ANWAR ZAHEER JAMALI, J. - Through this Constitutional Petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, judgment dated 18.12.2004, passed by 1st Additional District Judge, Thatta, in Civil Revision Application Na 8 of 2004, has been assailed by the petitioners.
2. In brief, the facts relevant for the disposal of this Petition are that on 28.3.2002 a suit for declaration and permanent injunction was instituted by the petitioners against the Respondents in respect of agricultural lands . Bearing survey Nos. 255, 256 and 257 total admeasuring 15- 25 acres situated at Deh Nai Baran, Tappo Tando Hafiz Shah taluka and district Thatta, with the following prayers:-- "(a) To declare that the plaintiffs are the sole, absolute and exclusive owner of suit land viz. Survey Nos.255 (5-0), 256 (4-16) and 257(6- 09) total admeasuring 15-25 acres, newly formed Block Nos. 511/7 (0-3) 511/8 (2-0). 511/9(3-05), 512/7(2-29), 512/8(1-27) 512/9(3- 15), 512/10(3-01), total admeasuring 16-00 acres of Deh -Nai Baran. Tappo Tando Hafiz Shah, Taluka and District Thatta and defendant Nos.13 and 14 and others have no any right of any kind in the above-land.
(b) To declare that the supplementary.P-Yadashat, approved vide letter No.1870 of 1993 dated 10.7.1993 and Gath Wadh Form No. 17, dated 29.6.1993 approved vide letter No. G.Misc/205 alongwith sketch by the defendant Nos.4 and 6 is legal, valid and in accordance with law and is liable to be maintained.
(c) To declare that the order of defendant No. 8 Assistant Commissioner, Thatta, dated 11.11.1993.
Order of defendant No. 5 Additional Commissioner-I, Hyderabad Division dated. 26.6.1994 .Order of defendant No. 7 Deputy Commissioner, Thatta dated 29.9.1994, order of defendant No. 5, dated 17.3.2001, order of defendant No. 2 Member Board of Revenue (Judicial) Hyderabad dated 611.2001, order of defendant No. 4 Director of Settlement Survey and Land Records Sindh Hyderabad dated 3.5.1994, order of defendant No. 3 Senior Member Board of Revenue dated 29.9.2001 and ex parte report of defendant No.. 6 or any other action or order in respect of suit land by defendant Nos. 6 and 9 is illegal, void, male fide, having no legal effect in the eye of law and liable to be set aside.
(d) To grant permanent injunction in respect of the suit land viz. Survey Nos. 255 (5-0), 256 (4-16) and 257(6-09) total admeasuring 15-25 acres, newly formed Block Nos. 511/7 (0-3), 511/8 (20), 511/9 (3-05), 512/7(2-29), 512/8(1-27), 512/9(3-15), 512/10(3-01), total admeasuring 16-00 acres of Deh Nai Baran, Tappo Tando Haifz Shah, Taluka and District Thatta, thereby restraining the defendants not to interfere in the suit land directly or indirectly, through their agents, servants, subordinates, associates. Attorneys, assignees, agency etc. In any manner whatsoever.
(e) Cost of the suit be borne by the defendant.
(f) Any other relief(s) which this Honourable Court deems fit and proper."
3. For grant of above reliefs besides disclosure of relevant facts, it was averred in the plaint that various orders passed by the authorities under the Revenue hierarchy i.e. 'Respondents Nos. 2 to 8 were illegal without jurisdiction and mala fide.
4. During the pendency of the suit on 8.5.2003 Respondents Nos.13 and 14 had submitted an application under Order VII, Rule.II, C.P.C. Before the Court of Senior Civil Judge, Thatta, which, after due opportunity of hearing to the parties Counsel was dismissed vide order dated 26.2.2004 with the observations that on the basis of averments made in the plaint bar provided under Section 172 of the Land Revenue Act, 1967 was not attracted and the matter as regard the claim of the petitioners over the suit land needed adjudication from the Civil Court.
5. Aggrieved by the said order of Senior Civil Judge, Thatta, Civil Revision Application No. 8 of 2004 was preferred by Respondents Nos.13 and 14 on 22.3.2004, which was heard by the Additional District Judge, Thatta, who was pleased to allow the Revision Application and to reject the plaint in the suit under Order V11, Rule 11, C.P.C. With the .Observation that the bar under Section 172 of Land Revenue Act, 1967 was attracted in the case, thus, plaint in the suit was liable to be rejected.
