MUHAMMAD ALI MAZHAR, J.---This application is brought by defendants Nos.1 and 2 under Order VII, Rule 11, C.P.C. For rejection of plaint on the ground that it does not disclose any cause of action and suit is hopelessly time barred. The plaintiffs have claimed following relief(s):--
(i) Declaring that the plaintiffs are the co-owners and in possession of the suit land bearing Survey No,3 (admeasuring 13-27 acres) and Survey No,4 (admeasuring 24-5 acres) Deh Hub Tapo Manghopir and District West, Karachi;
(ii) Declaring the transfer/mutation dated 25-8-1970 of the said Survey Nos.3 and 4 in D Form VII Deh Hub Tapo Manghopir. Taluqa and District West Karachi from the names of the plaintiffs to the name of the defendant No,3 by the defendant No, 5 and further registered Sale-deed No, 1533 dated 23-12-1972 pages 47 to 57 Volume 378 before the Registrar Karachi from the name of the defendant. No, 3 to the name of the defendant No, 2 and onward to the defendant No, 1 are fraudulent, unauthorized, void/voidable and declaring the same to be cancelled and to be delivered up;
(iii) Mandatory Injunction restraining the defendants Nos. 1, 2 and 3 from dealing with the said land and/or creating any third party interest in any manner whatsoever and further restraining the defendants Nos.3 and 4 from effecting any transfer and mutation of the said land of Survey Nos.3 and 4 adverse to the plaintiffs in any manner whatsoever;
(iv) Cost of the suit;
(v) Any other relief or relief(s) which this Hon'ble Court may deem fit and proper.
' The defendants Nos.1 and 2 in the application submitted that deceased Muhammad Khan sold his share in the land bearing Survey No,3 (ad measuring 13-27 acres) and Survey No, 4 (24-5 acres) situated in Deh Hub, Tappo Manghopir, Taluka and District Karachi along with other co-sharers i.e., Mst. Bano and Mst. Sehat, the plaintiff Nos. 1 and 2 as well as Muhammad Siddiq and Mst. Khatija, all sons and daughters of Ibrahim Khan, to the defendant No, 3 vide agreement to sell dated 20-10- 1964, 3-10-1969 and 3-10-1969 and issued separate receipts. The defendant No, 3 was also put into actual physical possession of the aforesaid survey numbers of land. Relevant entries were also made in Form-VII. Statement of the aforesaid owners was duly recorded and signatures and thumb impressions were duly verified in the City Mukhtiarkar Office, Karachi of all the co-sharers of both the survey numbers before mutation was effected in the name of defendant No,3 and endorsement to that effect was made by the Mukhtiarkar in the last page of agreement. The defendant No, 2 vide sale-deed dated 23-12-1972 purchased the said surveys Nos. 3 and 4 from the defendant No, 3 along with actual physical possession. The name of defendant No, 2 was duly mutated in the Record of Rights and vide Gift Deed dated 25-11-1991, the defendant No, 2 out of natural love and affection, conveyed said survey numbers of land to the his wife i.e., the defendant No,1, therefore, the name of defendant No, 1 was mutated in the Record of Rights. Vide agreement dated 8-8-2008, the defendant No, 1 sold the said land to Karachi City Government Employees Co- operative Housing Society Limited. (interveners). In part performance of the oral agreement, the defendant No, 1 delivered vacant physical possession of the said land to the vendee on 15-7-2008.
The defendant No, 1 also obtained No Objection Certificate for sale from the office of the Mukhtiarkar (Revenue) Gadap Town, Karachi on 5-8-2008. The plaintiffs had served upon the defendants Nos.1 and 2 a legal notice through Advocate on 20-8-2008, but did not file any suit till the month of December, 2008. The operation of interim order and the pendency of the present suit before this court is causing a great deal of hardship to the defendants Nos.1 and 2. The defendants Nos.1 and 2 have also been paying regularly the Dhall/Zakat charges to the Land Revenue Department, Government of Sindh.
