Full Judgment Text & Judicial Ruling

2025 C L C 1744 [Sindh (Sukkur Bench)] Before Nisar Ahmed Bhanbhro, J RASOOL BUX ---Applicant Versus The PROVINCE OF SINDH through Secretary Revenue Department, Karachi and others ---Respondents Civil Revision Application No. S-193 of 2011, decided on 28th March, 2025. (a) Colonization and Disposal of Government Lands Act (V of 1912)--- ----S. 10---Sindh Land Revenue Act (XVII of 1967), S. 164---Sindh Revenue Jurisdiction Act (X of 1876), S. 11---Civil Procedure Code (V of 1908), O.XLI, R. 31---Constitution of Pakistan, Art. 10-A---State land, grant of---Cancellation of grant by the revenue authorities---Scope---Grant of State land cannot be cancelled after acquisition of proprietary rights---Order passed by Board of Revenue cancelling the grant challenged before the civil court---Jurisdiction of civil court---Scope---Civil court as the court of ultimate jurisdiction---Order passed by Board of Revenue could be challenged before the civil court---Right of fair trial---Issuing notice to affected party and affording opportunity of hearing, principle of---Facts in brevity were that the applicant was granted few acres of agricultural land by the colonization officer in 1991-92 upon full payment of tenancy installments, with subsequent survey, issuance of T.O. Form, and entry in revenue records, however, in 2003, the executive district officer (revenue)/respondent No. 2 cancelled the land grant without issuing notice or affording a hearing, claiming the land was within 20 chains of the village site and reserved for villagers---Petitioner upon facing dispossession threats from private respondents filed a civil suit for declaration along with permanent and mandatory injunction which the Trial Court decreed in his favor---On appeal by private respondents, the appellate court reversed the decree, dismissing the suit as barred under S. 11 of the Sindh Land Revenue Jurisdiction Act, 1876---The applicant then filed a revision petition before the High Court asserting that the cancellation was illegal, done without jurisdiction and in violation of natural justice, and that civil court jurisdiction was not barred in such cases---The moot point involved in the present matter was "the grant of land to the petitioner and its cancellation by the authorities"---Held: The Colonization and Disposal of Government Lands (Sindh) Act, 1912 (the Act 1912) provided a mechanism for grant of state land on harap conditions and cancellation of grants in case of any violation by the allottee---Grant in favor of the applicant was not cancelled on account of any deficiency or breach envisaged in subsection (5) of the S. 10 of the said Act, instead, it was cancelled on the ground that the suit property fell within 20 chains of the village site, hence was not permissible for grant as envisaged in condition 13 of the Statement of Conditions of 1989 issued by Land Utilization Department Government of Sindh for grant of state land---The respondent No. 2 while passing the impugned order lost sight of the important aspect of case that the grant had already matured and applicant had become full owner of the suit property, after issuance of T.O Form, whereby, entries in the record of rights were also maintained in his favor---Moreover, since the omission of S. 30 of the Act, 1912 through Sindh Repealing and Amending Act, 1975 the revenue/colonization authorities did not enjoy the power to cancel grants after acquisition of the proprietary rights as the grant was made prior to such omission of the said provision---The impugned order dated was passed in violation of mandatory provisions of S. 164 of the Sindh Land Revenue Act, 1967---Applicant was condemned unheard and the impugned order was passed behind his back, which violated his rights as to the fair trial thus perverse to the law---The applicant had an inalienable right of hearing and impugned order was passed in violation of principles of natural justice and doctrine of audi alterm partem was applicable to it; on that score alone the impugned order was not sustainable under the law---With regards the jurisdiction of the civil court, since the order of a revenue authority passed under its revision jurisdiction attained finality and no rights of appeal, second revision or review was provided under the law, the petitioner had no other remedy available under the law except to file a civil suit, therefore, embargo contained in S. 11 of the Sindh Revenue Jurisdiction Act, 1876 did not apply---Respondent No. 2 exercised jurisdiction not vested in it under the law and the Appellate Court failed to exercise jurisdiction vested in it---The wrong committed by the respondent No. 2 was rectified by the civil court but the appellate court failed to comprehend the legal sustainability of the impugned order and authenticated the same which resulted in miscarriage of justice---Though the appellate court passed the impugned judgment and decree dated violating the mandatory provisions of R. 31 