1. ' MUHARRAM G. BALOCH, J.--- This Revision Application calls in question the concurrent findings of the two Courts below dated 27-1-1998 and 30-10-1994 passed by IInd Addl. District Judge Thatta in Civil Appeal No,10/1994 (Abdullah v. Muhammad Ibrahim and others) and Senior Civil Judge Thatta in F.C. Suit No,216/1989 Muhammad Ibrahim v. Province of Sindh and others respectively, whereby dismissed the appeal and maintaining the judgment and decree passed by the trial Court and decreeing the suit filed by respondent No, 1.
2. ' Precisely, the facts leading to this Revision Application are that respondent No,1 filed Civil Suit No,216/1989 in the Court of Senior Civil Judge Thatta for declaration and permanent injunction pleading therein that he is in possession of a plot i.e, about 432 sq. Feet situated in Mirpur Sakro Town since 1973. On the basis of possession, the plaintiff/ respondent No,1 applied to the Deputy Commissioner Thatta, defendant/respondent No,4, for its grant on 15-6-1983. The said application was forwarded by the Deputy Commissioner Thatta to the Mukhtiarkar Mirpur Sakro for report along with sketch and Sawalnama after visiting the site through the Assistant Commissioner Mirpur Sakro at Gharo. The Assistant Commissioner visited the site and affirmed the possession of the plaintiff and Mukhtiarkar prepared such Sawalnama and sketch of the suit plot and recommended the request of the plaintiff/respondent No,1 for grant to the Deputy Commissioner Thatta. It is further pleaded that the plaintiff had also obtained N.O.C. From the Chairman, Town Committee Mirpur Sakro.
3. ' The Deputy Commissioner Thatta, on receipt of above-mentioned report and other formalities ordered for auction of the said plot through Assistant Commissioner Mirpur Sakro and Assistant Commissioner Mirpur Sakro in compliance of the order of the Deputy Commissioner held the auction on 13-9-1986. The plaintiff's offer, being the highest one in the auction, was considered and the plot was auctioned in his favour on the same date. The Assistant Commissioner Mirpur Sakro, after conducting the auction of plot, in question, submitted the auction papers to the Deputy Commissioner Thatta for confirmation or otherwise. The auction in favour of the plaintiff vide order No, Rev. 2251/87 dated 21-4-1987 was confirmed.
4. ' The defendant No,6/applicant, according to the plaintiff/respondent No,1, had an evil eye on the suit plot, therefore he filed an appeal before the Additional Commissioner Hyderabad for cancellation of grant made in favour of the plaintiff/ respondent No,1 who after hearing the parties cancelled the grant of plot in favour of the plaintiff vide order dated 9-2-1989. The plaintiff/respondent No,1 aggrieved by the above cancellation of his grant filed. Revision Application before the Senior Member Board of Revenue Sindh at Hyderabad and the said Revision Application was dismissed vide order dated 14-9-1989 while maintaining the order of Additional Commissioner 9-2-1989.
5. ' The plaintiff/respondent No,1, being aggrieved by the above two orders of the Additional Commissioner and the Senior Member, Board of Revenue, filed suit for declaration and permanent injunction praying therein that orders of defendants Nos.2 & 3 dated 14-9-1989 and 9-2-1989, passed respectively, be declared as illegal, unlawful, mala fide and without any lawful justification.
6. It was prayed that the order dated 21-4-1987 passed by the Deputy Commissioner Thatta, defendant No,4, confirming the grant of plot in auction, be declared as lawful and with justification.
7. The plaintiff/respondent No,1 also prayed for permanent injunction against the defendants from interfering with the suit plot. The applicant/defendant No,6 in the suit filed the written-statement and defendant the orders passed by the Senior Member Board of Revenue and Additional Commissioner Hyderabad whereby the order of the Deputy Commissioner Thatta dated 21-4-1987 was set aside.
8. ' On the pleadings of the parties, the learned trial Court framed following issues:-- (1). Whether this suit is barred by law?
9. (2). Whether this suit is beyond the jurisdiction of this Court?
10. (3). Whether the plaintiff is in possession of the suit plot?
(4) Whether the orders of the Defendants Nos. 2 & 3 dated, 9-2-1989 & 14-9-1989 are illegal and the order of the defendant No,4 dated 21-4-1987 is legal?
(5) Whether the plaintiff is entitled for the declaration and permanent prohibitory injunction as prayed?
(6) What should the decree be?
11. ' The parties led the evidence whereby the plaintiff/respondent No,1 examined himself and closed his side. The applicant/defendant No,6 also examined himself and closed his side..
12. ' Learned trial Court, while deciding all the issues in favour of plaintiff, discussed the contentious issue No,4, and held that the orders dated 14-9-1989 and 9-2-1989 passed by defendants Nos.2 & 3, respectively are illegal and without any lawful authority giving the reasons therein that the plot, in question, was put in open auction with publicity and being the highest bidder the same was granted in favour of the plaintiff/respondent No,1 and so also that he was in possession of the plot since 1973. The learned trial Court has also held that defendant No,6/applicant has argued that the Deputy Commissioner Thatta had no power to confirm the grant in favour of the plaintiff/respondent No,1 as it was the power of the Commissioner. By giving the reference to the amendment in condition No,8 (vi) of Notification dated 12-5-1975, published in Government Gazette on June 5, 1975, pertaining to powers , of subsec-. Tion (2) of the section 10 of Colonization of Government Lands Act, 1912 in which the words referred to 'Deputy Commissioner' should be construed as 'Commissioner as such according to him it was the power of the Commissioner to confirm the grant of auction and not the Deputy Commissioner and also that while auctioning the plot belonging to the Government, wide publicity of such auction was to be made and in the present matter no wide publicity was made. It was also pleaded by the applicant/defendant No,6 that there were only three participants who participated in the auction proceedings , therefore, according to the applicant/defendant No,6, the grant made through auction was illegal, and collusive.
