' NADEEM AZHAR SIDDIQI, J.--- The applicants are aggrieved by the judgment dated 30-9-2006 and decree dated 6-10-2006 passed by learned II-Additional District Judge, Thatta in Civil Appeal No.16 of 2000.
2. The dispute involved in this case pertains to land hearing Sr, Nos.48 to 54 and 119 to 150 situated in Deh Ghorbari, Taluka Keti Bunder hereinafter to be referred, to as "the suit-land". The applicants/plaintiffs claimed that suit-land was State land and entered in the record as such as is evident from the order dated 25-1-1978 passed by the then Deputy Commissioner Thatta. It was stated that the predecessor-in-interest of the respondents was granted 1 bearing S.Nos.372 to 374 and 376 to 382 but, respondents Nos.1 and 2, in collusion with the then Mukhtiarkar, Faqir Muhammad Panwhar, got the revenue record interpolated whereby the suit-land was also shown to be the grant land of the said Noor Muhammad in the years, 1923-1924 as his Qabooli land. Later on the suit-land was entered in the revenue record in favour of the respondents as being inherited from the father, the said Noor Muhammad. It is stated that in the year, 1973, the Mukhtiarkar, Shah Muhammad Kazi detected the above fraud in the revenue record and sent such report to respondent No.5. Deputy Commissioner, Thatta who ordered cancellation of the above entries which was done vide order dated 25-6-1974. This order was assailed before respondent No.3 in the appeal, namely, the Additional Commissioner, Hyderabad, who remanded the case to respondent No.5, who vide his order dated 25-1-1978, again maintained his previous order regarding cancellation of the entries. This order was again challenged before the said respondent No.3 but this time the appeal was dismissed vide order dated 6-3-1986 against which a revision was filed before respondent No.2 (The Senior Member, Board of Revenue), who, vide his order dated 15-10- 1978, allowed the same and set aside the above two orders, dated 25-1-1978 and 6-3-1986, passed by respondents Nos.2 and 3.
3. The applicants, challenged the order dated 15-10-1987 passed by the Senior Member, Board of Revenue by filing Suit No.117 of 1991 before the Senior Civil Judge, Thatta for declaration, cancellation of entries and permanent injunction inter alia against the private respondents which was decreed vide judgment dated 22-2-2000. The respondents Muhammad Haroon and his brothers/L.Rs., being aggrieved by the judgment dated 22-2-2000, filed Civil Appeal No.16 of 2000 before the District Judge, Thatta, which was allowed vide judgment dated 6-11-2000 passed by learned II Additional District Judge, Thatta and: accordingly, the judgment dated 22-2-2000 passed in Suit No.117 of 1991 was set aside and the said suit was dismissed. This judgment dated 6-11-2000 passed by the learned II Additional District Judge, Thatta in Civil Appeal No.16 of 2000, was called in question before this Court through Revision Application No.255 of 2000, which was allowed vide judgment dated 11-3-2002 whereby the judgment dated 6-11-2000 was set aside and the case- was remanded to the appellate Court to be decided either by the learned District Judge himself or by any other Additional District Judge, except the one who decided the same earlier. Accordingly, though the case was again heard by II Additional District Judge, Thatta, but this time by a different Additional District Judge, namely, Mr. Anand Ram D. Seirani, while previously it was decided by Mr. Sirajuddin Qureshi, who allowed the appeal and set aside the judgment and decree respectively dated 22-2-2000 and 28-2-2000 and dismissed Suit No.117 of 1991 filed by the present applicants.
Hence, this revision application.
4. The learned trial Court, on the basis of the pleadings of the parties framed the following issues in Suit No.117 of 1991.
(1) Whether the suit-land is Na-Qabooli land and it was not granted to deceased Noor Muhammad Kanad in 1923-1924?
(2) Whether defendants Nos.7 to 9, mutated the suit-land in the name of their father fraudulently and subsequently got the Foti Khata of the same changed in their favour in collusion of Revenue Officials?
(3) Whether the defendants Nos.7 to 9 are not in possession of suit-land and they have not been cultivating the same?
(4) Whether the order of defendant No.2 is not legal?
(5) Whether the defendants Nos.7 to 9 have not mutated the suit-land in the name of their father by way of fraud and subsequently got the same Foti Khata changed in their favour in collusion of Revenue Officers?
(6) Whether defendants Nos.7 to 9 are in possession of suit-land?
(7) Whether the defendants Nos.7 to 9 are legal owners of suit-land?
(8) Whether the suit is maintainable in law?
(9) ' Whether the suit is not time-barred?
(10) Whether the plaintiffs are entiiled to file this suit?
(11) Whether the plaintiffs have any cause of action to file this suit?
5. The learned trial Court answered issues Nos.1 to 4 and 8 to 11 in the affirmative and issues Nos.5 to 7 in the negative and decreed the suit vide judgment dated 22-2-2000 which was challenged through ,Civil Appeal No.16 of 2000. This appeal was decided twice: once vide judgment dated 6-11- 2000 when the learned II Additional District Judge, Thatta allowed the appeal and set aside the judgment dated 22-2-2000 and dismissed the suit holding that the same was barred by limitation.
