ISLAMIC REPUBLIC OF PAKISTAN Versus NAJAF ALI SHAH

1. This Civil Revision is directed against the judgment dated 2-12-1980 passed by the Ist Additional District Judge, Hyderabad, whereby the appeal filed by the respondent was allowed and the judgment dated 30-4-1977 of the Ist Senior Civil Judge, Hyderabad, was set aside.

2. The facts leading to the filing of the above Civil Revision are that according to the respondent, an area of land measuring 33.05 acres, bearing Survey No.117, around the village Tando Jahanian was granted to his ancestors by the then Talpur Mirs of Sind out of devotion to "Syed Family". After the advent of Britishers the then Commissioner of Sind in 1853 while recognizing the title of Syed Fatehuddin Shah ordered that in case of acquisition, some other suitable land in lieu thereof would be granted by way of compensation. But then, the idea of acquisition was abandoned by the British Government. The possession was thus enjoyed peacefully by the respondent. The land assessment revenue was paid upto 1940, and even after that, under protest, whence an insignia of pro forma was modified to read as "ground rent" with intermittent assertions and denials of title. The matter at last attained the climax in February, 1967, whence the respondent being termed as unauthorised occupant was directed by the petitioners to desist from cultivating the land. But it was again replied to, with equal assertion of title by the respondent. However, since the petitioners were determined to take over his possession, the respondent sought a declaration that he is the owner of the land in suit --both on account of proprietary and possessory rights and for safeguarding his possession. The petitioners resisted the suit. The petitioners pleaded that the suit was not in proper form. The petitioners pleaded that the respondent is neither member of renowned family of Syed nor his ancestors had settled in Tando Jahanian since the time of Talpur Rulers. It is also denied that Talpur Rulers had granted a big area of land around the village of Tando Jahaman to the ancestors of the respondent.

3. On the pleadings of the parties the trial Court framed want issues. The respondent examined Syed Najaf Ali Shah on commission as Exh.64 and closed his side. The petitioners examined one of their officers Abdul Majeed Khan Exh.85 and closed their side.

4. The trial Court decided issues 1, 5, 6 to 10 together. The petitioners attacked the. maintainability of suit on two grounds. Firstly, the land in suit being situated within the area of the Cantonment is vested in the Federal Government by virtue of section 3 of Cantonments Act, 1924 as such the respondent could not claim ownership. Secondly, the forefathers of the respondent including the respondent were requesting the Cantonment authorities for the grant of lease of land in suit and were paying its rent known as "land assessment", as such the respondent is estopped from claiming ownership on any ground irrespective of their being in continuous possession over the land in suit. In support of this contention the petitioners placed reliance on Exhs. 100 and 101.

5. The trial Court found that though the respondent claimed that the land in suit was granted to his ancestor Fatehdin Shah by the Talpur Mirs but he did not produce any such document in support of his claim. He found that Ext.100 clearly indicates that he requested for the grant of land on lease for a period of four years. By Ext.101, the respondent showed his willingness to act as lessee. The trial Court on the basis of these admissions came to the conclusion that the respondent was nut the owner of the land in suit He also came to the conclusion that even a grant of (case to a tenant for a long time could not give him a status of permanent tenant.

6. The trial Court repelled the contention of the petitioners that the land being situated in' Cantonment area is vested in the Federal Government.

7. The trial Court held that as the respondent failed to establish ownership in respect of the land in suit, as such the entries in record of rights in the name of the ancestors of the respondent would not be sufficient to hold the respondent or his ancestors as owners of the land. ?

8. The trial Court also negatived the plea of the respondent on the ground that no document was produced to show that the then Commissioner of Sind recognized the title of the ancestors of the respondent. For these reasons the trial Court dismissed the suit.

9. The respondent deposed that he is son of Hussain Ali Shahs s/o Sabit Ali Shah s/o Qutub Ali Shah s/a Fateh Din Shah who was the original grantee of the A land in suit. The petitioner denied this pedigree in the written statement. The burden was upon the petitioners that the respondent is not the descendant of Fateh Din Shah. This burden was not discharged by the petitioners. I am of the view that the appellate Court rightly held that the respondent is descendant of Fateh Din Shah, the original grantee.

10. The respondent (Ext.64) deposed that the property in suit is private property and it was originally granted to his great grandfather Syed Fateh Din Shah by Mir. Rulers of Sind and this property is not Cantonment property. He further deposed that he and his forefathers' possession remained undisturbed even after the conquest of Britishers. He deposed that in 1853 the Government attempted to acquire but the Commissioner of Sind, vide his letter dated 29-7-1853, directed that other land be given to Fateh Din Shah in lieu of the land in suit. He produced photo copy of the letter marked as 'B'.

11. The appellate Court came to the conclusion that the then Commissioner of Sind had recognized the title of the respondent as early as 1-7-1853. He further held that had it not been so, there was no occasion for him to order allocation of some other land in lieu of the suit land. In coming to this conclusion, he placed reliance on letter dated 29-7-1853, extract Deh Forjgah mark 'C', report of Chairman of Agricultural Committee, Ext.98. The appellate Court gave cogent reasons for this conclusion. Mr. Syed Inayat Ali is unable to point out any infirmity with this finding.

12. The petitioner raised two contentions before the appellate Court. First I contention, was that the land in suit is situated within the Cantonment area, it stands vested in the Federal Government by virtue of Section 3 of the Cantonments Act. The second contention was that the forefathers of the respondent had committed such acts, which were inconsistent with their claim of ownership.

13. The learned Additional District Judge has rightly rejected both the contentions. He held that the petitioners had not produced any document/notification to show that the land in suit was acquired by the Federal Government.

