows on that date the learned counsel for the plaintiff drawn attention to the title of the plaint to show that the official defendants Nos.4 to 6 have been sued pro forma, which statement was taken, on record. In support of his arguments the learned counsel relied on the following case-law. (1) 2007 CLC 1790 (Jan Muhammad Abbasi v. Mukhtiarkar Estate, Larkana). Entries standing in plaintiff's name in record of rights as owner of State land. Cancellation of such entries by Authority for being made on basis of iorged documents. Suit by plaintiff for declaring such order as b initio void and illegal. Maintainability. Plaintiff had filed suit without first availing remedy available under West Pakistan Land Revenue Act, thus, suit was barred by section 11 of Sindh Revenue Jurisdiction Act, 1876.. Provision of section 53, West Pakistan Land Revenue Act, 1967 would apply to a person aggrieved by some entry in record of rights, but would not apply to a suit questioning order of cancellation of an entry. An order not passed strictly in accordance with law, would not become an order without jurisdiction. Suit was dismissed on merits and also for being non-maintainable. (2) 2012 SCMR 730 (Administrator, Thal Development v. Ali Muhammad). Suit for declaration, resumption of State land by Colony officer due to non-fulfilment of required preconditions by the plaintiff. Jurisdiction of civil court to entertain such suit. Scope, plaintiff had not availed remedy of appeal under section 161 of West Pakistan Land Revenue Act, 1967, thus, jurisdiction of civil court was impliedly barred. Jurisdiction to resolve such dispute exclusively vested with Revenue Courts. (3) 2011 CLC 1235 (Muhammad Manzoor through Legal Heirs and others v. Province of Punjab). Plaintiff challenged through civil suit order passed by Member, Board of Revenue, whereby conveyance deed in favour of plaintiff was set aside and matter was remanded to the District Officer, Revenue. Trial Court rejected the plaint holding that the civil court had no jurisdiction to adjudicate the matter. Validity, where the order passed by an authority was within power of such authority, jurisdiction of civil court was ousted under section 36 of the Colonization of Government Lands (Punjab) Act, 1912. Under section 30(2) of the Act, Board of Revenue was competent to resume the land. Both the forums below correctly found that civil court had no jurisdiction. (4) 2005 SCMR 1302. (Muhammad Ali v. Province of Punjab and others). Plaintiff as lessee under Temporary Cultivation Scheme filed suit challenging order of Collector refusing to grant him proprietary rights of suit land. Trial Court refused to grant stay order. Appellate Court in appeal against such order rejected plaint under Order VII, Rule 11, C.P.C., on the ground that jurisdiction of Civil Court was barred by section 36 of Colonization of Government Lands (Punjab) Act, 1912. Plaintiff had not availed statutory remedies of appeal and revision before. Commissioner and
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Board of Revenue respectively against order of Collector. Plaint did not disclose that order of Collector was illegal or beyond his powers or suffered from any jurisdictional defect so as to be amenable to jurisdiction of Civil Court. (5) 2007 YLR 1880 (Pir Bux v. Muhammad Moosa and others). ' Revenue authorities without determination of plaintiff's pending claim, had included the suit land in the schedule for the purpose of auction and in fact finally granted the same to the defendants. Plaintiffs in circumstances, should have asserted their rights before the open assembly. Bar contained in section 36, Colonization of Government Lands (Punjab) Act, 1912 as well as section 11 of the Sindh Revenue Jurisdiction Act, 1876 was fully applicable. Plaint was correctly rejected by the Civil Court. 6. Conversely, the counsel for the plaintiff argued that the defendant No,1 filed the application to delay the proceedings and to continue unlawful trespass over the land. He further argued that section 11 of Sindh Revenue Jurisdiction Act is not applicable as it only bars the institution of suit in the matters fallen within the ambit and purview of section 4, however, section 184 of the Land Revenue Act, 1967 pertains to the repeals and saving. The subsection (2) of section 184 of Land Revenue Act, 1967 clearly stipulates that on the commencement of Land Revenue Act in any area the enactments mentioned in part two. Of the schedule shall, if and in so far as applicable to that area, stands repealed. Under part two of the Schedule it is clearly provided that sections 4, 5 and 6 of Sindh Revenue Jurisdiction Act, 1876 stood repealed. So far as section 36 of the Colonization and Disposal of Government Lands (Sindh) Act, 1912 is concerned learned counsel submitted that the plaintiff has filed this suit for declaration that he is exclusive owner of land in question and also prayed for injunction to restrain the defendant No, 1. Learned counsel argued that section 36 only applicable to the matters for which the power can be exercised by the Collector. Neither the forcible dispossession and or encroachment or trespass can be a remedied or covered under section 36 of the aforesaid Act nor section 172 of Land Revenue Act is applicable in which exclusion of the jurisdiction of civil court is provided to take the cognizance of any matter in which Government, Board of Revenue or any Revenue Officer is empowered by this Act to dispose of and to take cognizance of the matter. Learned counsel argued that the order for cancelling