1. ZULFIQAR AHMAD KHAN, J.---This revision is filed against the concurrent findings of the Courts below where the trial Court in clear terms reached to the conclusion that the entire chain of title, transfer and gift documents made in relation to the disputed land favouring the respondents were null and void as the land bearing S.No,121/1 to 16 admeasuring 16-00 acres Deh 43 Jamrao Taluka Jam Nawaz Ali District Sanghar was never put to the evacuee pool. Which findings were also maintained by the appellate Court. However the contentious point left was as to whether the land was an "Aasaish" land or not. Though the trial Court touched this issue, however, no final determination was made thereon. Same is the case with the judgment of the appellate Court.
2. The issue as to whether the land in question was an "Aasaish" land was-numbered as issue No,2 by the trial Court and determination of. the some given by the trial Court is reproduced hereunder:-- "Before discussing the Issue No,2, I will proposed to discuss the Issue No,3. The burden of this Issue lies upon the plaintiff to prove, in this respect the plaintiff Noor Muhammad examined himself at Ex:98, in which he deposed that the suit land was granted to one Be-Ant Singh son of Taja Singh prior to 1947, and due to non-payment of instalments it was cancelled. In support of his contention produced the documents EX:99, and EX:100. In support of his evidence he examined witness No,4 Qamar-ud-Din Memon Mukhtiarkar Estate Sanghar at Ex:149, who in his deposition stated that the suit land bearing R.S. No,121 area 16-00 acres deh 43-Jamrao, was originally Barrage Land and it was granted to one Hindu Be-Ant Singh son of Taja Singh on harap basis by the Barrage Mukhtiarkar Shandadpur on 11-11-1938 and the said grantee paid instalments upto 145, and failed to deposit the remaining instalments, therefore the said grant was cancelled, he produced "A" Form No,2375 at EX:150. The defendant No,7 Arbab who is attorney of defendants Nos.8 to 24 in his evidence EX:179 and defendant No,5(a) Nazeer Ahmed who is attorney of defendants Nos.5(b), (5- c) and defendant No,4 Khushi Muhammad in his examination-in-chief at EX:242 have not denied the above stated facts of plaintiff side, nor produced any T.O. Form which could show that the suit land was transferred in the name of Be-Ant Singh, after payment of full instalments, therefore the above referred Oral as well as documentary evidence adduced by the plaintiff side has gone un- challenged and unrebutted and I have no hesitation to hold that the suit land was granted to one Be-Ant Singh in 1938/39 and was subsequently cancelled, due to non-payment of instalments, which appears from the document EX:99, EX:100, and evidence of plaintiff as well as Barrage Mukhtiarkar, Sanghar EX:149, with the result the answer of this Issue is in affirmative".
3. The appellate Court considered the same as point No,3 and gave its findings as per the following:-- "It is settled position of law that declaration of the property whether it is "ASHAISH" or not is pure jurisdiction of Revenue authority and not Civil Court. Section 13 of the statement of condition for grant of land (see Sindh Government Gazette dated; 7.12.1989) provides that no land lying within twenty chains of the established village or within the limits of the area prohibited by the Collector shall be allotted. From this provision it is clear that is function of Revenue authority to determine as to what property is to be reserved for "ASHAISH". This is not a question to be decided by Civil Court, therefore, I am of the considered view that learned trial Court has rightly declined relief on this point. The point No,3 is therefore, replied in negative"
4. The learned counsel for the applicant challenged the findings of the Courts below and by making reference to various documents, which were presented before the trial Court even contended that his clients were in fact legitimate successor in interest of the said land through the changes which originated from placing the said land in the evacuee pool, he therefore, supported his title but challenged the bona fide of plaintiff Noor Muhammad, who is Mujawar of Shrine of Pir Kako in the neighbouring Survey No,109. Learned counsel contended that the shrine as per the sketch presented before trial Court (a copy produced at Page No,499) shows boundaries of the shrine outside Survey No,121, thus, no part of the survey No,121 is available to be associated with the shrine of Pir Kako spreading out of Survey No,109. He referred to the various sections of the Settlement Laws suggesting that the orders passed by the Evacuee authorities were not open to challenges.
5. On the other hand, learned counsel for respondent No,1 candidly admitted that the shrine is restricted to Survey No,109 as well as it takes some part of Survey No,110 as per the sketch produced at page No,449 but no part thereof extends to survey No,121 and admitted that the lands subject matter of this controversy are purely available for people of the neighbouring area as "Aasaish".
6. Learned A.G. supported the view that sufficient material was available before the trial Court to reach to the conclusion that the land in fact was an "Aasih" land and not available to the evacuee pool, he affirmed that the findings given by the Courts below invalidating the title of the applicant thereon are just and true appreciation of the fact and the application of the relevant legal provisions.
7. Heard the counsel and perused the material available on record.
8. It is evidently clear by the judgments of the Courts below that the land definitely did not fall in the evacuee pool for the reason specified thereon, therefore, I do not wish to interfere. With regard to fate of the land in question, which form part of Survey No,121, the trial Court while rightly held that the said land was an "Aasaish" land, however, with regards to its possession and uase as "Aasaish", the learned trial Court left the question open. Resultantly despite having rendered its judgment in the year 2005, the applicant is still occupying the land as well as the ill-founded claim thereon from the Mujawar of the neighbouring shrine is also looming.
9. To me, there was sufficient material available with the trial Court in particular Ex.101, 102, and 103, which clearly indicate that the land was an "Aasaish" land and so declared in the year 1931, still not be able to have it declared so on account of some additional document declaring the land so being unavailable is beyond the strentch of my imaginations as the records of the land until and unless challenged, are to be taking on the surface value as reported in a case of Dilbar Hussain v.
10. Muhammadul Hassan (PLD 1986 Quetta 198) and the fact is that there is no challenge to such "Aasaish" status from the respondent even if the land formed the evacuee pool, its "Aasaish", status remained intact. I therefore, modify the judgment of the Courts below while affirming that the land in fact was as well as currently is an "Aasaish" land, order that the same should be used for the Aasaish of the people in the neighbourhood. Having declared so, the claim of Noor Muhammad, Mujawar that the said land formed part of the shrine is unfounded as it is evident from the sketch (Page No,499) that area of shrine is restricted to Survey No,109 and Survey 10, therefore, no area of Survey No,121 could be taken as part of the said shrine. The executing Court is directed to have the survey 121's boundary marked with the help of the concerned Tapedar, remove any and all structures therefrom which are not owned by the community at large residing there and ensure that the said land be kept and used as an "Aasaish" for the people residing in the neighbourhood.
11. The revision is disposed of in the above terms.