This appellate order was impugned in R.A. No.255 of 2000 which was allowed vide judgment dated 11-3-2002, the impugned judgment was set aside and the case was remanded to the appellate Court to decide it on merits. Therefore, once again Civil Appeal No.16 of 2000 was heard, but this time by a learned Additional District Judge other than the one who had earlier decided the said civil appeal, and vide judgment dated 30-6-2006, again allowed the civil appeal, set aside the judgment and decree passed in Civil Suit No.117 of 1991 and dismissed the suit, but this time it was so dismissed on merits rather than on technicalities, as was previously done. The learned II- Additional District Judge formulated the following point for determination:- "Whether defendants Nos.7 to 9 are legal owners of the suit-land which was inherited by them from their father Noor Muhammad and whether the suit-land was Qabooli land and it was belonging to deceased Noor Muhammad and entered in his name in the Years, 1923-1924?
6. The learned appellate Court, while answering the above, issue, held as under:-- "The burden to prove this point lies upon the appellants and appellant Muhammad Haroon during his evidence before the trial Court has supported their case as setup in the written statement and deposed that the suit-land was Qabooli land and belonging to deceased Noor. Muhammad their father and the same was entered in Village Form-A (old) in the years, 1923-1924 as well as in the year, 1925-1926, his name was also appearing in the record of rights for the year, 1935-1936. He further deposed that after the death of their father the Foti Khata was mutated in favour of the appellants who were his sons as is evident from Village Form-VII bearing Entry No.10/A and 10-10 dated 6-1-1973. They have produced all the relevant documents showing their ownership over the suit-land since, 1923-1924 which are available on the record of trial Court in the original suit. He further deposed that order of Deputy Commissioner Thatta in favour of private respondents was illegal and the same was set aside by the Member Board of Revenue Hyderabad in Revision application on 15-10-1987, he further deposed that no fraud whatever was committed by their deceased father with the collusion that the suit-land was not added in the village Form VII in the year, 1973 through interpolation, forgery or fraud in the name of their father Noor Muhammad.
' From the above piece of evidence and old huge documentary evidence it is established that deceased Noor Muhammad was the owner of the suit-land, and after his death the suit-land was mutated in the name of the appellants who are in possession of the suit-land and paying the land revenue to the Government, such receipts have also been brought on record, to establish their title over the suit-land as well as their possession."
7. On the point of alleged fraud having been committed in getting the suit-land registered in the name of the predecessor-in-interest of the appellants, the learned appellate Court held as under:- -- "there is no direct evidence on the point of fraud as the private respondent No.7 was neither the witness nor party to the proceedings before the Mahalkari or before any revenue authority and he had also not produced any documents to show that the Foti Khata was changed fraudulently."
8. About the maintainability of the suit before the trial Court, the learned appellate Court observed as under:--- "The record shows that from the government side the representative of Barrage Department also appeared in the witness box and deposed that no portion from the suit-land was ever allotted to any of the plaintiff. In the circumstances of (sic) the suit of the plaintiff fails and the same was liable to be dismissed as this aspect of the case was ignored by the learned Court while deciding the suit."
' As regards the judgment of the trial Court, the learned Additional District Judge further held as under:- "The record further shows that the learned trial Court has decided all the issues without giving the proper reasons and ignoring the documentary as well as oral evidence produced by the appellants."
9. I have heard the learned counsel for the parties and have perused the record and the case-law cited before me.
10. Learned counsel for the applicants contended that in violation of the judgment in R.A. No.255 of 2000, the appellate Court did not decide all the points for determination. He submitted that the applicants are in possession of the government land and are entitled to remain in possession till action is taken by government. He submitted, that possession is a valid title against all persons except the true owner. He also submitted that no point with regard to the maintainability of the suit and the fraudulent actions of the respondents were framed, therefore, assumption of jurisdiction was invalid. He prays that the revision may be allowed, the appeal may be dismissed and the judgment and decree of the trial Court may be restored.
11. On the other hand, Mr. Inam Nabi Soomro, learned counsel for respondents Nos.1 to 3, submitted that the land was in the name of predecessor-in-interest of the respondents, namely, Noor Muhammad, and Foti Khata was mutated in favour of the legal heirs of the said Noor Muhammad, who are the present respondents. He submitted that in case of conflicting judgments the judgment of the appellate Court is to be given preference. He submitted that the judgment of the appellate Court is based on proper appreciation of the evidence available on record. He then submitted that fraud though alleged but has not been proved by the respondents. He finally contended that there is no defect in the impugned judgment. He relied on the following reported cases:---
(1) Mir Muhammad v. Ghulam Muhammad PLD 1996 Kar.202,
(2) Hafiz Ali Ahmed v. Muhammad Asad PLD 1999 Kar. 354;
(3) AASA v. Ibrahim.2000 CLC 500 and (4) S. Shahid Ahmed Hashmi v. Chairman, Screening Committee, Lahore 1978 SCM R 367.
12. In the case in hand, firstly, the learned II Additional District Judge, Thatta allowed the appeal filed by the present appellants and dismissed the suit of the respondents on the ground of limitation.
