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Petitioner: RAIS DIL MURAD KHAN VS Respondent: ALI NAWAZ And Other
Court Name: Sindh High Court Judge(s): Rana Bhagwan Das, Ghous Muhammad Title: RAIS DIL MURAD KHAN vs ALI NAWAZ And Other Case No.: Civil Revision Applications Nos. 117 and 118 of 1988 Date of Judgment:1995-10-15 Reported As: 1997 MLD 1309 Result: Revisions dismissed
JUDGMENT
JUDGMENT RANA BHAGWAN DAS, J.---This judgment shall dispose of the aforesaid two Revision Applications arising out of a common set of facts and evidence and between the same parties. Both Revision Applications are directed against the conflicting judgments dated 31-3-1988 passed by the learned Additional District Judge, Kandiaro in Civil Appeals Nos.226 of 1986 and 227 of 1986 whereby he set aside the consolidated judgment and decree passed in Suits Nos. 125 of 1985 and 126 of 1985 by learned Senior Civil Judge, Natyshahro Feroze. 2. A piece of land measuring 34,500 sq. Ft. Out of Plot No.8 situated at village Kotri Kabeer, Taluka Kandiaro on the National Highway was granted to the applicant by the Deputy Collector, Naushahro Feroze for installation of a Service Station and construction of a Hotel treating it to be a public purpose on 17-2-1965. Respondent'No.3, Mian Ghulam Qadir (since dead) challenged the grant in favour of the applicant and filed an appeal before the Deputy Commissioner, Nawab Shah as Naushahro Feroze then was a part of District Nawab Shah who dismissed the appeal and upheld the order passed by the Deputy Collector, Naushahro Feroze. 3. Both the orders were challenged in second appeal before the Commissioner, Khairpur Division who took a different view of the matter and set aside both the orders holding that the piece of land could not be lawfully granted in favour of the applicant since it was a private property belonging to Mian Ghulam Qadir. Other grounds which found favour with the Commissioner while setting aside the orders passed by the lower hierarchy were firstly that Deputy Collector, Naushahro Feroze had no authority to grant the State land as he was not authorised as Collector to dispose of the land under the provisions of Sindh Land Revenue Code 1879; secondly he did not hold any enquiry into the rights of individuals in respect of the plot of land and lastly that the land should not have been
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granted to the applicant at the rate of 0.13 paisa per sq. Ft. As its price was neither adequate nor proper looking to the market value of the land in those days. Applicant assailed the appellate order passed by the Commissioner before the Member (Judicial), Board of Revenue West Pakistan but without any success. Both the higher forums created under the Revenue laws upheld the contention of Mian Ghulam Qadir that the suit land was a private property belonging to him and did not form part of State land available for disposal. 4. After the grant of land in favour of the applicant usual Ijazatnama was issued in his favour and on receipt of full consideration record of rights was mutated in his favour. After the cancellation of the grant in his favour he filed Suit No.119 of 1968 before the Civil Court at Nawabshah for a declaration to the effect that the grant of land in his favour was legal and proper and that the orders passed by the Commissioner, Khairpur Division and the Member, Board of Revenue West Pakistan were illegal, ineffective and without jurisdiction. He prayed for a permanent injunction against the respondents restraining them from interfering with his possession. On creation of a Court of Senior Civil Judge at Moro the suit was transferred to that Court and renumbered as Suit No.49 of 1981 and later on creation of a Court of Senior Civil Judge at Naushahro Feroze the suit was transferred to the said Court where it was renumbered as Suit No.125 of 1985. 5. During the pendency of the suit filed by applicant, respondent Mian Ghulam Qadir filed Suit No. 189 of 1970 at Nawabshah for possession by reason of his ownership and on averments that the applicant had forcibly trespassed on the suit land during the pendency of appeal before the Deputy Commissioner, Nawabshah and operation of the stay order granted by him. Likewise this suit was transferred to Moro in the first instance and renumbered as Suit No.58 of 1981 and lastly transferred to the Court at Naushahro Feroze and renumbered as Suit No. 126 of 1985. 