ORDER SHEET
IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA
Civil Revision No.S-61 of 2019
(Abdul Rehman Versus Niaz Ahmed and others )
__________________________________________________________________________
DATE ORDER WITH SIGNATURE OF HON’BLE JUDGE________________________
01. For orders on office objection “A”.
02. For orders on MA No.1057/2024 (S/A)
03. For hearing of main case.
Before
Mr. Justice Nisar Ahmed Bhanbhro
Applicant: Abdul Rehman Dashti
Through M/S Habibur Rehman and Khalid Mustafa Advocate
Respondents No 1 to 3 Niaz Ahmed, and 2 others
Through Mr Nisar Ahmed Abro, Advocate
Province of Sindh: Through Mr. Munawar Ali Abbasi,
Assistant Advocate General, Sindh
Dated of Hearing: 02.05.2025
Date of Order: 23.05.2025
ORDER
Nisar Ahmed Bhanbhro, J. Through instant Civil Revision application the applicant has called in question the judgment and Decree dated 05-08-2019 passedby the Court of Learned District Judge-Kashmore @ Kandhkot (Appellate Court), in Civil Appeal No 89 of 2019 Re “Abdul Rehman Versus Niaz Ahmed and others”,whereby the appeal filed by the applicant was dismissed and judgment and decree dated 25-01-2018 in F,C Suit No 210 of 2017 Re “Niaz Ahmed and others Versus Province of Sindh and others,” passed by the Court of Learned Senior Civil Judge Kashmore(Trial Court) was maintained.
2. The facts giving cause to file this revision application are that respondents No.1 to 3 (plaintiffs in suit) and one Sardar Qadir Nawaz Khan (since died) filed suit for declaration, cancellation and permanent injunction against respondents No.4 to 10 and applicant Abdul Rehman (Defendant No 8 in the Suit), in a capacity of office bearers of Citizen Action committee Kashmore. The plaintiffs in the suit sought cancellation of the allotment order dated 13.12.2011 wherein 12000 Sq. Ft. plot situated within the premises of Taluka Hospital Kashmore was granted in favor of applicant. It was averred in the plaint that applicant had illegally occupied over 50000 Sq.Ft plot inside Taluka Hospital Kashmore and started construction work thereon under supervision of respondents No.9 and 10. It was further averred that Respondent No 6 (defendant No.3 in the suit), illegally and unlawfully allotted plot admeasuring 12000 Sq.Ft. vide No.526 dated 13.12.2011 and subsequently, such entry No.50 was kept in the Revenue Record of rights, in favour of applicant, which is illegal, unlawful and liable to be cancelled. The respondents No.1 to 3 and late Sardar Qadir Nawaz, prayed for following relief:
a) To declare that allotment of plot to defendant No.8, 12000 Sq. Ft. by defendant No.3 from the premises of Taluka Hospital Kashmore for residential purpose but being used for commercial purpose and are constructing about one hundred shops on the plot inside the hospital boundary wall which is illegal and unlawful without any legal and unlawful justification, void, with malafide intention and entry No.50 in Village Form-II of deh Pako Kashmore in the name of defendant No.8 is also illegal and same entry may kindly be cancelled.
b) By issuing injunction against defendant No.8 restrain him from raising construction of shop on plot of hospital inside boundary wall of hospital.
c) By issuing mandatory injunction direct defendant No.8 through defendant No.9 to demolish the constructions of shops from the plot of hospital.
3. Applicant(Defendant No 8 in the Suit) filed written statement, stating therein that the Respondents No 1 to 3 (plaintiffs) have no personal right or interest in the property, and suit is barred under section39 and 56(k) of Specific Relief Act 1877 (SRA). It is further stated by applicant in Written Statement that plaintiffs/respondents have no locus standi or cause of action to fileinstant suit. He further stated that 12000 Sq. Ft. plot was allotted in his favour as an alternate to earlier allotment of year 1995 which could not materialize. He averred that plot was allotted on completion of all formalities and after measurement of premises of Taluka Hospital Kashmore (THK) which per revenue record comprised of 6 acres and an area of 20 ghunta was lying vacant besides it. He contended that plot was allotted on the basis of no objection certificate tendered by Medical Superintendent (MS) of THK. He prayed for dismissal of the suit being not maintainable.
4. Respondents No 12 to 14 (Defendants No 10 to 12 in the Suit) filed written statement, wherein admitted the claim of Applicant and averred that the suit was barred under the law and liable to be dismissed as allotment of plot was issued by the Competent Authority after completing all legal formalities and the plot was not the part of THK. Revenue Authorities allotted the plot after conducting survey and proper measurement of property at Site.
