ZULFIQAR AHMAD KHAN, J.---The instant revision challenges the concurrent findings of the Courts below, where plaint in F.C. Suit No.35/2005, filed by the applicant against the respondents for declaration and permanent injunction, was rejected under Order VII Rule 11, C.P.C. by the trial Court, which order was impugned through Civil Appeal No.04/2006, which also met the same fate.
2. Facts as narrated are that, applicant filed a suit against respondents for declaration and permanent injunction inter alia, pleading that the applicant was son of late Meer Muhammad through Mst. Sher Bano, who at the time of his death had left behind the applicant as well as five other legal heirs. The private respondents were also claiming themselves to be the legal heirs of deceased Meer Muhammad through Mst. Zarina, but such claim of the above respondents was not recognized by the Court of law viz. Senior Civil Judge, Sanghar who while deciding issue on an alleged gift, also given findings regarding the marriage between late Meer Muhammad and late Mst. Zarina (the mother of respondents Nos.6, 7 and 8), as null and void, who had observed that no legal sanctity was attached to said Nikahnama. It was alleged that the applicant and other legal heirs got Foti Khata Badal regarding the agricultural land situated within the jurisdiction of. District Jamshoro and such order was passed by ' the DDO Revenue, Sehwan. Subsequently, respondent No.2 issued notice to the applicant for cancelling the mutation as against the order of Foti Khata Badal. The issuance of such notice by respondent No.5 was mala fide and without jurisdiction. To the contrary, respondents Nos.6 and 7 along with their written statement also filed an application under Order VII, Rule 11, C.P.C. whereby maintainability of the suit filed by the applicant was challenged being barred under section 161 of the Land Revenue Act and under section 42 of the Specific Relief Act. Trial Court having agreed with the ground raised by the respondents Nos.6 and 7 while observing that the applicant was required to challenge the order of the EDO Jamshoro dated 15.08.2005 before the higher revenue forum, rejected the plaint under Order VII Rule 11, C.P.C. which order was maintained by the appellate Court.
3. Per counsel of the applicant, the impugned orders passed by the appellate as well as the trial Court are not warranted by law and facts; that though both the trial as well as appellate Courts have agreed with the proposition that for rejecting the plaint, only averments in the plaint are to be seen, yet they wrongly appreciated the same in the real sense and the impugned orders show that the observations were influenced with the contentions and case of the respondents. He further contended that the observations made in the order of the trial that though the applicant sought declaration against the act of respondent No.2 but in his entire plaint has remained silent regarding the order passed by EDO Jamshoro on 15.08.2005, allowing appeal of respondents and directing the cancellation of Foti Khata Badal, are in fact the contention of the respondents which ought not to be taken into consideration under law. That findings of the trial Court that the suit was hit by the provisions of section 161 of Land Revenue Act, the applicant did not challenge the order of EDO before higher forum, is, also the case of the respondents and not the contents of the plaint.
Therefore, rejection of the plaint on such basis on the fact of it seemed to be against the provisions of section 115, C.P.C. He further contended that the dispute at hand is whether the respondents Nos.6 to 8 (children of late Mst. Zarina) were from the wedlock of late Meer Muhammad or not. After the death of Meer Muhammad fraudulently got Foti Khata Badal changed in respect of the plaintiff excluding the respondents Nos.6 to 8, which was challenged before the respondent No.2, who vide order dated 15.08.2005 allowed the appeal filed by the respondents and set aside the order of DDO Revenue. However, a Revision was preferred which clearly was filed after a long delay and notice of the same was issued to the plaintiff. The said plaintiff attended the hearing twice to challenge the maintainability of the revision and sought declaration against those proceedings and the acts subsequent thereto. On 12.08.2005, date of hearing was fixed and on 16.08.2005 aforementioned suit was instituted by the plaintiff that in fact on 15.08.2005, the EDO (Revenue) had passed order in revision setting aside the order of the Mukhtiarkar and the DDO. Learned counsel also submitted that the trial Court ought to have not summarily rejected the plaint under Order VII Rule 11, C.P.C.
Suit for declaration was mandated under section 53 of Land Revenue Act since the possession of the land in question was with the applicant. He further submitted that the impugned order was passed on main application which was time barred and in fact the dispute as to whether Mst.
Zarina was a valid wife of deceased Meer Muhammad and gave birth to respondents Nos.6 to 8 were subject matter of a judgment on that issue which came from the Court in Sanghar where the Court has dilated upon this very aspect at length, therefore, the EDO was not at all competent to have decided the matter which was earlier decided by the civil Court and against which an appeal was preferred and against the decision passed in the said appeal a Revision is pending before this Court bearing R.A. No.27/2014. Counsel contended that by announcing of Mst. Zarina as legal heir of deceased Meer Muhammad in a slipshod manner, EDO has frustrated the findings of the Courts below and the matter pending before this Court even. He also submitted that clear illegality and irregularity is apparent on the surface, thus the impugned judgments are liable to the set aside.