of O. XLI of C.P.C. without framing the points for determination, however the issue involved in the lis was a legal controversy and an elaborate discussion was made on the said legal controversy in the impugned judgment, therefore it was not in the fitness of things to remand this matter back for decision afresh on appeal, as the parties were under litigation since last about more than 22 years and mere non-mentioning of the points under issue would not otherwise render the judgment nullity when the specific question came under consideration while dealing with the appeal---Judgment and decree passed by the appellate court were set-aside and the revision petition was allowed, in circumstances. (b) Sindh Revenue Jurisdiction Act (X of 1876)--- ----S. 11---Civil Procedure Code (V of 1908), S. 9---Jurisdiction of civil court in revenue matters---Scope---There is no doubt that ordinarily a party in revenue matters should exhaust all his remedies by way of appeal before invoking the aid of the civil court---But there are different considerations where the allegation of party is that the impugned order is nullity in the eye of law---There is ample authority that in such cases the jurisdiction of the civil court is not barred. Mian Mohammed Latif v. Province of West Pakistan through Deputy Commissioner Khairpur and others PLD 1970 SC 180 rel. (c) Civil Procedure Code (V of 1908)--- ----S. 115---Revisional jurisdiction of the High Court---Suo motu powers of High Court under revisional jurisdiction, exercise of---Concurrent findings of the courts below---Scope---To ensure that the subordinates Courts or quasi-judicial forums exercise jurisdiction vested in them in accordance with and within the bounds of law, the High Court has been bestowed with supervisory jurisdiction of superintendence---This supervisory role has its own significance in the dispensation of justice---Whenever it appears to the High Court that the subordinate courts have exercised a jurisdiction not vested in it by law, or have failed to exercise a jurisdiction so vested, or exercised jurisdiction illegally or with material irregularity, it can take cognizance of the matter in exercise of its revision jurisdiction under S. 115 read with S. 151 of C.P.C. in matters relating to civil disputes to rectify the illegalities or/and irregularities in the judgments and orders of the subordinate courts, to secure the ends of justice---If the concurrent findings recorded by the lower fora are found to be in violation of law, or based on misreading, non-reading of evidence, then they cannot be treated as being so sacrosanct or sanctified that cannot be reversed by the High Court in revisional jurisdiction, which is pre-emptively corrective and supervisory in nature---In fact, the Court in its revisional jurisdiction under S. 115 of C.P.C. can even exercise its suo moto powers to correct any jurisdictive errors committed by a subordinate Court to ensure strict adherence to the safe administration of justice---The jurisdiction vested in the High Court under S. 115 C.P.C is to satisfy and reassure that the order is within its jurisdiction---The scope of revisional jurisdiction is restricted to the extent of misreading, non-reading of evidence, jurisdictional error or an illegality in the judgment of the nature which may have a material effect on the result of the case, or if the conclusion drawn therein is perverse or conflicting to the law. Mst. Faheem Begum (deceased) through Legal Heirs v. Islamuddin (deceased) through Legal Heirs and others 2023 SCMR 1402 rel. (d) Sindh Land Revenue Act (XVII of 1967)--- ----S. 164---Revisional jurisdiction of Board of Revenue---Suo motu powers, exercise of---Scope---No doubt the Board of Revenue may pass appropriate orders at any time of their own motion regarding any of the proceedings pending or disposed of by the subordinate revenue forum but such powers are not unfettered and are subject to certain limitations---Exercise of such powers without affording opportunity of hearing to an interested party would not only be violation of the principles of natural justice but also contrary to the provisions of S. 164 of the Sindh Land Revenue Act, 1967 itself. Ali Gul Abbasi for Applicant. Soomer Das R. Permani for Respondents Nos. 6 to 8. Ghulam Abbas Kuber, Additional Advocate General for Respondents Nos. 1 to 5. Date of hearing: 24th March, 2025. ORDER NISAR AHMED BHANBHRO, J. ---The instant Revision Application is directed against the Judgment and Decree dated 27.09.2011 (the impugned judgment and decree) passed by the Court of Learned Additional District Judge II Ghotki (the Appellate Court) in Civil Appeal No 02 of year 2009, whereby the judgment and decree dated 29.01.2009 and 02.02.2009 passed by the Court of Learned Senior Judge Ubauro (the Trial Court) in First Class Suit No 09 of 2003 was set aside and the suit filed by the applicant was dismissed. 