PROVINCE OF THE PUNJAB through Collector District Khushab, Jauharabad

CH. IJAZ AHMED, J.--- We intend to decide captioned appeals by one consolidated judgment having similar facts and law arising out of the common judgment of the Lahore High Court, dated 30-10-2001.

2. Appellants/petitioners had sought leave to appeal against the judgment of the Lahore High Court, dated 13-10-2001 wherein the revision petitions filed by the private respondents were accepted through the impugned judgment.

3. Necessary facts out of which the aforesaid appeals have been arisen are that respondents filed suit for declaration along with permanent injunction and consequential relief against the appellants in the Court of Civil Judge, First Class Khushab to the effect that all the orders passed by the Revenue Authorities against them were illegal and void. Petition filed by respondent No,1 in present Civil Appeal No,166 of 2003 reveals that land in question was allotted on 4-3-1960 as depicted from Roznamcha No,353, dated 8-7-1969. The contents of the plaint further reveal that possession of the land in question was given to the respondent by the appellants in the year 1960.

The contents of the plaint further reveal that the allotment order and Rapat Roznamcha about allotment and possession in favour of the respondents/plaintiffs, were misplaced by the official of the appellants mala fide, there EACO/ Collector Jauharabad after enquiry held that the allotment in favour of the respondents was bogus vide order, dated 27-9-1981 which order was upheld by the Additional Commissioner (Revenue), however, in revision Member Board of Revenue remanded the case to the Assistant Commissioner/Collector Sub-Division Noorpur Thal for decision afresh who again decided the case against the respondents/plaintiffs on 10-12-1989 thereafter appeals and revision filed by the respondents were dismissed vide orders, dated 28-2-1989 and 5-12-1991 by Additional Commissioner and Member Board of Revenue. Similar are the facts of the connected appeals. Appellants filed written statement controverting the allegations levelled in the plaint. Out of the pleadings of the parties, the trial Court framed eight issues. Learned trial Court after completing the legal formalities such as recording of evidence of the parties decreed the suit vide judgment and decree, dated 10-5-1997. The appellants being aggrieved filed appeals in the Court of Additional District Judge, Khushab which were accepted vide judgment, dated 7-8-2000. Private respondents being aggrieved filed civil revisions in the Lahore High Court which were accepted vide impugned consolidated judgment, hence the appellants/petitioners filed civil petitions before this Court which were fixed before this Court on 3-2-2003 when leave was granted in the following terms:- ' "Leave to appeal is granted to consider whether in the absence of any allotment order by the competent authority mere report in "Roznamcha Waqiati' could confer right to claim proprietary rights in addition to the effect of jurisdictional bar, perceived by the Colonization of Government Lands (Punjab) Act, 1912."

4. Learned counsel for the appellants submits that learned. First Appellate Court was justified to non-suit the private respondents with cogent reasons keeping in view the law laid down'by this Court in a similar case in Writ Petition No,11989 of 1980 titled Noor Muhammad and others v. EACO and others. She further submits that respondents have no allotment letter in their favour which fact was not considered by the trial Court in true perspective as well as by the High Court and this fact was considered by the First Appellate Court in its true perspective. She further submits that mere entries in the Roznamcha do not confer any title in favour of the private respondents. She further submits that Civil Court has no jurisdiction to take the cognizance of the matter and entertaining the suit in view of section 36 of the Colonization of Government Land (Punjab) Act, 1912.

5. Learned counsel for the respondents has supported the impugned judgment. He submits that learned trial Court was justified while ignoring the judgment of the High Court in the aforesaid writ petition as the private respondents were not party in the said writ petition. He further submits that First Appellate Court erred in law to reverse the findings of trial Court on Issues Nos.5 to 7 without any justification and without judicial application of mind. He further submits that learned High Court has given findings of fact against the appellants after proper appreciation of evidence on record and this Court normally does not interfere in the findings of fact recorded by learned High Court while exercising its powers under Article 185(3) of the Constitution of the Islamic Republic of Pakistan, 1973.

