Legal Principle & Question Decided

Ruling Summary: This decision was rendered by the Sindh High Court, officially reported as R.A (SHC). In this matter between R.A (Civil Revision) 17/2025 (S.B.) Yar Muhammad and wazir and others Sindh High Court, Bench at Sukkur, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.

Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.

Full Judgment Text & Judicial Ruling

COURT: Sindh High Court CASE NO: CITATION: PARTIES: ORDER DATE: BENCH: A.F.R: ------------------------------------------------------------ [C.R No.S-17/2025]

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Civil Revision No.S-17 of 2025

Applicant : Yar Muhammad son of Gul Hassan Arbani, through M/S Sanaullah Mahar and Shafique Ahmed Leghari, Advocates.

Respondent No.1 : Wazir son of Sardar Bux Arbani, through Mr. Soomar Das R.Parmani,

Respondents No.2 to 9 : Mr. Ahmed Ali Shahani, Assistant Advocate General Sindh.

Date of Hearing: 12.05.2025. Date of Judgment. 04.8.2025.

JUDGMENT

Abdul Hamid Bhurgri, J ,- The applicant , having been aggrieved and dissatisfied by the Judgment and Decree dated 24.12.2024 rendered by the learned Additional District Judge, Ghotki in Civil Appeal No.102/2024 (re: Wazir Ali versus Yar Muhammad and others), has preferred the instant revision petition challenging the said decision. The impugned appellate judgment set aside the Order dated 08.06.2024 passed by the learned Senior Civil Judge, Ghotki in F.C. Suit No.10/2024, whereby the plaint filed by respondent No.1 was rejected under Order VII Rule 11 of the Code of Civil Procedure. The applicant/defendant now beseeches the indulgence of this Court to examine the legality, correctness, and propriety of the impugned judgment dated 24.12.2024 and to restore the findings earlier recorded by the learned Senior Civil Judge, Ghotk i through the Order dated 08.06.2024. 2. The brief facts of the case are that the plaintiff/respondent No.1 instituted Suit No.10/2024 seeking a Declaration, Cancellation, and Permanent Injunction concerning certain estate land situated in Deh Sangi Ghotki, District Ghotki, comprising Survey Nos. 691 (2 -22), 692 (2-14), and 642 (01 -16). The plaintiff/respondent No.1 asserted to be a permanent resident of Village Sabal Khan Arbani, claiming to have enjoyed continuous, peaceful, and uninterrupted possession of the aforesaid land for over six decades. It was alleged that the predecessor of the plaintiff/respondent No.1 had been granted a Yak -Sala lease of the said land in 1960 –61 by the Assistant Colonization Officer of Gudu Barrage, and that he had regularly paid the prescribed lease charges and land

[C.R No.S-17/2025] 2 revenue to the Government, thereby entitling him to be recogni zed under the relevant land grant policy. The plaintiff/respondent No.1 further contended that no public schedule or notice was ever issued for dispos al of the land, as required under Paragraph 7 of the Gudu Barrage Land Grant Policy of 1989. Nevertheless, the defendants , allegedly with the backing of political influence , procured the illegal issuance of Form “A” and, subsequently, a Transfer Order (T.O . Form) in favour of the applicant/defendant No.1, without any lawful basis or observance of procedural formalities. Resultantly, the plaintiff/respondent No.1 sought judicial relief by having the impugned documents declared void ab initio and prayed for a restraint against the defendants from altering the possession or status of the suit property. Additionally, the plaintiff pleaded that a prior suit bearing No.182/2017 titled Wazir Ali v. Yar Muhammad, involving similar subject matter and seeking a De claration, Cancellation, and Permanent Injunction, was filed, and that evidence of Mukhtiarkar Estate Ghotki was recorded against the applicant/defendant No.1. The applicant/defendant No.1, seeking to resolve the matter, approached Chief Sardar Mir Abid Kh an Sundrani, who assured the plaintiff of dispute resolution and, on that assurance, the plaintiff withdrew F.C. Suit No.182/2017 through a statement dated 09.01.2021, which was accepted by the trial Court. However, according to the plaintiff/respondent No .1, the Chief Sardar did not adjudicate the dispute between the parties. Subsequently, on 15.01.2024, the defendant No.1 Yar Muhammad, accompanied by SHOs of Police Stations Ghotki and Sarhad , official defendants/respondents Nos.7 and 8 , and other police p ersonnel, allegedly attempted to dispossess the plaintiff through use of unlawful force. The said SHOs continued to harass and intimidate the plaintiff, threatening dire consequences unless possession of the land was surrendered to the applicant/defendant No.1. The plaintiff claimed that the cause of action first arose on 01.08.2017, when the defendant No.1 produced mutation entry No.81 dated 02.06.2012 relating to the land in village Form VII -B of Deh Sangi Ghotki, Tapo Bundh and again occurred on 15.01.20 24 when the defendants through the intervention of official defendants/respondents Nos.7 and 8 tried to occupy the land forcibly . Consequently, the plaintiff/ respondent No.1 prayed for the following reliefs:

