MUHAMMAD HASHIM Versus ABDUL MAJID

1. Through this civil revision applicant Muhammad Hashim has called in question judgment dated 12‑4‑1992 and decree dated 30‑4‑1992 of District Judge, Sukkur in Civil Appeal No.400/91 confirming the judgment dated 24‑4‑1991 and decree dated 30‑4‑1991 in Suit No. 72 of 1987 of Second Senior Civil Judge, Sukkur whereby he dismissed the suit filed by applicant.

2. The requisite facts of the revision are that applicant filed a suit in the Court of Senior Civil Judge, Sukkur being Suit No. 111 of 1986 which was subsequently transferred to the Court of Second Senior Civil Judge, Sukkur and renumbered as Suit No. 72/87, challenging the regrant of an area of land measuring 9‑20 acres in favour of respondent No. 1 from unassessed Survey No. 101, Deh Hamon Loi, Taluka Rohri by respondent No.6 vide orders dated 4‑6‑1986. Originally the above area viz. 9‑20 acres of land was granted to respondent No. l in year 1959 under Old Land Grant Policy and rules on Harap basis in open Katchery by respondent No.6, Colonization Officer, Sukkur Barrage. Respondent No. l paid 3/4 instalments but thereafter could not pay the further instalments due to financial conditions and other circumstances and because of non‑payment of instalments the above‑grant in his name was cancelled in the year 1965. Respondent Abdul Majid applied for the regrant of the above‑cancelled land to Commissioner, Sukkur Division who transferred the matter to Additional Commissioner, Sukkur Division who too rejected his request on the ground that the land in question falls within 20 chains of village Mazar Khan Joyo and that the regrant being requested after 12 years is not reasonable. Thereafter respondent No. l applied to the Board of Revenue, Sindh, Hyderabad against that order where applicant on getting knowledge filed objections and the Board of Revenue after hearing the parties rejected his request by an order dated 19‑12‑1985, holding that the land lies within 20 chains of the village.

3. It is mentioned in the revision that Commissioner recommended the case of the villagers for reservation of the land for Asaish but before that respondent No.2 arbitrarily, illegally and without hearing the applicant allowed the regrant in favour of respondent No. l on 4‑6‑1986. According to the applicant the regrant is illegal, ultra vires and against the land grant policy as the land falls within 20 chains of village Mazar Khan Joyo and could not be granted for cultivation purposes and should have been reserved for village Asaish.

4. Respondent Abdul Majid filed his written statement wherein he admitted that the land was granted to him under Old Land Grant Policy during 1959‑60 on the Harap basis and on the ground that the land in question was separated by working watercourse from village Mazar Khan Joyo. Neither any objection was raised from the villagers nor any appeal or revision was filed at that time against such grant. However, due to non‑payment of further instalments the grant was cancelled in 1965. The respondent has further mentioned in the written statement that the disputed land was regranted to him after usual, process, inquiries, investigation and recommendations of Colonization Officer Guddu Barrage, Deputy Commissioner, Sukkur as well as Commissioner, Sukkur Division. The applicant has actually no right or interest in the land but filed this suit in order to take its forcible possession, resulting in registration of certain criminal cases against the respondent and his family members. Lastly the respondent in his written statement agitated legal pleas that suit is not maintainable according to law and is hit by sections 42 and 56 of Specific Relief Act and that the Civil Court has no jurisdiction to entertain the suit and that respondent has developed it by incurring heavy expenses and has remained in his continuous possession.

5. Respondents Nos. 2 to 6 and 8 to 9 remained absent before the Civil Court and were declared ex parte and suit against respondent No.7 was dismissed for non‑payment of process fee. The trial Court framed the following issues:‑‑

(1) Whether defendant No. l applied for regrant of the cancelled land but his appeal was rejected by Additional Commissioner and Member, Board of Revenue?

(2) Whether order passed by defendant No.2 in favour of defendant Abdul Majid is illegal, bad in law and against the natural justice?

(3) Whether plaintiff is entitled for the reliefs claimed?

(4) What should the decree be?

6. The Court of Senior Civil Judge after recording the evidence of P.W.I applicant Muhammad Hashim, P. W 2 Rahim Ali and that of respondent Abdul Majid and his witnesses Amir Bux and Tapedar Niaz Ahmed decided Issue No. l in affirmative while Issues Nos.2 and 3 in negative and dismissed the suit. Learned District Judge too dismissed the appeal filed by applicant.

