KHADIM HUSSAIN M. SHAIKH, J.---This civil revision application is directed against the judgment dated 17.09.2009 and decree dated 19.09.2009, passed by the II-Additional District Judge, Khairpur in Civil Appeal No,55 of 2009 reHafeez Ahmed and others v. His Highness Mir Ali Murad Khan Talpur and others, whereby the said appeal filed against the order dated 30.05.2009 and decree dated 04.06.2009, passed by the 1st Senior Civil Judge, rejecting the plaint of the suit being F.C. Suit No,21 of 2007 re-Hafeez Ahmed and others v. His Highness Mir Ali Murad Khan Talpur and others, has been dismissed.
2. Briefly the facts of the case are that in the year 2007 applicant Hafeez Ahmed and two others had filed suit being F.C. Suit No,21 of 2007 re-Hafeez Ahmed and others v. His Highnees Mir Ali Murad Khan Talpur and others, for declaration, possession, mesne profits and permanent injunction in the Court of II-Senior Civil Judge Khairpur. The case of the plaintiffs (hereinafter will be referred to as the applicants) as set out in their plaint is that the applicants filed "F.C. Suit No,293 of 2006 re- Hafeez Ahmed and others v. His Highness Mir Ali Murad Khan" (against the respondent No,1) in the Court of 1st Senior Civil Judge, Khairpur, which was withdrawn by the applicants with permission to file afresh vide order dated 24.2.2007 and then the applicants filed the present suit. The applicants alleged that Her Highness Jr. Iqbal Begum and Ghulam Muhammad alias Bugo were full owners in equal shares of the 50 paisase each in the land described in the plaint (hereinafter will be referred as the disputed land), situated in deh Nizamani, Taluka and District Khairpur, on basis of the registered sale deed dated 15.10.1929. Vide order dated 28.8.1936, the record of the rights was mutated in names of Her Highness Jr.Iqbal Begum and Ghulam Muhammad alias Bugo. It is alleged that Her Highness Jr.Iqbal Begum transferred her share in favour of the applicants and Muhammad Iqbal vide registered sale deed dated 10.08.1966. Ghulam Muhammad alias Bugo expired leaving behind the applicants and Muhammad Iqbal as sons, who inherited his share in the disputed land and the record of rights was mutated in names of the applicants and Muhammad Iqbal. It is alleged that Muhammad Iqbal transferred his share in the disputed land to the applicants vide registered sale deed dated 22.04.1994 and the names of the applicants were mutated in record of rights, who were in peaceful possession and enjoyment of the disputed land.
It is further alleged that the applicant No,1, who was looking after the disputed land, went to United States of America in the year 1997 to look after and educate his children, when the respondent No,1 forcibly occupied the disputed land in the year 1997 taking advantage of absence of the applicant No,1 and managed letter No,Rev/8146, dated 19.12.2000 issued by the respondent No,2, on the basis whereof fabricated the revenue record in his favour vide order dated 10.02.2001, passed by the respondent No,3. The respondent No,1 gave no heed to the murmur and repine of the applicants, who in order to set the record of rights approached the respondent No,1 and made submissions to him to consider about his stature and hand over possession of the disputed land to them. The applicants then made the Commissioner, Sukkur, Division, Sukkur, aware of the letter dated 19.12.2000, issued by the respondent No,2 and order dated 10.02.2001 passed by the respondent No,3, who while exercising suo motu powers cancelled the letter dated 19.12.2000 and order dated 10.02.2001 vide order dated 24.2 (year not mentioned). The respondent No,1 filed F.C. Suit No,286 of 2006, re-His Highness Mir Ali Murad Khan v. Province of Sindh and others, for declaration, mandatory injunction and permanent injunction against the public functionaries. As the respondent No,1 on basis of the muscle and gun power started raising construction of the boundary wall around the disputed land to strengthen his illegal possession, hence the necessity arose to the applicants to file F.C. Suit No,293 of 2006 re-Hafeez Ahmed and others v. His Highness Mir Ali Murad Khan Talpur in the Court of 1st Senior Civil Judge, Khairpur, which was withdrawn by the applicants with permission to file fresh suit vide order dated 24.2.2007. The respondent No,1 filed "Case No, SROR 137 of 2006 titled Mir All Murad Khan Talpur v. Hafeez Ahmed Butt and others" against the applicants and others, during the pendency of the above suits before the respondent No,5, who allowed the aforementioned Case without waiting for the decision of the suits and Misc. applications filed in the suits, in order to favour the respondent No,1, vide impugned order dated 03.02.2007 against the order dated 24.2 (year not mentioned). The claim of the respondent No,1, over the disputed land is illegal and unwarranted under the law, as such, the necessity arose to the applicants to file the above suit. The respondent No,1 filed application under Order VII Rule 10, read with Rule 11, C.P.C. The learned trial Court rejected the plaint vide impugned order dated 30.09.2009 and decree dated 04.06.2009. The applicants filed the appeal which was dismissed vide impugned judgment dated 17.09.2009 and decree dated 19.09.2009 by the find Additional District Judge, Khairpur, hence this revision application.
