ORDER SHEET

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

 

Civil Revision Application No. S- 105 of 2000

Civil Revision Application No. S- 106 of 2000

 

 

Date of hearing

                        Order with signature of Judge.

 

                                                           

     Hearing of Cases

1.For hearing of CMA 333/2020

2.For hearing of Main Case

3.For hearing of CMA 680/2000

                                                                

Date of Hearing:             16-08-2021

Date of judgment:           16-08-2021

 

Mr. Aashique Illahi N.Sundrani Advocate for Applicants in both matters.

Mr. Ahmed Ali Shahani, Assistant A.G-Sindh.

 

                              J U D G EM E N T

                   

Muhammad Junaid Ghaffar J.,           Through these Civil Revisions Applications, the Applicants have impugned Judgment dated 21.09.2000 passed by the Additional District Judge-III, Ghotki in Civil Appeals No.21 & 22 of 1996, whereby Judgment of the trial Court dated 24.06.1996 and Decree dated 27.06.1996, passed by Senior Civil Judge, Ghotki in F.C Suits No.141 & 142 of 1989 through which the Suit(s) filed by the Applicants were dismissed have been maintained.

2.       Learned counsel for the Applicants has contended that the two Courts below have failed to appreciate the facts and law; that the defendants/respondents had failed to lead any appreciable evidence; but despite this, both the Courts below have decided the matters against the present Applicants; that in absence of any proper defence or evidence, Suits of the Applicants / plaintiffs ought to have been decreed; that the remedy availed by the respondents before the Additional Commissioner was time barred; that the order of the said Commissioner is tainted with mala fides; hence Suits were competent; In support of his contention, he has relied upon the cases reported as Raees Ahmed v. Abdul Shafiq and others (2001 SCMR 1429), Manzoor Hussain and othrs v. Sajawal and others (1983 SCMR 465), Sub. Muhammad Asghar v. Mst. Safia Begum and another (PLD 1976 SC 435), Province of Punjab v. Col. Abdul Majeed (1997 SCMR 1692), Mst. Kishwar v. Abdul Dehyan and others (2004 CLC 203) and Muhammad Zaman Educational Memorial Society v. City District Government Karachi and another (SBLR 2008 Sindh 1400).

 3.      On the other hand, private respondent’s despite being served through publication are called absent, whereas, learned AAG has argued that concurrent findings have been recorded against the Applicants; that it is not a case of any mis-reading or non-reading of evidence, hene, no indulgence is warranted; that no documentary evidence was ever led by the Applicants; hence these Civil Revisions Applications are misconceived. In support of his contention, he relied upon cases reported as Administrator, Thall Division v. Ali Muhammad (2012 SCMR 730) and Zahid Hussain v. Shamsuddin (2014 CLC Sindh 1334)

 4.      I have heard learned Counsel for the Applicants as well as learned AAG and perused the record. It appears that the Applicants had filed civil suits for declaration and permanent injunction, whereby, primarily order dated 03.04.1989, passed by Additional Commissioner, on an Appeal initiated at the behest of private Respondents was challenged. Further declaration was sought that the order dated 20.06.1987 passed by the Colonization Officer, Guddu Barrage, Sukkur, in favour of the Applicants was correct in law, whereby land was granted to the Applicants after cancellation of the land granted in the name of the predecessor of the Respondents. Learned trial Court after settlement of issues came to the conclusion that the plaintiffs have miserably failed to lead any evidence to prove as to how impugned order dated 03.04.1989 passed by the Additional Commissioner is illegal or without jurisdiction and it was further held by the trial Court that the plaintiffs failed to utter a single word in their evidence so as to upset the said order; and therefore, case of the Applicants does not merit any consideration and accordingly suits were dismissed. Such dismissal order was then impugned in Civil Appeals and the said Appeals also stand dismissed through judgment impugned herein.

5.       As contended by learned AAG, it is a case of concurrent findings given by two Courts below against the Applicants, and apparently does not warrant any interference by this Court in this limited revisional jurisdiction. Nonetheless, I have even gone through the evidence of the plaintiffs and it would be advantageous to refer to the evidence of the plaintiff Arbab Ali in F.C.Suit No.141 of 1989; which reads as under:

“Examination in Chief

Mr. Paryaram Advocate for the plaintiff.

About 7 years back the B.No.S.41/4 measuring 4-00 acres deh laluwali taluka Ghotki was granted to me on permanent tenure by C.O Guddu Barrage Sukkur. In the open katchery held at the office of D.C.O Ghotki on harap right. I produce certified true copy of the Register of haries Ex.73 containing the order of Colonization Officer dated 20th June 1987. I deposited the initial installments towards the government. I produce original copy of the installment receipt Ex.74. There were an other persons present in the open katchery and they were also granted the agricultural land by the C.O on their own right. The disputed land was previously granted to the ancestor of the defendants No.4 to 13 which was subsequently cancelled about 15 years back prior to the grant to me and the defendants No.4 to 13 went in appeal before the Addl. Commissioner Sukkur who decided the appeal in their favour and the granted the land to them. I therefore, have challenged the order of the defendant No.2, before this court through the present civil suit. I produce certified true copy of the order of defendant No.2 Ex.75. I am in the possession of the disputed land as yet.

XXX to Mr. Soomardas advocate for the defendants No.4 to 13.