the Ghat Wadh Form was passed without notice to the plaintiff and without affording any opportunity of being heard. It was further averred that the defendant No,1 had no right and authority to forcibly occupy the land, which was in physical possession of the plaintiff until 6-2-2012. The suit land is situated in Deh Drigh and the entire strip of land initially allotted to various people in Na-class Deh Drigh Karachi as a result of demarcation and survey. Learned counsel further argued that Ghat. Wadh Form was unlawfully cancelled through office order dated 14-1-2012. He also referred to the documents attached with the counter affidavit of injunction application filed by defendant No,l. The crux of the arguments is that the District East Karachi was created in the year 1985 and in support of his contention he also referred to judgment reported in PLD 2009 Karachi 186 (Syed Muhammad Khalid v. Province of Sindh and 2 others). In this case, while deciding the fate of application moved under Order VII, Rule 11, C.P.C. The learned Single Judge of this court observed that the certification by the Mukhtiarkar in Column No,7 is apparently not true as on 25-7-1975 there was no existence of Karachi (East) as District (East) of Karachi was created in the year 1985. Learned counsel referred to annexure D-1 attached with aforesaid counter affidavit in which the father of defendant No,1 requested to worthy Chief Minister Sindh for allotment of land and for poultry farming purpose 10 acres land 'was allotted by the Deputy Commissioner Karachi East vide Office Order dated 21-2- 1983 for 25 years out of which two acres land was encroached and request was made for grant of 99 years lease for the remaining 8.00 acres of land. Learned counsel argued that on the face of it annexure D-1 is a forged document and on the basis of this claim the map was prepared on 18-12- 1991. He further referred to challan attached with the counter affidavit, which was issued on 8-10-
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1996 and amount was deposited on the same date. Learned counsel argued that the same challan was filed by the defendant No,3, who is father of defendant No,1 in C.P.No,619/2008 with different parentage, while the same person filed the Suit No,1559/2010 in this court and on the strength of the same paid challan he has claimed different land. 7. Learned counsel further argued that it is well settled principle that the plaint can only be rejected if from the averments of the plaint no case is made out. The prayer clauses in the suit made it clear that the plaintiff has approached this court for safeguarding his interest and to protect his exclusive ownership rights which is in danger. The plaintiff has made out triable issues, which require evidence and the plaint cannot be rejected. 8. Heard the arguments. The learned counsel for the defendant No,1 very forcibly argued that the suit is riot maintainable under section 11 of Sindh 'Revenue Act, 1876. For ready reference, section 11 of aforesaid Act is reproduced as under:-- "11. Suits not to be entertained unless plaintiff has exhausted right of appeal. No Civil Court shall entertain any suit (Subs. By the A .0. , 1937, for "against Government" and finally the word "Government" was subs. For the word "crown" by. P.O. No,1 of 1961) against the Government on account of any act or omission of any Revenue Officer unless the plaintiff first proves that, previously to bringing his suit, he has presented all such appeals allowed by the law for the time being in force as, within the period of limitation allowed for bringing such suit, it was possible to present". 9. The bare look of prayer clause and the gist of plaint does not show that the plaintiff has Challenged any act or omission of the Revenue Officer for which the plaintiff has to first prove that previously he presented such appeals allowed by the law for the time being in force as within the period of limitation allowed for bringing the suits. The plaintiff has prayed for declaration to protect and safeguard the ownership rights to the land bearing Survey Nos.77, 78, 79 and 80 Nai Malir Deh Drigh admeasuring 4.00 acres and also claimed permanent injunction. Learned counsel for the defendant No,1 himself pointed out an order which clearly reflects that counsel for the plaintiff gave clear statement that the defendants Nos.4 to 6 are pro forma defendants, which unequivocally shows that the plaintiff has not called in question any act or omission of Revenue Officer. So far as the cancellation of Ghat Wadh Form is concerned, according to the learned counsel for the plaintiff the plaintiff has already filed an appeal which is pending and in this suit the Ghat Wadh Form is not in question. So in my view from the averments of the plaint this suit does not appears to be time barred under section 11 of the Sindh Revenue Act, 1876. In this regard I would like to refer to my own judgment reported in 2011 CLC 88 (Mst.Bano alias Gul Bano and others v. Begum Dilshad Alain and others),'in which also application under Order VII Rule 11 C.P.C. Was filed for the rejection of plaint and the plea was taken that the suit is barred under section 11 of the aforesaid Act. In which I observed that the plaint was not confined to the acts and omission of revenue officers alone, but there are many other reliefs sought by the plaintiffs which cannot be entertained and or decided by the revenue hierarchy and this is not a simple matter of mutation entries and or its cancellation. 