2. The facts in brief, for filing of the instant revision application are that the applicant (Plaintiff) filed suit No 09 of 2003 before the Trial Court seeking relief of Declaration, Permanent and Mandatory injunction averring therein that he was granted 06-18 acres of land in an un-assessed (UA) No.366 in Deh Jhangal Malik by the then Colonization Officer Gudoo Barrage Sukkur in the year 1991-92. On payment of full tenancy amount through installments, the land was surveyed and survey numbers 53/1(1-05 acres), 54/1(1-35 acres), 55/3(1-05 acres), 55/4(2-02 acres) and 74/2(0-3 acres) admeasuring in all 6-18 acres (the Suit Property) were carved out of the UA No 366. The Colonization Officer issued T.O (Tear Off) Form, pursuant to that Revenue Authorities maintained entry No.49 dated 27.06.1997 in Record of Rights and mutation Register in favor of the Applicant. Since the date of Grant Applicant was in possession of the suit property. It is further averred that out of the same UA No.366, an area of 12-39 acres was granted to Respondent No.8. That to the utter surprise of the applicant the then Executive District Officer Revenue/Respondent No.2 cancelled the grant with respect to the Suit Property vide order dated 10.02.2003 (the impugned order), without issuing any notice and affording an opportunity of hearing to the applicant. The impugned order passed by the Respondent No.2 was illegal ab initio, null and void and was not binding upon the applicant as it was passed in violation of the settled principles of law. That few days prior to filing of the suit, Respondents Nos. 6 to 8 came to the Suit Property and tried to dispossess the applicant. it was then when he came to know about the impugned order passed by the Respondent No.2. The Applicant filed suit before Trial Court praying inter alia therein to set aside the impugned order and grant of permanent and mandatory injunction restraining thereby the Respondents from interfering with the rights of the Applicant in the Suit Property. 3. The Respondents Nos. 6 to 8 filed joint written statement pleading that the Grant in favour of the Applicant was made on the orders of the Chief Minister Sindh who was not competent authority; the Suit Property was situated within 20 chains of Village Site of Village Jhangal Malik which fell under the prohibitory clause 13 of Land Grant Policy and could not be granted for cultivating purpose; that the Suit Property was disposed of secretly without holding open katchery; the Applicant was not Hari but a businessman residing in deh Nerly Taluka Ubauro about 6 to 8 kilometers away from the Suit Property, he was not entitled for grant of land on harap conditions. The suit was barred under section 11 of the Sindh Land Revenue Jurisdiction Act 1876, prayed for dismissal of the suit. 4. The Trial Court based upon the divergent pleadings of the parties framed five issues. In support of respective claims parties led evidence. Trial Court vides Judgment and Decree dated 29.01.2009 and 02.02.2009 decreed the suit of the plaintiff as prayed. The Respondents Nos. 6 to 8 filed Appeal No. 02 of 2009 before the Court of Learned District Judge, Ghotki, which was made over to the Appellate Court for disposal according to law. The Appellate Court after hearing the parties allowed the appeal and dismissed the suit of the applicant, hence this Revision Application. 5. Mr. Ali Gul Abbassi Learned Counsel for the Applicant contended that the applicant was granted land after fulfilling all formalities viz. holding open katchery/Jalsa Aam, scrutiny with regard to entitlement of applicant for grant of land. Applicant paid the entire amount, the land was surveyed and thereafter T.O. form was issued in his favour. He further contended that the impugned order was passed without giving notice and right of hearing to the applicant. Respondent No. 2 passed the impugned order in stereotyped style and cancelled the grant without assigning any sound reasons. The Suit Property was situated outside the village site of Village Jhangal Malik and it did not fall under prohibitory clause 13 of the Land Grant Policy, 1989. He contended that the impugned order was arbitrary in nature, illegal ab initio and without jurisdiction. He contended that the status of land got changed on issuance of T.O Form after full payment. He contended that the Applicant came to know about the impugned order when Respondents Nos. 6 to 8 and other private persons started causing harassment and interfering with the possession of the applicant over the Suit Property then he filed suit. He contended that the suit was competent and not hit by Section 11 of the Sindh Land Revenue Jurisdiction Act, 1876. He contended that the learned Appellate Court failed to settle points for determination and passed the impugned judgment without proper appreciation of the evidence. He prayed that the Revision Application be allowed by setting aside the impugned judgment and decree and judgment and decree passed by the Trial Court be maintained. He placed reliance upon the cases of Pakistan through Secretary, Ministry of Finance v. Muhammad Himayatullah Farukhi (PLD 1969 Supreme Court 407), Mitho Khan v. Member Board of Revenue Sindh Hyderabad and another (PLD 1997 Karachi 299), Mst. Razia Sultana and 2 others v. Chairman Evacuee Trust Property Board Lahore and 3 others (2002 CLD 1257), Messers Ahmed Clinic v. Government of Sindh and others (2003 CLC 1196) and Dr. Ghulam Hussain and others v. Ahmed Nawaz and 8 others (2013 MLD 1845). 