3. None is present for the applicant. Same was the position on the last date of hearing viz. 20.01.2017.
This matter besides an old matter pertaining to the year 2009, is also a fast track case and as such, lastly, as an indulgence and in the interest of justice the matter was adjourned with the directions to the learned counsel for the parties to proceed with the matter on the next date of hearing with the caution that in case none appears for either of the parties and/or fails to proceed with the matter, the case will be heard and decided on the basis of material available on record. No one has shown his appearance for the applicants to address the arguments on their behalf. Heard learned counsel for the respondent No,1 and the learned Asst. A.G.
4. The learned advocate for the respondent No,1 has mainly contended that the plaint of the subject suit did not disclose any cause of action; that the suit filed by the plaintiffs/applicants was also barred under the provisions of Section 11 of Code of Civil Procedure 1908; that the plaint of the subject suit filed by the applicants was rightly rejected by the learned Court of Senior Civil Judge and the appeal filed by the applicants against the order and decree, rejecting the plaint, has also been dismissed by the appellate Court after going through the pleadings and the material placed on record; and, that there are concurrent orders by both the learned Courts below. He, therefore, prays that the instant revision application may be dismissed with costs. He has placed his reliance on the cases of S.M. Shafi Ahmad Zaidi v. Hassan All Khan (2002 SCM R 338), Imtiaz Hussain v.
Government of Pakistan (1992 CLC 1122), Haji Nek Mohammad v. Province of West Pakistan and 12 others (PLD 1966 (W.P.) Karachi 314, Province of West Pakistan v. Haji Muhammad Juman and another (PLD 1960 (W.P) Karachi 908), Rais Dil Murad Khan v. All Nawaz and others (1997 M LD 1309), Alam Sher through Legal Heirs v. Muhammad Sharif and 2 others (1998 SCM R 468) and Ghulam Muhammad v. Mst. Rasoolan Bibi (1996 M LD 256).
5. The learned Assistant Advocate General supporting the arguments of learned counsel for the respondent No,1, further submits that since there are concurrent findings of the learned Courts below for rejecting the plaint of the subject suit based on the valid reasons, therefore, the same may be maintained.
6. I have considered the arguments advanced by the learned counsel for the respondent No,1 and learned Asst. A.G and have also gone through the material available on record.
7. In order to appreciate the case of the applicants/plaintiffs and the respondents/defendants, it would be advantageous to reproduce the relevant paragraphs of the impugned order dated 03.2.2007, passed by Senior Member, Board of Revenue, Sindh:-- "9.In view of the statement of the then Commissioner, Sukkur Division, Sukkur, there remains no room of doubt that the so-called order dated 24.02. (year not mentioned) on the original Deh Form against entry No,245 dated 10.02.2001 is totally fabricated, false and fraudulent which is hereby set aside and entry No,245 is restored. Accordingly, the Revision Petition is allowed.
