MUHAMMAD SALEH AND ANOTHER vs MAHER SHAH AND 3 OTHERS

' In March 1974, respondent No, 1, Maher Ali Shah, was granted as landless Hari, 13.15 acres from unassessed No, 174, Deh Thariri Hajran, Taluka Warah, District Larkana, by the Colonisation Officer, Sukkur Barrage. Possession of the land granted was also given to Maher All Shah. The two applicants-Muhammad Saleh and Hidayatullah, preferred an appeal against this grant, to the Additional Commissioner, Sukkur Division, who by order dated December 27, 1975, dismissed the appeal. The two applicants filed revision application before Member, Board of Revenue, Sind, against the order of the Additional Commissioner, Sukkur. On the date of hearing before the Member, Board of Revenue, Maher Ali Shah respondent was absent. The Member heard the Revision Application ex parte, and by order dated January 2, 1978, set aside the order of Additional commissioner, and granted the disputed land to the two applicants in equal shares.

2. By notice dated June 21, 1978, the Mukhtarkar of Warah asked respondent Maher Ali Shah to hand over possession of the disputed land to the two applicants, failing which coercive methods would be taken against him.

3. On June 26, 1978, respondent Maher Ali Shah brought Suit No 218 of 1978 before the Senior Civil Judge, Larkana, for declaration that the order of the Member, Board of Revenue, cancelling the grant was illegal, void and without jurisdiction, and for permanent injunction restraining the two applicants and other defendants from taking forcible possession of the land. Respondent Maher Ali Shah also applied for temporary injunction to restrain defendants from interfering with his possession of the suit land.

The Senior Civil Judge, Larkana, by his order dated February 11, 1979, issued temporary injunction, since notice of the Mukhtiarkar to respondent Maher Ali Shah clearly showel latter was in possession of the, suit land. In appeal by the two applicants, the Additional District Judge, Larkana, by order dated June 2, 1979, upheld the order of the Senior Civil Judge.

5. This is a revision application filed by the two applicants against the order of the Additional District Judge.

6. Counsel for the applicants has urged that jurisdiction of the Civil Courts is barred by virtue of section 36 of the Colonization of the Government Land (Punjab) Act, 1912,'as applicable to Sind, and subsection (1) of section 172 of the Sind Land Revenue Act, 1967, in that the order of the Member, Board of Revenue, Sind cannot be questioned in civil Court. But in spite of these provisions, the civil Courts are entitled to see whether authority concerned acted in compliance with law. Haji Muhammad Ibrahim v. Fateh Muhammad and others (1) and Secretary of State v. Mask & Co. (2).

Here respondent Maher Ali Shah has brought this suit that order of Member, Board of Revenue, is illegal because it was passed without hearing him and without notice, having been served on him.

Under section 164 of the Sind Land Revenue Act, 1967, no order shall be passed in Revision reversing or modifying any order of a subordinate Revenue Officer affecting any person without giving such person opportunity of being heard. Since it is alleged that the above provision of law is not complied with, civil Court has got jurisdiction to go into that question.

7. In plaint para. 9, it is averred that order of the Member, Board of Revenue was fraudulently obtained because (i) some bogus person appeared to have been served with a notice of Revision.

Petition ; (ii) it was misrepresented to the Member, Board of Revenue, that respondent Maher Ali Shah was Zamindar owning about 50 acres, whereas he is only a landless Hari; (iii) it was misrepresented to the Member, Board of Revenue, that respondent No, 1 lives 4 miles away from suit land, though in fact he lives only mile away from there; (iv) it was concealed from the Member that Maher All Shah was a Hari in Deh Tbriri Hajran where the suit land is situated. Plaintiff respondent No 1 is, therefore, entitled to show under section 44 of the Evidence Act, that the order of the Member, Board of Revenue was obtained by fraud.

8. There is concurrent finding of fact of the two Courts below that respondent Maher Ali Shah is in possession of the suit land. The Courts' have not acted illegally or with material irregularity. The decision of the two Courts below issuing temporary injunction is quite legal and in exercise of jurisdiction vested in them. Revision application is, therefore, dismissed with costs.

(1) PLD 1960 Lab. 1106

(2) AIR 1940 P C 105