6. We have given our due consideration to the contentions of the learned counsel for the parties and perused the record.

7. It is admitted fact that in Writ Petition No,11989 of 1980 private respondents were not party therefore, learned First Appellate Court erred in law to non-suit the private respondents in view of the order of the High Court. The judgment of the High Court in the said writ petition is judgment in personam therefore, learned First Appellate Court has erred in law to non-suit the private respondents on the basis of judgment of the High Court which is not in consonance the law laid down by this Court in Pir Bakhsh v. The Chairman, Allotment Committee and others PLD 1987 SC 145.

It is also settled principle of law that judicial officers are duty bound to decide the cases after judicial application of mind as law laid down by this Court in Gouranga Mohan Sikdar's case PLD 1970 SC 158. It is also settled principle of law that judgment of this Court is ending on each and every organ of the State by virtue of Articles 189 and 190 of the Constitution of the Islamic Republic of Pakistan, 1973. In view of aforesaid reasons the High Court was justified to reverse the findings of First Appellate Court while exercising powers under section 115, C.P.C. It is pertinent to mention here that the learned trial Court had considered each and every piece of evidence on record while rendering the finding of fact qua Issues No,5 to 7 in favour of the respondents in paras.9, 10 and 11 consisting of eight pages. The said findings were reversed by the First Appellate Court without application of mind as is evident from the operative part of the findings of First Appellate Court which is as under:- "(12) The Court decided these issues together against the order of remand. The plaintiffs- respondents could not prove their allotment under the scheme. The Revenue Officers found the respondents as lessees. The findings of the Revenue Officers are not open to challenge. The order of the Additional Commissioner and Board of Revenue arc against the respondents. The orders are neither illegal nor in any way mala fide and without authority. The findings on Issues Nos.5 to 7 are also reversed."

8. It is also settled law that it is the duty and obligation of the First Appellate Court to reverse the findings of trial Court by meeting the reasoning of the trial Court as law laid down by this Court in Madan Gopal and 4 others v. Maran Bepari and 3 others PLD 1969 SC 617 whereas mere reading of the aforesaid findings of First Appellate Court clearly shows that First Appellate Court had reversed the findings on Issues Nos.5 to 7 without judicial application of mind and in violation of dictum laid down by this Court in Madan Gopal's case (Supra). In this view of the matter learned High Court was justified to reverse the judgment of the First Appellate Court after judicial application of mind while discussing each and every piece of evidence as is evident from paragraphs Nos.9 to 11 of the impugned judgment. The plea raised by learned counsel for the appellant that Civil Court had no jurisdiction to take the cognizance of the matter has no force in view of the law laid down by this Court in (i) PLD 1960 SC 113, (ii) Abdul Rab and others v. Wali Muhammad and others 1980 SCMR 139 and (iii) Muhammad Jamil Asghar v. The Improvement Trust, Rawalpindi PLD 1965 SC 698. It is pertinent to mention here that different statutes provide that an order made by the authority acting under it shall not be called, in question in any Court. The intentions of the Legislature in their wisdom qua section 36 of Colonization of Govermnent Lands (Punjab) Act, 1912 are that the E officers working under the Act should exercise their powers freely and should not be interrupted unnecessarily to administer colony land according to the terms and conditions issued by the competent authority off and on but this provision does not give unfettered power. The ambit of jurisdiction has been prescribed by the Act and the officers functioning thereunder cannot be allowed to act beyond their scope of jurisdiction. The Civil Court while exercising supervisory jurisdiction has the authority to interfere, if the orders are without jurisdiction, mala fide, excessive or otherwise not in accordance with law or based on fraud. This proposition of law was considered by the Privy Council in Secretary of State v. Mask and Company AIR 1940 PC 105 and laid down the following principles:-- "The exclusion of jurisdiction of the Civil Courts is not to be readily inferred but that such exclusion must either be explicitly expressed or clearly implied. It is also well-settled that even if jurisdiction is so excluded, the Civil Courts have jurisdiction to examine into cases where the provisions of the Act have not been complied, or the statutory Tribunal has not acted in conformity with the fundamental principles of judicial procedure."

