ORDER SHEET

IN THE HIGH COURT OF SINDH, KARACHI

Civil Revision Application No. 208 of 2011

 

Applicant                                :           Khair Muhammad s/o Mured Muhammad,

                                                            through Mr. Naveed Moin, Advocate.

 

Respondent No.1                    :           Hasan Sharif s/o Muhammad Riaz Khan,

                                                            through Mr. Syed Ali Ahmed Tariq, Advocate

 

Respondents No. 2 to 5          :           The Mukhtiarkar Landhi Town & 3 others,

throughMs. Yasmeen Sultana, State Counsel

                                                                        =========

Date of hearing           :           09.02.2017

Date of order              :         09.02.2017

=========

ORDER

 

ZAFAR AHMED RAJPUT, J-      This civil revision under section 115 C.P.C. is directed against the judgment dated 09.09.2011 passed by the learned VthAdditional District Judge, Karachi-East whereby dismissing Civil Appeal No. 201 of 2010,filed by the applicant, maintained the Order dated 05-05-2010 thereby the learned VIIthSenior Civil judge, Karachi-East,while allowing application under Order VII, Rule 11 C.P.C filed by the respondent No.1, rejected the plaint inCivil Suit No. 528 of 1994, filed by the applicant.

 

2.         Briefly stated, the facts of the case are that the applicant/plaintiff filed the F.C. Suit No. 528 of 1994 against the respondents/defendants for declaration, permanent injunction and possession, alleging therein that he wasallotted 5 acres land from NA-Class No. 115, in Deh Sharabifor 30 years lease, commencing from 1983-84 for the poultry farming purpose by the respondent No.3 (the Deputy Commissioner, Karachi-East)on payment of lease money on the terms and conditions as laid down in Government Notification No. KBI/I/30/72/1413/3236, dated 27.03.1973, r/w No. KBI/1-21/80/1011, dated 30.04.1981 and No. SB.III/1-21 Policy/77/1470, dated 17.06.1982 for that the respondent No.2 (Mukhtiarkar Landhi Town) also issued Ijazatnama, dated 10.07.1984 and the applicant after taking the possession of the allotted land from the respondent No.2, made a request to respondent No.3 to issue no objection certificate to mortgage the lease hold rights with Agricultural Development Bank or any other scheduled bank for the terms of lease i.e. up to the year 2012-13 and the layoutplan was also approved by the respondent No.3. It has been further alleged that afterwardthe applicant constructed the sheds, office, labour room, store room etc., by spending huge amount and started poultry farm business. It was the case of the applicant that he made a partner, namely, Dr. Abdul Ghafoor Shaikh in whose favour he executed power of attorney, however, said Dr. Abdul Ghafoor was a fraudulent person, hence the partnership could not succeed and ultimatelyapplicant cancelled the said power of attorney and published a notice for cancellation in newspaper. It was further case of the applicant that the respondent No.1 with malafide intention and in collusion of respondents No. 2 to 5 transferred the said poultry farm by making his forged signature and got the leasehold rights transferred in his name and got the possessionofthe farm forcibly, thus no alternate was available to him except to apply to respondent No.3,being a competent authority, by making applications dated 23.10.1993, 18.01.1994 and 29.01.1994 for redressal of his grievance.Consequently, the Mukhtiarkar-East submitted his report dated 04.11.1973 to the Assistant Commissioner and later on the applicant came to know that on hisapplication dated 23.10.1993 the respondent No. 3 cancelled the lease of the respondent No.1, vide order dated 16.01.1994. It also came into his knowledge that the respondent No.4 (Member Land Utilization, Board of Revenue, Sindh) had not only cancelled the lease of the respondent No.1 but also cancelled the lease of applicant by passing suo-moto order,without making the applicant a party and hearing him, therefore, cause of action allegedly accrued to himto file the suit with following prayers: 

a)        For a declaration to the effect that subject land i.e. poultry farm of 5 acres allotted / granted to the plaintiff is not open for cancellation by the defendants No. 3 and 4. If such cancellation is made the same may be treated invalid, illegal, ultravires, void, inoperative and nullity in law and liable to be set aside.

 

b)        For restoration of possession directing the defendant No.1 to handover the peaceful vacant possession of the subject land.

 

c)         A permanent injunction to restrain the defendants No. 2, 3 & 4 from harassing the plaintiff and or from issuing granting the subject land to any other person.