' The plaintiffs filed counter-affidavit in which it has been submitted that the written statement as well as application under Order VII, Rule 11, C.P.C. Have been filed under incorrect, misleading and mala fide instructions. The written statement is based upon false denials of the facts as contained in the plaint of the suit, fraudulent claims and fabricated documents in collusion with the Revenue officials of the defendant No,4. The application under Order VII, Rule 11, C.P.C. Pertains purely to the defence of the said defendants which are the disputed facts and beyond the scope of Order VII, Rule 11, C.P.C. The suit contains crucial questions of facts and law to be adjudicated at the trial of the suit.
Heard the learned counsel for the parties. Mr. Saeeduddin Nasir, the learned counsel for the defendant Nos.1 and 2 argued that the plaint does not disclose any cause of action. The suit has been filed on C the basis of forged documents and is hopelessly time barred. The plaintiffs had sold out the land in question to the defendant No,3. The defendant No,3 was also put into actual possession of the land and relevant entries were also made in the record of rights. He further argued that the statement of the owners were duly recorded and signatures and thumb impression were verified by the City Mukhtiarkar Office Karachi for all the co-shareRs, The defendant No, 2 purchased the property by virtue of registered Conveyance Deed, thereafter the name of defendant No,2 was duly mutated in the records of rights. The defendant No,2 out of natural love and affection gifted the land in question to the defendant No,
1. After declaration of gift, the name of defendant No,1 was also mutated in the record of rights. The defendant No,1 sold the land to the Karachi City Government Employees Cooperative Housing Society Ltd. Learned counsel argued that the land in question was sold by the co-owners in favour of defendant No,3 in the year 1964, therefore, the suit is time-barred.
Though the application, moved by the defendant Nos.1 and 2 under Order VII, Rule 11, C.P.C. Is only confined to the grounds of non-accrual of cause of action and limitation, but the learned counsel in his arguments also relied upon Sindh Revenue Jurisdiction Act 1876 and argued that according to section 11 of the aforesaid Act, the suit is not maintainable, unless the plaintiffs have proof that previously they had presented all such appeals allowed by the law for the time being in force as within the period of limitation allowed for bringing such suits. For the sake of convenience, section 11 of the Sindh Revenue Act 1876 is reproduced as under:--
11. Suits not to be entertained unless plaintiff has exhausted right of appeal. No Civil Court shall entertain any suit (Subs. By the A.O., 1937, for "against Government" and finally the word "Government" was subs. For the word "crown" by P.O. No,1 of 1961) (against the Government) on account of any act or omission of any Revenue officer unless the plaintiff first proves that, previously to bringing his suit, he has presented all such appeals allowed by the law for the time being in force as, within the period of limitation allowed for bringing such suit, it was possible to present.
' The learned counsel for the defendants Nos. 1 and 2 further argued that throughout the period commencing from the date of first transfer of land in favour of the defendant No, 3, the plaintiffs have maintained complete silence and they have not raised any objection. In support of his arguments, he has relied upon the following judgments:-
1. PLD 1963: (W.P.) Karachi 613 (Muhammad Saleh v. Deputy Commissioner, Tharparkar and others).
In this case, the learned Divisional Bench of this court has held that person filing a civil suit must first prove that he had sought and exhausted all his remedies before Revenue Authority mere saying so in plaint not enough. The facts of this case were that the plaintiff had filed suit for declaration that the arrears of land revenue amounting to Rs,2,000 was due from defendant No,3 and not from the appellant. He prayed for injunction against the defendant from recovering the said land, revenue from the plaintiff. The defendant No,1 was Deputy Commissioner and defendant No,2 was Mukhtiarkar. The District Judge who tried the suit came to the conclusion that the plaintiff was in possession of his share, therefore, he was liable to pay the land revenue. The appeal was dismissed.
2. 1998 CLC 382 (Hawaldar Sawar Khan v. Province of Sindh and others). In this case, the learned Single Bench of this court held that the plaintiff had instituted suit without exhausting remedies available to him by way of appeal/revision under the relevant law. The court while rejecting the plaint was although required to look into itself where other remedies were available to plaintiff in the form of appeal and appeal/revision and he had not availed those remedies nor he has mentioned in his plaint that he had filed appeal against cancellation of grant of land which was not requirement in terms of section 11 of Sindh Revenue Jurisdiction Act, 1876, suit filed by him was incompetent and was rightly rejected. In this case the cancellation of allotment of land by the Revenue Officer was challenged.
