Order Sheet

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

C. P. No. D – 829 of 2018

Before :

Mr. Justice Muhammad Shafi Siddiqui

Mr. Justice Rasheed Ahmed Soomro

Date of hearing: 17.10.2018.

Mr. Achar Khan Gabol, Advocate for the petitioners.

Mr. Sudhamchand Kewal Ramani, Advocate for respondent No.4.

Mr. Zulfiqar Ali Naich, Assistant Advocate General Sindh.

O R D E R

MUHAMMAD SHAFI SIDDIQUI, J. – Petitioners in this petition have impugned certain orders passed subsequent to the withdrawal of appeal of the respondent without notice.

2. Brief facts are that a suit bearing No.74 of 2015 was filed by respondent No.4 against petitioners and others including one Muhammad Umar. The suit was disposed of, and respondent No.4 preferred an appeal No.77 of 2017. On 30.05.2017 on pre-notice objections, a statement was filed by respondent No.4 being appellant in the aforesaid appeal that he would not press the appeal provided directions be issued to Mukhtiarkar and Assistant Commissioner Ghotki for demarcation and clearing the boundaries of the appellant’s land and defendants / respondents, as provided under the law. No notice was issued to the petitioners who were respondents in appeal. The appeal was dismissed as withdrawn, and in the same breath the District Judge Ghotki passed a detail order as under:

“ On presentation of appeal it was ordered that learned advocate be heard. Today i.e. 30.05.2017 learned counsel for appellant appeared and filed statement with prayer that; if the directions are given to the Revenue Authorities for demarcation and determination of boundaries of the area of land of the appellant he will not press the instant appeal. Admittedly the grievance of appellant before learned trial court was that from Survey No.139 out of area of 04-29 acres situated in deh Bago Daho, his area of 00-17 ghuntas falls within Survey No.138 belongs to private respondents who have allegedly occupied said area therefore for resolving such controversy the proper remedy should have been exhausted by approaching the Revenue Forum but the appellant instead of doing so filed the suit before learned Civil Court, though the learned counsel pointed out that there exists no title dispute between parties as the appellant has sought particular relief of demarcation of his property and determination of boundaries therefore, the appellant is emphasized to approach the Revenue Authorities viz. learned Mukhtiarkar and Assistant Commissioner concerned by moving proper application for determination of boundaries as provided u/s 117 of West Pakistan Land Revenue Act even for disposal of other disputed questions the Revenue Authorities are empowered to resolve it as provided u/s 142 of the Act, the application of appellant shall be decided under scheme of law after going through revenue record and after giving proper opportunity of hearing to both parties. Let this order be officially communicated to the revenue officials discussed above for compliance. Consequently appeal in hand stands disposed of as not pressed. However the parties shall bear their own costs. ”

3. It is the case of the petitioners that once the appeal was withdrawn, the Court becomes functus officio, and no order could have been passed touching the merit of the case.

4. Counsel for the petitioners pointed out that no notices were issued by the appellate Court to the petitioners, insofar as the directions which were given to the Revenue Department are concerned. Even at the time of filing appeal no notices were issued to the petitioners and advocate was directed to be heard. On directions of the District Judge, the compliance reports were submitted by the revenue authorities such as Mukhtiarkar (Revenue) Ghotki on 14.12.2017 and 28.02.2018. A part of the land was found in possession of one Muhammad Umar Dhoundhu in the village Sahib Dino Dhoundhu where houses, mosque and Primary Girls School were constructed. An area of 00-09 ghuntas out of claimed land was found to be in Survey No.138 of the village Sahib Dino Dhoundhu, and a joint report was submitted. Consequently, on a contempt application moved by respondent No.4, in pursuance of the contempt application, directions were given on 17.04.2018 that the subject piece of land be handed over to respondent No.4. It is the case of petitioners that in the absence of any notice of appeal and in the absence of suit for possession, “as it was only for declaration”, such directions were beyond the jurisdiction of appellate Court. Petitioners’ counsel has relied upon the cases of S.M. Waseem Ashraf v. Federation of Pakistan through Secretary, M/O Housing and Works, Islamabad and others reported in 2013 S C M R 338 and Abdul Majeed Khan through L.Rs. and others v. Ms. Maheen Begum and others reported in 2014 S C M R 1524.