' The aforesaid proposition of law was considered by this Court in Zafarul Ahsan's case (supra) and laid down following principles:-- "Of course where the proceedings are taken mala fide and the statute is used merely as a cloak to cover an act which in fact is not taken though it purports to have been taken under the statute, the order will not, in accordance with a long line of decisions in England and in this sub-continent, be treated as an order under the statute."

' There are several pronouncements of the superior Courts that Civil Court in spite of the exclusive power has jurisdiction to take the cognizance of the matter in case the authorities under the Special Law have passed the order in violation of Rules and Regulations or mala fide. It is also settled law that manner of exercising power is also termed as mala fide as law laid down by this Court in Agha Shorash Kashmiri's case PLD 1969 SC 14. The aforesaid proposition of law with regard to the jurisdiction of the Civil Court is supported by following judgments:-

(1) Khadim Hussain's case PLD 1967 Lah. 915, (2) Muhammad Amin's case NLD 1998 Rev. 47, (3)

Jewana's case PLD 1954 Lah. 253, (4) Karam Dad's case PLD 1978 Lah. 679, (5) Muhammad Saleh's case 1980 CLC 662, (6) Muhammad Ibrahim's case PLD 1960 Lah. 1106, (7) Masood Ali's case PLD 1950 Lah. 340, (8) Anjuman-e-Taleem-ul-Islam's case PLD 1983 Lah. 294, (9) Hamayun's case 1997 MLD 2669, (10) Muhammad Akram's case PLD 1993 Lah. 114, (11) Nawab Din's case 2003 CLC 1922,

(12) Fateh Muhammad's case 2002 CLC 639, (13) Muhammad Zafar's case 2003 CLC 1922, (14)

Muhammad Saleh's case 1980 CLC 662, (15) Khadim Hussain's case 1970 SCMR 127 and (16)

Muhammad Shafi's case 1982 CLC 55.

' The ratio of the aforesaid judgments is that section 36 of the Colonization of Government Lands (Punjab) Act, 1912 is available only where the authorities concerned acted within powers and four corners of their jurisdiction and not their acts are ultra vires or without jurisdiction or void or in excess of their jurisdiction. It is pertinent to mention here that trial Court, as mentioned above, has given findings of fact against the appellants that orders were passed by the appellants against the respondents mala fide, without jurisdiction. The said findings were approved by the learned High Court in the impugned judgment, therefore, contention of the learned counsel for the appellant that Civil Court had no jurisdiction to take the cognizance of the matter and entertain the suit filed by the respondent has no force. It is settled principle of law that public functionaries are duty bound to pass the orders in accordance with law in view of Article 4 of the Constitution of the Islamic Republic of Pakistan, 1973 as law laid down by this Court in Utility Stores Corporation of Pakistan Ltd. v. Punjab Labour Appellate Tribunal and others PLD 1987 SC 447. Both the Courts below i,e, trial Court and the Lahore High Court have given concurrent conclusion against the appellant that officials of the appellants had misplaced the original record and the appellants had not taken any action against them. It is settled law that nobody should be penalized for the act of the public functionaries as law laid down by this Court in Umer Din (deceased) through L.Rs, and others v.

Abdul Rahim and others 2005 SCMR 496.

9. Both the Courts below i,e, trial Court and the High Court have given concurrent conclusion against the appellants. This Court does not normally, interfere in the concurrent conclusion arrived at by the Courts below under Article 185(3) of the Constitution of the Islamic Republic of Pakistan, 1973 as laid down by this Court in Muhammad Ishaque's case PLD 1977 SC 109. Learned counsel for the appellants has failed to bring the case within the parameters prescribed by this Court in Muhammad Ishaque's case (supra).

10. We do not find any infirmity or illegality in the impugned judgment passed by the Lahore High Court, therefore, appeals are dismissed with no order as to costs.