14. In Secretary, Cantonment Committee, Barrackpore v. Satish Chandra Sen (A I R 1927 Calcutta 786), it was held that mere declaration of lands to be within Cantonment area dies not vest their ownership in Government. It was further held that the mere fact that certain lands are declared by the Government to be within a Cantonment area does not vest their ownership in the Government unless it is shown that the lands were acquired by the Government for that purpose.

15. In Manager, Jammu & Kashmir State Property in Pakistan v. Khuda Yar and another P L D 1975 S C 678 it was held that mere fact that the land is situated within Cantonment area does not vest its title in the Central Government. The dictum laid down in the above judgment is fully applicable to the facts of the instant case, as the petitioners have not produced any notification and/or document to show that the land in suit was acquired for Cantonment purposes.

16. D.W. Abdul Majid himself admitted in his cross-examination that there are other villages namely, Tando Munman and Channus within the Cantonment area which are private property. Abdul Majeed also admitted in his cross?-examination, after looking to document marked as 'M', that another village Fateh Din which is also situated in Cantonment area, is a private property. In these circumstances, the Additional District Judge has rightly come to the conclusion that the land in suit is private property of the respondent and that it was granted to him by Mir Rulers and their title was confirmed by the Commissioner of Sind as far back as 1853.

17. The second contention of the petitioner before the appellate Court was that the respondent and his ancestors were mere lessees. Exhibit 100 was written by Syed Ghulam Abbas in which he expressed his willingness to take land on lease renewable after four years. The respondent addressed a letter (Ext.101) to the Executive Officer wherein he offered to sacrifice his title and had shown his willingness to be accepted as a lessee subject to the lease should be in continuity to him, to his legal heirs and to his assignees. The learned Additional District Judge rightly held that these two documents do not detract the plea of title put forward by the respondent.

18. The learned counsel for the petitioners had fairly conceded that he has to-' mainly attack the findings of fact arrived at by the lower appellate Court.

19. The learned Additional District Judge has rightly come to the conclusion that the property in suit was originally granted to the respondent's great grandfather Syed Fateh Din Shah by Mirs of Sind and this property is not Cantonment property. The learned Additional District Judge has rightly come to the conclusion that the then Commissioner of Sind had recognized the title of the respondent as early as 1-7-1853. He has taken into consideration letter dated 29-7-1853, extract of Deh Forjgah, report of Chairman, Agricultural Committee Ext.98. The evidence of the respondent has been rightly believed by the appellate Court. Therefore, under the circumstances, it is rather hard to say that the Additional District Judge has given a tangent or has taken into consideration some matters which were not on the record. Even it cannot be said that he misinterpreted the facts that were available on the record. Thus the Additional District Judge was justified in coming to the conclusion that the property in suit was originally granted to the great grandfather of the respondent and the then Commissioner of Sind had recognized in 1853. Therefore on these facts the present revision petition fails.

20. Mr. Nasim A. Farooqui contended that Civil Revision is time-barred. The judgment was announced on 2-12-1980. The application for certified copy was filed on 11-12-1980 and the copy was delivered on 3-1-1981. The Civil revision was presented on 9-8-1982.

21. In Manager, Jammu & Kashmir State Property in Pakistan v. Khuda Yar and another P L D 1975 S C 678 it has been held:

22. "The principle laid down in these authorities is that revision petition riled beyond the unprescribed limitation of 90 days could also be entertained if the Court was satisfied as to the reasons for the delay."

23. The superior Courts held that each day's delay has to be explained by giving reasons therefor. The expression "sufficient cause" is not to be liberally construed because the party in default was the Government. The Court should not readily accept whatever is alleged to explain away the default. The delay in filing the revision petition should not be for reasons which indicate the negligence of the party filing the revision in not taking care which could have and should have taken. The Court has to be satisfied that there were certain valid reasons for the petitioners in not filing the civil revision within a reasonable time. The bare statement of the petitioner is not enough.

24. In the present case the petitioners have not filed any application for condoning the delay. The petitioners have not given any cogent reasons for condoning the delay. The civil revision is dismissed as hopelessly barred by time.

25. Mr. Nasim A. Farooqui raised a preliminary objection about maintainability of revision.

26. I have asked the learned counsel for the petitioners to state under what clause of Section 115 C.P.C. this petition falls. He submitted that the petition falls under Clause (c).

27. Clause (c) of Section 115 is applicable only to the commission of an illegality or material irregularity relatable to the exercise of jurisdiction by a subordinate Court. Nothing has been alleged before me which could demonstrate that in exercising the jurisdiction vested in it by law the lower appellate Court had in any manner committed an illegality or material irregularity. The mere fact that the findings of the subordinate Court or lower appellate Court may be wrong on a point of fact unrelatable to the exercise of jurisdiction, would not bring the case within the four corners of Section 115 C.P.C. The Privy Council in its judgment ?reported in A I R 1949 P C 156; P L D 1949 P C.' 26, held that the section applied to jurisdiction alone, the irregular exercise of it or illegal assumption of it. The section is not directed against the conclusion of law or fact in which the question of jurisdiction is not involved. This view was followed in P L D 1970 S C 288; 1984 SCMR504.

28. For the aforesaid reasons I uphold the preliminary objection and held that the revision is incompetent.

29. For the aforesaid reasons, the revision was dismissed and the impugned judgment of the appellate Court was upheld.

30. The above are the reasons for my short order dated 5-12-1988 rejecting the above civil revision on conclusion of arguments.

31. H.B.T./I-86/K ?

32. Revision dismissed.