' GHULAM RABBANI, J.---This appeal with leave of the Court is directed against the short order dated 21-2-2007 followed by reasons dated 6-8-2007 of a learned Single Judge of High Court of Sindh, whereby Civil Revision Application No, 26 of 1994 filed by appellant, herein, and an other Civil Revision Application No, 35 of 1994, were dismissed.
2. At the outset it may be stated that learned counsel for appellant disclosed during his oral submissions that the judgment in Civil Revision Application No, 35 of 1994 involving same facts and law has already attained finality and that in the instant appeal, only the matters arising, out of Civil Revision Application No, 26 of 1994, needed to be decided, relevant facts whereof are next to follow.
The appellants, herein, instituted against the respondent No,1, Army Welfare Trust and other appellants, a Suit No,220 of 1978 for declaration and permanent injunction. Their claim was that they were in cultivating possession of a piece of land consisting of Block Nos. 235, 237 and 249 area 40 acres from U.A. No, 190 of deh Sultanpur, Taluka Pano Akil, which, being a forest land, needed to be disposed of to the appellants as haris of Deh; even then, they received notice dated 9-8-1977 from the respondent No,4, Mukhtiarkar Pano Aqil disclosing that the land was disposed of as per Defence Forces Scheme. The appellants challenged the allotment of the said land seeking, inter alia, a declaration that they have a preferential right over it. The respondent No,1 contested the suit.
The trial Court recorded evidence of the parties after framing issues and decreed the suit as prayed with directions for demarcation of the land vide judgment and decree dated 5-6-1983. The appeal of respondent No,1 was dismissed vide judgment and decree dated 27-10-1986, which were set aside on a Revision Application of respondent No,1 and another, vide judgment dated 6-6-1993, passed by a learned Single Judge of High Court remanding the case to the Appellate Court for deciding afresh the appeal of the respondents after hearing the parties or their counsel.
Accordingly, the Appellate Court vide judgment and decree dated 21-2-1994 set aside the judgment and decree of the trial Court, therefore, the appellants filed Civil Revision Application before High Court of Sindh which was dismissed vide judgment, impugned herein.
3. In his arguments learned counsel for appellant took the same plea as that taken by the appellants in their pleadings and beside that, he stated that the disputed land being forest land could not have been allotted to respondent/Army Welfare Trust hence the allotment, being violative of law, was itself illegal and void ab initio. On the other hand learned counsel for respondent supported the impugned judgment and asserted that the disputed land was allotted to the Trust legally and lawfully.
4. Having heard the learned counsel for parties as above, in our estimation, the questions which fall for our decision are, firstly, whether the appellants have succeeded in establishing their preferential right as hari of the land as claimed by them and secondly, whether the allotment of land to respondent/Welfare Trust was in accord with law or otherwise. We therefore, with 'assistance of learned counsel for appellants, have seen the record. During course of trial, the appellants examined Muhammad Bux (appellant No,1) in their support. In his cross-examination, he stated that: "I am hari of the disputed land along with my sons. Prior to 1974 I was contractor of P.W.D.
Department and after 1974 I have left the work. Sometimes cultivate the disputed land and sometimes I supervise the land which is being cultivated by my sons. It is a fact that when I came to know that the disputed land has been granted to the defendant No,3. I did not file appeal before Commissioner, or Member Board of Revenue. It is not a fact that I am not paying land revenue. I have not produced any record in proof that the disputed land was originally the property of my father. I have not produced any document to show that our rights were recognized by the forest department at the time of acquiring disputed land from my father".
5. The onus lay with the appellant to establish that they were haris of the disputed land, therefore, it was their preferential right to have the land allotted to them. It may be noted that appellant Nos. 4 and 5 are sons of appellant No,1 while appellant Nos, 2 and 3 are his brothers. In his evidence appellant No,1 did not say a single word that any of his brothers were haris of disputed land though he for himself and for his sons, said so that also without identifying particular years of their harapship (tenancy). Also, he failed to support his oral version by any documentary or any oral corroboratory evidence. His oral version was, however, denied by D.W. No,1, Capt. (Retd.) Sher Zaman. In his evidence, he stated that the plaintiff/appellants were not in possession of suit land and that the land revenue as well as installments and water charges were being paid by Army Farm. He, in his cross-examination, denied a suggestion by saying that "it is incorrect to suggest that the land has been illegally granted to us and against the government rules". It is, thus, evident that the appellants failed to make out case in their favour.
6. Coming to the other point whether the allotment of land to respondent/Welfare Trust was in accord with law or otherwise, in our opinion, it shall be an exercise in futility to touch upon this question for the simple reason that it shall be, in view of the above stated facts, an academic exercise. Needless to observe that there arc concurrent findings of appellate and High Courts going against the appellants and no tangible material has been brought to our notice to disturb the same. Consequently, finding no force in this appeal, we dismiss the same with no orders as to costs.