IN
THE HIGH COURT OF SINDH AT KARACHI
Date of Hearing: 30.09.2013.
Applicant: Jan
Muhammad & 6 others
through Mr. Mir Mohammad Jamali, advocate.
SALAHUDDIN PANHWAR, J. Through this Civil Revision, the applicant
has assailed judgment and decree dated 03rd March 2010 and 06th
March 2010, passed by Ist Additional District Judge, Thatta in Civil Appeal
No.15 of 2003, (Re:Jan Mohammad and others vs. Muhammad
Siddik and others), whereby learned Appellate Judge maintained the judgment
dated 28th January 2003 passed by the Senior Civil Judge, Thatta in
First Class Suit No.44 of 1991 (Re: Muhammad Siddik vs. Province of Sindh and
others).
2. Succinctly, the facts, as pleaded
by respective parties, are that plaintiff/respondent No.1 filed FC Suit for
Declaration and Permanent injunction, wherein pleaded that a residential plot
No.C, admeasuring 2475 Sq.ft, situated in Makli Taluka, District Thatta was
allotted to plaintiff/respondent No1 for residential purpose by the Deputy Commissioner,
Thatta (respondent No.3) after completing all legal formalities at the rate of
Rs.4/- per Sq.ft vide his order No.Rev./-1593 of 1989 Thatta dated 30.4.1989.
Allotment order was confirmed by the Commissioner, Hyderabad Division,
Hyderabad vide his order No.212 Rev-III/-89-1235 Hyderabad dated 02.05.1989 at
the rate of Rs.3/- per Sq.ft instead of Rs.4/- per Sq.ft. The plaintiff /
respondent No.1 paid malkana; executed Qabooliat and Ijazatnama was also issued
in his favour on 15.5.1989. The plaintiff / respondent No.1 was put in
possession of the suit plot and entries were also affected in village Farm-II.
Some mischievous persons put the evil eyes over suit plot and compelled
plaintiff / respondent No.1 to sell suit plot to them. On refusal by plaintiff
/ respondent, those persons filed a time barred incompetent appeal before the
defendant /respondent No.2, but without
giving proper opportunity of hearing cancelled the suit plot vide his order
dated 27.9.1990 which order of defendant / respondent No.2 is null, void,
malafide, without jurisdiction, against the principles of natural justice,
equity and without jurisdiction. The plaintiff / respondent No.1 appeared on
first date of hearing before defendant / respondent No.3 and moved application
for time to engage advocate but he did not hear and passed such illegal and
malafide order. It is further alleged that defendant / respondent No.3 under
the influence of Chief Minister of Sindh cancelled all the plots granted to the
persons during the period commenced from 01.12.1988 to 06.8.1990, including the
suit plot of plaintiff / respondent No.1 without any reason but on political
grounds. This order of defendant No.1 / respondent No.2 was communicated to
plaintiff /respondent No.1 through defendant / respondent No.4 vide his order
No.Rev/-2791 of 1990, Thatta dated 17.10.1990. plaintiff / respondent No.1
claimed that order of cancellation was illegal, void, malafide and without
jurisdiction as allotment in his favour was legal and that he incurred
considerable amount over leveling the same and that he has been in possession
therefore, prayed for following relieves:-
“a)
Declare that orders of defendant No.2 dated 27.9.1990 and defendant No.3 dated
17.10.1990 passed 9on the directions of defendant No.1 canceling the suit plot
viz. plot No.A, area 2475 Sq.feet situated in Makli are null, void, malafide,
without jurisdiction and against the principles of natural justice and equity
and further declare that the plaintiff is lawful allottee of the suit plot and
is owner of suit plot situated in Makli, Taluka & District Thatta;
b)
Issue permanent injunction restraining
the defendant, their agents, representatives and / or any other person claiming
through them from interfering with peaceful possession and enjoyment of the
plaintiff over the suit plot or doing any other act prejudicial to the interest
of plaintiff;”
3.