6. Mr. Noor Ahmed Memon, learned Counsel for the petitioners has referred the contents of the plaint in suit No. 24 of 2002 to show that detailed averments were made' by the petitioners regarding their entitlement in the suit land, being their ancestral property, with further specific allegations of mala fide and lack of jurisdiction of Respondents Nos. 2 to 8 in passing various orders against the petitioners. He contended that such factual and legal pleas needed adjudication from the Civil Court, but in a slipshod manner, by taking the defence pleas into consideration, illegally plaint in the suit was rejected by the revisional Court.
7. Mr. Aijaz All Hakro, learned Counsel for Respondents Nos, 13 and 14 in his reply submissions contended that there are series of orders passed against the petitioners under the Revenue hierarchy, thereby holding the entry No. 40 in Deh Form VII in favour of the petitioners to be fake and fabricated, which was the basis of their claim in the suit land. Therefore, bar of Section 172 Land Revenue Act, 1967 was rightly applied by the revisional Court in ordering rejection of the plaint.
8. Mr. Masood A. Noorani, learned Additional Advocate-General Sindh, appearing for the official Respondents, after going through the contents of the plaint, fairly stated that the revisional Court was not justified in ordering rejection of plaint, thereby depriving the petitioners from contesting their claim of ownership in the suit land before the Civil Court on merits. More so, as the bar of Section 172 of Land Revenue Act, 1967 was also not attracted in view of the specific allegations of lack of jurisdiction of the Revenue Authorities and the mala fide attributed to them. Therefore. It is a fit case where the impugned order is liable to be set aside and the case is to be remanded to the Court of Senior Civil Judge. Thatta for further proceeding in the suit in accordance with law.
9. After careful examination of the averments made in the plaint and the impugned order passed by the revisional Court dated 18.12.2004, we are clear in our mind that the revisional Court while taking into consideration the averments made in the written statement by the Respondents Nos.13 and 14 i.e. Defence pleas, deviated from the set principle of law as regards the Scope and applicability of Order VII, Rule 11, C.P.C., which provides. That only the averments made in the plaint with presumption of correctness attached thereto or at best the admitted and undisputed documents could be taken into consideration for this purpose and not the plea setup in defence.
We are also not impressed by the submission of the learned Counsel Mr. Aijaz Ali Hakro that findings of the authorities under the Revenue hierarchy regarding entry No. 40 in Deh Form VII have debarred the petitioners from approaching the Civil Court for claiming their ownership over the suit land by way of inheritance, as entry in the Revenue Record is not in itself proof of title in favour of the party in whose favour such entry exists. But entitlement/ownership over the suit land by way of inheritance, as entry in the Revenue Record is not in itself proof of title in, favour of the party in whose favour such entry exists, but entitlement/ownership is to be proved by such party independently and for this purpose appropriate Forum available is the Civil Court, being the Court of ultimate civil jurisdiction (See 1986 SCM R 598). Even under Section 53 of the Land Revenue Act, 1967 it has been provided that in case any person considers himself aggrieved by any entry in the record of rights or in any periodical record as to any right which he possess. He may institute a declaratory suit for this purpose under Chapter VI of the Specific Relief Act 1877. In such circumstances, the submission of Mr. Noor Ahmed learned Counsel for the petitioners that the averments made in the plaint needed evidence seems to have force. More so. As there are specific allegations levelled by the petitioners.In their plaint challenging the legality of the orders passed by the Revenue Authorities on the ground of lack of jurisdiction and mala fide, and details of such mala fide have also been unfolded in the plaint.
10. Besides, the revisional Court also overlooked plethora of case-law of the Superior Courts, wherein it has been constantly held that where the allegations of lack of jurisdiction and mala fide were attributed to the tribunal/autho,rity passing the impugned order(s) then it was within the domain of Civil Court to examination the propriety of such order in the context of such allegations, being the Court of ultimate civil jurisdiction by virtue of Section 9, C.P.C., and the bar of Section 172 of the Land Revenue Act will not oust the jurisdiction of Civil Court in such case, (For ready reference, see 1974 SCM R 356 and 1997 M LD 1309).
11. For the forgoing reasons we allow this Petition and set aside the order dated 18.12.2004 passed by Ist Additional District Judge, Thatta. In the result the Court of Senior Civil Judge, Thatta is directed to proceed further with the pending suit No 24 of 2002 in accordance with law.