ORDER SHEET
IN
THE HIGH COURT OF SINDH, BENCH AT SUKKUR
Civil
Revision Application No. S- 118 of 1989
Date
of hearing |
Order with signature
of Judge. |
Hearing
of Cases
1.For hearing of CMA 109/2007
2.For hearing of Main
Case
Date of Hearing: 30-08-2021
Date of judgment: 30-08-2021
Mr.
Ahmed Ali Shahani, Assistant A.G-Sindh for the Applicant.
None
for Respondents.
J
U D G E M E N T
Through this Civil Revision Application, the Applicant department
has impugned Judgment dated 20.5.1989 passed by the Additional District Judge,
Jacobabad, in Civil Appeals No.38 of 1987, whereby, Judgment of the trial Court
dated 19.12.1987 passed by Senior Civil Judge, Jacobabad, in F.C. Suit No. 24
of 1983 decreeing the Suit of private Respondents has been maintained.
Learning
Assistant Advocate General submits that the Suit filed by the private
respondents was not maintainable as it was based on a tenancy agreement; that
no declaration could have been granted on the basis of such Tenancy agreement;
that the land always belonged to the Applicant / Education department and the
Municipal Committee Jacobabad was not authorized to allot the land, even on
tenancy; that the Respondents were never in possession at the time of filing of
the suit; hence the two courts below have earned in law in passing the
judgement in favour of the private respondents. He has prayed for setting aside
these two judgements of the courts below.
Insofar
as the private respondents are concerned after demise of their Counsel,
repeatedly notices have been issued but no one has turned up before the court
on their behalf. It may be noted that the Respondents are equally
responsible to pursue their case if a Counsel representing them has expired and
it must not be expected that the Court will continue to hunt seeking their
presence before the Court. As per record despite repeated notices by all means
no one has bothered to assist the Court on their behalf, and since the matter
pertains to the year 1989, it cannot be kept pending any further and therefore
I have heard the learned AAG and perused the record while deciding this
Revision.
Insofar
as the private Respondents are concerned Suit was filed by them seeking
Declaration and Injunction admittedly in respect of a piece of land given to
them by the Municipal Committee on 11.11.1975 on rental basis. This is
what they had pleaded before the trial Court. It would be relevant to refer to Para
3 and 4 and the main prayer of declaration in the plaint which reads as under;
3. That there is one plot measuring 2702
sq.feet of abonded Lar Wah which belongs to Irrigation Department situated near
Station Quarters District Council, Jacobabad having the following boundaries.
East
Disrict Council staff Quarters
West
Shamim Godown
South
Education Office
North
Boarding House.
4. That on 11.11.1975 said plot was
allotted firstly to the Plaintiff about 3360 Sq:Ft by
the Defendant No.3 vide order No.24 on rental basis at the rate of Rs.25/- per
month which is being paid by the plaintiff to the defendant No.3.
Prayer
That
this Hon’ble Court may be pleased to declare that the plaintiff is the original
real tenant of the said plot having acquired tenancy rights and having legal
possession over it and the defendant No.2 have no right to dispossess of the
plaintiff from plot in dispute in possession of the plaintiff and any intended
action by defendant No.2 for getting possession of the plot forcibly or claim
of area for which plaintiff is entitled is illegal and malafide and nullity in
the eye of law against policy of government for Kachi Abadi persons.
Perusal
of the aforesaid paragraph clearly reflects that the suit property was not
claimed by the private respondents on the basis of any registered instrument
and was merely a Tenancy right on the basis of which the suit for declaration
and injunction was filed. In law no declaration can be sought on the basis
of merely an agreement of Tenancy as this can never create a title of
ownership. Once the private respondents admit that they were in possession
of the suit property pursuant to a Tenancy right which as claimed was granted
to them by the Municipal Committee, then the very basis for a Declaratory Suit
before a Civil Court was defective. At the most, they could have sought protection
against dispossession except in accordance with law. However, this is not the
case; rather they sought a declaration of ownership. On his own showing the
private respondent has claimed possession of the property in question on the
basis of some tenancy allotment by the Municipal Committee. Nothing was brought
on record to substantiate that in any manner the suit land was ever granted to
the private respondents with any title of ownership, be it in respect of a
Katchi Abadi. Notwithstanding, the private respondents case was also not of an
adverse possession as that could only be claimed if the possession was of more
than 60 years. It appears that both the courts below have failed to appreciate
this crucial legal aspect of the matter which has resulted in passing the impugned
judgements and decrees. The court of first instance ought to have dilated
upon this aspect of the matter before going into to the other facts pleaded by
the private respondents. In absence of a title document, a declaration could
not have been claimed merely as a tenant, notwithstanding the claim of
possession. In law no such relief could have been sought and granted in the
facts as available on record. The Appellate Court was much persuaded with the
purported possession and went on to declare it a valuable right. This by itself
is not a reason to grant a declaration of ownership when the Plaintiff admits
that he was a tenant.
