Judgment Sheet

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Civil Revision No. S – 123 of 2004

Date of hearing: 17-09-2021

Date of decision: 17-09-2021

Mr. Tariq G. Hanif Mangi, Advocate for the Applicants.

Mr. Ghulam Murtaza Korai, Advocate for private Respondents.

Mr. Ahmed Ali Shahani, Assistant Advocate General Sindh.

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J U D G M E N T

Muhammad Junaid Ghaffar, J. – Through this Civil Revision, the Applicants have impugned judgment dated 23-09-2004 passed by the District Judge, Ghotki in Civil Appeal No.41 of 2002, whereby the judgment passed by the Senior Civil Judge, Ghotki in F.C. Suit No.81 of 1980 dated 29-02-1984, through which the Suit of Applicants was decreed, has been set aside and the Suit has been dismissed.

2. Heard learned Counsel for the parties and perused the record.

3. It appears that the Applicants had filed a Suit for declaration and injunction seeking the following relief(s):

a) To declare that the land in suit being within 20 Chains of village Asaish; the orders dated 21.2.1977, and 16.5.1978, passed by the defendant Nos:2 & 3, are without jurisdiction, null and void.

b) To restrain the defendants No:4 to 6, from interfering into the possession of the suit land and from raising any cultivation over it by themselves through their agents and servants through permanent injunction.

c) To award the costs of suit.

d) Any other relief that the Court deems fit.

4. It appears that initially the Suit was decreed by way of judgment dated 29-02-1984 by the Senior Civil Judge, Ghotki in F.C. Suit No.81 of 1980, which was impugned by the respondents in Civil Appeal No.25 of 1984 and the same was allowed through judgment dated 14-02-1988. The Applicants, being aggrieved, approached this Court through Civil Revision No.65 of 1988, which was by consent remanded through an order dated 18-03-2002, which reads as under:

“The learned counsel for the respective parties consented that the matter may be remanded to learned District Judge Ghotki to hear the applicant a fresh and if the concerned parties want to adduce fresh evidence and if the appellate court feels that additional issue is also required in respect of deciding the point whether there was a Karya in Agricultural land S.Nos. 527(4-00) acres, 530 (3-14) acres and 529 (4-05) acres the parties may adduce such evidence on such issue.

Consequently the matter is remanded back to the learned District Judge Ghotki. The parties shall appear before the District Judge Ghotki on 26.4.2002 and, no fresh notice will be issued to them.

The impugned order dated 14.2.1988 is set-aside. The parties shall maintain status-quo till disposal of the appeal.”

5. On remand, the impugned judgment has been passed by the District Judge, Ghotki on 23-09-2004, whereby once again the Appeal has though been dismissed; but certain findings have been recorded which according to the learned Counsel are in favor of the Applicants; hence, the Appeal ought not to have been allowed. The relevant portion of the impugned order of the Appellate Court reads as under:

“11. I have heard the learned counsel for the parties at length and perused the entire material on record including the R & Ps of learned trial Court.

12. It may be pointed out that neither of the party desired leading additional evidence therefore I am left with the evidence already recorded by the trial court.

13. The trial court has dealt with issues No: 1 to 6 being legal issues and framed at the behest of defendant/ appellants to which learned counsel appearing from both sides before me had made no exception therefore findings to these issues arrived at by the trial court are upheld. The issues No: 7 to 9 and the additional issue are interconnected therefore are discussed together. In this regard evidence of Tepedar Mehmood is material who has produced the deh map at Exh:58 and has deposed that Survey No: 527, 529, 530 are within 20 chains of village Qasim Pitafi which is sanctioned village and there is no working canal in between the disputed land and village Qasim Pitafi. In cross examination he has stated that between survey No: 527, 529 and 530 there is Karia and that he can not say if the same is running or not.