Defendant No.3 / respondent
No.4 also filed written statement, wherein contended that plot was cancelled by
Board of Revenue Sindh in an appeal after hearing both parties. He also
maintained that grant was made to plaintiff and subsequently confirmed by
Commissioner, Hyderabad Division was in violation of statement of condition
notified under No.KB-1131838-07 dated 12/5/1975, by the competent authority.
Since the original grant and its subsequent confirmation was without jurisdiction,
therefore, grant was rightly set-aside by the competent authority, the order
passed by defendant No.2 / respondent was right, proper and lawful and suffer
from no legal infirmity. He further maintained that honourable Chief Minister
of Sindh in his general directive canceled the grants / lease and allotments of
state land, which were made in contravention of statement of conditions in
between the period from 01.12.1988 to 06.8.1990 which were motivated by political
means and as grant in favour of plaintiff /respondent No.1 was made in between
that period so he was informed the action, taken in the matter. The learned
trial Court judge framed certain issues and on conclusion of trial, decreed the
suit.
4.
The record further shows
that later, an application U/s 12(2) CPC was filed by the defendants No.4 to 10
and in consequent whereof the judgment and decree were set-aside by learned
trial court judge vide order dated 11.7.1995 and defendants No.4 to 10 were
allowed to file written statement they filed their written statement as Ex.86,
in which they denied allegations of plaintiff / respondent No.1. They further
stated that boundaries given of the alleged suit plot are false no such plot
exist with alleged boundaries. The order of Deputy Commissioner, Thatta bearing
No.Rev.1593 of 89 dated 30.4.1989 is illegal without
jurisdiction, malafide, abinito, void as Deputy Commissioner as per statement
of conditions regarding the grant of plots issued under No.KB-1/1/30/72/7096 dated
12.5.1975 Deputy Commissioner / Collector has power only to grant plots
measuring 80 Sq.yards without auction. As such Deputy Commissioner, Thatta the
defendant No.3 had no power to grant a plot measuring 2475 Sq.yards to
plaintiff; the order of Commissioner Hyderabad Division vide order No.212
Rev.-III/89-1235 dated 02.5.1989, confirming the said plot in favour of
plaintiff is illegal, without jurisdiction, abinitio, void as Commissioner
could only confirm plot measuring 120 Sq.yards without auction as per statement
of condition dated 12.7.1975 thus Payment of Malkana execution of Qabooliat and
issuance of ijazatnama are all illegal act and confer no right title or
interest upon the plaintiff over suit plot as the very grant of plot to
plaintiff by Deputy Commissioner and confirmation by Commissioner are illegal
and without jurisdiction. It is further submitted that plaintiff was never put
in possession of suit plot, he never remained in possession of suit plot nor he
is in possession of suit plot. It is further submitted that answering
defendants and other persons of Hamaiti casts have thirty houses situated in
Dost Muhammad Hamaiti village adjacent to Thatta drainage Division office and
on eastern side of Makli Ghulamullah road at Makli District Thatta. This village is in existence since more than
40 years. Defendant No.3 sanctioned the existing Dost Muhammad Hamaiti village
in an area 8.18 acres under his order No.GAS/166 dated 17.5.1993. They prayed
that order of grant in favour of plaintiff / respondent No.1 was illegal and
that suit was not maintainable as order of cancellation was legal and lawful.
The learned trial court judge framed issues afresh and on conclusion of trial,
decreed the suit of the plaintiff / respondent No.1.
5. Learned counsel for the
applicants, inter- alia has contended
that both the judgment (s) and decree (s) of learned lower courts are not
legal, proper hence not sustainable under the law; the issue (s) and points for
determination were not properly framed by the learned lower courts hence the
judgments and decrees of courts below cannot be said to be legal because the
learned lower court(s) below decreed the suit with reference to a document
which was never produced on record. There is a departure from mandatory
provision of Order XLI R 31 CPC which has resulted into serious illegalities,
therefore, it was concluded that the appeal be allowed.
6. On the other hand, learned
counsel for respondent, argued that instant Civil Revision is devoid of merits.
Both Court(s) below have appreciated evidence within the spirit of law hence
concurrent findings can not be disturbed in Revisional proceedings.
7.