10. However, before parting with the order, it is pertinent to point out that on careful scrutiny of entry Nos,37, 38 and 150 dated 12.01.1992 and 9.02.1998 in respect of disputed land it is observed that the same are entered in VF-VII-B of Deh Gujo Tapo Luqman taluka Khairpur instead of Deh Nizamani taluka Khairpur (where disputed land is situated) wherein on the same date viz 12.1.1992 (Nos: of same entries 37 and 38) were attested by the Assistant Mukhtiarkar Khairpur and entry No,150 of VF-VII-B of Deh Nizamani was attested by the Mukhtiarkar Khairpur on 21.7.1996. In Deh Gujo entry No,36 was made on 03.02.1992 attested by Assistant Mukhtiarkar Khairpur on 15.2.1992, whereas, entry Nos,38 and 38 below entry No,36 were attested by the Assistant Mukhtiarkar Khairpur on 12.1.1992. Thus the entries have been made ante-dated by passing / inserting a new page of VF-VII-B in Deh Gujo Taluka Khairpur as it is visibly evident from different paper of page No,16 containing ante dated entries Nos, 37 and 38 in Deh Gujo. Further there is no entry No,39 while serial numbers of entry Nos,40 and 41 have been interpolated. This requires to be probed into meticulously and thoroughly with reference to the examination of past record of the offices of the Mukhtiarkar Khairpur, Assistant Commissioner Khairpur andDeputy Commissioner, Khairpur.
11. In the above circumstances, Mr. Nazar Muhammad Laghari Special Secretary (L. U.) Board of Revenue Sindh Karachi is hereby assigned special task and appointed as ENQUIRY OFFICER to prove into the matter of fraud and to conduct enquiry and dig out the culprits who have written so-called order on VF-VII-B in the record of rights on 24.2. (year not mentioned) purported to have been passed by Mr. Nisar Ahmed Siddiqui, the then Commissioner, Sukkur Division Sukkur and Assistant Mukhtiarkar (Revenue), Khairpur, who attested the entry in Deh Gujo Taluka Khairpur (instead of Deh Nizamani) and also in Deh Nizamani, after verifying both VF-VII of Deh Nizamani and Gujo. He should fix the responsibility of officers/officials involved in the forgery and tampering with the record and suggest action against them under provisions of Removal from Service (Special Powers) Sindh Ordinance 2000 within two months."
8. A perusal of the record reveals that the copy of entry Annexure "D", available at page 43 i,e, the basic entry, on which the applicants/plaintiffs based their claim is shown to be an entry of number shumari, which, from face of it is a bogus and manipulated entry, that can be seen with naked eye, for, it shows the year for which was it kept as 1936-35, which should have been as 1935-36 instead of 1936-35; it does not bear entry number; her highness Iqbal Begum has been shown as his highness; it purported to be entry of Number Shumari Form No,3 for the year 1936-35 and at the same time it was also shown to be "Pher Phar" register (Mutation Register) although the latter being different and permanent record could not be for one year; annexure "G", available at Page-51, which is the copy of alleged entry No,37, showing Foti Khata Badal of Ghulam Muhammad, column No,3 thereof, shows corresponding mutation 1935 and number shumari. Moreover, Member, Board of Revenue, verified the original revenue record and found fabricated, false and fraudulent note purportedly order dated 24.02. (year not mentioned) purported to be of Commissioner, Sukkur Division on the original Deh Form against entry No,245, dated 10.2.2011 and that entry Nos,37, 38 and 150, dated 12.1.1992 and 09.2.1998 in respect of the disputed land situated in deh Nizamani were entered in V.F VII-B of Deh Gujo, Tapo Luqman, taluka Khairpur instead of Deh Nizamani, taluka Khairpur, and whereas in Deh Gujo entry No,36 was made on 03.2.1992 shown attested by Assistant Mukhtiarkar, Khairpur on 15.2.1992; the entries Nos,37, 38 and 150 of Deh Nizamani were inserted in VF VII-B of Deh Gujo, which too were of different paper; page No,16 contained entries Nos,37 and 38, but entry No,39 was found missing and serial number of entries Nos,40 and 41 interpolated. In the wake of such state of the record, the Member, Board of Revenue observed that thorough and meticulous probe with reference to the examination of the past record of offices of Mukhtiarkar Khairpur,Assistant Commissioner Khairpur and Deputy Commissioner, Khairpur was required to be made and in such view of the matter Mr. Nazar Muhammad Leghari. Special Secretary (LU)
Board of Revenue was assigned special task by appointing him as enquiry officer probe into the matter of fraud and to dig out the culprits and fix responsibility on the officers/officials involved in the forgery and tampering with the record.