5. Respondent No 15 (Defendant No 13 in the Suit) MS, THK filed written stamen and submitted that contended that the Suit Property was part of Taluka Hospital Kashmore, the same was illegally allotted to the Applicant by the Deputy Commissioner. The Defendant No 13 averred that Deputy Commissioner Kashmore has allotted plot to the Defendant No 8 (Applicant) in between main Kashmore Kandhkot Road and THK but in fact there is not a single inch lying vacant in between hospital and Road and there was only a pedestrian way in between Hospital and Road. He averred that on the basis of allotment order Applicant has occupied about 12000 Square Feet plot of the Hospital, demolished boundary wall and masjid.
6. From the pleadings of the parties, Learned trial Court framed following issues for determination of the controversy in the Suit:
1. Whether the suit of plaintiff is maintainable according to law?
2. Whether the defendant No.3 had illegally and unlawfully allotted a plot vide No.526 dated 13.12.2011 total area 12000 Sq. Ft. to the defendant No.8, located between main road (Kashmore-Kandhkot) and hospital’s wall?
3. Whether the defendant No.8 has illegally occupied an area of 50000 St. Ft. inside the hospital and started illegal construction with the help of official defendants?
4. Whether plaintiffs are entitled to the relief claimed for?
5. What should the decree be?
7. The Plaintiffs in the Suit(Respondents No 1 to 3), examined Niaz Ahmed, Ehsan Illahi, Dr Liaqat Kalwar Medical Superintendent Taluka Hospital Kashmore, Abdul Hameed Kato Mukhtiarkar Revenue Kashmore, Muhammad Kaleem Pathan, Sanaullah Khoso.The Defendant No 8 (Applicant) examined himself and Abdul Hameed Katto (examined twice) thereafter the parties closed side for evidence.
8. Learned Trial Court after hearing the arguments of Learned Counsel for parties, decreed suit of respondents No.1 to 3 vide impugned Judgment & decree dated 25.01.2018. Applicant filed Appeal No 89 of 2019 before the Court of Learned District Judge Kashmore @ Kandhkot. The Appellate Court after hearing the parties through Learned Counsel dismissed the appeal vide impugned judgment and decree dated 05.08.2019 hence this revision application.
9. M/S Habibur Rehman and Khalid Mustafa Learned Counsel for the Applicant contended that the Applicant was allotted a plot in year 1995 on payment of Rs 81,000, entire amount was paid in Government Treasury vide challan No 328 of National Bank of Pakistan, but the plot which was allotted to the Applicant was already the subject matter of a suit and decreed in favor of other party. The Revenue Authorities assured applicant for allotment of alternate plot. In year 2003 Applicant approached Land Utilization Department for alternate allotment, which was considered and Deputy Commissioner Jacobabad was directed to take necessary action on the request of Applicant. He contended that revenue staff pointed out that a plot admeasuring 20 ghunta was lying vacant besides THK, such report was placed before Scrutiny Committee, wherein it was decided to allot alternate plot to Applicant in Kashmore Town. He contended that report was called from MS, THK, in its report MS raised no objection if a plot of 12000 square feet was carved out and allotted to Applicant as the same would not hamper the functioning of Hospital. That the then District Coordination Officer called reports from Planning Department, Health Department of Defunct District Government and sent reports to Land Utilization Department for allotment of plot. The Land Utilization Department vide its letter dated 13.12.2011 informed the Deputy Commissioner Kashmore that the Chief Minister Sindh has accorded permission to grant alternate land to the applicant. He contended that on completion of formalities and approval from competent authority alternate land was allotted to the applicant vide letter dated 14.12.2011 and Village Form II was also issued in his name. He contended that allotted plot was not the part of THK and it fell outside the boundary wall of Hospital. He contended that applicant has paid huge amount in year 1995 and allotment of plot was accorded by adopting all the formalities provided under Sindh Colonization and Disposal of Government Land Rules 2005 (SCDGLR). He contended that under SCDGLR Chief Minister Sindh being Chief Executive of the province is competent authority for allotment of land. He contended that the Respondents No 1 to 3 had no right or interest in the Suit Property and they in order to extract money filed instant litigation, which was not maintainable and barred under section 39, 42 and 56 of the Specific Relief Act. He contended that the concurrent findings of Courts below suffered from glaring irregularity, illegality and there was serious misreading and nonreading of the evidence, which required interference of this Court.He contended that the plaint had no evidentiary value as Sardar Qadir Nawaz who signed and verified the pleadings did not come forward to depose. He prayed for allowing of revision application and setting aside the impugned judgment and decree of the Courts below.He placed reliance upon the case of Muhammad Naeem and 38 others versus Federation of Pakistan through Secretary Railways Department and 38 others (2025 CLC 133) on locus standi of the Plaintiff to file Suit, Society Apartments Complex Welfare Association PECHS Karachi Versus Federation of Pakistan through Secretary Ministry of Housing and Works Division Islamabad and others (PLD 2012 Sindh 29) on the point of maintainability of Suit, Federation of Pakistan through Secretary Ministry of Defense and another Versus Jaffar Khan and others (PLD 2010 Supreme Court 604)on the evidentiary value of written statement without examination of the person filing it, Shaikh Akhtar Aziz Versus Mst. Shabnam Begum and others (2019 SCMR 524) on the scope of indulgence by High Court against the concurrent findings of Courts below, Muhammad Siddiq (deceased) through LRs and others Versus Mst Noor Bibi (deceased) through LRs and others (2020 SCMR 483) on section 39 and 42 of Specific Relief Act. Learned Counsel for the applicants has relied upon almost 70 case laws on the aforementioned principles, which for the sake of convenience and repetition are not referred.