3. 2007 YLR 1880 (Pir Bux v. Muhammad Moosa). In this case, it was held that bar contained in section 36 of Colonization of Government Lands (Punjab) Act, 1912 as well as section 11 of the Sindh Revenue Jurisdiction Act, 1876 was fully applicable as action of revenue authorities included the suit land in the schedule for the purpose of grant/auction was not unlawful, nor coram non judice nor without jurisdiction or for the matter undertaken without hearing the plaintiffs since public notice was issued regarding disposal of the suit-land which they ignored. Such action was of course, subject to revision/appeal before the Revenue Authorities. Suit filed by the plaintiffs, in circumstances was barred by law and plaint of plaintiffs thus was correctly rejected by the Civil Court.
4. 2007 CLC 1790 (Jan Muhammad Abbasi v. Mukhtiarkar Estate Larkana and others). In this case, it was held that cancellation of entries by the authority for being made on basis of forged documents. Plaintiff had filed suit without first availing remedy available under West Pakistan Land Revenue Act, thus suit was barred by section 11 of Sindh Revenue Jurisdiction Act. Provision of section 53 of Sindh Revenue Jurisdiction Act would apply to a person aggrieved by some entry in record of rights but would not apply to a suit questioning order of cancellation of an entry. An order not passed strictly in accordance with law would not become an order without jurisdiction. Plaintiff, except oral statement had not produced in court any document showing grant of estate land to him in open Katchery and payment of its entire price by him. Suit was dismissed on merits.
5. PLD 1967 Dacca 190 (Burmah Eastern Ltd. v. Burmah Eastern Employees' Union and others). In this case, it was held that although under Order VII, rule 11, C.P.C., it is the duty of the court to reject the plaint if on a perusal, it appears that the suit is incompetent. The parties to the suit are at liberty to draw courts attention to the same by way of an application. The principles involved are two-fold, in the first place, it contemplates that still-born suit should be properly buried, at its inception, so that no further time is consumed on a fruitless litigation. Secondly, it gives the plaintiff a chance to retrace his steps, at the earliest possible moment, so that, if permissible under law, he may found a properly constituted case. It appears from the language of Rule 11 of Order VII, C.P.C. That it requires that a incompetent suit should be laid at rest at the earliest moment so that no further time is wasted over what is bound to collapse as not being permitted by law.
6. 1994 CLC 2413 (M/s. Standard Hotels (Private) Ltd. v. M/s. Rio Centre and others). In this case, it was held that grounds of rejection of plaint stated in Order VII, rule 11, C.P.C. Could not be recorded as exhaustive of limiting powers of court to reject plaint, where suit was found not maintainable, court had inherent jurisdiction to reject the plaint.
7.1993 MLD 2419 (Muhammad Yaqub and others v. The Province of the Punjab). In this case it was held that court can take into consideration material other than contents of plaint while considering question of rejection.
8. PLD 1987 Quetta 189 (Ali Ahmed v. Mst. Ghulam Zohira). In this case, it was held that where suit appears from statement in the plaint to be barred by any law, same shall be rejected. Law includes subordinate legislation and as such if the court finds, that the plaint on the basis of its own contents, prima facie is barred by time, the plaint may be rejected under Order VII, rule 11, C.P.C.
9. 1989 CLC 15 (Mian Muhammad Akram v. Muhammad Rafi). In this judgment, it was held that objection as to rejection of plaint could either be taken in written statement or through a Miscellaneous Application. Apart from contents of plaint, material produced in defence could also be kept in mind for rejecting a plaint.
10. 2002 SCMR 338 (S.M. Shafi Ahmad Zaidi v. Malik Hassan Ali Khan). In this Judgment, the Hon'ble Supreme Court has held that besides averments made in the plaint, other material available on record which on its own strength was legally sufficient to completely refute the claim of the plaintiff, could also be looked into for the purpose of rejection of the plaint. Not necessary that other material would be taken as conclusive proof of the facts stated therein but it actually moderated that other material on its own intrinsic value to be considered along with the averments made in the plaint. Suit for possession could not be filed unless the plaintiff had a clear title. Requirement of law was that incompetent suit should be buried at its inception. Such practice was in the interest of litigated parties and judicial institutions itself. Rejection of plaint would save the time and expenses of the parties and courts could get more time to devote for the genuine cases.