 

 

3.         The respondent No.1 contested the suit by filing written statement. He has also filed application under Order VII Rule 11 C.P.C. for rejection of plaint. The applicant filed objection to the said application. Thereafter, the learned trial Court after hearing both the learned counsel for the parties allowed said application and rejected the plaint under Order VII Rule 11 C.P.C. vide order dated.05.05.2010. Being dissatisfied by the said order, the applicant/plaintiff preferred Civil Appeal No.201 of 2010 Under Section 96 of C.P.C.before the Court of Learned District Judge, Karachi-East, which was heard and dismissed by the learned VthAdditional District Judge, Karachi-East, vide Judgment dated 09.09.2011. It is against this judgment that the instant civil revision application has been maintained.

 

4.         I have heard the learned counsel for the applicant, learned counsel for the respondent No.1 and learned State counsel as well as perused the material on record.

 

5.         The learned counsel for the applicant has mainly submitted that the impugned Judgment/order passed by the learned Courts below are bad in law and  being not maintainable are liable to be set aside; that the learned Courts below have failed to appreciate that the application under Order VII, Rule 11 C.P.C. was not supported with affidavit; that the learned Courts below have failed to appreciate that the applicant had purchased the subject land and 30 years lease was granted to him and the respondent No.1 was not entitled for the possession ofthe said land as he has no right over the subject land; that the Member,  Board  of Revenue did not issue notice to the applicant; as such, the order dated 06.04.1991 was not in his knowledge.

6.         On the other hand,learned counsel for the respondent No.1, while supporting the impugned Judgment and order of the Courts below has submitted that the applicant has failed to disclose any illegality or irregularity in the impugned judgmentand order; that the applicant deliberately concealed the factfrom the Court that the order dated 23.10.1990 of Board of Revenue was reviewed on the applicationof respondent No.1 in Case No. S-Review-37 of 1991, vide order dated 06.04.1991 and the said order was not challenged by the applicant under revenue hierarchy, therefore, the suit filed by the applicant was not maintainable under the law, hence, the plaint was rightly rejected by the civil Court under Order VII, Rule 11 C.PC. In support of his contentions, the learned counsel for the respondent No.1 has relied upon the case of Province of Punjab, through District Collector, Vahari v. Rana, reported as PLJ 1989 Lahore 370.

 

7.         It appears from the perusal of material on record thatthe subject land was initially allotted to applicant as 30 years lease grant for the purpose of poultry farming, subsequently the same was sold out by him to respondent No.1 after receiving sale consideration thus, the same was transferred on the name of respondent No.1, vide order dated 13.07.1988 passed by the respondent No.3. Later on respondent No.4 while exercising suo-moto powers cancelled the lease of respondent No.1 vide order dated 30.10.1990, which order the respondent No.1 assailed in Review Petition bearing Case No. S.Review-37 of 1991, which was allowed by the respondent No.1, vide order dated 06.04.1991 and in consequent thereof the subject land was restored on the name of respondent No.1 under usual terms and conditions of the policy. The applicant neither in his plaint nor in prayer clause has mentioned the date of the orders passed by the respondents No. 3 &4 and he filed the suit on 10.04.1994challenging the said orders. It may be relevant to mention here that the respondent No.3 transferred the subject land on the name of respondent No.1 vide order dated 13.07.1988, which order has not been impugned by the applicant in revenue hierarchy in terms of section 161 of the Land Revenue Act, 1967, so also, if he was aggrieved by the order dated 06.04.1991 passed by the respondent No.4, he ought to have file review petition under Section 8 of Board of Revenue Act, 1957. The applicant could not advance any justification for bypassing the highest forum in Revenue hierarchy,and for filing of civil suit directly before learned trial Court, which is barred by various provisions of law including Section 11 of the Sindh Revenue Jurisdiction Act, 1876( hereinafter “the Act of 1876).

 

8.         Section 11 of the Act, 1876 bars jurisdiction of Civil Court to entertain any suit which is filed on account of any act or omission of any Revenue Officer unless plaintiff proves that he has presented appeal allowed by the law for the time being in force within the period of limitation of such suit. Admittedly, applicant has not filed any appeal or revision before the revenue authority calling in question the orders passed by the respondents No.3 and 4, therefore, the suit of the applicant for declaration and injunction under Specific Relief Act, 1877 was barred under Section 11 of the Act, 1876. Suffice it to say that an order may not be in accordance with law or correct order or one passed in violation of mandatory provisions of law but it cannot be said that the same has been passed without jurisdiction. Revenue Courts have exclusive jurisdiction to determine matter pertaining to land, revenue, partition etc.

 

9.         In view of the above, as no case is made out on the ground of irregularity or exercise of jurisdiction not vested in the Courts or failure of exercise of jurisdiction vested in it, the impugned orders of Courts below do not call for any interference or exercise of discretion on any point of law in this case. Accordingly, the instant civil revision application is dismissed, alongwith listed application.

            Above are the reasons of my short order dated 09.02.2017, whereby instant civil revision application was dismissed                                                                                                             

JUDGE