10. Mr Nisar Ahmed G. Abro, Learned Counsel for the Respondents No 1 to 3 contended that the suit property was part and parcel of THK, it was illegally allotted to the Applicant in violation of laws, as amenity plot cannot be allotted for any other purpose. The Respondents No 1 to 3 being citizens of Kashmore City came forward to save the public property and they had locus standi to file the Suit which was maintainable under the law, contrary Applicant had no locus standi for the allotment of plot. He contended that the Respondents No 1 to 3 came to know about the illegal allotment when Applicant occupied the Suit Property and started raising construction on it. He contended that the concurrent findings of Court below were within the premise of law and based upon proper appreciation of evidence and material on record, thus did not warrant interference. He prayed for dismissal of the Revision application.
11. Mr Munawar Ali Abassi, Learned Assistant Advocate General Sindh supported the impugned judgments and contended that the same did not suffer from any illegality or irregularity. He prayed for dismissal of Revision Application.
12. The Learned Counsel for the Applicant has agitated three points in the revision application, Firstly that the plaintiffs were not injured by the allotment of plot as such not competent to file suit for declaration and cancellation within the meaning and definition of Section 39 and 42 of Specific Relief Act, Secondly the Chief Minister being Chief Executive of the Province was competent authority for allotment of plot and thirdly suit property fell outside the boundary of Hospital thus was not a public property. Court will address all these points separately.
LOCUS STANDI OF PLAINTIFFS TO FILE SUIT – MAINTAINABILITY OF SUIT FOR CANCELLATION OF ALLOTMENTORDER
13. Learned Counsel for the Applicant has attacked the maintainability of the Suit on the ground that no right or interest of the Respondents No 1 to 3 was involved in the Suit Property, section 39 and 42 of the SRA debarred them from filing of Suit as they lacked character or title in the Suit Property. Respondents No 1 to 3 challenged the allotment of Suit Property on the ground that it was a PUBLIC PROPERTY which fell within the premises and was under the use of THK. The Public Property cannot be allotted or granted or leased out to any private person for residential or commercial use, it will amount to alter its use which is not permissible under the law. Word Public Property has been defined under section 2(O) of the Sindh Public Property (Removal of Encroachment) Act 2010 as under:
Public Property means a building, land, place or premises vesting in or under the management or control of Government, local Council, autonomous body or registered cooperative society or such other authority
Cambridge Dictionary defines Public Property as Land, Buildings, equipment etc that are owned by the government
Collins Dictionary defines Public Property as land and other assets that belong to general public and not a private owner:
Black’s Law Dictionary defines Public Property Any Property that is not owned by a private individual or a company. It belongs to the public at large and not to any one person. It covers premises and facilities owned by the government or a community.
The general and legal definition of Public Property makes it crystal clear that it is a property owned by public and not by a private person, it is managed and controlled by the Government on behalf of public. Management and Control of the Government is an entrustment as a public trust. Property reserved for public use an Amenity creates right and title in favor of individual. Government is saddled a responsibility to manage and control the property on behalf of Public. If aproperty is reserved for any amenity purposes such like hospital, road, library, park or school the use of such property is restricted to said purpose only, its cannot be changed and converted to residential or commercial purposes.
14. In the present case, Applicant was allotted a plot measuring 12000 square feet which per Respondents No 1 to 3 formed the part of THK, this allotment in favor of Applicant injured the rights of public at large including that of Respondents No 1 to 3. The allotment order reads as under:
The Deputy Commissioner
Kashmore @ Kandhkot
SUBJECT: APPLICATION MOVED BY ABDUL REHMAN S/O MOULA BUX DASHTI REQUESTING FOR GRANT OF ALTERNATE PLOT MEASURING 81,000 SQ.FT OF PREVIOUS PLOT SITUATED IN KASHMORE TOWN DISTRICT JACOBABAD NOW (KASHMORE @ KANDHKOT)
The defunct EDO (Rev) Kashmore at Kandhkot vide his letter No RB/352/2010 on the subject noted above
The Competent Authority viz. Chief Minister Sindh has been pleased to grant an alternate land measuring 12000 sq. ft in Deh Kashmore Pacco City Taluka Kashmore District Kashmore at Kandhkot in favor of Abdul Rehman son of Moula Bux Dashti for residential purpose.
You are therefore requested to take necessary action in the matter accordingly under intimation to this department.