11. 1994 MLD 207 (Muhammad Zaman v Tariq Mahmood). In this case, it was held that generally court has to consider averments made in plaint while rejecting such plaint. Court however can also look into the contents of written statement and other material on record and reject plaint summarily to secure ends of justice or to prevent abuse of the process of Court where a party after loosing his case up to the highest legal forum re-agitates the same matter in civil court and then wants the Court to decide such suit on merits and not to reject plaint by looking into the contents of written statement or judgments passed in earlier round of litigation. From perusal of contents of the plaint it was clearly made out that the petitioner suit merits rejection summarily.
12. 1989 CLC 964 (Mst. Sakina and others v. The Excise and Taxation Officer). In this case, it was held that it is necessary incidence in the trial of the judicial issues that a suit which is, on the face of it, incompetent, not because of any formal, technical or curable defect but because of an express or implied embargo imposed upon it by or under law, should not be allowed to further encumber legal proceedings. Order VII, Rule 11, C.P.C. Is obviously directed towards that end and is not exhaustive.
13. 2007 CLC 1821 (Muhammad Anwar v. Pak Arab Refinery Limited). In this case, it was held that the plaint could be rejected under Order VII, Rule 11(d), C.P.C. Where it appeared to be prima-facie barred by any law from perusal of statements in the plaint and no inquiry was needed. Question of limitation was always not a mix question of law and facts. Where question of limitation was apparent on the face of record, the court could proceed without any further inquiry. Duty had been imposed on court to notice point of limitation, irrespective of fact whether plea of limitation was raised or not.
14 .2000 CLC 1633 (Major (Rtd.) Hamid Ali Khan v. Mian Muhammad Anwar). In this case, it was held that where the plaintiff had concealed material facts in contents of plaint from court material produced in evidence/documents by way of filing the written statement or along with application under Order VII, rule 11, C.P.C. Could also be kept in mind for rejecting the plaint.
' In rebuttal, the learned counsel for the plaintiffs, Mr. K.B. Bhutto argued that originally the land in question was owned by Mst. Sher Bano wife of Rais Esab Khan Rind and on her death it was inherited by her sole son Ibrahim Khan. On the death of Ibrahim Khan the entire land in question was devolved upon the legal heiRs, The plaintiffs have been in continuous physical and legal possession of the land. On 13th August, 2008, the plaintiffs came to know through a public notice published in Daily "fang" in which it was mentioned that the defendant No,1 is negotiating to sell the land in question. Learned counsel argued that it is not a simple case of Challenging the mutation entries made in Deh Form-VII but the plaintiffs have also sought declaration regarding their ownership to the land in question and have also prayed for cancellation of the sale-deed dated 23-12-1972 executed by the defendant No,3 in favour of defendant No,2 and onward to the defendant No,1 being fraudulent transaction. The plaintiffs have also prayed for mandatory injunction against the defendants Nos. 4 and 5 to restore the entries of the plaintiffs names in Deh Form-VII with a further relief of permanent injunction restraining the defendants Nos. 1, 2 and 3 from dealing with said land and or creating third party interest in any manner. The learned counsel for the plaintiffs further submitted that the plaintiffs never appeared before the revenue authorities for any statement. He also referred to an agreement to sell dated 20-10-1964 attached with the written statement filed by the defendants Nos. 1 and 2 and on the last page except one signature, four (4) thumb impressions have been affixed without any proper identification. He also referred to other agreements which are attached as annexure P/2 and P/3 with the Written Statement which also show the thumb impressions without any proper identification. In first agreement, annexure P/ 1 the learned counsel referred to clause 5 which provides that the first party shall obtain within the stipulated period of six months, from the date of this agreement, all the necessary certificates for the purposes of registration of the sale-deed and in annexure P/2 again the learned counsel referred to para 10 in which it was mentioned that in case vendors fail to execute the sale deed within 90 days, the vendor shall indemnify the vendee for all his losses. He further argued that though all the agreements attached with the written statement are showing that transfer may be effected by execution of sale deed before the concerned Registrar, but no sale deed was executed and the land in question was transferred in the name of defendant No, 3 by Revenue Authorities