1. ' GULZAR AHMED, J.--- The matter has been heard on the maintainability of the suit on the ground that sellers from whom the plaintiff has purchased the land did not appear to be its owners and the plaintiff has no cause of action for filing this suit.
2. ' Learned counsel for the plaintiff has filed a statement in Court today, along with certain documents and stated that these are the only documents on which plaintiff relies for ownership of the land by the sellers.
3. ' Learned counsel for the plaintiff has contended that original land of Survey No,45 of 25.20 acres was allotted by the Government to Esso son of Shakeel and Abdul Karim son of Shakeel having 8 Annas share each through Form-VII at page 21 of the statement. He has further contended that on the demise of Esso, his share in the said land was transferred to his legal heirs and ultimately it was transferred to the sellers who sold 3 acres out of the said land to the plaintiff by a sale-deed and the plaintiff also obtained mutation in his favour in Deh Form-II. Learned counsel has contended that initially mutation in favour of legal heirs was made in Form-VII but subsequently the said land was transferred to the sellers in Form-II and the sellers were the owners of the said land. He has contended that the ownership of sellers is contained in the Form-II attached with the statement.
4. ' On the other hand Mr. Ahmed Pirzada has contended that forms filed with the statement are false and made up documents and the Form-VII in favour of Esso was only a one year lease for 1948/49 on expiry, of it the land has reverted to the Government and the said Esso never acquired proprietary right as neither there is any lease nor receipts of payment of Malkano. He has further contended that even otherwise Form-VII is not a document on which title to the land could be claimed but a mere document maintained for the purpose of recovery of land revenue. He has also contended that mutations shown on the basis of Form-VII of Esso are all made up documents and the sellers had no title to the suit-land and the plaintiff has no cause of action for filing this suit.
5. Learned A.A.-G. Has adopted the arguments of Mr. Ahmed Pirzada.
6. ' I have considered the submissions made by learned counsel for the parties.
7. ' Plaintiff has filed this suit for declaration and permanent injunction alleging that he is a lawful owner of 3 acres of land out of Survey No,45 situated at Deh Songal, Tappo Gujro, Scheme 25-B, Gadap, Karachi (the suit-land), having purchased the same through a registered sale-deed from its previous owners namely Lahoti Gabol and others being a Qabooli land.
8. ' The land claimed to be owned by predecessor of the sellers is stated to have been acquired in the year 1950 through Deh Form-VII filed with the statement. At the time of alleged acquisition of the land, for the purpose of granting of land Sindh Land Revenue Code, 1879 was enforced. Section 62 of the said Code is as follows:--- "62. It shall be lawful for the Collector subject to such rules as may from time to time be made by the (Provincial Government) in this behalf, to require the payment of a price for unattended land or to sell the same by auction, and to annex such conditions to the grant as he may deem fit, before permission to occupy is given under section 60. The price (if any) paid for such land shall include the price of the (Crown) right to all trees not specially reserved under the provisions of section 40, and shall be recoverable as an arrear of land revenue)."
9. ' Reading of this provision shows that it will be lawful for the Collector subject to rules to grant the un-alienated land and require payment of price or to sell the same by auction and to annex such condition to the grant as he may deem fit before permission to occupy is given under section 60.
10. The price for such land is recoverable as arrears of land revenue. Rule 37 of Sindh Land Revenue Rules deals with grant of land for agricultural purposes and it is as follows:--- "37.(1) Any unoccupied survey number not assigned for any special purpose may, at the Collector's discretion, be granted for agricultural purposes to such person as the Collector deems fit, either upon payment of a price fixed by the Collector, or without charge, or may be put up to public auction and sold subject to his confirmation to the highest bidder. #TBS (3) #TBE
(2) In the case of such grants an agreement in Form "F" shall ordinarily be taken from the person intending to become the occupant. When the land is granted on inalienable tenure the clause specified in Form "I" shall be added to the agreement.
(4) When the land is granted on impartible tenure an agreement in Form F(1), and, when it is also granted on inalienable tenure, an agreement in Form I(1), shall ordinarily be taken from the person intending to become the occupant.
(5) The declaration below the agreement shall be subscribed by at least one respectable witness and by the patel and village accountant of the village in which the land is situate."
11. ' The reading of above rule clearly shows that grant of the land is made by way of agreement to be obtained from the grantee either in Form "F", Form "I", Form F(1) or Form 41). The declaration below the agreement Is to be subscribed by at least one respectable witness and by the patel and village accountant of the village in which the land is situated. Chapter XV of these rules deals with making of record of rights rule 104 of it is as follows:--- "104. The record of rights and mutations, the index of lands and the register of disputed cases shall be kept in Forms "0" "P" and "Q" respectively; provided that in sites surveyed under section 131, these forms may be modified by the Director of Land Records to suit the requirements of cities, the record of rights being termed the "Property Register". After the original preparation of the Record, all later entries altering or transferring those rights are termed "mutations". "
12. ' This rule prescribes forms for record of rights and mutations, index of land and register of disputed cases. It further provides that after the preparation of original record all later entries altering or transferring those rights are termed "mutations".