Sd
SECRETARY TO GOVERNMENT OF SINDH
LAND UTILIZATION DEPARTMENT
15. The allotment order referred supra has been produced on record by the Applicant and is available at page 263 of the Court File. Surprisingly this allotment orderneither contains the date of issuance nor office outward number, even it does not contain the date of approval given by the Chief Minister Sindh. The Deputy Commissioner Kashmore without any wastage of time and verification of record sanctioned the possession of 12000 square feet plot to Applicant situated inside the boundary wall of THK. This written instrument/allotment order was used as a title or license by the Applicant to occupy the Public Property. This allotment letter / written instrument injured the right of every individual in Kashmore City and if not cancelled the allotment order would have granted a right in favor of Applicant to construct a building for which he started demolishing the boundary wall of THK and Masjid located inside it. The Respondents No 1 to 3brought a suit for cancellation of allotment of AmenityPlot to Applicant. Since the property which was allotted to the Applicant was a public property a right and character existed and vested in the Respondents No 1 to 3 to bring a suitwithin the meaning and definition of Section 42 of SRA which reads as under:
42. Discretion of Court as to declaration of status or right: (1) Any person entitled to any character or any right to any property, may institute a suit against any person denying or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled and plaintiff need not in such suit ask for any further relief.
Provided that no Court shall make any such declaration where the plaintiff being able to seek further relief than a mere declaration of title omits to do so.
(2) Notwithstanding anything contained in any other law for the time being in force, a suit filed under sub section (1) shall be decided by the Court within Six months and the appellate Court shall decide the appeal not later than ninety days, as the case may be.
The use of words “any person”, “any right”and “any property” in the above provision of law clarifies the intent of Legislature, that it will include both public and private property and the word right has its broader meaning, because the right to own a public property is vested right granted under the Constitution. Every citizen has a vested right in the public property, this right is unfettered and cannot be curtailed, classified or abridged in any manner. The allotment of Hospital Plot was a denial of right of an individual in the public property. The Respondents No 1 to 3 therefore rightly filed a suit seeking declaration that the Suit property belonged to the public at large and the impugned allotment order injured their rights in particular and of public at large in general. Section 39 of the SRA envisages that if a written instrument against any person is void and if the same is left outstanding it will cause him serious injury; he may bring his claim for adjudication by the Court of Law. Section 39 of the SRAreads as under:
39. When cancellation may be ordered: Any person against whom a written instrument is void or voidable, who has reasonable apprehension that such instrument, if left outstanding may cause him serious injury, may sue to have it adjudged void or voidable, and the Court may, in its discretion, so adjudge it and order it to be delivered up and cancelled.
If the instrument has been registered under the Registration Act, the Court shall also send a copy of its decree to the officer in whose office the instrument has been so registered and such officer shall note on the copy of the instrument contained in his books the fact of its cancellation.
This provision of law further emphasizes that “any person” can bring a suit for cancellation if the instrument is void or voidable and its perpetuity injured his rights. The crux of the above discussion is that a public property automatically grants a character and right to an individual or member of the public.If the public property is misused, misappropriated or its use is altered by operation of any executive order then the said order injures the rights of public and any one from the public may bring a suit under section 39 of SRA seeking cancellation of said void written instrument and under section 42 seek declaration that he has the character and right in the said property and his rights have been down trodden. The suit filed by the Respondents No 1 to 3 was competent under the law and the plaintiffs had a character, right and title in the public property and a locus standi to agitate such claim by way of filing civil suit. The Civil Court being the Court of ultimate jurisdiction can entertain such suit to check that the public functionaries while dealing with the Public Property remained within the bounds of law or transgressed their powers and may grant relief of cancellation if it is found that public property was illegally transferred to an individual for private use.
POWERS OF CHIEF MINISTER TO ALLOT AMENITY LAND FOR PRIVATE USE
16. The contention of the Petitioner that he was legally allotted the plot as an alternate to the land which was allotted to him in year 1995 against the payment of Rs 81,000. The Chief Minister being the Chief Executive of Province was competent to allot or grant land. The Colonization & Disposal of Government Lands (Sindh) Act 1912 (CDGLA), rules and policies framed thereunder are the governing laws for the grant of land or plot in the province of Sindh. Section 10 of the CDGLA the Government of Sindh to frame policies, impose statement of conditions for grant of state land for residential, commercial and agricultural purposes. The Government of Sindh has issued policies from time to time but for disposal of plots, through a letter dated 4th August 1972 all the Deputy Commissioners in Sindh were restrained from disposing of sikini/commercial/industrial plots until a statement of conditions was issued. The Government of Sindh Board of Revenue issued another notification dated 24th March 1973, setting forth the guidelines for Deputy Commissioners to forward the references for grant of the plots for Residential / Commercial and Industrial Use, this notification reads as under:
LAND UTILIZATION DEPARTMENT
Hyderabad the 24th March, 1973
Subject: Grant/ Regularization of Plots for Residential/ Commercial and Industrial Use
No. PA /73/3/78/P-VI – Of late it has been observed by the Board of Revenue Sindh with great concern that the proposals from the Deputy Commissioners received on the above noted subjects do not contain full details usually and basically required for arriving at final decisions/conclusions. As a result, this Board is constrained to make back references for supply of additional information/ data.Therefore in order to cut short lengthy correspondences, wastage of public time and in order to finalize the cases expeditiously, the Board of Revenue is pleased to order that the following information / data/ documents should invariably be sent in future without fail.
