This is a revision petition against the judgment and decree of S. Sibtain Rasul Naqvi, Additional District Judge, Sheikhupura dated 14-3-1978 by which after setting aside the judgment and decree of the learned trial Court passed in favour of the plaintiff-petitioner he dismissed his declaratory suit.
2. The plaintiff-petitioner admittedly is a land owner in Chak No. 9/R.B., Tehsil and District Sheikhupura. It is also admitted that he was appointed Lambarder on 9w2-1962 but that order of appointment was set aside by the Additional Commissioner (Revenue) on 30-5-1962. Both the parties concede that the Lambardar of the village in regard to the patti in dispute was Raja Abaidullah. The case of the respondent-Government is that the petitioner had been appointed as Sarbrah Latnbardar and in that capacity had recovered land revenue and amounts recoverable as arrears of land revenue from Kharif 1967 to Rabi 1972. Since he defaulted in the payment of about Rs. 81,000 action was taken against him under the Land Revenue Act for the recovery of the said amount after issuance of notice.
3. The case of the plaintiff in his plaint is that he was neither a Lambardar nor a Sarbrah Lambardar but had been making recoveries from the land owners as a special attorney of Raja Abaidullah Lambardar and in that capacity he had submitted two lists of defaulters on 29-9-1972 and 9-1-1973 to Tehsildar, Sheikhupura so that the amount due as land revenue may be recovered as arrears of land revenue. It was further stated that Raja Abaidullah had also been regularly submitting the list of the .Defaulters to the Revenue Authorities within time.
4. The plaintiff's suit for declaration that he is not a defaulter in respect of the collection of the land revenue, ahiana and other Government dues amounting to Rs. 81,000 and the same cannot be recovered from him was filed on 3-11-1973. Thereafter an amended plaint to the same effect was filed after impleading the land owners, from whom according to the Govern--ment recovery was made by the petitioner and according to the petitioner they were defaulters. They were impleaded as defendants Nos. 3 to 18.
5. The landowners, defendants Nos. 3 to 18 in their written statement contended that the petitioner bad been recovering land revenue, etc. From them in his capacity as Sarbrah Lambardar and had been issuing receipts to them. The Government in its written statement took a preliminary objection particularly to maintainability of the suit and also pleaded estoppel. The following issues were framed by the learned trial Court :-
(1) Whether this Court has no jurisdiction to try this suit ?
(2) Whether this suit cannot proceed without prior deposit of the disputed amount under protest ?
(3) Whether an equally efficacious remedy is available to the plaintiff under section 161 of Punjab Land Revenue Act ? If so, its effect ?
(4) Whether the plaintiff is estopped from bringing this suit for preliminary objection No. 6 of the written statement ?
(5) Whether this suit is barred by section 56 of Specific Relief Act ?
(6) Whether the suit cannot proceed under section 42 of Specific Relief Act ?
(7) Whether the plaintiff is a legally appointed Sarbrah Lambardar and whether be is liable to pay the disputed amount of Rs. 80,805/78 to the defendants ?
(8) Whether the disputed amount can be recovered from the plaintiff, as arrears of land revenue ?
(9) if Issues Nos. 7 and 8 are proved, whether the demand of the disputed amount from the plaintiff by the defendant is illegal, void, ultra vires, and inoperative as against the plaintiff 3
(10) Whether this suit has been improperly valued for the purposes of court-fee and jurisdiction ? , (I1) Whether the defendant is entitled to recover special costs from the plaintiff under section 35-A, C. P. C. If so, to what extent ?
(12) Relief.
6. The trial Court closed the evidence of the defendants under Order XVII, rule 3, C. P. C. And passed a decree in favour of the plaintiff on 31-5-1976. But that decree was set aside by the learned District -Judge, Sheikhupura on 28-10-1976 and the case was remanded for affording opportunity to the defendants to lead evidence in support of their case. Again the suit was decreed on 16-6-1977 and it was that decree which was set aside by the learned Additional District Judge by the impugned judgment and decree.
7. In the ultimate judgment the learned Civil Judge found Issues Nos. 1 to 6 against the defendants on the ground that the onus of the issues lay on them and moreover during arguments the Government Pleader did not press them. He answered Issue No. 7 in the negative. He held issue No. 8 to have become redundant. Under Issue No. 9 it was held that the demand of the disputed amount from the plaintiff by the defendant is patently illegal. Issue No. 10 was found in the negative.
Issue No. 11 was found against the defendants. In view of the findings on Issues Nos. 7 to 9 the decree was passed in favour of the plaintiff.
8. The learned Additional District Judge did not agree with the learned Civil Judge that the Government Pleader bad not pressed any issue or had made any concession in respect thereof.
After going through the evidence he found that the petitioner was proved by Exh. DWI/, 2 & 3 as Sarbrah Lambardar. In this view of the matter he applied section 172(2)(xv) of the Land Revenue Act, 1967, and held that the jurisdiction of the Civil Court was barred except in the manner as laid down in section 91 of the Land Revenue Act, a precondition for the filing of the suit under which the deposit of the amount in dispute was to be made under protest in writing at the time of payment.
9. It is undisputed that if the plaintiff-petitioner is held to be Sarbrah Lambardar, the suit would be barred by section 172 of the Land Revenue Act read with section 91 thereof unless the amount in dispute is deposited under protest prior to the filing of the suit. If on the other hand it is proved that the petitioner is not a Sarbrah, Lambardar the entire burden would be upon the Government and respondents Nos. 3 to 18 to prove that the amount in dispute was paid to the petitioner and he had misappropriated the same. The petitioner can be held as a land owner to be responsible for the entire amount in dispute without proof of its actual payment only if he is at all a Lambardar or a Sarbrah Lambardar. None of the learned counsel has contested this point of law.
