MRS. RASHIDA ASAD, J.----This Civil Revision under Section 115 of the Code of Civil Procedure, 1908, is directed against the Order of the learned Additional District Judge, Tando Adam, dated 10.09.2014, in Civil Appeal No. 28 of 2011, whereby the appeal filed by the respondent No. 1 was allowed, and the Order and decree dated 10.02.201 1 of the learned Senior Civil judge, Tando Adam, vide which the plaint was rejected has been set aside and matter was remanded to the Trial Court with direction to decide the same in accordance with law .
2. This case has an exchequered and long history , requiring to state the facts in detail, as submitted by both parties. The predecessor-in-title of the respondent No 1, Naseem Ahmed, was granted 141-32 acres of land in Deh Pai, Taluka Shandadpur (now Taluka Tando Adam, District Sanghar), on lease. Similarly, some other persons were also granted lands in Taluka Shandadpur , on lease. All these grants were made by the Colonization Officer, Sukkur Barrage, on 17-03-1960 for a period of 3 years from Kharif 1960-61 which was extended from time to time. It is relevant to mention here that the dispute in land, relates to present applicant and respondent No. 1 only, for a piece of agricultural land bearing survey Nos.489/1&2, measuring 6.4 acres (hereinafter referred to as 'the land in question or the subject land'), and the other parties have no concern whatsoever with the dispute in the instant matter . Record further shows that as per decision of Provincial Land Utilization Committee in its meeting held on 04-09-1961, the predecessor in title of respondent No. 1 opted for grant of right of first refusal before expiry of initial term of lease for 3 years. The instant matter was processed and by Order dated 21-10-1961 of Colonization Officer, Sukkur Barrage, right of first refusal was allowed to him which was confirmed by the Provincial Government through its Secretary vide Memorandum dated 26-11-1963. However , on 15-02-1967 such grant was withdrawn on the ground that the land fell within prohibited limits of Tando Adam Municipality , but the period of lease was extended for another 15 years. Consequently , Memorandum dated 19-07-1969 for cancellation of the grant was issued. Thereafter , the said predecessor in title of respondent No.1 filed First Class Suit No. 71 of 1975 for declaration and permanent injunction before the learned Senior Civil Judge, Sangh ar. Subsequently , 2 other suits, filed by some other aggrieved persons, on same cause of action, were heard togeth er and dismissed by a common Judgment. Against the said judgment dated 31-10-1984 and respective decrees dated 04-12-1984, Civil Appeals Nos. 14, 15 and 16 of 1985 were filed and same were also dismissed by common Judgment, passed by the lower appellate court on 30-9-1986. Against the concurrent findings of two courts below , Revision Applications Nos. 55 and 56 of 1987 were filed in this Court. Revision Application No. 55 of 1987 was allowed on 09-07-1992, setting aside the judgment and decree passed by the trial court and lower appellate court, while decreeing First Class Suit No. 54 of 1976 of the applicant of said Revision Application. Similarly , the Revision Application No. 56 of 1987 was also accepted by this court vide Judgment dated 18-02-1995, setting aside judgments and decrees of two courts below , and, decreeing, First Class Suit No. 71 of 1975, in favor of the predecessor in title of respondent No.1; since the said Judgment of this court dated 18-02-1995, in favour of the predecessor in Title of respondent, was not challenged before the Hon'ble Supreme Court, therefore, same attended finality and would operate as res-judicata.
Subsequently , the said Judgment dated 18-02-1995 was implemented and proce dure stipulated in the law was followed in the manner that (a) an agreem ent was executed by the said predecessor in title of respondent No. 1, in the prescribed form; (b) Ijazatnama (Qab ooliat) was issued; (c) A Form issued; (d) Finally , T.O. Form was issued;
(e) and, lastly , his name (Lt. Col. Nasim Ahmed) was entered in the Record of Rights. The case of respondent No.1 is that, the said predecessor-in-title had sold an area of 8.8 acres to him by way of executing registered sale deed on 6-11-1996, (M.F. Roll No. 226 dated 07-11-1996). Subsequently , the name of the respondent No. 1 was entered in the record of rights vide entry No. 166 dated 11-03-1997. It is further averred that since the date of purchase, the respondent No.1 was in physical possession of the said portion of land and was cultivating the same through his Haris. The said land is settled on Water Course No. I-DR, Ex Mashaik Hoti Distry and the respondent No.1 got his name entered in the share list of Water Course and was paying. Land Revenue and Government charges of the said land. It was further the case of respondent that in November 2009 i.e. after 49 years, for the first time, the applicant came in the picture and attempted to usurp the possession of the said land from him. Upon his failure to usurp the possession, the applicant filed First Class Suit No. 72 of 2009 in the Court of Senior Civil Judge, Tando Adam, for permanent injunction against the respondent No. 1 and others. Simultaneously , the