(i) City survey number, ward number, Deh, Taluka as the case may be.
(ii) Total area involved, and the area required indicating locality in case of plots.
(iii) Proposed price as well as the market price in the same locality or in the adjoining localities based on 12 months sale of the preceding year.
(iv) Purpose for which the area is required i.e. residential, commercial, industrial, religious or any other public use.
(v) Whether the same land stands already earmarked for any public scheme in near future.
(vi) Whether the land is government, municipal or belongs to any other department.
(vii) Whether the plot required or the area required is under encroachments or unauthorized occupations of any persons. If yes, details of such encroachments with nature and construction etc.
(viii) Whether the land is free from all other encumbrances. No objection certificate from the People's Municipality in case of urban area and from the C.O/R.O concerned in case of rural area should be furnished in consultation with these officers.
(ix) Medium size sketch duly signed by the gazzetted officer and site inspection note thereon may also accompany the correspondence.
(x) Approval of the district town planning whenever necessary may also be obtained and sent to this board.
When confronted with the above legal position as to whether the above mandatory requirements were fulfilled by the Revenue Authority while conceding allotment of plot in favor of Applicant, Learned Counsel failed to point out any document placed on record or produced in evidence before Trial Court which may indicate that the required formalities were completed before issuance of allotment Order. Learned Counsel for applicant at this juncture pointed out that the allotment of the plot was approved in year 2011 and by that time the Sindh Colonization and Disposal of Government Lands Rules 2005 (CDGLR) were in force and under the said Rules Chief Minister was competent authority for grant of land or plot.The CDGLR provides that applications for grant of land shall be submitted to the Chief Executive of the Province under Rule 9 who may require the Land Utilization Department to process such request. The Department shall send such application to District Officer Revenue for report, whereafter meeting of the Scrutiny Committee shall be convened. The Price Committee appointed under Rule 7 shall determine the market value of the land thereafter auction of the land shall be held. Nevertheless, Rule 5 CDGLR of 2005 prohibits grant of land already in use for public purpose. Rule 5 reads as under:
5. Prohibited areas. (1)No land shall be granted within such limits of superhighway, national highway, roads, jails, railway lines, port or in any other area as may be notified by the government.
(2) No land which is already reserved or is in use for any public purpose shall be granted without its relinquishment by the existing grantee.
This provision of subordinate legislation prohibits the grant of land which is in use for public purpose. The Chief Executive of the Province by virtue of these rules cannot grant a land without adopting a competitive process by way of auction and fixation of market value of the land through Price Committee. The Chief Executive of the Province has got no discretionary powers to approve every request for the grant of land unless the provisions of CDGLA 1912, rules framed thereunder and policy guidelines 1973 issued by Board of Revenue are followed in stricto senso. If the land falls within the category of Public Property its allotment stands prohibited and Chief Minister is not a competent authority to grant public property for private use, which standsreserved for amenity purpose. The law and rules make it abundant clear that the allotment order pertaining to land under use of THK was issued without any lawful authority and was not sustainable.
17. Honorable Supreme Court of Pakistan in the case of Iqbal Hussain Versus Province of Sindh through Secretary, Housing and Town Planning, Karachi and others reported in 2008 SCMR 105 has been pleased to hold as under:
“3. We are in complete agreement with the view taken by the Division Bench of the High Court when it says that public functionaries including the Chief Minister can deal with the public property only under a prescribed procedure within the parameters of law under a duly sanctioned scheme and not at their whims. Even if such order was passed by the Chief Minister in favour of the petitioner, authorities concerned would not be bound to follow such illegal and void order of a superior authority. It would rather be in the exigencies of good order of administration and their duty to point out to the high-ups that they were acting in excess of their lawful authority and in violation of law and the constitutional mandate. They may be apprised of the legal consequences flowing from such acts. The compliance of any illegal and arbitrary order is neither binding on the subordinate forums nor valid in the eyes of law. Reference in this behalf may be made to decision of this Court in Abdul Haq Indhar V. Province of Sindh 2000 SCMR 907 and (ii) Taj Muhammad v. Town Committee 1994 CLC 2214.
4. In view of what has been stated above, we are of the view that the High Court neither committed any illegality nor acted in violation of settled principles of law while dismissing the petitioner's writ petition. Impugned judgment thus, does not call for interference.”