5. In the case of S.M. Waseem Ashraf (supra), the Hon’ble Supreme Court held as under:

“ 6. ……… From the above quoted language of this Sub-Article, it is unambiguously clear that a bar, and a prohibition has been placed that “No” Court in Pakistan shall exercise any jurisdiction in any matter brought before it until and unless, such jurisdiction has been conferred upon it by the Constitution itself or under any law. The word “save” appearing in the Sub-Article has clear connotation of the word “except” for the purpose of construing the above, meaning thereby that “No” Court shall have the jurisdiction except as has been conferred upon it by the Constitution and/or law. It is a settled law that any forum or court, which, if lacks jurisdiction adjudicates and decides a matter, such decision etc. shall be void and of no legal effect. ……… ”

6. Hon’ble Supreme Court made observations in the case of Abdul Majeed Khan (ibid) as under:

“ 7. In the above perspective, we are of the considered opinion that the High Court has arrived at a right and just conclusion by accepting the writ petition and setting aside the orders passed by Revenue hierarchy being without jurisdiction. It is also a settled principle that where any orders or judgments passed by any Court or authority who has no jurisdiction or are barred to exercise such jurisdiction, such orders or judgments are deemed to have been passed illegally and in such circumstances the High Courts are justified in exercising its constitutional jurisdiction to rectify the same, thus, in the instant case the High Court has rightly exercised its Constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. In this regard, reliance can be placed upon the cases of Noor Muhammad, Lambardar v. Member (Revenue), Board of Revenue, Punjab, Lahore and others (2003 SCMR 708) and Haji Noorwar Jan v. Senior Member, Board of Revenue, N.-W.F.P Peshawar and 4 others (PLD 1991 SC 131), the relevant portions therefrom are reproduced herein below:--

“8. …… It was further observed by this Court that any error on the part of Board of Revenue in understanding the law, in applying it or in laying down the law can and must be corrected in the Constitutional jurisdiction. If it is left uncorrected, it will result in subverting the rule of law, ……”

And,

“19. The Board of Revenue at the apex of the Revenue hierarchy is charged with the statutory duty of interpreting the law, of applying it to individual cases coming up before it any laying down the law for the subordinates in the hierarchy to follow. Any error on its part in understanding the law, in applying it or in laying down the law can and must be corrected in the constitutional jurisdiction. If it is left uncorrected, it will result in subverting the rule of law ……” ”

7. We have heard the learned counsel and perused the material available on record.

8. Once the appeal of respondent No.4 was dismissed as withdrawn, the appellate authority should not have virtually allowed it by giving direction to the Revenue Department, without issuing the notices to the petitioners who contested the suit. They have also been arrayed as respondents in the appeal. Once the appeal was dismissed as withdrawn on the statement of respondent No.4, Court becomes functus officio. No direction of the nature that touches merit and alleged rights of petitioners / respondents in appeal, concerning the demarcation of the land, followed by possession, could have been given by the appellate Court. It amounts to touching the merit of the case and the petitioners were apparently condemned unheard as being respondents in appeal.

9. While we do not approve and appreciate the manner and the way the proceedings continued once the appeal was withdrawn, there is, however, no cavil to this proposition that respondent No.4 enjoys independent rights to move an application for demarcation of the land before revenue hierarchy, which was complied.

10. In pursuance of the report submitted by Mukhtiarkar (Revenue) Ghotki, one Muhammad Umar was found to have occupied the subject piece of 00-09 ghuntas to which these petitioners do not claim. They only claim that this piece of land, which is claimed by respondent No.4, is part and parcel of the village and as such the villagers have right over the land. This is not a public interest litigation as the petitioners were defendants in the suit and contested on their own right as being in occupation. The petitioners have not been able to show any right or title over the land in question. The orders, which they have impugned, may have been passed beyond jurisdiction but the approach of the petitioners is mala fide and the hands are tainted. They have not approached the Court with clean hands. Muhammad Umar, who was found to be in possession, was claimed to be the brother of the petitioners and this fact was not denied, and he has not been made party in these proceedings purposely. This is not difficult to ascertain as to why he has not been arrayed as one of the petitioners.

11. While we do no appreciate the proceedings as conducted by the appellate authority after the appeal was withdrawn, we also considered that the inspection that was carried out for demarcating the land was impartial and was not objected as far as its merit is concerned by the petitioners. Under the revenue hierarchy the officials, on an independent application may act and perform their duties. Petitioners do not claim any right over this piece of land, hence, insofar as the proceedings of the Revenue Department are concerned, they may be taken to its logical end by the revenue authorities. However, in the same way, we have serious reservation as far as the proceedings conducted by the appellate authority after filing of appeal and despite having objections from office / Court and despite petitioners who were respondents in appeal, not being on notice, disposed of appeal touching merit of the case.

12. The petition as such stands disposed of along with the pending application(s), if any. Copy of the order be forwarded to the District Judge concerned.

J U D G E

Abdul Basit