on oral statement, which creates reasonable doubt that the entire. Transaction was fraudulent. The learned counsel further pointed out annexure P/5 to P/9 attached with the written statement of the defendants Nos. 1 and 2 and argued that no signature of witness is mentioned on these five (5) receipts except the thumb impressions and one signature without any identification. The learned counsel for the plaintiffs invited attention of this Court to CMA No,1296 of 2009, in which, the wilful violation of status quo order dated 11-12-2008 has been reported and the alleged contemnors are defendant No,2, President and Secretary Karachi City Government Employees Cooperative Housing Society and Administrator Shah Security DHA Karachi. In paragraph 4 of the supporting affidavit of the said application, Bashir Ahmed attorney of the legal heirs of plaintiffs Nos.2 and 3 submitted that on 6-2-2009, he was informed that some security guards of Shah Security along with some labourers were busy in digging at the land and fixing some precast cement pillars when he and Irtaza. Reached there, they found that the security guards and other persons were fixing the said pillars and one signboard of the Karachi City Government Employees Cooperative Housing Society, Karachi, he protested against their act by pointing out the status quo order of this Court but they did care. In paragraph 3 of the affidavit, the same Bashir Ahmed has also stated that he had received the notice of the Nazir of this Court for site inspection on 7-2-2009 at 2-30 p.m. And he waited for the Nazir up to 3-30 p.m. But he did not arrive and since be was not feeling well, he left his son Umar and one Irtaza Rind, the son of plaintiff No,2 (i) at the site. It is further alleged in the same affidavit that Nazir along with several persons including the defendant No,2 and the officers of Karachi City Government Employees Cooperative Housing Society and M/s. Shah Security had arrived and carried out the inspection and obtained signatures of Irtaza Rind on some papers of inspection carried out by him at about 4-15 p.m. On the same date. He also referred to Nazir's report dated 6-3-2009 in which it is stated that sketch was prepared at the site by the Mukhtiarkar Gadap. Mr. Irtaza Rind son of Rais Ghulam Nabi and Umar Rind son of Bashir Rind were also found sitting on one place of the suit properties on a cot. The Nazir concluded in his report that at the suit properties the guards of Shah Security Company of Karachi City Cooperative Housing Society were available. The learned counsel referred to section 53 of the Land Revenue Act in which it is provided that 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 declaration of his right under Chapter VI of the Specific Relief Act, 1877. The learned counsel also invited my attention to paragraph 8 of the plaint in which the cause of action is stated to be accrued on 20-8-2008 when the plaintiffs came across to a public notice published in daily Jang on 13-8-2010 with regard to the transaction of the suit land by the defendant No,1 in favour of some unnamed party. The learned counsel argued that for the purposes of rejection plaint, only the averments of the plaint could be looked into and from the narration of facts, a clear cause of action is visible. Neither the suit is time barred nor it is barred under section 11 of Sindh Revenue Jurisdiction Act, 1876. The plaintiffs have not only questioned the act or omission of the Revenue Officers but also prayed for cancellation of sale-deed and transfer which could be only effected by the Civil Court and Revenue Officers have no jurisdiction to cancel the registered sale-deed executed by defendant No,3 in favour of defendant No,2 and subsequent documents executed by defendant No, 2 in favour of defendant No,
1. He also argued that plaintiffs were in possession of the land and after passing the interim orders by this Court, the defendants have violated the injunctions orders and attempted to create third party interest. He further argued that plaintiffs are simple villagers and illiterate persons particularly the plaintiffs Nos.1, 2 and 3 are household and pardahnashin ladies, who never appeared in public nor authorized any person to deal with their shares in the said land, hence the transfer of land through statement before the Mukhtiarkar in favour of defendant No,3 is fraudulent and collusivd. In support of his arguments, the learned counsel relied upon the following judgments:--
1. 2001 SCMR 953 (Muhammad Altaf v. Abdur Rehman Khan). In this judgment, the Hon'ble Supreme Court has held that for the purposes of an application under Order VII, Rule 11, C.P.C., the avermehts contained in the plaint are to be presumed to be correct. In the case in hand, the learned Judges of the divisional bench has rightly pointed out that the allegation of fraud which was also averred in the plaint could not have been resolved without recording evidence.