[C.R No.S-17/2025] 3 a). Declare that the suit land bearing S.Nos.69 1 (2 -22), 692 (2-14) and 642 (1 -16) which is in peaceful cultivating possession and enjoyment of the plaintiff since more than 60 years possessing PREVIOUS KHAS MOKAL RIGHT of his ancestor, having developed the same at the dint of lot of labour and money, has not yet been granted to anybody including the defendant No.1 on permanent tenure in open katchery.

b). Declare that the "A" Form in respect of the suit land prepared and issued to the defendant No.1 illegally, unlawfully, falsely and forgedly by the M ukhtiarkar (Estate) at the instance of the Revenue Minister of Sindh has no any legal effect and sanctity.

c). Declare that the T.O Form in respect of the suit land issued by the D.O (R & E) Ghotki at Mirpur Mathelo on the basis of "A' Form and the mutati on entry No.81 dated 02.06.2012 posted in village Form No.VII -B of deh Sangi Ghotki Tapo Bundh is illegal and unlawful having no any legal foundation and sanctity and on the basis of "A" Form neither the T.O Form is legally to be issued nor the suit land i s to be transferred in the name of fake grantee the defendant No.1.

d). Declare that the plaintiff being in peaceful possession and enjoyment of the suit land on the basis of YAKSALA lease since last 60 years paying the lease money and land Revenue to the estate has possessed the ancestor's PREVIOUS KHAS MOKAL RIGHT UPON THE SUIT LAND, having developed the same at the dint of his lot of labour and money, is legally entitled for grant of the same on permanent tenure as and when the open katchery for disposa l of the same is scheduled and held by the competent authority by scrutinizing the eligibility of plaintiff in open

e). Direct the Deputy Commissioner Ghotki, who is holding the charge of the Colonization Officer Guddu Barrage Sukkur, through the permanen t, mandatory injunction of this declaration of this Honourable Court that the suit land may be

[C.R No.S-17/2025] 4 put in schedule for disposal of permanent tenure and be granted scrutinizing the eligibility of eligible person including the plaintiff.

f). Restrain the defend ant No.1 through the permanent injunction of this Honourable Court to dispose of the suit land by way of sell, alienation, gift, mortgage and exchange to anybody other than the plaintiff, which is otherwise illegally has been transferred in his name which is liable to be cancelled.

g). Restrain the defendant No.1 through the permanent injunction of this Honorable Court to dispose of the suit land by way of sell alienation, gift, mortgage and exchange to any body and dispossess the plaintiff from the suit l and forcibly and other wise than by due process of law.

h). Restrain the SHO or In charge of Ghotki Police station “A” Section and the SHO Police Station Sarhad or any of their staff claiming through or under them through the permanent injunction of this Honourable Court to forcibly eject the plaintiff from the suit land playing at the hand of the defendant No.1 Yar Muhammad Arbani or any political personality. i). Award cost of the suit to the plaintiff j). Award any other relief which this Honourable Co urt may deem just and proper under circumstances of the case

3. The applicant/defendant No.1 filed his written statement wherein he categorically denied the plaintiff’s claim. He contended that he is the lawful allottee and thus the rightful owner of t he suit land, and that the plaintiff has no enforceable right or title therein. It was further asserted that the present suit is not legally maintainable, as the plaintiff had previously instituted F.C. Suit No.182/2017 before the same Court, based on identical facts and cause of action, which was subsequently withdrawn unconditionally via order dated 09.01.2021. Accordingly, the instant proceedings, being founded on the same set of facts, are barred under Order XXIII Rule 1(3) of the Code of Civil Procedur e. He, therefore, prayed for the dismissal of the suit. In addition, defendant No.1 filed an application under Order VII Rule 11 CPC, seeking rejection of the plaint on the ground