9. Section 4 of the Land Revenue Act, 1967 reads as under:-- "4. Superintendence and control of Revenue Officers and Revenue Courts. Notwithstanding anything to the contrary contained in any other law for the time being in force; but subject to the provisions of subsection (2), and to any orders of the Government with respect to the appointments and conditions of service or Revenue Officers, the general superintendence and control over all Revenue Officers and Revenue Courts in West Pakistan shall vest in, and all such officers in so far as their functions as Revenue Officers are concerned, shall be subordinate to the Board.
(2) The Board shall be subject to the control of the Government, and all matters, other than those in which the Board exercises appellate and revisional jurisdictions the Government shall have power to issue such directions, to the Board as may be considered necessary or expedient and the Board shall carry out those directions."
Section 5 of the Land Revenue Act,: 1967 reads as under:-- "5. Powers of the Board.---(1) The Board shall be controlling authority in all matters connected with the administration of the land, collection of Land Revenue, preparations of land records and other matters relating thereto.
(2)The Board shall be the highest Court of appeal and revision in revenue cases in the Province.
(3)All proceedings relating to any of the matters referred to in subsections (1) and (2) which, immediately before the date of coming into force of this Act, were pending before the final appellate or revisional authority of any Province, State or other territory or area which has been included in the Province of West Pakistan, shall stand transferred to the Board."
10. Bare reading of the above provisions of law, envisages that by virtue of Section 4 of the Act 1967 ibid., the Board of Revenue is vested with general superintendence and control over all Revenue Officers and under Section 5 thereof, the Board of Revenue is a controlling authority in all the matters connected with the administration of land, collection of land revenue, preparation of land records and other matters relating thereto and under subsection (2) of Section 5 thereof, the Board of Revenue is constituted the highest Court of appeal and revision in the revenue cases in the province. Thus, the Board of Revenue being the highest Court of Revenue hierarchy in the province has been conferred vast powers of revisions in respect of all the orders, passed by the subordinate Revenue Officers including Commissioner, and, therefore, the Member, Board of Revenue, when exercising his controlling jurisdiction over his subordinate officers and in the exercise of revisional jurisdiction, can pass any order in the circumstances of the case.
11. It needs no reiteration that the function of Revenue Officer is to prepare the correct revenue record in the light of evidence with regard to one's title or interest, and, thus the law puts embargo upon the jurisdiction of Civil Court from taking in hand, the functions assigned to the Revenue Officers as also the question of their methodology adopted for the discharge of such functions and the jurisdiction of Civil Court is ousted to the correction of entries made by the Revenue Officer in performance of his duties. In the case one in hand the highest revenue hierarchy, namely, Senior Member, Board of Revenue, Sindh, has passed the impugned order dated 03.2.2007 in an exhaustive manner after verifying the original record etc within the domain of his powers; and, thus Civil Court's jurisdiction is barred to call in question the said order. In case of Sardar Khan v. Ghulam Hussain and others reported as 2003 YLR 1788, it has been held that the correction of revenue record is within the exclusive competence of Revenue Department as has been laid down in Section 172 of Land Revenue Act, 1967 and jurisdiction of Civil Court in cases where the correction of any entry in the record of rights or in the periodical record or register of mutations has been excluded.
12. In case of Raja Ajaib Khan v. Soofi Allah Ditta and 4 others (1998 SCM R 471) the Hon'ble Supreme Court has held:-- "that Civil Court was not competent to interfere where the Revenue Courts/Authorities had the exclusive jurisdiction."
13. In case of Haji Nek Muhammad v. Province of West Pakistan and 12 others (PLD 1966 (W. P.)
Karachi 314) this Court had held that finding of fact given by Board of Revenue within its jurisdiction cannot be questioned in Civil Court.
14.It has also been observed by the Lahore High Court in case of Shaukat Ali v. Jalal-ud-Din and others (1999 CLC 1396) that the Revenue Courts have hierarchy of their own and until and unless their orders are not found to be passed without lawful authority and jurisdiction, the Civil Court has no jurisdiction to interfere the same.