6. Mr. Soomer Das R. Parmani, Learned counsel for Respondents Nos. 6 to 8 contended that the Suit Property was situated within 20 chains of the village site. The Respondent No. 2 during hearing of the application visited the Suit Property and found the same within 20 chains of the village site. He contended that any land situated within 20 chains of the village Site cannot be granted in terms of prohibition contained in clause 13 of the Land Gant Policy 1989. He contended that the applicant admitted in evidence that the land was granted to him by the orders of Chief Minister and under the law Chief Minister was not competent authority to order for grant of land to any person. He contended that the suit was hit by Section 11 of the Sindh Land Revenue Jurisdiction Act, 1876 as the impugned order passed by Respondent No 2 was not challenged before the competent Revenue forum. He prayed for dismissal of revision application. He relied upon the cases of Abdul Haque Indher and others v. P.O Sindh through Secretary Forest, Fisheries and Livestock Department Karachi and 3 others (2000 SCMR 907), Jehan Khan v. Province of Sindh and others (PLD 2003 Karachi 691), unreported case of this Court in the case of Muhammad Aslam v. Qadir Bux and others (C.P. No. D-171 of 2000) decided on 28.11.2000, Sindh People's Welfare Trust Regd through Secretary v. Government of Sindh through Secretary Housing, Town Planning and Local Government and 2 others (2005 CLC 713), Iqbal Hussain v. P.O Sindh through Secretary Housing and Town Planning Karachi and others (2008 SCMR 105) and American International School System v. Mian Muhammad Ramzan and others (2015 SCMR 1449). 7. Mr. Ghulam Abbass Kubar, Learned Assistant Advocate General Sindh has supported the Judgment passed by the Appellate Court and contended that land was granted to the applicant in violation of the Land Grant Policy, therefore, rightly cancelled by the Respondent No. 2. 8. Heard Learned Counsel for the Parties and perused the material available on record with their able assistance. 9. The moot point involved in the instant matter is the grant of land to the applicant from U.A. No. 366 of Deh Jhangal Malik Taluka Ubauro and its cancellation by the Executive District Officer Revenue Ghotki/Respondent No. 2 through the impugned order dated 10.02.2003. 10. The Trial Court framed issue No. 3 to resolve the above controversy and concluded that the suit was competent as the Executive District Officer Revenue who passed the impugned order lacked jurisdiction. No notice of hearing was given to the Applicant, the Suit Property did not fall within the 20 chains of village site as in between the village and the suit property there existed a watercourse and road. Decreed the suit of the applicant as prayed. 11. The Appellate Court overturned the findings of the Trial Court under the premise that prior to filing of the suit, the applicant had failed to exhaust remedy available under the law by way of filing appeal against the impugned order before Board of Revenue therefore the suit was not maintainable being hit by section 11 of the Sindh Land Revenue Jurisdiction Act, 1876. The suit property fell within 20 chains of Village Site; therefore the grant was illegal and rightly cancelled by Respondent No. 2. Dismissed the suit of applicant. 12. Scanning of the evidence adduced by the parties revealed that Plaintiff / applicant examined himself, PW-02 Mohammed Ayoub, PW-03 Roshan Ali and PW-04 Dhani Bux. The plaintiff deposed that he was condemned unheard and the impugned order was passed in violation of law. PW-03 Roshan Ali and PW-04 Dhani Bux were summoned by the Trial Court on the request of applicant to produce revenue record regarding grant of the Suit Property. PW-03 Roshan Ali in his evidence produced the report dated 01.11.2002 of Mukhtiarkar Ubauro regarding the visit of the Suit Property and status of Revenue Record. The Mukhtiarkar Ubauro confirmed the existence of Revenue Record in favor of the Applicant and his cultivating possession over the Suit Property. For the sake of convenience, the report available at page No. 101 of the memo of revision application is reproduced below: No SIM/ 1890 of 2022 O/O the Mukhtiarkar (Revenue) Ubauro dated 01.11.2022 To The Executive District Officer (Revenue) Ghotki at Mirpur Mathelo Subject: REPORT ACCORDING TO THE RECORD OF RIGHTS REGARDING THE BLOCK NOS. 53/1 AND OTHERS AREA 6-18 ACRES FROM U.A. NO. 366 OF DEH JHANGAL MALIK TALUKA UBAURO Reference: The verbal instructions of your good self conveyed through Bashir Ahmed Malik, Assistant