After careful consideration
of contentions, advanced by either sides, examination of material available record and perusal of
the both the judgments of learned lower court would show that the decision
arrived was based with reference to policies of the government while holding
that the property in question falling within rural area of Makli Town.
8.
At this juncture, I would
insist that since both the learned lower court (s) have passed their decision
(s) while comparing two policies / Notifications issued on the same date i.e 12th
May, 1975 by Sindh Government i.e Notification No.KB-1/1/30/72/7096 and
KB-1/1/30/72/7098 but neither the learned trial court framed any issue with
reference to such controversies nor the learned appellate Court framed any
point for determination to that aspect. The comparative reading of both the
policies / notifications show that the former notification/policy was in
respect of disposal of government land :
“within the local limits of Taluka Karachi or of Karachi
Development Authority Schemes or Municipal Committees in the Provinces”
while
the later notification/policy was also for disposal of government land:
“within the limits of People Town Committees, Mandi Towns and
other colony areas of Province of Sindh”
Thus
the point / issue regarding application of the notification/policy could not be
legally done unless it is determined that as to where plot (piece of government
land) falls. Though the learned trial court observed as “it also appears that
the suit plot is situated at Makli rural” but the judgment of lower court (s),
no where, speaks as to how they arrived at this finding, particularly where
such finding / observation is not supported with any document nor the parties
were ever put on notice to prove this aspect of the matter and even no report
in this regard was ever called by the learned trial court or by the learned
appellate court which affirmed the judgment of learned trial court.
9.
Above position reflects
that the object of the Order XIV R 1 of the Code was never properly achieved,
which provides that “every material proposition of fact or law, affirmed by one
and denied by other, should be dress as an issue”. The stage of framing of
issue(s) is not a mere formalities but the object behind it to put the parties
on complete notice and knowledge whereby enabling them to support their
respective claims by relevant evidence on all material points. It is also worth
to add here that the later policy / notification bearing No.
No.KB-1/1/30/72/7096 and KB-1/1/30/72/7098 was never referred by the plaintiff
/ respondent No.1 nor it was his case that matter of allotment of the plot
falls into meaning of this policy instead of that in such an eventuality if the
learned trial court was going to consider a policy/notification not brought on
record as per prescribed procedure, it was obligatory upon the learned trial
court judge to have framed such issue for which the learned trial court was
always competent within meaning of Rule-5 of the Order XIV of the Code. It is
also important to mention here that Order XIII of the Code puts an obligation
upon the parties or their pleaders to produce, at the first hearing of the
suit, all the documentary evidence of every description in their possession or
power, on which they intend to rely, and which has not already been filed in
Court, and all documents which the Court has ordered to be produced. The object
behind this provision is also meant to put other side on a notice of such
document. It needs not be mentioned that document not brought on record through
witnesses and duly exhibited, the validity of such a document, could not be
taken into consideration by the court, else not only the object of Order XIII
of the Code but also the principle of natural justice and equity shall stand
frustrated as held by Apex Court in case of Federation of Pakistan through
Secretary Ministry of Defence & another vs. Jaffar Khan & others (2010
PLD SC 604).
10. It is pertinent to mention that
the administration of justice demands that the decision should not be made in
an arbitrary manner but should strictly be confined to the manner provided by
the law itself. The Court (s), no doubt, for proper determination of the rights
of parties, could consider those things which are not pleaded by either sides
but not in deviation or departure of the procedure because the procedure is
aimed to do substantial justice and not to surprise the parties. The provision
of the Order XIV and that of Order XLI Rule 31 of the Code should always been
given their due weight else every single decision will give rise to the plea of
prejudice, which cannot be approved.
11.
The concurrent findings
cannot be considered sacred in a situation where the rights of the parties are
not determined in accordance with law and the judgment of the courts below are
perverse or based on misreading or non-reading of the evidence. The Revisional
jurisdiction, as a matter of fact, is meant to rectify the errors made by the
subordinate courts particularly where a serious departure from law resulting
into a plea of prejudice is found.
12. As discussed above, this Court
while accepting the instant revision application, set aside the impugned
judgment of the courts below, and the case is remanded back to the trial Court
to decide the matter afresh after framing the proper issue regarding
application of policies, under the law.