It is fact that the disputed land was granted to the ancestor of the defendants on the right of Islamabad effecties. It is fact that the B.No.S.41/2,3,4 and 42/1 total measuring 16-00 acres were granted to the ancestors of the defendant Ghulam Muhammad. I have not produced the document pertaining to the cancellation of the suit land from the grant of original grantee Ghulam Muhammad. It is fact that I have not produced the document showing the programe of open katchery hold by C.O Guddu Barrage at the office of D.C.O Ghotki disposing of land to me. It is fact that I have not produced the copy of the schedule showing that the disputed land was brought in the schedule for disposal. Voluntarily says that it was kept in schedule. It is incorrect to say that no open katchery was held by the C.O and the disputed land was secretly grated to me without holding katchery. It is fact that the C.O Guddu Barrage was Mr. Muhammad Ramzan Chachar at that time. It is incorrect that the C.O Muhammad Ramzan Chachar was closely related to me. It is fact that I had engaged Mr. Abdul Latif Shah my advocate before the Additional Commissioner Sukkur in the appeal preferred by the defendants against my grant. It is fact that my advocate was heard and he produced the relevant documents before the Additoinal Commissioner Sukkur. It is a fact that I have not gone before the Member Board of Revenue challenging the order of defendant No.2. It is fact that I have not produced the relevant record before this Court regarding my harap on the suit land. It is fact that I  have not produced any land revenue receipts. It is not fact that the legal heirs of the Ghulam Muhammad the defendants No.4 to 13 are in the possession of the disputed land. It is not fact that these defendants are paying the land revenue of the suit land. I do not know that T.O form has been issued in the name of Ghulam Muhammad prior to the filing of the present suit. It is incorrect that I have got no right on the suit land and the Islambad oustees are entitled for the grant of the suit land. It is not a fact that I have filed false suit with the intention to usurp the suit land and deprive the legal heirs of Ghulam Muhammad from their right on the suit land. It is fact that the witness Ahmed resides in my village and he is my distant cousin. It is fact that there is a village namely Islambad oustess. Voluntarily says that the people by caste Chachar resides there. I reside in another village namely Haji Muhammad Bux Chachar”.

 

6.       From perusal of aforesaid evidence led by the plaintiff, it appears that he claims the land in question purportedly allotted on permanent tenure by the Colonization Officer, Guddu Barrage, Sukkur in some open katcheri held in the office of DCO,  Ghotki on harap basis; however, he has admitted that there was nobody else present in the open katcheri, whereas grant of land prior to this to the private respondents has not been denied, but it has been asserted that it stood cancelled and then it was granted in open katcheri to him. Admittedly, said order of cancellation was impugned by the private respondents in appeal before the Additional Commissioner, who decided the matter in favour of the Respondents, and instead of taking recourse to a Revision under the Sindh Land Revenue Act, 1967, the Applicants chose to impugn the same by way of Civil Suits and while confronted, the Counsel for the Applicants has argued that the said order was tainted with mala fides; therefore, Civil Suits were competent. To that, there is no cavil; however, by merely making a statement as to the order in question being tainted with mala fides does not suffice. Applicants/plaintiffs had full opportunity to adduce evidence to this effect, but they have failed to do so, and therefore, this argument is misconceived. Moreover, it is also a settled law that once recourse has been taken to departmental proceedings and legal remedy has been availed, then it cannot be aborted in between by invoking the jurisdiction of a Civil Court. Further, plaintiff in his evidence has also admitted that he has not produced any revenue record before trial Court regarding any harap on the suit land, whereas, he further admitted that he has not produced any land revenue receipt as well. He even failed to satisfy with any supporting document that any open katchery was ever scheduled for such date when the land was allotted to the Applicants. It is also a matter of record, that the land in question was already allotted to private Respondents, and was cancelled without any notice to aggrieved parties and was done by an officer who otherwise was not competent to do so. These admitted facts have neither been denied; nor any contrary evidence has been led on behalf of the Applicants. On the basis of such evidence, the trial Court as well as Appellate Court have come to a fair and just conclusion that the plaintiffs have not been able to substantiate and prove their claim.

7.       As to argument of counsel for the Applicants that in absence of any proper defence or evidence led by the respondents, trial Court ought to have decreed the Civil Suits also appears to be misconceived, inasmuch as this is not the right course to be adopted in every run of the mill case. It is always dependent on the facts and circumstances of the case. If a Court is confronted in a like manner, then perhaps the proper course is to examine the record and evidence so produced and then arrive at a decision. Though the respondents had failed to lead any evidence in the instant matter; however, cross examined the plaintiffs and its witnesses and also led any arguments so as to defend their case. As noted, Courts in like matters has an additional burden and duty cast upon it, to ensure that the ends of justice are met and the interest of the party who has not been able to defend its case for any reason whatsoever, shall be protected and must be dealt with in accordance with law. The Court is required to examine the material before it including the evidence led by the Plaintiff and to see that the contention so raised is supported by evidence and supporting material or not. It is the duty of the Court to see whether the Plaintiff is entitled to the relief being claimed and if yes, then to what extent. The Suit cannot be decreed as prayed in such matters, until and unless the Court is satisfied in this regard. Reliance in this regard may be placed on the case of Nisar Ahmed & another Vs. Habib Bank Limited (1980 CLC 981) and Messers Al-Pak Ghee Mills through Managing Partner Vs. Zeeshan Traders through Proprietor (2008 CLC 120)   In the case in hand, the trial Court has arrived at a conclusion on appreciation of the evidence that no case is made out; therefore, there cannot be any cavil to this and the contention of the Applicants Counsel is not based on any cogent reasoning.

6.       In view of hereinabove circumstances of the case and for the reason that these civil Revision Applications have been filed against concurrent findings recorded by the two Courts below, the Applicants have failed to make out any case warranting exercise of any discretion in their favor. Hence, by means of a short order passed in the earlier part of the day, these Civil Revision Applications were dismissed. These are the reasons thereof.

                   

 

                   

                                                         JUDGE

         

 

Ahmad