1. ' MUNIB AHMED KHAN, J.---Today- the C.M.A. 625 of 2005 and Revision Application have been heard, through this revision, the applicants have challenged the order of learned Senior Civil Judge, Mithi dated 21-4-2004 whereby the plaint of the applicants has been , rejected as well as judgment of District Judge Tharparkar in Civil Appeal No,17 of 2004 dated 26-8-2005 by which the order of civil Court has been maintained.
2. The applicants have pointed out that they were granted Eksala land in 1974 and that continued in their possession as per Government Policy given in the Circular dated 14th May, 1930 in respect to the grant of land in the desert portion of Tharparkar District. He has further submitted that he can and has been in possession of the land in terms of clauses (2) and (9) of the said policy which authorized the grantee of land to continue.
3. ' He has further submitted that possession of the applicant and his cultivation on the desert land is admitted by the private defendants/ opponents in their written statement as well as by the Government Officials. He has further pointed out annexures with this revision specifically the photocopies from the Tapedar Field Book wherein entries have been made in respect to the payment of revenue for cultivation and entries till 2004 find mention in these annexures. He has submitted that District Officer Revenue i.e, respondent No,7 changed the entry by his order dated 29-8-2003 without any notice or hearing, therefore, he filed the suit for declaration in terms of section 53 of the Land Revenue Act. He has further submitted that his suit was very much maintainable and plaint has wrongly been rejected by both the lower Courts. He has further pointed out that the learned Civil Judge has travelled beyond the plaint and notwithstanding the fact that the application under Order VII, rule 11, C.P.C. Was not touched but even then he has rejected the plaint after hearing application under Order XXXIX, rules 1 and 2, C.P.C. He has further submitted that the land is barren and that barren and useless land has been utilized under the Government Policy just to make use of it and procure some yield from it which is for the benefit of the people and country as well. He has further pointed out that the private respondents have falsely made an application on which District Officer (Revenue) has passed an, order and that order is a result of personal rivalry between the applicants and respondents Nos.1 to 4.
4. ' On the other hand, learned counsel for the respondents Nos .1 to 4 has submitted that the suit is barred in view of section 172(vi) of the Land Revenue Act and that the land is Gaucher "Aasaish" land and is meant for general public for grazing their cattle, therefore, no one can be authorized to take into possession that open land and utilize it for his own purpose. He has further submitted that the cultivation of the Gaucher land is banned since 1939 and that the applicant was granted land for Eksala lease which was never extended and after expiry of lease, the plaintiff has no right or title under section 42 of Specific Relief Act, therefore, plaint has rightly been rejected. He has further submitted that suit is barred under section 11 of the Revenue Jurisdiction Act and was not maintainable.
5. ' I have heard arguments of the learned counsel and for appreciation of their arguments, reproduction of section 53 as well as 172(vi) of the Land Revenue Act, 1967 is necessary which are reproduced as under:- "53. Suit for declaratory decree by persons aggrieved by an entry in a record. If any person considers himself aggrieved by an entry in a record-of-rights or in a periodical record as to any right of which he is in possession, he may institute a suit for a declaration of his right under Chapter VI of the Specific Relief Act, 1877 (Act I of 1877).
172. Exclusion of jurisdiction of Civil Courts in matters within the jurisdiction of Revenue Officers. (1)
6. Except as otherwise provided by this Act, no Civil Court shall have jurisdiction in any matter which Government, the Board of Revenue, or any Revenue Officer, empowered by this Act to dispose of, or take cognizance of the manner in which Government, the Board of Revenue, or any Revenue Officer exercises any powers vested in it or him by or under this Act.
(2) Without prejudice to the generality of the provisions of subsection (1), a Civil Court shall not exercise jurisdiction over any of the following matters, namely:-
(vi) the correction of any entry in a record-of-rights, periodical record or register of mutations; ' So far as legal bar by virtue of section 172(vi) of Land Revenue Act is concerned, it is to be seen that there is difference between section 172(vi) and section 53 as the former relates to the correction of entry in record of rights, periodical record or register of mutation (emphasize by me) while section 53 is in respect to the grievance of any person by a entry in the record of rights in respect to above and he is in possession then he can institute a suit under section 53, on the subject an authority of the Honourable Supreme Court 1996 SCM R 78 is relevant which is reproduced as follows ' "Regarding bar of jurisdiction of the Civil Court under section 172, subsection (2), Clause VI of the West Pakistan Land Revenue Act, 1967 it may be pointed out that exclusion of jurisdiction of Civil Court relates to the correction of the entries made by the Revenue Officer in performance of his duty without touching the right of the persons in the land but whenever such entries interfere with the rights of a person in the land record in the record of rights, and such person feels aggrieved, for correction of such entries he has to approach Civil Court for declaration under section 53 of the Act or in other words under section 42 of Specific Relief Act both the reliefs available being of the same nature and identical. The dispute herein pertained to the nature of the transactions in the suits for pre-emption based on the impugned mutation. The suits were therefore rightly held triable by the Civil Court."