6. Both the parties adduced evidence in support of their respective contentions. During the pendency of the suits Mian Ghulam Qadir expired and was survived by his legal representatives Mst. Bibi Jamiat Khatoon and Maqbool Hussain Shah. Both the suits were consolidated by the trial Court and followings issues were settled on the pleadings of the parties: (1) Whether this Court has jurisdiction to hear Suit No.49 of 1981 on question of title when already decided by Board of Revenue? (2) Whether the plaintiff Dilmurad can sue the defendant Ghulam Kadir as he has no cause of action against him? (3) Whether Suit No.49 of 1981 lies when the Commissioner's Order is not sought to be set aside? (4) Whether the order of Board of Revenue can be subject of decision as no breach of any law or rule is alleged by the plaintiff Dilmurad? (5) Whether the grant of plot in question in favour of plaintiff Dilmurad is mala fide and without jurisdiction? (6) Whether this Court can investigate the title when the Government has already disclaimed their title? (7) Whether the plot in question is originally property of defendant No. 1, Government of Sindh and has been validly granted by it to the plaintiff Dilmurad? (8) Whether deceased Ghulam Kadir was owner of the plot in suit? (9) Whether the orders passed by Commissioner and Board of Revenue treating the plot in question as that of deceased Ghulam Kadir are illegal, without jurisdiction, mala fide and ultra vires? (10) Whether plot under dispute is ancestral property of deceased Ghulam Kadir? (11) Whether the plaintiffs in Suit No.58 of 1981 are entitled to possession of the plot in question? (12) Whether Suit No.58 of 1981 is not competent? (13) Whether Suit No.58 of 1981 is barred by Suits Valuation Act and Court Fees Act? (14) What should the decree be?
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7. Upon consideration of the evidence on record and hearing the parties' counsel trial Court decreed the suit filed by the applicant and dismissed the suit filed by respondent Mian Ghulam Qadir. Learned Senior Civil Judge held that the Court had jurisdiction to hear the suit and there was a cause of action in favour of applicant Dil Murad. Suit filed by him was held to be maintainable and order passed by the Member, Board of Revenue subjected to scrutiny on the ground of mala fides. Grant of suit land in favour of applicant was found to be lawful and the same being State land Civil Court was competent to investigate; the claim of respondent Mian Ghulam Qadir was not accepted and the orders passed by the Commissioner as well as Board of Revenue were held to be unjust, unwarranted and mala fide. Suit brought by the applicant was held to be nor barred by Suits Valuation Act and the Court Fees Act. 8. During pendency of the suits after the death of respondent Mian Ghulam Qadir, respondent A.I Nawaz was joined as party to both the suits vide a consent order on application dated 19-7-1977. This respondent Challenged the judgment and decree passed in both the suits in Civil Appeals Nos.226 and 227 of 1988 before the Additional District Judge, Kandiaro who by his judgment dated 31-3-1988 upset the findings recorded by the trial Court and dismissed the suit filed by the applicant whereas the suit filed by respondent Mian Ghulam Qadir was decreed. Learned Appellate Court held that the Civil Court had no jurisdiction to hear the suit filed by the applicant; that the applicant had no cause of action that the orders passed by the Commissioner and the Board of Revenue were legal and proper; that the grant of suit land in favour of the applicant could not be upheld and finding on Issue No.5 could not be sustained consequently the same was reversed. On Issue No.6 Appellate Court held that the trial Court was not competent to investigate the title in the circumstances of the case when Revenue Authorities had disclaimed it. Like-wise findings on Issues Nos.7 and 8 being contrary to evidence were set aside and the issues were answered in favour of respondent Ghulam Qadir. Findings on the remaining issues were also set aside except finding on Issue No.13 and the suit brought by respondent Mian Ghulam Qadir was held to be competent and maintainable at law. It is as against this judgment and decree that the aforesaid Revision Applications were filed before this Court. 9. Learned counsel for the applicant raised the following contentions in support of the Revision Applications: (i) that the first Appellate Court did not properly appreciate the evidence on record and thereby acted illegally; (ii) that the judgment of the first Appellate Court does not determine the points under controversy and no decision has been recorded on each of the issues as required by the provisions of Order XLI, Rule 31, C P.C.: (iii) that the jurisdiction of the Civil Court was not barred and the orders passed by the Commissioner, Khairpur Division as well as Member. Board of Revenue were unlawful, mala fide and without jurisdiction; (iv) that there is complete lack of evidence to establish the ownership of respondent Mian Ghulam Qadir over the suit property and the Appellate Court wrongly decided this issue in favour of the respondent. 10. On the other hand, learned counsel for the private respondent supported the judgment of the Appellate Court on the grounds that essentially the impugned judgment has taken into consideration all issues decided by the trial Court, carefully considered the evidence adduced by the parties and recorded valid reasons for findings on the issues notwithstanding the fact that some of the issues have been discussed together like the trial Court. On the point of jurisdiction it was contended that the Commissioner as well as Member, Board of Revenue strictly acted within the sphere of their authority under the Revenue Laws and neither they committed any illegality nor