2. 1990 SCMR 1630 (Ghulam Ali v. Asmatullah). In this judgment, the Hon'ble Supreme Court held that assertions made in the plaint had to be seen for the purposes of determining whether plaint disclosed any cause of action. Lack of proof or weakness of proof in circumstances of case did not furnish any justification for coming to conclusion that there was no cause of action shown in the plaint.
3. 2001 SCMR 609 (Amirzada Khan v. Itbar Khan). In this judgment, the Hon'ble Supreme Court has considered Articles 117 and 120 of the Qanun-e-Shahadat Order 1984 and held that burden to prove genuineness of a transaction with Pardahnashin lady and a document allegedly executed by such lady lay on the person who claimed benefit from the transaction or under the document. Such person was legally obliged to prove and satisfy the Court that the document had been executed by Pardanashin lady, that the lady had complete knowledge and full understanding about the contents of the documents and that she had independent and disinterested advise in the matter before entering into the transaction and executing the document.
4. 2001 SCMR 1591 (Mst. Raj Bibi v. Province of Punjab). In this judgment, the Hon'ble Supreme Court has considered section 42 of the West Pakistan Land Revenue Act, 1967 and held that where pleas of fraud, deception and misrepresentation had been taken by the illiterate Pardanashin ladies in alleged disposal of their properties, the onus in such cases lay on the person who had taken advantage of the transaction to prove the genuineness and bona fides of the document through which transaction had been executed and the contents of such documents were fully conceived and understood by the executants independently and freely. In the same judgment, it is further held that fraud vitiates even the most solemn transaction as such any transaction based on fraud would be void and notwithstanding the bar of limitation the matter can be considered on merits so as not to allow fraud to perpetuate.
5. 2001 SCMR 338 (Muhammad Lehrasab Khan v. Mst. Aqeelun-Nisa). In this judgment again, the Hon'ble Supreme Court has considered section 42 of the West Pakistan Land Revenue Act, 1967 and held that mutation is not a document of title and such document by itself does not confer any title, right or interest. Burden of proof lies on the party who seeks to establish the genuineness of the transfer in his favour. Although record of rights are not instruments of title but unless rebutted, presumption of truth is attached to them.
6.1998 SCMR 1354 (Muhammad v. Mst. Rehmon). In this judgment, it is held that where any sale executed by an illiterate lady, it is for the purchaser to establish that she had executed the same of her own free will under independent advice from her relations and fully knowing the nature of transaction.
7. PLD 1990 SC 642 (Janat Bibi v. Sikandar Ali). In this case, it is held that question whether a lady is a pardahnashin lady is a question of fact. Burden of proof in respect of a document purported to have been executed by a pardanashin lady affecting her right or interest in the immovable property is on the person claiming the right or interest under the document and it is for him to establish affirmatively that it was substantially understood by the and it was really her free and intelligent act and she is illiterate, it must have been read over to her. The rule is also applicable to ignorant and illiterate women.
8. PLD 1970 SC 180 (Mian Muhammad Latif v. Province of West Pakistan). In this judgment, the Hon'ble Supreme Court has considered section 11 of Sindh Revenue Jurisdiction Act, 1876 and held that there is no doubt that under section 11 of the Sindh Revenue Jurisdiction Act, 1876, ordinarily a party in revenue matters should exhaust all his remedies by way of appeal before invoking the aid of the Civil Court. But there are different considerations where the allegations of a party is that the impugned order is a nullity in the eye of law. The Civil Courts have jurisdiction to examine into cases where statutory provisions have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure.
' The defendant No,5 filed the written statement and in para 3 it is mentioned that the entries are longstanding and not yet challenged before any Appellate/Revisional Authority under provision of the Land Revenue Act, but no plea has been taken that suit is barred under section 11 of the Sindh Revenue Jurisdiction Act, 1876. In the written statement, the Mukhtiarkar, Gadap Town, Karachi submitted the ownership of survey No,3 and Survey No,4 and according to him, as per Entry No,61, the remaining share in survey No,4 owned by Muhammad Khan, Muhammad Siddique, Mst. Sihat, Mst. Banu and Mst. Khateejan was purchased by defendant No, 13 but such mutation was not sanctioned by order dated 14-9-1970 of the then Mukhtiarkar. Subsequently, as per Entry No,62 of VF-VII, Survey No,3 is shown to have been purchased by the defendant No,3 from the owneRs, This very entry bears signatures of Tapedar and Mukhtiarkar, Karachi dated 28-9-1970 but entry number date is torn.