The
other question that whether the property was owned by the Municipal Committee;
the Irrigation Department or for that matter by the Applicant / Education
Department; or whether the Municipal Committee was otherwise authorized to
grant a Tenancy right to the private Respondents; or whether subsequently the
land was declared as available under the Katchi Abadi Scheme was immaterial inasmuch
as primarily, first the question of right claimed and available to the private
respondents for seeking a declaration was to be determined. This question
of ownership could have only been discussed and decided, if otherwise the
private respondents were entitled in law to seek such a declaration on the
basis of a tenancy agreement. As discussed this was not possible, and
therefore, the findings on the other issues settled by the Courts below was not
required to be decided.
It is
not in dispute and affirmed by the pleadings and from the evidence so led by the
private respondents that their entire case was based on a tenancy agreement and
the purported possession with them. It has also come on record that even
the claim of they being in possession was in dispute at the time of filing of
the Suit; however, the courts below have come to a finding which is otherwise
not supported in this regard. Nonetheless once it has come on record that
it was only a tenancy right on the basis of which the suit was filed, hence a
declaratory suit under section 42 of the Specific Relief Act was not maintainable.
The
upshot of the above discussion is that both the Court(s) below have miserably
failed to appreciate the evidence properly and it is a fit case of misreading
and non-reading of evidence led by the parties, and therefore requires
interference by this Court while exercising its revisional jurisdiction, in
view of the dicta laid down by the Hon’ble Supreme Court in the case of, Nazim-Ud-Din
v Sheikh Zia-Ul-Qamar (2016
SCMR 24), wherein it has been held by the Hon’ble Supreme
Court as follows;
…..“It is
settled law that ordinarily the revisional court would not interfere in the
concurrent findings of fact recorded by the first two courts of fact but where
there is misreading and non-reading of evidence on the record which is
conspicuous, the revisional court shall interfere and can upset the concurrent
findings, as well as where there is an error in the exercise of jurisdiction by
the courts below and/or where the courts have acted in the exercise of its
jurisdiction illegally or with material irregularity”.
Similar
view has been expressed by the Hon’ble Supreme Court in the case of Islam-Ud-Din
v Mst. Noor Jahan (2016 SCMR 986) in the following manner:
9. Mr. Gulzarin Kiani, the learned counsel
for the siblings, contended that the High Court in exercise of its revisional
jurisdiction could not have set aside the findings of the two courts below and
if at all it should have remanded the matter. In this regard the learned
counsel had cited a few cases (above). In the case of Sailajananda Pandey,
which was referred to in the case of Gul Rehman, the matter was remanded
because "further investigation of some necessary facts" was required
where after "many different principles" of law were to be dilated
upon. However, there is no need of any further investigation in the present
case nor the need to consider many different [legal] principles as a
consequence thereof In Iftikhar-ud-Din Haidar Gardezi's case it was held that
judgments in revisional jurisdiction could only be assailed in terms of section
115 of the Code of Civil Procedure ("the Code"). We entirely agree.
However, in the present case the trial and appellate courts had exercised
jurisdiction vesting in them illegally or with material irregularity, as they
disregarded Article 79 of the Qanun-e-Shahadat Order and misread or did not
read the evidence as noted above. Since the parties had already lead evidence
and the material facts had clearly emerged the High Court had correctly
exercised its revisional jurisdiction under the Code. It was held in Nabi Baksh
v Fazal Hussain (2008 SCMR 1454) that concurrent findings of the courts below
can be set aside by the High Court in its revisional jurisdiction if the same,
"were based on misreading or non-reading of the material available on
record".
Further
reliance can be placed on the cases of Nabi Baksh v. Fazal Hussain (2008 SCMR 1454), Ghulam
Muhammad v Ghulam Ali (2004
SCMR 1001), & Muhammad Akhtar v Mst. Manna (2001 SCMR 1700).
In view of hereinabove facts and
circumstances of the case, I am of the view that both the Court(s) below have
failed to exercise the jurisdiction so vested in them and have completely
misread the evidence on record while decreeing the Suit of the private
respondents. Accordingly, the impugned Judgment dated 20.5.1989 passed by the
Additional District Judge, Jacobabad, in Civil Appeals No.38 of 1987, and the
Judgment of the trial Court dated 19.12.1987 passed by Senior Civil Judge,
Jacobabad, in F.C. Suit No. 24 of 1983 are hereby set-aside. The Suit of the
private respondents stands dismissed.
Civil Revision Application is
allowed in the above terms.
JUDGE