[C.R No.S-17/2025] 5 that the earlier suit, involving the same parties and issues, stood withdrawn, thereby attracting the bar of res judicata and legal preclusion. He further submitted that the suit is hit by Sections 42, 39, and 34(d) of the Specific Relief Act, as the plaintiff is bereft of any legal character or proprietary right in respect of the suit property. Consequently, the relief sought by way of mandatory injunction is also not maintainable. Objections were filed by the plaintiff, asserting that the suit is maintainable in law, as the relevant entry in the record of rights is allegedly fals e, fictitious, and legally void. Thus, according to the plaintiff, the suit is not barred by law. He further argued that the doctrine of estoppel is inapplicable, as the present claim arises from a distinct and fresh cause of action. The plaintiff accordingly prayed for the dismissal of the application filed under Order VII Rule 11 CPC. 4. The learned trial Judge, having heard the submissions of the parties, proceeded to reject the plaint by order dated 08.06.2024 on the ground that the suit was barred u nder Order XXIII Rule 1 of the Code of Civil Procedure. The basis of this finding was that the plaintiff had previously instituted a suit concerning the same subject matter, which was withdrawn without obtaining leave of the Court. In such circumstances, a fresh suit, whether in whole or in part, arising out of the same cause of action, is not legally maintainable unless formal permission for withdrawal had been sought and granted. Being aggrieved by the aforesaid order, the plaintiff/respondent No.1 prefer red Civil Appeal No.102/2024, which was subsequently transferred to the Court of the II -Additional District Judge, Ghotki. The learned Appellate Court, vide Judgment and Decree dated 24.12.2024, allowed the appeal and set aside the order of the trial Court . Hence, the present Civil Revision has been filed to assail the said impugned Judgment and Decree. 5. Learned counsel for the applicant submits that the appellate court has passed order in mechanical manner without applying his mind to the facts of the case, the order of the trial court was well reasoned while the appellate Court had overturned the decision without any cogent reason, the suit of the plaintiff was clearly barred under order XXIII Rule 1(3) CPC as prior to present suit a F.C suit No.182/20 17 has been preferred by plaintiff/respondent on same cause of action since the previous suit was withdrawn without any permission from the trial court hence the fresh suit on the same cause of action is barred by law. The

[C.R No.S-17/2025] 6 appellate Court in his decision h as relied upon the case law which cannot be applied in the present matter as the facts of those cases are quite distinguishable. In the end he prayed that the judgment of the appellate Court be set aside and consequently the order of trial court be maintained. 6. Learned counsel for the plaintiff/respondent No.1 submitted that the order of appellate court is based upon sound reasoning does not suffer from any illegality or infirmity. He further stated that scope of revision under section 115 is very limi ted and it can only be interfered when the impugned order has been passed by the Court without jurisdiction or with material irregularity, which is not the case in present matter. He further stated that the present suit was filed on different cause of acti on as when the defendant/applicant prior to filing of suit tried to dispossess him through official respondents No.7 and 8, the SHOs of Police Stations Ghotki and Sarhad, the plaintiff/respondent No.1 left with no option but to approach this Court. He furt her submitted that the previous suit was withdrawn as their nekmard Sardar Mir Abid Khan Sundrani intervened and on his assurance the plaintiff withdrew the suit but for three years Sardar Mir Abid Khan Sundrani could not resolve the dispute between the pa rties and instead of that he was helping the defendant No.1 to get dispossessed the plaintiff from the suit property. He further submitted that since the basic claim of the defendant No.1 is based upon fraud as such this suit is very much maintainable and does not hit by order XXIII Rule 1 (3) CPC. He also relied upon the case law reported in 2003 SCMR 1704 and 1993 CLC 1478. He contended that it will be appropriate that the parties should lead evidence and prove their title over the suit property. In the e nd he prayed he prayed for dismissal of the revision. 7. Learned Assistant Advocate General submitted that, on the face of the record, the property in dispute appears to be government - owned land, which is being unlawfully claiming by both parties namely, the plaintiff and defendant No.1. He further contended that the purported allotment in favour of defendant No.1 is prima facie without lawful sanction or authority. Moreover, it was submitted that even the title asserted by the plaintiff/respondent is d efective and not legally tenable. In conclusion, the learned Law Officer maintained that, as the land constitutes government property, neither party can assert any proprietary claim over it. He further emphasized that any orders passed in the current proce edings are not binding upon the government, which retains the unfettered right to resume