13. ' Learned trial Court while answering the issue No,4 in affirmative has held that the applicant/defendant No,6 did not participate in the auction himself, therefore he cannot question the legality or otherwise of the auction or grant made in favour of plaintiff/respondent No,1 and on the basis of this issue the other issues were also decided in favour of the plaintiff/ respondent No,1.
14. ' The Appellate Court i.e, IInd Additional District Judge Thatta while maintaining the judgment and decree dated 30-10-1994 and 10-11-1994, respectively passed by the trial Court, dismissed the appeal filed by the applicant, hence this Revision Application on ground that both the Courts below passed the impugned judgments which are bad in law and result of non-reading of the evidence as according to the applicant his evidence was not considered, at all. He has taken the ground that the possession of the suit plot was also with him and the Courts below did not appreciate that the orders passed by the Revenue hierarchy are to be challenged in appeal and not through suit and in such circumstances the applicant prays for setting aside of the impugned judgments and decrees passed by the Courts below and maintain, the orders dated 9-2-1989 and 14-9-1989 passed by the Additional Commissioner Hyderabad and Senior Member Board of Revenue Sindh whereby the grant made by the Deputy Commissioner vide order dated 21-4-1987 in favour of the plaintiff/respondent No,1 be cancelled.
15. ' I have heard the learned counsel for the parties and also gone through the record, produced before me.
16. ' Learned counsel for the applicant submits that both the Courts below acted illegally while not considering the factum that no suit could lie against the orders passed by the Additional Commissioner Hyderabad and Senior Member Board of Revenue Sindh Hyderabad and only appeal against the said orders could lie. In support of his arguments, he relied upon case law reported in PLD 1964 (WP) Karachi 149 (S. Zafar Ahmed v. Abdul Khaliq) and PLD 1977 Lah 1270 (Province of Punjab v. Muhammad Afzal Khan) and 1989 M LD 1009 (Province of Punjab v. Rana).
17. ' The above case law is in respect of exercise of jurisdiction. The case law as referred to above is quite distinguishable to the facts of the present case, thus of no help to the applicant.
18. ' I am afraid that the highest forum in the Revenue hierarchy is the Board of Revenue and the Senior Member Board of Revenue passed the order dated 14-9-1989 which was challenged in the suit along with order passed by the Additional Commissioner. The only jurisdiction to challenge the above orders is with the civil Courts on factual side along with legal grounds. However, the orders of the Government functionaries/Revenue Authorities sitting on judicial side could, be challenged through High Court if the same only speak about legal aspects.
19. The civil Courts have ultimate jurisdiction to adjudicate upon all the suits unless barred as per section 9 of the Civil Procedure Code which reads as under:-- "Sec.9.---Courts to try all civil suits unless barred.---The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.
20. ' Explanation.---A suit in which the right to property or to an office is contested is a suit of a civil nature, notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies."
21. ' Learned counsel for the applicant did not show that to whom the appeal against the order passed by the Senior Member Board of Revenue Sindh to lie. Mere assertion that no suit lies, is argument without any substance. The other point which was agitated by the learned counsel for the applicant is that the evidence of the applicant was not considered by the Courts below. The evidence of the applicant in both the Courts below is in respect of the fact that he is in possession of the suit plot and that no wide publicity was made while auctioning the suit plot and that he was also in possession of the suit plot. This is the only word against a pleading of the plaintiff/respondent No,1 on the other hand, with the assistance of learned counsel for respondent No,1 who submitted that the plaintiff has prima facie proved his case that the grant of suit plot in open auction was according to law and that he was in possession of the same since 1973 and he also complied with the conditions of the grant whereby , deposited the amount of price of the plot and such entry was also kept in the village form II of the Record of Rights. He was also issued letter of Acceptance and Ijazatnama. The plaintiff also obtained N .0 .C. From Town Committee Mirpur Sakro.
22. ' Reverting to the point that the Deputy Commissioner had no power to confirm the auction and by virtue of Notification, it was the power of the Commissioner to confirm the same, learned trial Court has explained that according to the above mentioned notification the Commissioner has only power to have a ,right to accept or reject the bid without assigning any reason on the above conditions of the notification but since the Commissioner has not interfered or taken any notice of the confirmation made by the Deputy Commissioner, therefore such Notification will not serve the purpose of the applicant/defendant No, 1.
23. Besides, the applicant/Defendant No,6 has not participated in the auction proceedings, therefore he could not question the legality or otherwise of the auction conducted by the Assistant Commissioner and confirmation made by C the Deputy Commissioner.
24. ' In the circumstances, I am of the considered view that this Revision Application has no substance which is hereby dismissed with no order as to costs.