JAN MUHAMMAD ABBASI vs MUKHTIARKAR ESTATE, LARKANA (BARRAGE

' KHILJI ARIF HUSSAIN, J.---By this order I intend to dispose of Civil Revisions Applications Nos.69, 70 and 71 of 2004, as common questions of law are involved.

2. Brief facts for the purpose of deciding these revision applications are that applicant filed suit for declaration and permanent injunction in respect of agricultural land that they are the owners of the property bearing No,(sic) and further seeking declaration that the order dated 11-11-2000, passed by the respondent No,6 to cancel the Revenue Record and dispossess the applicant from the property in question, as ab initio void and illegal. It was alleged in the memo. Of plaint that agricultural land was granted to applicant/plaintiff by Colonization Officer, Sukkur Barrage, at Hyderabad in open Katchery on Harap condition in 1981-82. The applicant further alleged that in terms and conditions of the grant they paid the requisite instalments and after clearing the same A-Form/T.O. Form was issued in accordance with rules and regulations and on the basis of the same after due verification name of the applicant was mutated in the record of rights. It was alleged that respondent No,6 without hearing the applicant vide his order, dated 11-11-2000 cancelled the entries in favour of the applicant in respect of the land in question. The applicant/plaintiff impugned said orders by way-of filing the suit.

3. The respondents filed written statement and in the said written statement it was categorically stated that disputed land is still Nakabuli. Central Government surrendered land and is not disposed of as yet to any one by the Barrage Department. The respondent denied the allegation of the applicant/plaintiff that they have paid the price of the land granted to them.

4. After framing of the issues and recording of the evidence learned trial Court decreed the suit of the applicant/plaintiff. The said judgment and decree were impugned by the respondent by way of filing the appeal. It appears that learned Additional District Judge set aside the order of learned trial Court and remanded the case to decide the same afresh after reconsideration of the evidence/ documents of the parties and discuss the issues separately after hearing the parties.

The learned trial Court, after remand of the case heard the arguments of learned counsel for the parties and again decreed the suit filed by the applicant vide its judgment dated 5-12-2002. The respondent preferred appeal, which was heard by Vth Additional District Judge, Larkana, who set aside the judgment and decree passed by the trial Court and dismissed the suit of the applicant/plaintiff with compensatory cost of Rs,25,000.

5. Heard Mr. Muhammad Anwar Channa, learned Advocate for the applicant and Mr. Muhammad Bachal Tonyo, Additional Advocate-General.

6. The only ground on which order impugned has been questioned by the learned Advocate for the applicant was that the learned Additional. District Judge has committed error of law in holding that the Civil Court had no jurisdiction to entertain the suit filed on behalf of the applicant/ plaintiff and in support of his contention the learned Advocate relied upon section 53 of the Land Revenue Act and it was argued that Civil Court has unlimited jurisdiction and can set aside any order which was passed without jurisdiction by any forum.

7. On the other hand, Mr. Muhammad Bachal Tonyo, learned Additional Advocate-General contended that land was never granted to applicant/plaintiff, who manipulated documents and got his name mutated in the record in connivance with some officer of department. After verification of the record and after due notice to the applicant, respondent No,6 ordered to cancel the said entries and reverted the land in question to the Government.

8. I have taken in consideration the respective arguments advanced by the learned Advocates for the parties. It appears that respondent No,6 cancelled the entries in favour of the applicant/plaintiff holding that one Munshi Allah Bux Shaikh is found guilty in mutating the Government land illegally in favour of the private persons. Instead of questioning the said order in hierarchy of the Land Revenue Act the applicant filed suit seeking declaration that said order is illegal, void ab initio.

Section 53 of the Land Revenue Act proceeds that if any person considers himself aggrieved by an entry in a record-of-rights or in a periodical record as to any right of which he is in possession, he may institute a suit for a declaration of his right under Chapter VI of the Specific Relief Act, 1877. The said section applies to a person, who feels aggrieved by some entry in the record-of-rights, whereas in the instant case the applicant/ plaintiff is questioning order of respondent No,6 for cancellation of entry in favour of the applicant/plaintiff and accordingly in my humble view section 53 of the Land Revenue Act is not applicable to the facts of the case.

9. Section 11 of the Sindh Revenue Jurisdiction Act, 1876 bars jurisdiction of Civil Court to entertain any suit which is filed on account of any act or omission of any revenue officer unless plaintiff proves that he has presented appeal allowed by the law for the time being in force within the period of limitation of such suit. Admittedly, applicant has not filed any appeal or revision before the revenue authorities calling in question order passed by respondent No,6. In the case of Hawaldar Sawar Khan v. Province of Sindh 1998 CLC 382, the learned Single Judge of this Court upheld the order of rejection of the plaint under similar circumstances as barred under section 11 of Sindh Revenue Jurisdiction Act, 1876 and in my view the learned Appellate Court rightly held that the suit filed by the plaintiff calling in question impugned order of respondent No,6, without first availing remedy available under the hierarchy of the Revenue Act, was not maintainable. An order can be strictly not in accordance with law or correct. Order, but it cannot be said that same has been passed without jurisdiction. Revenue Courts have exclusive jurisdiction to determine matter pertaining to revenue, partition etc. If any case-law is required, one can see Muhammad Hafeez .v.

Jalal Din 1981 SCM R 1171, Himayat Ahmad v. Khalid Khan and others 1991 M LD 153.

10. Now coming to merits of the case, applicant in his plaint stated that the land was granted to him by the Barrage Department in open Katchery and he had deposited all consideration in terms of grant, but applicant failed to place on record any document in support of it. On the contrary, it was stated by the learned Advocate for the applicant that it was for the respondents to produce such documents. In my view the contention of the learned Advocate for the applicant has no force.

The burden to prove that the land was granted to the applicant/plaintiff in open Katchery and he had paid entire sale consideration was upon the applicant/plaintiff, which burden admittedly the applicant/plaintiff had failed to discharge. No document has been placed in this regard by the applicant/plaintiff except oral statement, which was challenged by the respondents. In the absence of documentary evidence that the land in question was granted on Harap to applicant/plaintiff in open Katchery and in terms of the grant he had paid all consideration, the order passed by the respondent No,6 cannot be said and order without jurisdiction. The applicant/plaintiff failed to place on record even at this stage, any document in support of his contention that land in question was granted to him in open Katchery and he had paid the entire price as per terms of grant. For the foregoing reasons revision applications having no merits and accordingly dismissed, however with the modification that the cost awarded by the learned Appellate Court is a harsh order and to that extent impugned judgment and decree is modified and the suit of the applicant/plaintiff is dismissed, with no order as to costs.

11. Before parting with this order. I would like to observe that since the relief to the applicant/plaintiff has not been granted by Appellate Court for want of jurisdiction of Civil Court, the applicant, if so advised, can approach the revenue authorities for redress of his grievance and while considering the question of limitation in filing the appeal, benefit of excluding time consumed in pursuing the remedy before the Civil Court will be considered sympathetically.