10. Learned counsel also took the plea that the suit is also barred under section 36 of the Colonization and Disposal of Government Lands (Sindh) Act, 1912 which provides that a civil court shall not have jurisdiction in any matter of which the Collector is empowered by this Act to dispose and shall not take cognizance of the manner in which the Provincial Government, Board of Revenue or Collector or any other Revenue Officer exercises any power vested in it or in him by or under this Act. Though learned counsel vehemently relied upon this section, but he could not point out whether the controversy or the bone of contention raised by the plaintiff can be decided or disposed of by the aforesaid hierarchy. Much emphasis was made that since Ghat Wadh Form was cancelled through an order therefore, the plaintiff cannot maintain the suit which is not in fact a correct legal position. No relief has been claimed by the plaintiff in the suit against the revenue
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hierarchy, but the suit is for declaration and permanent injunction against the defendants Nos.1 and 3 and S.H.O. Police Station Balouch Colony, Karachi. Naturally the authorities mentioned in the section cannot decide the present controversy and they have no right to grant any declaration under section 42 of the Specific Relict Act to the plaintiff nor they can permanently restrained, which powers can only be exercised by the civil court under the provision of Specific Relief Act. Section 172 of the Land Revenue Act is almost identical to section 36 of the Colonization and Disposal of Government Lands (Sindh) Act, 1912 which provides that no civil court can exercise jurisdiction in any matter which Government, Board of Revenue or any Revenue Officer is empowered to dispose of or take cognizance of the matter. Under subsection (2) various conditions are provided for which civil court cannot exercise its jurisdiction. Again I would like to observe that the plaintiff has not prayed for any relief which could be achieved and obtained under clauses (i) to (xxi) of sub-section (2) of section 172 of the Land Revenue Act, therefore, from this angle also it cannot be said that the suit is barred under this section. 11. Learned counsel for the defendant No,1 next argued that the suit is barred by sections 42, 54 and 56 of the Specific Relief Act. The plaintiff in this case claims the title on the basis of two registered conveyance deed dated 30-4-1992 one executed by Muhammad Raees Qureshi in his favour for land measuring 1.00 acre while other conveyance deed was executed by Al-Haram Trading Corporation for the land measuring 3.00 acres. In both conveyance deed the plot numbers are also mentioned along with their location as Nai Malir Deh Dih, Karachi East for which no case for cancellation of these registered documents is said to have been instituted. Even in the Suit No,439/2012, the defendant No,3 is the plaintiff who is also father of defendant No,1 only claimed the declaration that he is the lawful owner of land measuring 4.00 acres, Survey No,131 Nai Malir Deh Drigh Road, Karachi. The bone of contention is only that the defendants Nos.1 and 3. Submitted. That their land is situated in Deh Drigh while the plaintiff is of the view that initially the land purchased by him was situated in Deh Dih but the name of Deh was subsequently changed and now it is Deh Drigh and both the plaintiff and defendants Nos.1 and 3 claiming the same land with variation of Deh name only. Under section 42 of the Specific Relief Act, any person entitled to any legal character or to any right as to another property may institute a suit against any person denying or interested to deny his title to such character or right. The object of this section is to perpetuate and strength the testimony regarding the title of the plaintiff and to secure possession of the property to a wrong party. A person can seek the aid of the court to dispel the cloud in case a cloud is cast upon his title or legal character. On the plain language of the section it does not appear to be any justification for assuming that a suit for declaration as to status claimed by the plaintiff cannot be maintained. A man's legal character is generally taken as the same thing as a man's status. The words "right to as to any property" are to be understood in a wider sense than "right to property" and the words "interested to deny" denotes that the defendant is interested in denying the right of the plaintiff or his legal character. The denial of the right constitute a cause of action to maintain an action under this Section. A relief of declaration being a discretionary relief can be granted in the case where substantial injury is established and in absence of denial of right no relief of declaration can be granted. In the case of Major General Shanta Shansher Jung Bahadur Rana v. Kemani Brother Private Ltd. Reported in AIR 1959 Bombay 201, it was held that section 42 provides that 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. This section therefore applies when a person is entitled to any legal character or to any right as to any property. The phrase "legal character" occurs in two statutes viz., in section 42 of the Specific Relief Act and in section 41 of the Indian Evidence Act (Article 55 of Qanun-e- Shahadat Order, 1984) but that phrase has not been defined in either of the said two Acts. Section 42 provides for a declaration being made in respect of a legal character and a right as to any
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property. These two…
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