ORDER SHEET
IN THE HIGH COURT OF SINDH BENCH AT SUKKUR
Civil Revision Application No.S-01 of 2012
|
Date |
Order with signature of Judge |
For hearing of
main case
Date of hearing: 03.10.2019.
Mr. Safdar Ali
Kanasro, Advocate for applicants
Mr. Nisar Ahmed
Bhanbhro, Advocate for respondents No.4 & 10
Mr. Ahmed Ali
Shahani, AAG
O R D E R
NAZAR AKBAR J:- The applicants/plaintiffs have filed instant Civil
Revision Application against the judgment dated 31.10.2011 and decree dated 05.11.2011
passed by the Court of learned Additional District Judge, Gambat in Civil
Appeal No.05 of 2010, whereby the appeal filed by respondents No.4, 10 & 11
has been allowed and the judgment dated 02.12.2009 and decree dated 07.12.2009
passed by Senior Civil Judge, Gambat in Civil Suit No.69/2002, filed by the
applicants/plaintiffs has been set-aside and suit was dismissed.
2. The brief
facts relevant for disposal of the instant Civil Revision Application are that applicant
deceased Allah Dino had filed a suit No.69/2002 before the Court of learned
Senior Civil Judge, Gambat for declaration and permanent injunction wherein he
stated that an area of 6-14 acres of Deh Siyal Pathan, Taluka Gambat,
originally belonged to Irrigation Department, was leased out to him by Barrage
Department and it was in Muhag of Qabooli land. It was granted to him in open
Katcheri on 28.06.1997. After the demise of applicant, his legal heirs
are in possession of the said land after completing codal formalities. The T.O
Form was issued and mutation was recorded in Revenue in favour of applicant. It
was averred that Respondents No.1, 2, 3 along with some other persons
challenged the said grant of land to the applicant in the Court of Senior Civil
Judge, Gambat by way of F.C Suit No.50/1997 on the ground that the suit
land is situated within 20 chain of village and such grant be declared as
illegal but the plaint of said suit was rejected under Order VII Rule 11 CPC on
the ground that they should approach Revenue authorities. Therefore, private Respondents
filed an appeal before Additional Commissioner, Sukkur in the year 1998, which
appeal was allowed by order dated 18.09.2000. The applicant late Allah Dino filed a
Revision before respondent No.8/ Member Board of Revenue, which was dismissed by
order dated 05.11.2002. Thereafter applicant late Allah Dino filed suit
No.69/2002 in which respondents No.1 to 4 filed their written statements and
denied all the averments of plaint. However, the said suit was disposed of by
way of compromise decree. Then respondents No.10 and11 filed an application
under Section 12(2) CPC which was allowed, compromise decree was
recalled and respondents No.10 & 11 were impleaded as parties. The Court of
Senior Civil Judge Gambat decreed the suit of applicant and restored grant of
suit land in his favour. Thereafter respondent No.4, 10 and 11 filed an appeal
No.05/2010 in the Court of District Judge, Khairpur. Which was later on
withdrawn by them through their counsel. The respondent No.4 filed application alleging
there that said application for withdrawal of appeal was not filed with his
consent. Such application was allowed by appellate court and then the appeal
was heard and allowed consequently the suit of applicants was dismissed, hence,
the applicant filed instant revision application.
3. I have
heard learned counsel for the applicants, who has filed the suit claiming to
have obtained suit property in an open Katcheri by the relevant Revenue officer
but he has lost his case before two Appellate authorities namely Additional
Commissioner Sukkur and Member Board of Revenue. Learned counsel who insisted
that there has been evidence in his favour by referring to the averments of the
defendant but he has not referred to evidence of his own client showing production
of relevant record of the very open Katcheri said to have been held for acquiring
his right in the suit property. After going through the record with the help of
the learned counsel, I have noticed the main prayer of the applicant was prayer
No.2, which is reproduced below:-
b. To declare that
the orders dated 18.9.2000 and 5.11.2002 passed by Additional Commissioner
Sukkur division Sukkur and Member Board of Revenue Hyderabad are illegal
unlawful unwarranted under the law against the principles of natural justice
and not binding upon the plaintiff.
4. The two
concurrent findings of Revenue authorities were challenged in civil suit No.69/2002
by the applicants. The applicants have also impleaded private respondents and
got their suit decreed, however, in appeal against the same the suit was
dismissed on the ground of incorrect and mis-appreciation of evidence by trial
Court. Learned counsel for the applicants was unable to meet the observation of
the appellate Court that the plaintiffs before the Court are supposed to stand
on their own feet and not on the averments of the defendant. I have carefully
perused the record of judgment of the trial Court and found the trial Court has
attempted to decree the suit in abnormal way by relying on the evidence of the
defendant without referring to the evidence of the plaintiff. In support of the
claim of the plaintiff, on the main issue No.2, the Appellate Court has rightly
observed that the applicants/plaintiffs have not produced any documents in
support of their claim, therefore, their suit was hit by illustration (g) to Article
129 of the Qanun-e-Shahadat, Order, 1984.
5. The
evidence of the attorney and son of the applicant shows that the suit property
was allegedly belong to Irrigation Department and it was transferred to Barrage
Department where his father has filed application for grant of the suit land
and the department has granted suit land in favour of his father in 1997 but neither
his application was filed nor grant. The document of transfer of suit land from
one department to the other department was also not placed on record. The
record of open Katcheri was also not produced. On appeal by the respondents the
Additional Commissioner Sukkur has cancelled the grant of suit land in the name
of father of the applicant and such order was maintained by the Appellate Court
in absence of the basic documents on the basis of which the applicants have
claimed title. Such documents were never placed before the Civil Court in the
suit alongwith plaint.
6. In view of the above, this civil revision application was
dismissed with no order as to costs by order dated 03.10.2019 and these
are the reasons for the same.
JUDGE
Sukkur
Dated:________________