13. 'In the present case the plaintiff claims that land of Survey No,45 comprising 25-20 acres was initially granted to the predecessor of sellers namely Esso who had 8 Annas share in it and on his demise, it was transferred in the name of his legal heirs and in this way the sellers came to acquire the suit-land and their names were also entered in Deh Form-II. As noted above the grant of land has to be made by Collector and for such grant under rules there has to be an agreement in the form as provided under Rule 37. Once such agreement is executed in the manner set out in the rules, mutation is made in the record in favour of the grantee of land. Neither there is an order of Collector in terms of section 62 which is to be passed on the application of the person desiring the grant in terms of section 60, nor there is any agreement in terms of Rule 37 nor any receipts have been filed to show that the grantee has paid the price of the land. Deh Form-VII relied upon by the plaintiff to show the ownership of suit-land in the predecessor of the sellers, the column of date of entry is blank. Column of grant merely mentions 1948/49 without condition and with the approval of Collector Karachi. The number and date of Collector's order is not mentioned in this form. The entry in this form is not attested or certified by Mukhtiarkar who is required to make such attestation/certification in terms of subsection (6) of section 135-D of the Code. The attested copy of this Deh Form-VII appears to have been issued by Mukhtiarkar under his signatures on 20-2- 2004. While issuing such copy the Tapedar has noted that original record is with the Anti- Corruption and the copy has been prepared from photocopy and Tapedar Thoming, Scheme 33 has signed it as comparer. Entry No,78 which appears on this form against which the land of Survey No,45 is not attested and certified by Mukhtiarkar and will not attract the presumption of correctness of the record as is laid down under section 135-J of the Code nor could it be considered to be a certified copy of record in terms of section 135-K of the Code.
14. ' Be that as it may, the reading of Form-VII itself shows that it was a lease for a period of one year that is 1948/49. There is no document thereafter to show that perpetual grant of the said land was made in favour of the predecessor of sellers. Had such grant been made, there ought to have been documents as mentioned under section 62 of the Code, Rules 37 and 104 and entry in this respect duly attested and certified by the Mukhtiarkar. There being no such record, therefore, only thing which is patent from Deh Form-VII is that there was only one year lease in favour of the predecessor of the sellers and on its expiry the B land has reverted back to the Government.
15. ' Having come to this conclusion, as an incident of it all the subsequent entries in Form-VII and in Form-II purported to be in favour of successor of said Esso appears to be merely made up documents having no legs to stand on. The sellers entry in Form-II will also be to the same effect.
16. Plaintiff having failed to show ownership of suit-land in favour of the sellers, the plaintiff will have no cause of action for filing of the suit for declaration and permanent injunction and plaint is liable to be rejected.
17. ' After hearing the learned counsel from the parties by a short order, dated 20-1-2009, the plaint was rejected under Order VII, Rule 11, C.P.C., Above are the reasons for the said short order.
18. ' During the course of hearing of arguments learned counsel appearing for the Board of Revenue has brought the original register of Deh Form-II of Deh Songal, Tappo Gujro, Scheme 33, Karachi for the year 2004. This register at page 3 carries entry in favour of the seller. In the first place, as discussed above, this entry in the register apparently is fraudulent for the reason that the predecessors of the sellers had no title to the land. Besides there is overwriting in the entry number which seem to have been changed. The entry in Column No,2 shows that Survey No,45 is located in Sectors 18-C and 25-B. There is a red pen entry which says that as per sectorized map Survey No,45 does not fall in Sector 18-C. Such red noting has been signed by Mukhtiarkar but he has not put the date of such noting. Besides this, the register carry overwriting of other entry numbers and there are other overwritings in it which make it a doubtful record. The record of the land has to be maintained in as transparent manner as possible as it reflect valuable rights of the people. Any alteration or addition in it has to be justified through an order passed by competent authority and such order has to be fully reflected in the entry. The additions and alterations in this register have been made in very crude manner and are not supported by any order of competent authority. It hardly seems to be a reliable document in the eyes of law. Office is directed to send this register in seal cover to Secretary, Land Utilization Department, Government of Sindh to examine the same and thereafter to take appropriate action of setting the register right as per record of rights in accordance with law. He is also directed to take action against all delinquent officials of Revenue Department who have been privy in not maintaining the register and allowing it to be tampered.
19. The actions to be taken will be inclusive of taking departmental proceedings and referring the matter to Anti-Corruption Authority and also removing the delinquent officials from field duty. A report in this respect be submitted to the M.I.T. Of this Court within a period of two months.