However, this Court, vide order passed in Revision Application No.255 of 2000, remanded the case back to the appellate Court to decide it afresh ignoring the question of limitation as it was decided by the learned Single Judge himself. The appeal was again heard and was once again dismissed by the impugned judgment on merits. On the basis of the evidence adduced by the parties the learned appellate Court reached the conclusion that: (i) the deceased Noor Muhammad was the owner of the suit-land and after his death the suit-land was mutated in the name of his legal heirs, namely, the present appellants, (ii) that there is no direct evidence on the point of fraud and no document has been produced to show that the Foti-Khata was changed fraudulently, (iii) the orders of the Deputy Commissioner, Thatta as well as the Additional Commissioner, Thatta were set aside by the Member, Board of Revenue, (iv) that no portion of the suit-land was ever allotted to any of the private respondents plaintiffs, and (v) the trial Court has decided all the issues without giving proper reasons therefore.
13. So far as the contention of the learned counsel for the applicants that all the points for determination have been decided in violation of law and order of the High Court is without any force as proper points have been formulated and decided and in such circumstances framing of issues was not necessary. Learned counsel also contended that no point with regard to maintainability of the suit and fraudulent entries has been framed. It is a settled principle of law that if points for determination had not been formulated in a particular form but substantial justice would have been done by the Court by addressing itself to the material points in controversy and recording findings on the points before it. In this case the points before he learned appellate Court have been addressed and findings thereon have been recorded and, therefore, substantial justice has been done. I am fortified in my view by the judgment reported as Hafiz Ali Ahmed through L.Rs. v. Muhammad Abad and others PLD 1999 Kar.
354.
14. Mr. Qamar Muhammad Khan, learned counsel for the applicants, in his arguments in rebuttal stated that prayer in the suit is not hit by section 42 of the Specific Relief Act as the suit was filed to save the government land. This, in itself, is an admission that the plaintiffs/respondents have no right or title in the suit and the suit should have been dismissed on this ground. No duty was cast up on the plaintiffs/respondents, to take the pain of filing a suit at huge expenses B just to protect the government land. The question of fraud was brought to the notice of the relevant authorities by Mahalkari, Shah Muhammad Kazi and the matter ,reached its logical conclusion when it was finally decided by the Member, Board of Revenue in favour of the respondents. No grievance was caused to the respondents/plaintiffs by the order of the Member, Board of Revenue. Only the Government could have challenged the said order. However, for reasons best known to the plaintiffs/respondents, they took it upon themselves to file the suit.
15. A civil revision application is filed under section 115 of the Code of Civil Procedure, which reads as under:--- "115. Revision.--- The High Court may call for the record of any case which has been decided by any Court subordinate' to such High Court and in which no appeal lies thereto, and if such subordinate Court appears-
(a) to have exercised a jurisdiction not vested in it by law, or
(b) to have failed to exercise a jurisdiction so vested, or
(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit."
16. Thus, it will be seen that provisions of section 115, C.P.C. Envisage interference by the High Court only on account of jurisdiction alone i.e. If a Court subordinate to the High Court has exercised a jurisdiction not vested in it, or has irregularly exercised a jurisdiction vested in it or has not exercised such jurisdiction so vested in it. It is settled law that when a Court has jurisdiction to decide a question it has jurisdiction to decide it rightly or wrongly both in fact and law. The mere fact that its decision is erroneous in law does not amount to illegal or irregular exercise of jurisdiction. For an applicant to succeed under section 115, C.P.C., he has to show that there is some material defect or procedure or disregard of some rule of law in the manner of reaching that wrong decision. In other words, there must be some distinction between jurisdiction to try and determine a matter and erroneous action of Court in exercise of such jurisdiction. It is a settled principle of law that erroneous conclusions of law or fact can be corrected in appeals and not by way of a revision which primarily deals with the question of jurisdiction of a Court i.e. Whether a Court has exercised a jurisdiction not vested in it or has not exercised a jurisdiction vested in it or has exercised a jurisdiction vested in it illegally or with material irregularity.
17. No such infirmity has been shown by counsel for the applicants to call for interference in the impugned judgment by this Court. The case-law relied upon has not been discussed as it was not relevant for the purposes of deciding this revision.
18. Moreover, in the case of Mir Muhammad alias Miral v. Ghulam Muhammad PLD 1996 Kar. 202, it was held that, "It is settled proposition of law that in the event of conflict of judgment, view expressed by the appellate Court should ordinarily be preferred unless the same is contrary to evidence on record or in violation of the settled principles for administration of justice." In the present case, learned counsel for the applicants has failed to show that the findings of fact arrived by the learned appellate Court are contrary to the evidence on record or in violation of settled principles of law.
19. In the case of AASA v. Ibrahim 2000 CLC 500, a learned single Judge of the Quetta High Court held that, "If no error of law or defect in procedure had been committed in coming to a finding of fact, the High Court cannot substitute such finding merely because a different finding could be given.
20. The upshot of the above discussion is that this revision application is dismissed having no merits.