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acted mala fide to render their orders subject to judicial scrutiny and thus the jurisdiction of the Civil Court to assail the same was completely barred. 11. Adverting to the first contention of the learned counsel for the applicant relating to improper analysis or scrutiny of the evidence it is settled law that unless the assessment of evidence is shown to be perverse and resulting in grave miscarriage of justice the said contention is not a valid ground for interference in the exercise of revisional jurisdiction of this Court. Even otherwise learned counsel was not able to substantiate the argument as no legal defect, lacuna or infirmity in the impugned judgment could be pointed out. He also failed to point out that the Appellate Court has committed illegality or material irregularity by misreading of evidence, non-reading of evidence or recorded findings not warranted by the evidence on record. Suffice to say, issuance of Ijazatnama in favour of the applicant consequent upon the order passed by the Deputy Collector, Naushahro Feroze vide Exh.220, agreement Exh.221 executed between the applicant and Tapedar as well as Supervising Tapedar, Halani in presence of Mukhtiar kar, Kandiaro, receipts for payment Exhs.222 and 223, receipt for payment of consideration to Government Exh.225, extract from Village Form-II Exh.226 with regard to entry in favour of applicant (Dil Murad) for construction of a hotel and a Petroleum Service Station, valuation certificate Exh.227 in respect of the building raised by the aforesaid applicant and line plan of construction Exh.228 would show that the applicant acquired ownership rights in respect of the suit land on the strength of the grant in his favour by Deputy Collector, Naushahro Feroze. No doubt it is true that in appeal preferred by Mian Ghulam Qadir, Deputy Commissioner Nawabshah upheld the grant in favour of the applicant and dismissed the plea of the respondent, the fact however remains that both the orders were set aside by the Commissioner, Khairpur Division as appellate authority holding that the Deputy Collector, Naushahro Feroze not being a Collector was not empowered to grant the said land; that the suit land was not State land. It was also held that the disputed land belonged to Mian Ghulam Qadir and even if it be State land applicant was not entitled to it at the rate of 0.13 paisa per sq. Ft. Which was neither adequate nor proper. 12. It may be pertinent to note that the applicant had only been agitating the ownership rights set up by Mian Ghulam Qadir to the suit land, but he did not impugn the other two grounds in the Revision Application filed before the Member, Board of Revenue as well as before the Civil Court. The sole ground urged by him was that the suit land forming part of State land was rightly granted in his favour. Learned counsel referred to sections 9 and 10 of the Sindh Land Revenue Code, 1879 with regard to the appointment of Assistant and Deputy Collectors by the Government who shall be subordinate to the Collector in the land revenue administration of the district. Section 10 of the Code empowers a Collector subject to general orders of the Government to place any of the Assistant or Deputy Collector incharge of the revenue administration of one or more of the Talukas and they shall perform all the duties and exercise all the powers conferred upon a Collector by the Code or any other law for the time being in force. Chapter XIII of the Code deals with the exercise of powers in appeal and revision under the provisions of the Code but these provisions by themselves do not empower a Deputy Collector to dispose of the State land. It is not possible to spell out from both the above-cited provisions of the Sindh Land Revenue Code referred by the learned counsel that a Deputy Collector by reason of his appointment as such and being incharge of a Taluka or a sub-division was also authorised and empowered to dispose of the State land. Learned counsel also referred to section 37 of the Code which lays down that all public roads, paths, lanes, etc. Which, are not the property of individuals belong to the Government, in support of his contention that all public roads, lanes, paths, etc. Which are not the property of individuals or of aggregate of persons legally capable of holding property are the property of the Government but he lost sight of subsection (2) which lays down that where any property or any right in or over any property is claimed by or on behalf of the Government or by any person as against the Government it shall be