7. Mr. Muhammad Aslam Bhutto applicant's counsel and Mr. Abdul Fattah Malik appearing for respondent No. l on pre‑admission notice have been heard at length. Applicant's counsel contended that the findings of two Courts below are not warranted by law and the findings are based on non‑appraisal and misreading of evidence and pleadings. He next contended that in fact the cancelled grant dated 19‑12‑1985 ordered by Member, Board of Revenue had attained finality and would not be disturbed or reopened by Government by ordering its regrant at the directions of Chief Minister as Chief Minister is not competent to sit over the orders of Revenue Authorities. Mr. Bhutto submitted that trial Court framed in all three issues and no issue regarding maintainability of the suit was framed by the lower Court. Therefore, Appellate Court was incompetent to give findings regarding maintainability of the suit opining that the suit being hit by sections 42 and 56 of Specific Relief Act, applicant had no cause of action. In support of this contention he has cited Muhammad Yasin and others v. Wali Muhammad and others (PLD 1983 Lahore 253). It was also argued that the land in dispute was rightly cancelled by the Revenue Authorities as the same lies within 20 chains of village and could not be disposed of for agricultural purposes by virtue of condition No.9 of Statement of Conditions for land grant issued under section 10(2) of Colonization of Government Lands (Punjab) Act, 1912 published in Gazette of Sindh, Extraordinary, 21st November, 1972. He stressed that as per condition No.9 no land lying within 20 chains of established village shall be granted unless it is separated by a working canal. According to him it is admitted position that the village is separated from the land in question only by a working watercourse and that words "working canal" cannot be a substitute of "working watercourse" and, therefore, the regrant has not been properly allowed. Mr. Muhammad Aslam Bhutto lastly submitted that the important documents were not produced by the respondent No.l in original alongwith his written statement but only photostet copies were produced and as such these documents were neither produced nor exhibited in evidence. Therefore, the Courts below could not have taken the same into consideration.

8. Mr. Abdul Fattah Malik counsel for respondent No.l argued that the land was granted to respondent Abdul Majid under Old Land Grant Policy in the year 1959 on Harap basis in open Katchery and at that time none of the villagers had raised any objection to his grant. Therefore, the applicant's plea that he came to know about the grant of such land when he filed appeal before Commissioner against its regrant, could not be believed, as before the disposal of land, according to Land Grant Policy, a wide publicity is to be made. Respondent's counsel contended that the applicant and his witnesses, respondent Abdul Majid and his witnesses have admitted in evidence that there exists a watercourse in between disputed land and the village Mazar Khan Joyo. Therefore, the re‑grant in favour of respondent has been properly allowed keeping in view condition No.9 wherein it has been provided that if a land is separated by a working canal it can be granted for agricultural purposes. He argued that the purpose and idea behind watercourse and water canal is same which is mainly of irrigating the lands. Mr. Fattah went on arguing that the applicant (plaintiff) has got no legal status and character to invoke jurisdiction of Civil Court by pursuing suit for declaration and permanent injunction averring that the respondent defendant was not entitled to regrant of disputed land. He advanced his argument that by asking this Court to interfere with the concurrent findings of two Courts below in civil revision, is without any justification as applicant has failed to point out any material illegality or irregularity committed by the two Courts below while delivering their judgments. In support cases of Abdul Hameed v. Ghulam Muhammad (1987 SCMR 1005) and S. Zafar Ahmed v. Abdul Khaliq (PLD 1964 (W.P.) Ka'. 149) are referred.

9. I have given my anxious consideration to the arguments of learned counsel for the parties, gone through record and precedent cases referred to and relied upon by the counsel.

10. It is admitted by the parties that disputed land was firstly granted to respondent in the year 1959‑60 under Old Land Grant Policy in open Katchery and neither the applicant nor anybody from village raised any objection, to such grant but his grant was cancelled due to non‑payment of instalments and the same land was again regranted to him on 4‑6‑1986 by the ultimate authority i.e. Board of Revenue after thorough scrutiny and reports of subordinate Revenue Officers by making payment of dues, interest and penal interest.

11. Condition No.9 of the Statement of Conditions published in Gazette of Sindh, Extraordinary, 21st November, 1972 reads as under:‑‑

12. "No land lying within 20 chains of established village shall be granted unless it is separated by a working canal."

13. The re‑grant was mainly allowed to respondent as there exists water course in‑between the land and village Mazar Khan Joyo. The contention of applicant's counsel that watercourse cannot be a substitute of water canal as their purpose and definition are quite distinct and hence the grant in favour of respondent No.l is illegal and is in contravention of the Condition No.9. To arrive at a proper conclusion, it is essential to elaborate the words 'canal' and watercourse'.

14. The words 'canal' and 'watercourse' have been defined in the Concise Oxford Dictionary as under:

15. Canal an artificial water way for inland navigation or irrigation. Watercourse a brook, stream or artificial water channel, the bed alongwith this flows.

16. These terms have been adequately defined in section 3 of Canal and Drainage Act, 1873 and the same are reproduced below:‑

17. "(1) Canal includes‑‑

(a) all canals, channels and reservoirs, constructed, maintained or controlled by the Provincial Government for the supply or storage of water;

(b) all works, embankments, structures, supply and escape‑channels connected with such canals, channels or reservoirs;

(c) all watercourses as defined in the second clause of this section;

(d) all parts of a river, stream, lake or natural collection of water or natural drainage channel, to which the Provincial Government has applied the provisions of Part II of this Act.