15.The learned trial Court has rejected the plaint of the subject suit being F.C. Suit No,21 of 2007 filed by the applicants vide order dated 30.05.2009. The relevant paragraphs of the said order dated 30.05.2009, passed by the trial Court, are reproduced here for the sake of convenience:-- "I have also perused the orders dated 10.2.2001 and 3.2.2007 passed by defendants Nos, 3 and 5 which are regarding manipulation of revenue record and they also shows that the defendant No,5 has ordered that according to record he has observed that there is fraud and manipulation in revenue record regarding disputed land and he has appointed Mr. Nazar Mohammad Laghari, Special Secretary Board of Revenue Sindh Karachi as enquiry officer to probe into the matter of fraud and to conduct enquiry and to declare the real culprits who have committed fraud in the record of rights.
From the perusal of all these orders it clearly shows that both these orders have been passed accordingly because in order dated 19.12.2000 it has been stated that necessary entries in record of rights may be kept after verification and so also after codal formalities 'regarding disputed land, while in another order dated 3.2.2007 enquiry officer has been appointed to declare persons who have fraud and manipulation in revenue record and have managed false entries in record of rights as stated here-inabove. Hence, all these orders have been passed in accordance with the law, who are empowered to do so because they can verify revenue record and keep such entries in record of rights after verifying regarding actual ownership. Even otherwise, the plaintiffs in their plaint specifically at para No,9 have stated that the defendant No,1 in their absence and taking undue advantage has fabricated and manipulated the revenue record in his favour in collusion with revenue staff Therefore, above these orders also said to have been favouring the plaintiffs regarding fraud and manipulation of revenue record and have been passed within their jurisdiction, hence this court is not competent to interfere in orders passed under administrative and so also under Revenue Act. However, it is also interesting to note that the plaintiffs have themselves stated in their plaint at para No,13, that the disputed land had already been subjudice in F. C. Suit No,286 of 2006 "His Highness Mir Ali Murad Khan v. P.O. Sindh and others for declaration, mandatory injunction and permanent injunction and such decree has already been passed in their absence and in paras Nos,14 and 15 they have also stated that another civil suit bearing suit No,293 of 2006 Hafeez Ahmed and others v. His Highness Mir Ali Murad Khan and others were also filed, but was withdrawn, even then no where the plaintiffs have stated that had ever they filed any appeal against decree in Civil Suit No,286 of 2006 and said were set aside, hence the suit of the plaintiffs also falls under section 11 of Res Judicata as the question regarding declaration of ownership has already been subjudice before another court.
Therefore, in view of above discussion and reasons, the suit of the plaintiffs is not maintainable according to law, is barred by Section 42 of Specific Relief Act and so also Section 11 of Res- Judicata. Therefore, the application under Order VII, Rule 11, C.P.C. filed by defendant No,1 merits consideration and same is hereby allowed. Consequently, the plaint/suit of the plaintiffs is hereby rejected under Order VII, Rule 11, C.P.C. with no order as to costs."
16. The learned Appellate Court dismissed the appeal filed by the applicants, vide judgment dated 17.09.2009 and decree dated 19.9.2009. The relevant paragraphs of the said judgment dated 17.9.2009 are reproduced here, for the sake of convenience:-- "The minute perusal of the order dated:03.02.2007 passed by the Board of Revenue shows that it has clearly declared the order in the name of Commissioner Sukkur re-produced in paragraph No,8 as fraudulent and forged. According to plaint this order confirms the right of appellants/plaintiffs. After such findings of the highest forum of the Revenue Department there remains no cause of action to further litigate on the order which has been found forged.
This is suit for declaration which is governed under section 42 of Specific Relief Act and text of section 42 is reproduced herein below for sake of convenience:- "Discretion of Court as to declaration of status or right.
Any person entitled to any legal character or to right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief.
Bar to such declaration: Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so".
It is clear from the bare reading of section 42 of Specific Relief Act that any person entitled to any legal character can seek the declaration.
In this case. appellants/plaintiffs have based their title upon entry No,289 of mutation register and entry Nos,37-38 of Deh Form VII-B of Deh Nizamani. After minus the order purported to have been passed by Commissioner Khairpur on 24.02. the entry No,245 comes to its original position and that original entry No,245 does speak against entry No,289 or 37- 38. As such no cause of action appears to have been occurred to the appellants/plaintiffs to knock the door of civil court.