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lawful for the Collector or a Survey Officer after formal enquiry of which due notice has been given, to pass an order deciding the claim. In the present case immediately after the grant in favour of the applicant, respondent Ghulam Qadir had taken an exception to it and challenged the grant before the Deputy Commissioner, Nawabshah without any loss of time with the result that while entertaining his appeal Deputy Commissioner had in the first instance granted stay of grant till 30- 3-1965. No doubt he dismissed the appeal by his order dated 21-6-1965 this order was set aside by the Commissioner Khairpur Division in appeal who after recording valid and elaborate reasons concluded that there was preponderant evidence in favour of the appellant Mian Ghulam Qadir that the plot in dispute was private property of the appellant and not the Government. The Commissioner was also critical of the order passed by the Deputy Collector as regards the price of the plot. He observed that the Deputy Collector was grossly mistaken in his conception when he thought that the sale of plot for construction of a hotel and Service Station constituted a public purpose. 13. As pointed out hereinabove, this order was upheld and confirmed in Revision Application No.1298 of 1965 by the learned Member, Judicial Board of Revenue West Pakistan vide order dated 16-4- 1968 who with reference to subsections (1) and (2) of section 37 of the Sindh Land Revenue Code held that the Deputy Collector did not have the powers of a Collector under subsection (2) of section 37 and he could not act under the said subsection therefore his action was clearly without any lawful authority. Moreover, even the Deputy Commissioner, Nawabshah did not take any action under subsection (1) of section 37 and it could not be held that the disputed land was finally found to be State land in accordance with law since the claim of respondent Ghulam Qadir had not been investigated and no enquiries had been held. It may not be out of place to point out that the Commissioner had instituted independent enquiries in order to find out whether the plot in dispute was the property of Ghulam Qadir or State land and came to the conclusion that the property was owned by respondent Ghulam Qadir and did not belong to the Government. In the face of sound and lawful reasons assigned by both the higher functionaries under the Revenue laws it cannot be held that learned Appellate Court, committed any error of law affecting his jurisdiction or thereby causing any miscarriage of justice. 14. Coming to the second contention raised by the learned counsel for the applicant, a perusal of the impugned judgment indicates that learned Additional District Judge has virtually discussed each and every issue and assigned reasons for upsetting the findings of the trial Court. Undoubtedly he had the jurisdiction to reopen the case while hearing the appeal and to decide it. Indeed each of the issues had been separately discussed and decided with the exception of issue relating to bar under the Suits Valuation Act and Court Fees Act which does not seem to have been canvassed before him. The findings arrived at by the Appellate Court are neither perverse nor fanciful. Simply because the findings of the Appellate Court do not suit the applicant would not justify an inference that these are liable to be set aside in the exercise of revisional jurisdiction. Learned counsel referred to the following judgments: (i) Nasir Abbas v. Manzoor Raider Shah PLD 1989 SC 568, (ii) Shah Muhammad v. Pervaiz Hussain 1989 SCMR 789, (iii) Muhammad Mustaqeem v. Abdul Hakim 1992 CLC 435, and (iv) Muhammad Ashraf v. Syed Ghulam Murtaza 1993 CLC 185. 15. In the judgment at serial No.(i) the view taken was that if evidence on record has not been fully weighed and considered, that does not fulfil the requirement of Order XLI, Rule 31, C.P.C. And is liable to be set aside on revision. 16. In Shah Muhammad's case Hon'ble Supreme Court found that there was no evidence on the record to establish that the petitioner was in possession of the property as owner or that the
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property in question was his ancestral property and there was a unanimous verdict of the two Courts below as well as the High Court against him. 17. In the case of Muhammad Mustaqeem which is a Single Bench decision of this Court, learned Judge remanded the case to Appellate Court on the consideration that while setting aside findings of the trial Court no specific reasons had been assigned. 18 In the last case decided by the same learned Judge it was noted that merely setting aside findings on specific issues without discussing evidence and as to what would be the effect on such findings would lead parties nowhere. There is no cavil with the proposition of law as laid down in the reported case, these are of no consequence in the peculiar circumstances of the present case. To the same fact are the cases reported as 1987 CLC 2291, 1991 CLC 248, 1991 SCMR 814, 1993 CLC 1682 and PLD 1994 SC 162 and thus of no consequence to the applicant. 