(2) "Watercourse" means any channel which is supplied with w4ter from a canal but which is not maintained at the cost of the Provincial Government and all subsidiary works belonging to any such channel.

18. Section 3 of Sindh Irrigation Act, 1879 defines these words as under:‑‑

(1) "canal" includes‑‑

(a) all canals, channels, tubewells and reservoirs constructed, maintained or controlled by any Government for the supply or storage of water;

(b) all works, embankments, structures and supply and escape channels connected with such canals, channels, pipes or reserviors, and all roads constructed for the purpose of facilitating the construction or maintenance of such canals, channels, pipes or reservoirs;

(c) all watercourses, drainage‑works and flood embankments as hereinafter respectively defined;

(d) any part of a river, stream, lake, sub‑soil water natural collection of water or natural drainage channel, to which the Provincial Government may apply the provisions of section 5, or of which the water has been applied or used before the passing of this Act for the purpose of any existing canal;

(e) all land belonging to Government which is situated on a bank of any canal as hereinbefore defined and which has been appropriated under the orders of any Government for the purpose of such canal;

(2) "watercourse" means any channel or pipe not maintained at the costs of the Provincial Government, which is supplied with water from a canal, and includes all subsidiary works connected with any such channel or pipe, except the sluice or outlet through which water is supplied from a canal to such channel or pipe.

19. After going through the above definitions there seems to be no apparent distinction in‑between canal and watercourse and their main object is to irrigate the lands. Section 3(1)(c) of Canal and Drainage Act, 1873 as well as Sindh Irrigation Act, 1879 shows that it includes all watercourses as defined in sub‑section (2) of section 3 of the two Acts. Therefore, I do not find any ambiguity in holding that the watercourse is included in water canal. So, the re-grant allowed to respondent No. l on the analogy that the land is separated by a working watercourse from village Mazar Khan is proper and A justified.

20. The Revenue Authorities are competent to grant these lands to Haris for agricultural purposes which though lying within 20 chains of village are separated either by working watercourse or working water canal.

21. Applicant's counsel's argument that Appellate Court should not have decided the ground of maintainability of the suit opining that the applicant (plaintiff) had no locus standi to bring a suit for declaration and permanent injunction against respondent concerning .the disputed land as trial Court and failed to frame this issue particularly, cannot be accepted as respondent Abdul Majeed has specifically pleaded in his further pleas in written statement that the suit is not maintainable according to law and is also hit by sections 42 and 56 of Specific Relief Act. There was no bar on the appellate Court to consider the above point of regarding maintainability of the suit though particular issue was not framed by the trial Court.

22. In this case the averments made by the applicant in his plaint were challenged by respondent through written statement and where this may be the position it is immaterial if an issue regarding the same is not framed in the suit and the Court has allowed the parties to lead evidence on such point, the trial Court as well as the Appellate Court can give its decision even without framing that particular issue. The Appellate Court was well within its powers while deciding that applicant had no locus standi and legal character to file the suit and his case is hit by sections 42 and 56 of Specific Relief Act. PLD 1983 Lahore 253 cited by applicant's counsel has got no relevancy to the facts of the present case and is entirely on different footing.

23. In the case of Province of East Pakistan v. Hasan Askary (PLD 1971 SC 82) similar controversy has been raised before the Hon'ble Supreme Court ' and relevant observations from this judgment at page 94 may be quoted as under:‑‑

24. "Mr. Asrarul Hussain, learned counsel for the appellant contended that the Courts below were not justified in adjudicating upon this question as no issue was framed on this point. He further contended that this point was not even taken in the notice under section 80 of the Civil Procedure Code. This objection was also taken in the High Court and was repelled on the ground that no prejudice has been caused to the appellant by not framing any specific issue on it. The parties have led evidence in support of their cases and it was on this evidence that decision has been given, by the Courts below. In my opinion, the procedure adopted by the Courts below cannot be said to be illegal. If issues are not framed but allegations are made in the plaint and they are challenged in the written statement, it is open to the Court to allow the parties to lead evidence on such point and to give decision on it without framing any issue."

25. No misreading or non‑reading of evidence or any other defect in exercise of jurisdiction by the Courts below has been proved. It is not a case of exercise of jurisdiction not vested in the Courts or that they have acted illegally or with material irregularity. Such a case not having been made out, concurrent findings of the Courts below, could not be interfered with by this Court while exercising its revisional jurisdiction. The findings recorded by the trial Court as well as the Appellate Court are not perverse, irregular or illegal and are based on the evidence adduced in the case. The Courts below were competent to have jurisdiction to pass the judgments and decrees questioned in this revision. There is hardly any justification to interfere with their concurrent findings. The revision is dismissed in limine with no order as to costs.

26. A.A/M‑59/K Revision dismissed.