5. Counsel for respondent No.6 to the contrary submitted that the under Order VII Rule 11(e) C.P.C., the plaint of applicant should have contained the cause of action for instituting the suit as detailed in para-16 :of the plaint, which clearly shows that plaintiff came to know about application pending against him after receiving the notice from the EDO on 13.08.2005 and appropriate remedy available to him was to approach the Concerned EDO rather than approaching the civil Court which act is barred under section 172 of the Sindh Land Revenue Act. He contended that the appropriate remedy available to the applicant was to amend his plaint once an order from the EDO has already come in the field on 15.08.2005. He contended that this Court has limited powers while exercising revisional jurisdiction and cannot travel beyond the pleadings and the material placed before the trial Court, therefore, the instant revision may be dismissed.
6. Heard the learned counsel and reviewed the record.
7. The appellate Court while dismissing the Civil Appeal No.04/2006, preferred by the applicant, observed that the trial Court rejecting the plaint in the suit of the applicant by its order dated 27.03.2006, observed as under:-- "It is well settled law that while deciding application under Order VII Rule 11, C.P.C., only the averments made in the plaint are looked into and taken to be true and correct. The plaintiff in his plaint has stated that the plaintiff and other legal heirs of late Meer Muhammad got Foti Khata of the suit property mutated in their name. It is further stated that the defendant No.5 issued notices to the plaintiff for cancellation of mutation on account of ill will and having won over by the defendants Nos.6 to 8. The plaintiff has sought declaration that the act of defendant No.2 for entertaining appeal is mala fide and illegal. Though the plaintiff has fought declaration against the act of defendant No.2 who is EDO Jamshoro but the plaintiff in his entire plaint has remained silent regarding the order passed by EDO Jamshoro on 15.08.2005 thereby allowed the appeal of defendants and directing the Foti Khata Badal as in evident form the said order produced by the defendants along with their written statement. Thus, it appears that plaintiff has not come with clean hands. Moreover the plaintiff under the provisions of Section 161 of Land Revenue Act was required to challenge the order of learned EDO Jamshoro before higher revenue forum, but the plaintiff had not availed the said remedy. Moreover, the plaintiff through this suit has also not challenged the order of EDO Jamshoro passed on 15.08.2005. Under these circumstances, I find that the suit of the plaintiff is barred under the provision of Section 161 of Land Revenue Act, 1967. I, therefore, allow the application as prayed and reject the plaint under Order VII, Rule 11, C.P.C. with no order as to costs."
There is no denial of the fact that while deciding application under Order VII Rule 11, C.P.C., only the averments made in the plaint are to be considered, however, the Courts are not restrained from considering the other material available on record. In the case at hand, the controversy commenced when applicant filed F.C. Suit No.61/1994, (which was subsequently renumbered as F.C.
Suit No.27/1998) challenging the very legitimacy of the respondents Nos.6 to 8 and their right of inheritance of which critical issue was whether the said lady (Mst. Zarina) was legally wedded wife of Meer Muhammad and whether the children were of the said wedlock, on which the trial Court has given findings by its judgment dated 30.09.2000 in F.C. Suit No.27/1998 thus any attempt thereafter made by the respondents to change land records by filing any motion is clearly illegal and malicious because a revision in the aforesaid matter was pending before this Court. While both of these Revisions are fixed today, the learned counsel for respondent No.6 only preferred to proceed with the instant revision (R.A. No.35/2008) which relates to changes in the revenue record brought forward by the concerned EDO in his revisional jurisdiction. In my humble view, the trial Court without considering the other material aspects of the matter summarily rejected the plaint of the plaintiff under Order VII, Rule 11, C.P.C., which order was maintained by the appellate Court through impugned judgment in the same fashion, thus clearly require interference in revisional jurisdiction of this Court.
8. After hearing the parties counsel I am of the view that notwithstanding the impugned orders, the question as to legal heirship of the private respondents which has been determined in F.C. Suit No.27/1998 and which now is the subject of R.A. No.27/2014 needs to be preserved. Thus any act changing the equilibrium in the land record bringing in the legal heirs of Mst. Zarina may come directly in conflict with'the findings to be given by this Court in the R.A. No.27 of 2014.
9. I therefore allow this revision (R.A. No.35 of 2008) to the extent that changes in the land records should be cancelled in terms of which legal heirs of Mst. Zarina were wrongfully brought to records, and the records to just show the situation / status existing before the EDO passed his order in Revision Application No.6 of 2005, which order stands set aside by allowing this revision anyway.
10. As per request of the learned counsel for respondent No.6 time is given to him to come prepared and proceed with the R.A. No.27 of 2014, so that a conclusive judgment in the said R.A. could be passed as to the legal heirship of Mst. Zarina/her children in the properties left by late Meer Muhammad's land.