[C.R No.S-17/2025] 7 possession of the land in accordance with law, should it be found that either party is in unauthorized occupation thereof. 8. I have heard the parties and perused the material on record. 9. In order to resolve the controversy, this court has to revisit both the plaints i.e. F.C Suit No.182/2017 and F.C Suit No.10/2024 and to see whether the suit is barred Under Order XXIII Rule 1 (3) CPC or otherwise. 10. I would first like to re -produce the prayer clause of Suit No.182/2017, which reads as follows:- a). Declare that, the suit land bearing S.Nos. 691 (2 -22), 692(2-14) and 642(1 -16) which is in peaceful cultivating possession and enjoyment of the plaintiff since mor e than 60 years possessing PREVIOUS KHAS MOKAL RIGHT of his ancestor, having developed the same at the dint of lot of labour and money, has not yet been granted to any body including the defendant No.1 on permanent tenure in open Katchery. b). Declare that the "A" Form in respect of the suit land prepared and issued to the defendant No. 1 illegally, un - lawfully, falsely and forgedly by the Mukhtiarkar (Estate) at the instance of the Revenue Minster of Sindh has no any legal effect and sanctity. c). Declare that, the TO Form in respect of the suit land issued by the DO(R&E) Ghotki at Mirpur Mathelo on the basis of "A" Form and the mutation entry No 81 dated 02.06.2012 posted in village Form No.VII -B of deh Sangi Ghotki Tapo Bandh is illegal and un -lawful havi ng no any legal foundation and sanctity and on the basis of "A" Form neither the T.O Form is legally to be issued nor the suit land is to be transferred in the name of fake grantee the defendant No.1.

d). Declare that the plaintiff being in peaceful posse ssion and enjoyment of the suit land on the basis of YAKSALA Lease since last 60 years paying the lease money and land Revenue to the estate has possessed the ancestor's PREVIOUS KHAS MOKAL RIGHT UPON THE SUIT LAND, having developed the same at the dint of his lot of labour and money, is legally entitled for grant of the same on permanent tenure as and when the open Katchery for disposal of the same is scheduled and held by the competent authority by scrutinizing the eligibility of plaintiff in open.

e). Direct the Deputy Commissioner Ghotki, who is holding the charge of the Colonization Officer Gudu Barrage Sukkur, through the permanent mandatory injunction of this declaration of this Honourable Court that: the suit land may be put in schedule for disposal on permanent tenure and be granted scrutinizing the eligibility of eligible persons including the plaintiff.

[C.R No.S-17/2025] 8 f). Restrain the Mukhtiarkar Ghotki through the permanent injunction of this Honourable Court to issue sale certificate to the defendant No.1 Yar Mohammad for it's disposal by way of sell, alienation, gift, mortgage and exchange to anybody other than the plaintiff, which is otherwise illegally has been transferred in his name which is liable to be cancelled.

g). Restrain the defendant No. 1 throug h the permanent injunction of this Honourable court to dispose off the suit land by way of sell, alienation, gift, mortgage and exchange to anybody and dispossess the plaintiff from the suit land forcibly and other wise than by due process of law.

h). Award cost of the suit to the plaintiff

i). Award any other relief which this Honourable court may deem just and proper under circumstances of the case.

11. Now, I would like to reproduce the prayer clause of F.C Suit No.10/2024, which reads as follows: a). Declare that the suit land bearing S.Nos.691 (2 -22), 692 (2-14) and 642 (1 -16) which is in peaceful cultivating possession and enjoyment of the plaintiff since more than 60 years possessing PREVIOUS KHAS MOKAL RIGHT of his ancestor, having developed the same at the dint of lot of labour and money, has not yet been granted to anybody including the defendant No.1 on permanent tenure in open katchery.

b). Declare that the "A" Form in respect of the suit land prepared and issued to the defendant No.1 illegal ly, unlawfully, falsely and forgedly by the Mukhtiarkar (Estate) at the instance of the Revenue Minister of Sindh has no any legal effect and sanctity.

c). Declare that the T.O Form in respect of the suit land issued by the D.O (R & E) Ghotki at Mirpur Ma thelo on the basis of "A' Form and the mutation entry No.81 dated 02.06.2012 posted in village Form No.VII -B of deh Sangi Ghotki Tapo Bundh is illegal and unlawful having no any legal foundation and sanctity and on the basis of "A" Form neither the T.O Form is legally to be issued nor the suit land is to be transferred in the name of fake grantee the defendant No.1.

d). Declare that the plaintiff being in peaceful possession and enjoyment of the suit land on the basis of YAKSALA lease since last 60 years paying the lease money and land Revenue to the estate has possessed the ancestor's PREVIOUS KHAS MOKAL RIGHT UPON THE SUIT LAND, having developed the same at the dint of his lot of labour and money, is legally entitled for grant of the same on permanent ten ure as and when the open katchery for disposal of the same is scheduled and held by the competent authority by scrutinizing the eligibility of plaintiff in open