10. 1 have gone through the record with the' assistance of the learned counsel for the parties. As stated above the learned Additional District Judge has given a finding on the question of Sarbrah Lambardar against the plaintiff-petitioner. The question is whether there is no evidence on record to prove that the petitioner is Sarbrah Lambardar or whether the learned Additional District Judge has in any way misread the record.
11. The argument of the learned counsel for the petitioner is that there is no evidence that the petitioner was ever appointed as a Sarbrah Lambardar. He referred to the statement of P. W. 1 Chaukidar and P. W. 2 Patwari of the halqa in support of this negative proposition. In regard to the receipts he submitted that since the signatures on these receipts were denied by the petitioner in his statement; the burden on the respondents was very heavy and this matter should have been proved by production of an expert of questioned documents. It is correct that there is no evidence about the appointment of the petitioner as a Sarbrah Lambardar. This is attributed by the learned counsel for the respondents to the fact that the record was burnt. However, there is no evidence to this effect on the record and this point cannot be taken into consideration. The fact, however, is that there are three receipts Exh. D. W. 1/1, 2 and 3 which have been proved to be in the handwriting of the petitioner by D. W. 1 and in which the petitioner in no uncertain terms has described himself as Sarbrah Lambardar. This is an admission by the petitioner. These are the receipts which have been taken into consideration by the learned Additional District Judge and consequently it cannot be said that there is no evidence on record in respect of the petitioner being a Sarbrah Lambardar.
Similarly it cannot be said that the finding of the learned Additional District Judge is in any manner based upon misreading of the record.
12. The argument of the learned counsel that in view of the denial by the petitioner about these receipts bearing his signatures, signatures could be proved only by the production of some expert evidence, is without force since that is not the only manner in which the receipts can be proved to have been executed by the petitioner.. That is only one of the manners of proof but not the exclusive manner. The circumstances of this case, however, make it clear that these receipts were issued by the petitioner. The petitioner has not come to the Court with clean hands. These receipts are in Urdu but it is clear that in order to escape the detection the, petitioner has signed all the documents of this suit in English. In para. 3 of the plaint he submitted that he was the special attorney of Raja Abaidullah Lambardar and had submitted lists of defaulters on 29-9-1972 and 9-1- 1973 to Tehsildar, Sheikhupura. There is no proof on record that he is special attorney. No deed of appointment as special attorney has been produced. Similarly the two documents consisting of the lists of the defaulters have not been proved by the petitioner. However, one thing is clear from the lists that the petitioner had been making efforts to recover the land revenue. If it is once disproved that he was the special attorney, the only other way in which he must have been going to the land owners for recovery would be in his capacity as Sarbrah Lambardar. It is, therefore, clear that he has failed to prove his own case. His witnesses give a different version about his capacity. Sadiq P. W. 1 stated that the petitioner was munshi of Raja Abaidullah and remained salaried munshi for a number of years. He also stated that the petitioner had been making recovery of land revenue on behalf of Abaidullah and used to issue receipts. He further stated that he used to accompany the petitioner at the time of recovery. From this evidence it is clear that a contradictory position had been taken by P. W.
1. The Petitioner has asserted himself as special attorney, which he failed to prove since P. W. 1 stated that he was a salaried munshi of Raja Abaidullah and had been making recoveries in that position. However, it is admitted that the recoveries were made by the petitioner for 5 or 6 years. The amount recoverable is also for the same period, i.e. From 1967 to 1972. The petitioner in his statement also tried to support his witness P. W. I by saying that he was an employee of Raja Abaidullah but he stated that from Kharif 1967 to Rabi 1972 he never received dhal bach. He also said that it was incorrect that he received dhal bach and received Rs. 80,805/78 as land revenue and failed to deposit the same in the Government treasury. He also denied that he had made any other recovery apart from the said sum or that he had deposited some amount in the Government treasury. The contention that he had not made any recovery is contrary to the concession made by his own witness P. W. 1 in cross- examination. The other portion of the statement that the petitioner had not paid any amount in the Government treasury is contradicted by his replication dated 14.4-1975 to the written statement of defendants Nos. 1 and 2. In para. No. 1 of the reply to the preliminary objections he stated that he had never misappropriated the land revenue. Whatever amount he received in this connection from the land owners he had been depositing in the Government treasury. By saying that he had never made such deposit the petitioner has perjured himself. Again in the replication dated 21-2- 1974 to the written statement he stated that he had never recovered any Government due which he had not deposited in the Government treasury. It is again an admission of the deposit. This perjury of the petitioner supports the contention 'of the respondents that he was a Sarbrah Lambardar which position he has admitted in the receipts Exh. DW 1/1-3 and that he had been making recoveries from the land owners in that capacity. There is no proof that he was the special attorney of Raja Abaidullah Lambardar or that he had ever submitted the lists of defaulters to the Tehsildar in that capacity. The matter is concluded by a finding off act.
13. Even otherwise in view of the fact that the petitioner has not come to the Court with clean hands this was not a fit case for exercise of the discretionary jurisdiction to pass a declaratory decree. In this view of the matter also the suit merited dismissal.
14. I, therefore, dismiss this revision petition with costs.