It has been held in the case 1998 CLC 382 that Court was duty bound to bury incompetent plaint in its infancy. It has been held in the case 1999 YLR 2061 that object of Order VII Rule 11, C.P.C. is to save the parties from rigors of frivolous litigation at the very inception of proceedings. In this case it has been discussed in preceding paragraph No,11 that appellants/plaintiffs had no cause of action for filing the declaratory suit and in such situation the learned trial court has rightly rejected the plaint.
In view of above discussions and reasons the civil appeal in hand is dismissed with no order as to costs. The case law relied upon by .learned advocate for the appellants/plaintiff ' are quite distinguishable on facts and circumstances of this case. "
17.In case of Muhammad Ramzan and others v. Member (REV.)/CSS and others (1997 SCM R 1635) the Hon'ble Supreme Court has held that:-- "entire edifice constructed on the basis of void order crumbles along with same and did not require to be set aside through appeal or any other proceedings. "
18.In case of Rehmatullah and others v. Saleh Khan and others (2007 SCM R 729), the Hon'ble Supreme Court has held that:-- "when the basic order is without lawful authority then all the superstructure shall fall on the ground automatically."
19. Needless to add that the declaratory relief under Section 42 of the Specific Relief Act (I of 1877) is discretionary in nature as is revealed from plain reading of Section 42 of the Act ibid reproduced hereinabove, and thus, the plaintiff, who seeks discretionary relief under Section 42 of the Act ibid must come in Court with clean hands. In the case in hand the applicants by misrepresenting the facts, claimed his right and title over the subject property on the basis of a fabricated, false and fraudulent entry, which adversely reflects upon the case of the applicants.
20. In view of the above, I am of the humble view that the alleged basic entry, which has been held to be fabricated, false and fraudulent by the Member, Board of Revenue Sindh after verification of the original record, being custodian thereof, does not, ipso facto, create cause of action for the applicants to call in question such orders by filing declaratory suit, more particularly when the applicants are admittedly out of possession of the subject property. It is the requirement of law that the incompetent suit should be buried at its inception, which would be in the interest of litigating parties and the judicial institution itself, as the parties are saved with their time and unnecessary expenses and the Courts will also get more time to devote it for the genuine causes. It is also worthwhile to mention here that the stance of the applicants before both the forums below was that the Court, while considering an application under Order VII, Rule 11, C.P.C. had to examine only the plaint and the averments of the plaint to be taken as true. In this context, it may be observed that the parties coming before the Court were required to place before it all facts necessary material and where the Court was made aware, whether through an application, written statement or otherwise that the plaintiff had suppressed material facts, which if pleaded in the plaint, he would have been out of the Court, for having no cause of action, facts so brought to the notice of the Court would be deemed to be part of the plaint being already in existence and the plaintiff being bound to have pleaded those facts in the plaint, having not pleaded so, the plaintiff's such mischief in not placing those true facts before the Court for sinister purpose, could not exonerate him from the operation of law and plaint not disclosing such material facts could be rejected, by taking into consideration the facts judicially noticeable. Both the Courts below, in addition to the E plaint, looking into the admitted/undisputed documents and facts, such as, record before the revenue authorities relating to the previous litigation between the parties, rightly rejected the plaint, for, an incompetent suit should be buried without further proceedings; Courts should look attentively to the plaints to find whether they attract application of Order VII, Rule 11, C.P.C., if facts of the case justify, application of Order VII, Rule 1, C.P.C. must be applied for rejection of the plaint, D irrespective of the fact whether it is stage of disposal of an interlocutory application or even it is somewhat earlier stage.
21.In view of what has been discussed above, I am of the considered view that the trial Court by rejecting the plaint of subject suit and the 1st appellate Court by dismissing the appeal filed against the orders passed by the trial Court, rejecting the plaint, have not committed any illegality and there is also no infirmity or jurisdictional defect, in the exercise of jurisdiction by both the Courts below while passing the impugned order, judgment and decrees, attracting the provisions of section 115 of the Civil Procedure Code (V of 1908). Accordingly, the instant civil revision application being devoid of merit is dismissed with no order as to costs.
22. All the pending applications having become infruetuous stand dismissed.