[C.R No.S-17/2025] 9 e). Direct the Deputy Commissioner Ghotki, who is holding the charge of the Colonization Offic er Guddu Barrage Sukkur, through the permanent, mandatory injunction of this declaration of this Honourable Court that the suit land may be put in schedule for disposal of permanent tenure and be granted scrutinizing the eligibility of eligible person incl uding the plaintiff.

f). Restrain the defendant No.1 through the permanent injunction of this Honourable Court to dispose of the suit land by way of sell, alienation, gift, mortgage and exchange to anybody other than the plaintiff, which is otherwise ille gally has been transferred in his name which is liable to be cancelled.

g). Restrain the defendant No.1 through the permanent injunction of this Honorable Court to dispose of the suit land by way of sell alienation, gift, mortgage and exchange to any body and dispossess the plaintiff from the suit land forcibly and other wise than by due process of law.

h). Restrain the SHO or In charge of Ghotki Police station “A” Section and the SHO Police Station Sarhad or any of their staff claiming through or under t hem through the permanent injunction of this Honourable Court to forcibly eject the plaintiff from the suit land playing at the hand of the defendant No.1 Yar Muhammad Arbani or any political personality.

i). Award cost of the suit to the plaintiff j). A ward any other relief which this Honourable Court may deem just and proper under circumstances of the case

12. In F.C suit No.182/2017, the para graph 26 of the plaint , relating to the cause of action, is reproduced below:- “26 That cause of action ac crued to the plaintiff to bring this suit or on 01.08.2017 when the defendant No.1 equipped with Mutation entry No.81 dated 02.06.2012 in village Form No.VII - B of deh Sangi Ghotki Tapo Bundh appeared at the suit land in the early with Tractor Trolly and fi ve six un -known persons duly muffled faces armed with deadly weapons and tried to encroach upon the suit land disposing the plaintiff forcibly at the points of the weapons which caused the plaintiff to raise hue attracting the neighbourers and passersby who intervened and beseechingly saved the plaintiff from the clutches of the defendant No.1 and his associates and his possession upon the suit land suggesting the plaintiff to knock at the door of the law”.

13. Now reverting to the cause of action shown in F.C Suit No.10/2024, I would like to reproduce the para 35 of the plaint as follows:- “35.That cause of action accrued to the plaintiff to bring this suit on 01.08.2017 when the defendant No.1 equipped with Mutation entry No.81 dated 02.06.2012 in villa ge Form No.VII- B of deh Sangi Ghotki Tapo Bundh appeared the suit land in

[C.R No.S-17/2025] 10 the early with Tractor Trolley and five six un -known persons duly muffled faces armed with deadly weapons and tried to encroach upon the suit land dispossessing the plaintiff forcibl y at the points of the weapons which caused the plaintiff to raise hue and cry attracting the neighbours and passersby who intervened and beseechingly saved plaintiff from the clutches of the defendant No.1 and his associates and his possession upon the suit land suggesting the plaintiff to knock at the door of the law and lastly on 15.01.2024 when the defendant Yar Mohammad, violating he directions of the SARDAR Abid Khan Sundrani brought the S.ILO Ghotki and S.H.O Sarhad with police force in Mobile and Tr actor with plough and tried to plough the suit land which unlawful act of the defendant No.1 Yar Mohammad under the umbrella shelter of the police caused the plaintiff to hue and cry which attracted many persons who beseeched the police and defendant No.1 Yar Mohammad not to take law in their hands and seek the legal course and remedy and the SHO Ghotki and Sarhad considering beseeching of the plaintiff and mob of peoples, which includes the witness Ibrahim s/o Mohammad Ismail Arbani, Niamatullah s/o Mohamm ad Yousif Arbani and Gul Mohammad s/o Ali Murad Armani, left the plaintiff to live in the suit land with red and alarming warning to deliver the possession of the suit land to the defendant No.1 Yar Mohammad or get star from the competent court of law and otherwise be ready for dire consequences, continues to arise within the local limits of this Honourable Court.”

14. Upon perusal of the plaints filed in both suits and careful examination of the relevant paragraphs, it is manifest that the two suits pertain to the same subject property and arise out of an identical cause of action. The mere addition of an allegation that the defendant subsequently entered the suit property through official respondents and attempted to dispossess the plaintiff/respondent No.1 appears to be an attempt to artificially generate a new cause of action so as to sustain the maintainability of the present suit. However, such an addition is of no legal assistance to the plaintiff/respondent, inasmuch as the primary relief sought in both suits…

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