' The learned Assistant Advocate General Sindh, Qazi Majid Ali referred to section 53 of the Land Revenue Act and assisted the Court on the ground that if a person feels himself aggrieved by an entry in the record of rights as to any right of which he is in possession, he may institute a suit for declaration of his right so he was of the view that in this suit the question of revenue entries is not the subject-matter only but there are other issues also triable between the parties and the cancellation of registration of indenture of sale-deed can only be done by this court and the Revenue Authorities have no jurisdiction to exercise the power of cancellation of documents under the Specific Relief Act. The learned Assistant Advocate General Sindh in support of his arguments referred to following judgments:--
1. 1996 SCMR 78 (Rasta Mal Khan and others v. Nabi Sarwar Khan and others). In this matter, the Hon'ble Supreme Court has held that where entries interfered with rights of a person in land recorded in the record of rights and such person felt aggrieved, for correction of such entries he had to approach Civil Court for declaration under section 53, West Pakistan Land Revenue Act, 1967 or under section 42, Specific Relief Act, both reliefs were available to him being of the same nature and identity. Dispute in question pertained to the nature of transaction based on impugned mutations. Suits were, thus, rightly found to be triable by Civil Court.
2. 2004 SCMR 604 (Nemat Ali and another v. Malik Habibullah and others). In this judgment, the Hon'ble Supreme Court has held that change of longstanding entries in Revenue Record in summary manner by Collector. Rights of parties qua disputed property required determination after giving them fair opportunity to adduce evidence. Factual controversies could only be resolved by Civil Court having plenary jurisdiction.
3. 1993 SCMR 618 (Muhammad Younus Khan and 12 others v. Government of N.-W.F.P. And others).
In this judgment, the Hon'ble Supreme Court has held that when mutation is not legal and proper, the entire structure built on it shall crumble. Entries in the mutation record are fiscal in nature, do not conclusively establish ownership in favour of the person in whose name such entries had been made and provide merely a rebuttable material.
4.1994 SCMR 1454 (Sardar and 5 others v. Rashid Ahmad and 12 others). In this judgment, the Hon'ble Supreme Court has held that it is established law that mutation entries do not establish title which had to be independently proved. Steps taken to correct the mistake cannot be agitated in Constitutional Jurisdiction. If the petitioners consider that their title in the land has come under- cloud, they have a remedy to resort to Courts of plenary jurisdiction for enforcement of their rights.
' After hearing the arguments of all the learned counsel, I have reached to the conclusion that the plaintiffs in the present suit have claimed different relief(s) including the declaration of ownership, challenge to mutation entries effected in the year 1970 and cancellation of sale-deed registered in the year 1972 as fraudulent, unauthorized and further prayed that the same may be delivered up.
Besides above, the plaintiffs have also prayed for the mandatory injunction directing the defendants Nos.4 and 5 to restore the entries in the record of Deh Form VII and also claimed permanent injunction restraining defendants Nos.1, 2 and 3 from dealing with the suit land and or creating any third party interest. So far as the plea of limitation is concerned, at present the suit does not appear to be time-barred. The plaintiffs properly pleaded the cause of action in paragraph 8 of the plaint and if the cause of action described in the plaint is to be taken true and correct, the suit is not time barred. It is well settled old age principle that for the purposes of rejection of plaint, only the averments of the plaint are to be looked into and the word "cause of action" means the bundle of facts incorporated in the plaint. Another point argued by the learned counsel for the defendants Nos.1 and 2 is that the suit is barred under section 11 of the appeal allowed by the law before the Revenue hierarchy. In my view this Land Revenue Jurisdiction Act and the plaintiffs have failed to present is also a mix question of law and facts. Again I would like to observe that the plaint is not confined to the acts and omission of revenue officers alone, but there are many other reliefs sought by the plaintiffs which cannot be entertained and or decided by the Revenue hierarchy and this is not a simple matter of mutation entries and or its cancellation. The case-law relied upon by the learned counsel for the defendant No,2 in relation to section 11 of the Sindh Revenue Jurisdiction Act are distinguishable as in the first case reported in PLD 1963 (W.P.)