WHETHER THE ALLOTTED LAND IS UNDER USE FOR PUBLIC PURPOSE
18. As has been discussed herein above the law prohibits grant of land under use for public purpose. The Plaintiffs / Respondents in order to prove the claim that Suit Property was reserved for and was under use for public purpose examined Dr. Liaqat Ali Kalwar MSTHK, as Court witness. CW 1 Dr Liaqat Ali deposed that Applicant demolished boundary wall of THK and Masjid and raised construction there. He deposed that he sent a letter dated 22.09.2011 to the Executive District Officer Health and informed him that letter regarding no objection given by him for allotment of plot to applicant was incorrect and false. He showed his ignorance regarding survey and exact measurement of THK. He deposed that he had not issued any No Objection Certificate for availability of extra land and allotment to Applicant.The Respondent No.1 Niaz Ahmed examined himself before trial court at Ex.164, he deposed that the suit plot is located within premises of the Taluka Hospital Kashmore. In year 2011applicant had illegally occupied suit property admeasuring 12000 sq. ft. and started construction of shops, he along with citizens of city met with MS of Hospital and Deputy Commissioner, complained them about illegal construction and occupation but remained unheeded thus filed suit, finding no alternate remedy. PW.2 Ihsan Illahi was examined at Ex.86. He deposed that in the month of December 2011 labour was working within boundary of THK, on enquiry it revealed that said plot was leased out to applicant, as such they met with MS of THK and Revenue Officers, who informed that the plot was leased to applicant by the order of Chief Minister, as such they filed instant suit.
19. In rebuttal to the evidence of respondents/Plaintiffs, applicant Abdul Rehman examined himself at Ex.186. He deposed that in year of 1995 the Government of Sindh allotted him plot in Kashmore town, he paid an amount of Rs 81,000 through challan No.328 in the National Bank of Pakistan Kashmore branch and on demand of possession of plot the Revenue authorities disclosed that said plot was given to some on else and an alternate plot in lieu of plot, will be given to him. He moved application to Board of Revenue which was sent for scrutiny. The Scrutiny Committee identified the plot, obtained no objection certificate dated 11.7.2011 from MS. Mukhtiarkar Kashmore reported that an area of 20 ghunta was in excess to the area of the THK, such reported were sent to Land Utilization Department whereupon he was allotted plot vide order dated 13.12.2011. Such entry was kept in the Revenue Record of rights and possession of the plot was handed over to him.DW2 Abdul Hameed Kato, The Mukhtiarkar Revenue Kashmore was examined at Ex.187, he deposed that the suit property was already granted to appellant in the year 1995 and thereafter, present land was identified and granted as alternate to earlier grant for residential purpose in the year 2011.
20. Scanning of the evidence revealed that the applicant had taken a plea that the plot allotted to him fell between main road and hospital (Kashmore Kandhkot road and boundary wall of hospital), such stance of Applicant stands belied by the evidence of CW.1 Dr. Liaqat Ali who is the Medical Superintendent of Taluka Hospital Kashmore wherein he deposed that defendant No.8/applicant has raised construction within the boundary wall of the THK. By demolishing Police Picket and Mosque which were located within the premises of Taluka Hospital Kashmore, he sent a letter to the E.D.O. Health on 22.9.2011. he had not tendered any no objection for allotment of plot and letter dated 11.7.2011 in his name was incorrect and false, theoffice outward number and signature on the letter were false and not issued by his office. This piece of the evidence remained unchallenged, and it stands established that allotted plot i.e Suit Property was a public property under the use of Hospital. The allotment of Amenity Plot was not permissible under the law, thus rightly cancelled by the Courts below.
21. Honorable Supreme Court of Pakistan in the case of City District Government Karachi Versus Akram Nabi and others reported in 2024 SCMR 1215 has been pleased to hold as under:
7. The Karachi Development Authority Order, 1957 KDA in its Preamble had specifically mentioned the protection of public amenities like parks, gardens and playgrounds, etc. Learned counsel for the appellant has correctly pointed out that Article 52-A of the Karachi Development Authority Order, 1957, which whilst undergoing changes, does and always did prohibit the conversion of amenity plots and to change their designated use. And amenity plots cannot be changed to commercial use. What was reserved for the public could also not have been converted for private benefit, nor could the Park be used for commercial use. Private use and/or profit cannot negate or undermine public use and benefit.
22. Honorable Supreme Court of Pakistan in the case of Muhammad Arif through L.Rs Versus District Coordination Officer Chairman, P & D Board LDA and others reported in 2016 SCMR 2025 has been pleased to hold as under:
4. We have heard learned counsel for the petitioners and have perused the judgments/orders of the fora below as well as the material placed on the record. It has been observed that the petitioners do not have any titled documents in their favour with regard to the plot in question as such they are in illegal occupation of the said plot. It has been further observed that through process of law they tried to legalize their illegal occupation which has rightly been taken note by the Division Bench of the High Court while passing the impugned judgment. We, on our own, by perusing the material placed before us found that neither the predecessor-in-interest of the petitioners nor the petitioners have any vested right with regard to the plot in question, in the absence whereof, they are undoubtedly in illegal and unauthorized occupation of the said plot which cannot be permitted to be legalized by misuse of the process of the law. As such we are not inclined to interfere in the impugned judgment.