7. Therefore, in the light of the above, the suit was not barred under section 172(vi). As far as section 11 of the Revenue Jurisdiction Act is concerned, the learned counsel for the applicants has argued that, that section does not bar as in the case no order has been passed by the Mukhtiarkar and straightaway the appellate authority District Officer (Revenue) has passed an order, therefore, when the appellate authority itself was interested in the matter then there was no remedy except to file the suit under section 53 of Land Revenue Act. The learned counsel for the applicants has further relied upon 1994 M LD 874 which is in respect to the jurisdiction of the Civil Court under section 9 and that authority is also attracted as the order appears to be based on mala fide as without providing any opportunity to the applicant, the District Officer. (Revenue), being appellate authority under the revenue laws, has passed an order without giving reasons in respect to the possession right of the applicants as well as to the cancellation of his case.
8. ' After going through the orders of the Senior Civil Judge as well as of the appellate Court, I have observed that the plaint has not only been rejected on the legal ground but the merits of the case have been discussed in respect to the payment of revenue for cultivation of the land as well as the observations of the District Officer (Revenue) in respect to the location, possession and cultivation of the land by the applicant. According to the Circular No,l258-R of 1930 dated 14-5-1930 relating to the land grant policy in desert portion of Tharparkar District, clauses (2) and (9) of the said circular authorize a person to continue the land's possession which has been granted under the policy. The clauses (2) and (9) of the said policy on which the applicant has based his claim are as under:-- "(2) The privilege of cultivating land on Eksala tenure without asking permission to enter upon land should be extended to all persons residing in the makan who cultivate land with their own hands irrespective of the fact whether they held any land previously or not.
(9) Fields in Thar, may be cultivated by Makani abadgars on Eksala tenure without obtaining previous permission and fields so cultivated for 5 years continuously by the same persons without any adverse claim being established may be confirmed permanently in the name of such cultivators in the 6th year. But this privilege does not extend to those whose Kabuli land is 100 Acres or more. Such persons should not cultivate any Govermnent land without any prior permission. In considering whether this permission should be given an essential condition that the applicant's average cultivation for 5 years should be not less than 1/3 of his whole holding."
9. Admittedly applicant was granted land and he continued in possession which is evident from the Tapedar Field Book which has been filed as well as from the contents of the written statement in which respondent/defendant has admitted that the applicants are in possession and cultivating the Gaucher land. The order of the District Officer dated 29-8-2003 which has been impugned all along is relevant and reproduce herein below:- ' "As per report of Mukhtiarkar Nagarparkar, the cultivation of Gaucher/Asaish is banned and cultivation on such land as well as Government land could not be allowed and such type of cases could spark a breach of peace and tranquillity in the area. The Mukhtiarkar stated in his report that, if the squatters are not discouraged by taking legal action, the cultivation of Gaucher/Asaish and other Government land would entail into the cultivation, closure thoroughfare and public passages The Colonization Act 1912, envisages/suggest the legal action of destruction of standing crop to admonish and punish the adverse possession holders, and their practice which should be discouraged. Such destruction of crop raised by unauthorized encroachers is also in vague in this district.
10. ' Thus, in view of the application of applicant party and report of Mukhtiarkar Nagarparker, supporting the grievance of applicant and looking to the fragile situation in which breach of peace could occure at any time, looking to the facts, I hereby order that the unauthorized cultivation on Gaucher/Asaish raised by the opponent party namely Mir Muhammad son of Bachal and others of the Makan Maghan sand Tapa Piloo to be destroyed forthwith by adopting the due course of law and direct Mukhtiarkar Nagarparkar to proceed as per law/rules, So that they should take its course."
11. In the circumstances, It cannot be said that the applicants have no right in respect to the land or have illegally occupied the land.
12. ' In the circumstances, I am of the view that both the lower Courts have not appreciated the law as discussed above and have wrongly rejected the plaint. In the circumstances, this revision application is allowed and both the orders of lower Courts dated 21-4-2004 and 26-8-2005 are set aside and the Civil Court is directed to record evidence on the issue of entitlement of the applicants/plaintiffs as well as affects of payment of revenue according to the Tapedar Field Book and the Government Policy in this respect.