19. Adverting to the third contention of the learned counsel it may be observed that the orders passed by the highest forums under the Revenue hierarchy were found to be proper, legal and within jurisdiction by the Appellate Court. These have also been discussed hereinabove while dealing with first contention of the learned counsel. Applicant in his plaint utterly failed to point out the mala fides on the part of these Authorities or want of jurisdiction on their part of order to strike down the same. Obviously both the forums had on the material/evidence produced, acted within the scope of the authority vested in them under the law and recorded sound and elaborate reasons in support of the conclusions drawn by them. 20. The Commissioner, Khairpur Division's following observations may be quoted for the sake of advantage which read as under:--- "16. From the above discussion the following facts have come to light:--- (a) Elderly witnesses have stated that the plot in dispute belonged to the appellant and had been in his possession for the last 60-70 years and that they have been hearing the same thing from their ancestors. (b) The statements of Ghulam Rasool and Muhammad Ismail Tapedars do not support the appellant's case. (c) Village Kotri Kabir was founded by Mian Muhammad Kabir a saintly person. The appellant is a descendent of Mian Muhammad Kabir, is the "Nek Mard" of the village and "Sujjada Nashin". (d) In 1958 the plot in dispute was in possession of the appellant and it had some old walls. (e) According to the sketch map and Mukhtiar kar's report of 1964 the plot belonged to the appellant and had some structures on it including the old walls. (f) The appellant claims that his ancestors owned the entire village. This assertion has not been fully proved but the case of the post office mentioned in para. Supports the appellant's assertion. 17. From the above analysis of the evidence it appears that preponderant evidence is in favour of the view that the plot in dispute was private property of the appellant and not Government property." 21. For these reasons it is highly difficult to subscribe to the averment of the applicant that these orders were passed mala fide or without lawful authority. In fact the applicant did not plead the particulars of mala fides on the part of these functionaries who have acted properly and within the sphere of their jurisdiction. Learned counsel referred to the case of Khadim Hussain Khan v. Akbar Hussain and another and Ghulam Akram and others v. Shabbir Hussain Shah and others reported in PLD 1986 SC (AJ&K) 145 and PLD 1986 SC (AJ&K) 56 respectively. No doubt both the judgments lay down that any order being void and without jurisdiction can be interfered with in writ jurisdiction and in appropriate cases even by a Civil Court, the fact remains that the orders impugned by the applicant are neither shown to be void nor without jurisdiction. Since the applicant at this stage has alleged mala fides in relation to the Authors of the impugned orders it was incumbent upon him to lead the essential particulars of mala fides which he neither pleaded nor could substantiate.
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Reliance was placed on the case of Muhammad Jamil Asghar v. Improvement Trust, Rawalpindi PLD 1965 SC 698 in which the view taken was that Court can make an enquiry and declare order of administrative authority to be void if such circumstances are not found to exist. However, with respect to mala fides the jurisdiction of the Civil Court can never be taken away (or a mala fide act in its very nature is an illegal and void act. Reference was also made to the case of Ghulam Hussain v. Nasrullah and others PLD 1970 Azad J&K 44 in which a similar view was taken but as observed earlier it is hardly possible to accept the argument of the applicant since neither particulars of mala fides were pleaded nor have been shown to exist on the part of Authorities whose orders were impugned before the Civil Court. 22. On the other hand, learned counsel for the respondent while fully supporting the impugned orders passed by the Revenue Authorities relied upon Abdullah Khan v. Member, Board of Revenue and others 1987 CLC 994. In this judgment case of Province of West Pakistan v. Haji Muhammad Juman and another PLD 1960 W.P. Karachi 908 was referred holding that Civil Courts cannot sit in judgment over the decisions of the Revenue Officers acting in exercise of their jurisdiction. Civil Courts can check errors of usurpation of power made by the Revenue Courts or Officers but not the errors of their judgment which could be done within the hierarchy on the Revenue side. This view was subsequently reiterated in the case of Abdul Ghaffar and others v. Government of West Pakistan and others PLD 1963 Karachi 215. 23. As regards mala fides on the part of public functionaries the question was considered in the case of Water and Power Development Authority v. Amjad Hidayat Butt and others 1996 SCMR 582 in which their Lordships of the Supreme Court observed that as recently ruled in the case of Fouji Foundation and another v. Shamim-ur-Rehman PLD 198 3 SC 457…
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