Revenue E.D.O Office Ghotki dated 28.10.2002. In pursuance of the directions of your goodself conveyed through Mr. Bashir Ahmed Malik, Assistant, it is submitted that the report has been called for from the Tapedar of the beat, who has after verification of the records of rights reported that an area of 6-18 acres comprising of Block Nos 53/1(1-05 acres), 54/1(1-35 acres), 55/3(1-05 acres), 55/4(2-02 acres) and 74/2(0-3 acres) Total Area 6-18 acres from U.A No 366 of Deh Jhangal Malik, Taluka Ubauro was granted to Rasool Bakhsh son of Habibullah Bhutto by the Colonization Officer, Guddu Barrage Sukkur. The entry whereof was made in V.F VII(B) vide No 49 dated 27.06.1992, meanwhile the grant had been cancelled by the Government of Sindh vide BOR Sindh Hyderabad's Notification No 762 dated 19.05.1994, the note whereof is made in the record of rights. Further to submit that the said grant was restored by the Government of Sindh Hyderabad's Notification No. PS/DE/LE/486 dated 08.08.1998. The note whereof is also made in the record of rights. As such the grant grant made to Rasool Bakhsh son of Habibullah Bhutto stands intact and he is the lawful owner of the said property. It is submitted that as per the instructions, I visited the site personally along with the supervising Tapedar and the Tapedar, in order to ascertain the cultivation and possession of the said land. In this respect it is submitted that the grantee has cultivated an area of 4-18 acres with the cotton and that an area of 0-10 acres with kalargah, the remaining area is uncultivated out of which an area of about 0-01 acre is occupied with the construction of two rooms and verandas by the Bhuttas. As far the remaining area is concerned it has been filled with earth by the Bhuttas and that the fresh earth laid down is clearly apparent. Recently Messrs Jan Mohammed Malik and others have forcibly raised the construction of two rooms out of which one is fully constructed whereas other is partially constructed. The Rooms and verandah constructed by Bhuttas since last 20 years, are not in abide able condition and have demolished away. This is for your kind information, record, perusal and further orders as deemed fit and proper under the circumstances." Sd/ Mukhtiarkar Land Revenue Ubauro 13. The Respondents Nos. 6 to 8 examined DW-01 Bashir Ahmed, DW-02 Khuda Bux who supported the version taken in Written Statement. Surprisingly the Respondents Nos. 6 to 8 did not challenge the report of Mukhtiarkar produced in evidence by PW-03 Roshan Ali, either by producing any witness from Mukhtiarkar Office or by seeking assistance of the Court for inspection of the Suit Property to contradict the factum of possession of the applicant and falling of the Suit Property outside the Village Site. In the scenario, the version of the Applicant / Plaintiff regarding his ownership, possession since last 20 years and status of the Suit Property being agricultural went unchallenged. 14. The Respondent No. 2 while dealing with the application of Respondents Nos. 6 to 8 passed following orders, available at page No 77 of the memo of Revision petition, the same is reproduced for sake of convenience: OFFICE OF THE EXECUTIVE DISTRICT OFFICER (REVENUE) GHOTKI @ MPM No. EDO/HVC/RAC/ - of 2003. Dated- STATE VERSUS Jan Mohammed son of Mohammed Paryal Malik and Bashir Ahmed son of Allah Dad Malik, residence of Village Jhangal Malik Taluka Ubauro In the matter of allotment - reservation of Land viz. Serial No. 53/1(1-05 acres), 54/1(1-35 acres), 55/3(1-05 acres), 55/4(2-02 acres) and 74/2(0-3 acres) admeasuring in all 6-18 acres from Deh Jhangal Malik Taluka Ubauro Order: In pursuance of order of Member (L.U) Board of Revenue Sindh in his letter No. P.S./MBR/(LU) / 1112 / 2000 of November 2002, received from District Coordination Officer Ghotki @ Mirpur Mathelo, the record in respect of grant of state land of Deh Jhangal Malik Taluka Ubauro in respect of applicant Jan Mohammed, Bashir Ahmed and others. The record was called from the Mukhtiarkar (Estate) Ghootki @ Mirpur Mathelo for examining the legality and correctness in exercise of suo moto revision /jurisdiction vested in the undersigned under Sindh Land Revenue Act 1967. I have also visited the site for proper verification and examining the factual position. I have heard the applicant and after examining the record and site facts and come to the conclusion that the land acquisition is within 20 chains of village Jhangal Malik Taluka Ubauro. The Land in question is already in possession of applicants 6- 18 acres 53/1(1-05 acres), 54/1(1-35 acres), 55/3(1-05 acres), 55/4(2-02 acres) and 74/2(0-3 acres) of Deh Jhaangal Malik is hereby reserved for Asaish of the Villagers of Village Jhangal Malik Taluka Ubauro. Announced on 10.02.2003. sd/ Hidayatullah Rajper Executive District Officer Revenue Ghotki @ Mirpur Mathelo 15. The Colonization and Disposal of Government Lands (Sindh) Act 1912 (the said…

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