23. Honorable Supreme Court of Pakistan in the case of Provincial Government through Collector, Kohat and anotherversus Shabbir Hussain reported in PLD 2005 Supreme Court 337 has cast a duty upon to Courts to protect the public properties from squandering and has been pleased to hold as under:
12. Likewise, the learned Presiding Officers are also required to exercise caution when they are dealing with matters relating to public property and public interest of which the Courts of law are the final custodians. It is true that we have never leaned in favour of giving of preferential treatment to the Government departments or agencies but then we are equally obliged, while granting relief, to ensure that public interest is not permitted to be jeopardized and public property is not allowed to be squandered through mere collusion of some representative of a Governmental agency.
ONUS TO PROVE BONAFIDE ALLOTMENT ON BENEFICIARY
24. The Applicant being beneficiary of the plot was burdened to prove that allotment was genuine, it was done in accordance with law. The allotted plot was not an Amenity Plot reserved for and under the use of Hospital. Applicant failed to discharge this burden. Per written statement and evidence of CW1 Dr Liaqat Ali that no inch of property was lying vacant in between the Road and Hospital and Applicant had encroached upon hospital area. He was raising illegal construction. The allotment of the plot in favor of Applicant from the face of it appears it be illegal and fallacious. To rebut this piece of evidence burden shifted upon the Applicant to prove that plot allotted to him did not fall within the premises of Hospital and it was not an Amenity Plot. Applicant even did not examine any person from locality to say that it was a separate plot, he did not seek assistance of the Court for inspection of the Suit Property to ascertain the factual position. The onus which shifted on the Applicant being beneficiary could not be successfully discharged; thus, it remained an indiscernible fact that Suit Property was an Amenity Plot and under use as Hospital. The factual position of the case leads to an irresistible conclusion thatChief Executive of Province exercised its discretion in favor of applicant beyond the bounds of law and without any lawful authority.The objection of the Applicant that Qadir Nawaz who signed and verified the plaint was not examined therefore contents of plaint stood not proved and excluded from evidence, which was sufficient ground to dismiss the Suit has no bearing as Qadir Nawaz dies and his name stood deleted from the list of plaintiffs and for the very reason he is not party to the proceedings in the instant revision application. The Courts below rightly addressed this issue that Applicant under the garb of an illegal allotment order occupied the Public Property reserved for amenity purposes and made an apparent attempt to grab valuable public property in collusion with officials of Revenue, Healthand City Survey Department. Since Petitioner failed to discharge the burden to prove that impugned allotment order was issued in accordance with law, thus was rightly set at naught by the fora below. This is in line with the settled principle that where the law requires an act to be done in a particular manner, it has to be done in that way and not otherwise.
25. Honorable Supreme Court of Pakistan in the case of Muhammad Asif Versus Amjad Iqbal and others reported in 2025 S C M R 667has been pleased to enunciate the principle when onus of proof shifts on the Beneficiary to prove his bona fide title in the following manner:
It is not an ordinary case where a person having influence upon the vendor/transferor got the mutation attested as we ordinarily see in most of the litigation in our country where a person having undue influence over the vendor/transferor gets the mutation attested by using undue influence like a son gets property through gift or sale from his aged and ailing father/mother or a brother from his sister, or a husband from his wife. There are many more instances like this. In that eventuality, the law developed and pronounced by this Court is that when a person challenges the validity of the transaction and instrument of transfer, it may be a registered document or a mutation. The filing of suit and after that making a statement before the Court on oath that he/she has not made the transaction and the instrument, in that eventuality, it is very clear position of law that the onus to prove shifts and the beneficiary must prove the transaction as well as valid registration/attestation of document
26. With due reverence the case law cited by the Learned Counsel for the Applicants though relevant for the purposes of deciding the locus standi to file a suit for cancellation of Documents under section 39 SRA and indulgence in the concurrent findings of the facts of the Courts below, but the facts and circumstances in the present case are different, therefore, the case laws relied upon by Learned Counsel for the Applicants are distinguishable.
27. Powers of this Court in its revisional jurisdiction conferred under section 115 CPC are corrective and Supervisory in nature. The Court is very slow in interfering with the concurrent findings of the fact drawn by the Courts below unless it is borne out from the record that the findings were erroneous, perverse, there was misreading and nonreading of the evidence and findings suffered from jurisdictional error.