14. The dispute of Karia whether existing or not has been raised in view of land grant policy notified by Land Utilization Department Government of Sindh vide Gazette Notification dated 20.11.1972 published in Sindh Government Gazette dated 21.11.1972 wherein while statement of condition No: 9 it is mentioned that “that no land lying within 20 chains of established village shall be granted” unless it is separate by a working canal.

15. According to available evidence there is/was a Karia which according to evidence of Tapedar can not be said to be working or not. Be that as it may, the perusal of impugned order of Additional Commissioner Sukkur Division the respondent No: 7, defendant No:2 reveals that he has allowed the grant in favour of appellants excluding area of all survey numbers falling within 20 chains of the established village. Now question arises that whether entire survey numbers and the entire area was falling within 20 chains or any portion was beyond the 20 chains is issue of fact and can not be resolved by the civil court and exclusively falls within the jurisdiction of revenue authority to take measurements and separate area falling within 20 chains from remaining area of these survey numbers.

16. In view of above discussion the issue No:8 is replied in affirmative, issue No:9 in negative. The findings to issue No: 7 are that portion of suit land falls within 20 chains of the sanctioned village as such the issue is replied accordingly and for additional issue the existence of Karia is admitted by the Tapedar without qualifying regarding its working but since it does not effect in any way the order of grant since it does not answering the description of canal therefore its existence has got no legal effect so far grant is concerned. Issue is replied accordingly.

The over all effect of above discussion is that judgment and decree of trial court can not be sustained thus is set aside and suit of private respondents is dismissed. Appeal is allowed with no order as to costs.”

6. It is matter of record that in the evidence as well as in the findings of the learned Trial Court, and in the two rounds before the learned Appellate Court, it has come on record that the Suit property as per the Plaint falls within 20 chains of village Qasim Pitafi; therefore, to that extent it could not have been allotted to the Respondents. In fact, this is what was held in the two orders dated 21-02-1977 and 16-05-1978 passed by Defendants No.2 and 3 and impugned in the very Suit.

7. While hearing both the parties, it appears that as of today there isn’t any dispute to the above findings that the area of the Suit property falls within the 20 chains of the said village and could not have been allotted to the Respondents. All subsequent events including the remand order have led to some confusion between the parties, whereas, the Respondents have also not challenged this position that the area in question falls within 20 chains of village Qasim Pitafi and was required to be reserved for asaish and was never available for allotment to anyone including them.

8. While confronted, the Applicants’ Counsel argued that the learned Appellate Court, after remand did not confine itself to the remits of the remand order and went on to observe in para 15 that the question that whether entire survey numbers and entire area was falling within 20 chains or any portion was beyond, is an issue of fact and cannot be resolved by the Civil Court. According to him, this finding by the learned Appellate Court has prejudiced the case of the Applicants, as according to him, once it was proved in the evidence and approved by the Appellate Court that the area of the Suit land falls within 20 chains of the village; then asking the Applicants to once again approach the Revenue Authorities was unwarranted. As a consequence, thereof, according to him, the Appeal could not have been dismissed.

9. On perusal of the record, his contention appears to be correct, whereas, the Respondents Counsel has not disputed such claim as well, and therefore, to that extent the order needs modification, hence, this Revision Application is partly allowed / disposed of by observing that the finding in para 15 on the impugned order was unwarranted as the Applicants’ case is only to the extent of the Suit land, and it has already come on record that the said Suit land falls within 20 chains of village Qasim Pitafi and could not have been allotted to the Respondents, and therefore, once again asking the Applicant to approach the Revenue Authorities was unjustified. In fact, the entire finding is in favor of the Applicant, whereas, the Respondents have not impugned such observations in any manner, therefore, the impugned order warrants interference.

10. Therefore, in view of the above the directions in Para 15 of the impugned judgment are set-aside; resultantly, the Appeal of the Respondents against judgment and decree of the Trail stands dismissed, and the judgment and decree of the Trial Court stands restored.

11. This Revision Applications stands allowed in the above terms.

J U D G E

Abdul Basit