Karachi H 613, the plaintiff had filed a suit for declaration that the arrears of land revenue amounting to Rs, 3,000 was due from defendant/respondent No,3 and not from the appellant. In the above case, there was no declaration of title nor relief of cancellation was claimed but the matter was directly related to the arrears of land revenue. In another case reported in 1998 CLC 382, the matter pertains to cancellation of allotment by revenue officer and the Court was of the view that the suit was instituted without exhausting remedies available by way of appeal/revision.
Again I would like to observe that the present matter does not relate to the cancellation of allotment but the plaintiffs have prayed that the transfer and the mutation entry was effected in the name of defendant No,3 fraudulently and the plaintiffs have also taken plea that the ladies are Pardahnashin and other persons are illiterate, therefore the burden of proof lies upon. The person to prove that the transfer mutation was effected in his favour with the knowledge of plaintiffs. The third judgment reported in 2007 YLR 1880 is also distinguishable to the facts and circumstances of the present case. Again this matter did not pertain to the declaration or cancellation but the matter was related to the auction proceedings and this Court held that section 11 of Sindh Jurisdiction Act 1876 was fully applicable since it cannot be said that the action of revenue authorities of including the suit land in the Schedule for purpose of grant/auction is either unlawful, coram non judice or without jurisdiction. No questions similar to the facts of the instant case were involved in that case. In the fast judgment reported in 2007 CLC 1790, this Court has held that plaintiffs had filed a suit without first availing remedy available under West Pakistan Land Revenue Act, thus, suit was barred under Section 11 of the Sindh Revenue Jurisdiction Act, 1876. Provision of section 53 of West Pakistan Land Revenue Act, 1967 I would apply to a person aggrieved by some entry in record of rights, but would not apply to a suit questioning order of cancellation of an entry.
This judgment is also distinguishable as it pertains to the cancellation of entry but no question of fraudulent transfer or mutation was subject matter and no relief for the cancellation of registered documents was claimed. The learned counsel for the defendants Nos.1 and 2 relied upon other judgments which related to Order VII, Rule 11, C.P.C. In which, keeping in view the old age principle, it has been held that still born suit should be buried at its inception to save the time of Court on a fruitless j litigation. In some of the judgments, the Courts have held that for the purposes of rejection of plaint, the material other than contents of the plaint may also be looked into. There is no cavil to the proposition laid down in the judgments referred to by the learned counsel for the defendants Nos.1 and 2 in relation to the guiding principle for the rejection of plaint, but I am of the considered view that at this stage, there is nothing convincing on the record even considering the other material placed in defence that the plaint is liable to be rejected.
' The learned counsel for the plaintiffs has relied upon the judgments relevant to Order VII, Rule 11, C.P.C. In which it was held that the averments contained in the plaint were presumed to be correct for the purposes of application under Order VII, Rule 11, C.P.C. Lack of proof or weakness of proof in the circumstances of case did not furnish any justification for coming to conclusion that there was no cause of action shown in the plaint. Since the plaintiffs have also pleaded that they are simple villagers and illiterate persons particularly the plaintiffs Nos.1, 2 and 3 are household and pardahnashin ladies, who never appeared in public nor authorized any person to deal with their shares in the said land, therefore, to that extent, the case law relied upon by the plaintiff's counsel in relation to burden of proof in case of Pardahnashin lady and alleged fraudulent transaction are applicable. The bone of contention between the parties as recounted in the plaint and the written statement shows a substantial dispute with mix question of law and facts which require evidence and unless evidence is recorded, the dispute between the parties cannot be resolved. At this juncture, I would like to rely upon a judgment reported in PLD 2008 650, (Saleem Malik v. Pakistan Cricket Board) in which, the Hon'ble Supreme Court has held that rejection of plaint on technical grounds would amount to deprive a person from his legitimate right of availing legal remedy for undoing the wrong done in respect of his such right. This is a settled principle of law that in case of controversial questions of facts or law the provision of Order VII, Rule 11, C.P.C. Cannot be invoked rather the proper course for the Court in such cases is to frame issue on such question and decide the same on merits in the light of evidence.
' As a result of above discussion, I am not convinced to reject the plaint. .