28. Honorable Supreme Court of Pakistan in the case of Cantonment Board through Executive Officer, Cantt. Board Rawalpindi Versus Ikhlaq Ahmed and others reported in 2024 SCMR 161 has been pleased to hold as under:
6. It is not the requirement of law that the High Court in exercise of its revisional jurisdiction to discuss the findings recorded by the Courts below on each issue, particularly when it concurs with them. The scope of revision is narrow and requires the High Court to examine whether the courts below have failed to exercise jurisdiction so vested in them or have acted in exercise of its jurisdiction illegally or with material irregularity and have misread the evidence brought on record by the parties. In other words, the provisions of section 115, C.P.C. under which a High Court exercises its revisional jurisdiction, confer an exceptional and necessary power intended to secure effective exercise of its superintendence and visitorial powers of correction unhindered by technicalities. The revisional jurisdiction of the High Court cannot be invoked against conclusions of law or fact, which do not, in any way, affect the jurisdiction of the court. In the instant case, the learned High Court, in law, could not have investigated into the facts or exercised its jurisdiction on the basis of facts or grounds, which were already proved by the parties by leading evidence. We are of the considered view that the judgment impugned in these proceedings is unexceptionable. The learned High Court was justified in not interfering in the concurrent findings of fact which were based on the material brought on record and proper appreciation of evidence.
29. Honorable Supreme Court of Pakistan in the case of Faqir Syed Anwar ud din deceased through LRsVersusSyed Raza Haider and others reported in P L D 2025 Supreme Court 31 has been pleased to hold as under:
The defendants had assailed the concurrent findings of two courts by filing a regular second appeal before the High Court under section 100 of the C.P.C. It is settled law that concurrent findings are not interfered with under section 100 of the C.P.C. unless the lower courts have misread the evidence on record, or may have ignored a material piece of evidence on record through perverse appreciation of evidence. It is also settled law that reappraisal of evidence on record by the second appellate court is not permissible while exercising jurisdiction under section 100 of the C.P.C. The High Court had rightly dismissed the regular second appeals filed by the defendants on the touchstone of the aforementioned principles.
30. The discussion made herein above leads this Court to a firm conclusion that the findings arrived at by the Courts below were within the premise of law and did not suffer from any jurisdictional error or misreading or nonreading of the evidence, thus did not require interference of this Court under its Supervisory Jurisdiction. Consequently, this revision application fails and is dismissed,with no order as to the costs.
31. Before parting with the order, this Court withdismay expresses its concerns over the conduct of officers of Revenue and Health Department, the manner in which they contested the suit, manifested their mix up with applicant, such conduct on their part amounted to misuse of powers, for which they must be held accountable. In order to save Public Properties to be lost at the hands of unscrupulous elements,all public functionaries are required to exercise authority, especially while dealing with the public property, or assets in a fair, just, transparent and reasonable manner, and in accordance with law, by strictly adhering to the laws. In the present case the authorities have acted in excess of powers and granted a piece of plot which actually did not exist at the site and under the garb of allotment letter a valuable public property was encroached and right from allotment to the proceedings in the Suit Public Functionaries stood aloof, which demonstrated their lack of interest and breach of public trust. Unfortunately,the legislative measures taken to protect public properties were disregarded and an attempt was made to lose hospital property. The obvious cause behind such loss is not maintaining the record of the public properties, which is duty of the Revenue Authorities. If the Health Department had properly defended the ownership of hospital, they would have agitated the claim for cancellation of bogus allotment but they remained silent and did not pursue the matter properly, even they failed to attend the Trial Court after submission of Written Statement. The plaintiffs/Respondents No 1 to 3 sought indulgence of the Court and summoned the Medical Superintendent for recording of evidence as Court Witness. This fallacy, laxity and lackluster approach on the part of Health Department caused heavy damage to the Public Property and shops and other structures were raised on the plot. It is high time, it is necessary to give shut up call to the devil minds who encroach the schools, hospitals, libraries and convert them for personal use, it is essential to lay down a proper mechanism to better preserve and protect public properties and to have easy access to the information and particulars of public properties in particular hospitals, libraries and Schools. The Administrative Departments of Government of Sindh shall ensure to prepare and maintain a complete physical and electronic/ digital record of all public properties, which shall include, making requisite entries, if not already made, in the revenue/land record in the name of the concerned department, and mention its area, abutment, coordinates and any other particulars for their easy identification. The record with regard to every department’s publicproperties must be permanently maintained and be kept in the office of every Mukhtiarkar at Taluka Level and Head of the Department at District Level in a register of records and digital form.
32. This litigation over Hospital Plot is under adjudication since 2012, therefore Trial Court is directed to get the decree executed and Suit Property be vacated, if under occupation of applicant, erase the illegal buildings erected by the applicant over hospital area and hand over its vacant possession to the Hospital Administration within a period of one month from the date of receipt of this Order. The District Administration including Deputy Commissioner KashmoreKandhkot, Senior Superintendent of Police Kashmore at Kandhkot, Medical Superintendent Taluka Hospital Kashmore, District Health Officer Kashmore at Kandhkot are directed to cooperate with the Trial Court in getting the Hospital Property free from all sorts of encroachment and to ensure that it is restored to its position prior to allotment in favor of Applicant.
Office to send the Copy of this Order to worthy Chief Secretary Sindh for compliance.
The Revision application stands disposed of in above terms.
Judge
PA/Asghar