respondent No. 1 filed First Class Suit No. 78 of 2009 in the Court of Senior Civil Judge, Tando Adam, for permanent injunction against the applicant and others. Thereafter , the present applicant filed an application under Section 12 (2) C.P.C., in the Revision Application No. 56 of 1987, disposed of by this court on 18-02 -1995, to the extent of survey Nos.489/1&2, for an area of 6.4 acres, claiming to be the owner of the subject land. Later on, the present applicant and respondent No.1 withdrew their civil suits with permission to file fresh suits. Consequently , Suit No. 72 of 2009 and Suit No. 78 of 2009 were dismissed as withdrawn by order dated 17-05-2010, however , both were given liberty to bring fresh suit in respect of the subject matter , if law permits, within two month s. Thereafter , on 16-7-2010, the present respondent filed first class Civil Suit No. 67 of 2010 in the court of senior civil judge, Tando Adam, seeking declaration possession, mense profit and permanent injunction, against the applicant and others, claiming therein that in the midnight of 09-07-2010, the applicant, in collusion with revenue staff including mukhtiarkar (Revenue), Tondo Adam, usurped possession of the land in question from respondent No. 1. In the said F.0 suit, the applicant filed an application under Order VII, Rule 11, C.P.C, which was allowed and plaint was rejected by Order dated 10- 02-201 1, by the learned Senior Civil Judge, Tando Adam. Against such order the respondent No.1 preferred Civil Appeal No. 28 of 2011, under section 96, C.P.C. which Was allowed by Additional District Judge Tando Adam, and the said suit was remanded to the trial court, with directions to decide it in accorda nce with Law, vide Order dated 10-09-2014. Against the said Order of the Appellate Court, the applicant filed this Revision Application. On perusal of the record, it appears that application under Section 12(2), C.P.C., filed by applicant in Revision Application No. 56 of 1987, was dismissed by this court in C.M.A. No.166 of 2010, on 02-03-2018 and an appeal from the said order , through Civil Petition No.566-K of 2018, was also dismissed by the Hon'ble Supreme Court of Pakistan, by Order dated 1-8-2019.
3. Heard the learned counsel for the parties and also, perused record with their assistance. Learned counsel for the applicant argued that the respondent No. 1 has no legal title over the subject land and all his rights came through bogus documents only; that applicant is the lawful owner of the land in question, by virtue of Form 'A' dated 22.05.1937, issued in the name of Mir Khan, father of the Applicant. Per learned counsel, the instant suit is also barred under Section 36 of the Colonization and Disposal of Government Lands Act, 1912, Section 11 of Sindh Revenue Jurisdiction Act, 1876 and Section 172 of Sindh Land Revenue Act, 1967. In support of his arguments, the learned counsel has relied upon the cases of (i) Muhammad Ali v. Province of Punjab and others (2005 SCMR 1302 ), (ii) Administrator , Thal Development v. Ali Muhammad (2012 SCMR 730) and (iii) Raja Khan v. Shah Nawaz and others (2019 CLC (Sindh) 2061) and prayed for setting aside the impugned order of the learned Appellate Court dated 10.09.2014.
4. In rebuttal, the learned counsel for the respondent No. 1 referred to Section B of Standing Order No. 10 and argued that the entire procedure of acquiring land in barrage areas has been set out therein. Per learned counsel, this procedure was followed while granting land to the predecessor-in-title of the respondent No. 1 and therefore, his title is genuine and hi accordance with law and procedure, whereas, the applicant has only Form 'A' and nothing else, which is not a title document. Per learned counsel, to decide application unde r Order VII, Rule 11, C.P.C., the settled law is that only plaint has to be considered and it has to be presumed that whatever is pleaded therein is true and correct. It was further argued that new grounds have been argued by the learned counsel for the applicant which were neither taken in application under Order VII, Rule 11, C.P.C. nor argue d before the Trial Court or even before the Appellate Court. He further argued that the applicant's application under Section 12(2), C.P.C. has been dismissed by this Court by Order dated 02-03-2018 and Civil Petition No. 566-K of 2018 has also been dismissed by the Hon'ble Supreme Court of Pakistan by Order dated 01-08-2019. In support of his arguments, the learned counsel has referred certain documents, Placed on record, and relied upon the cases of (i) Karachi Development Authority through its Secretary v. Evacuee Trust Board through its Administrator (PLD 1984 Karachi 34) and (ii)
Mst.Shartfan Begum and others v. Muhammad Shahbaz and others (2000 CLC (Lahore) 63) and also relied upon
(i) Section B of the Standing Order No. 10 of the Revenue Department vide G.R.R. D. No. 34124 dated 30-08-1928, as amended from time to time published in the Book "Standing Orders of the Revenue Department" applicable in the Province of Sindh, Revised Edition. (ii) Bombay Land Revenue Code, 1879, (iii) Sindh Land Revenue Code, 1879 and (iv) Sindh Land Revenue Act, 1967 and lastly prayed for dismissal of this Revision application with direction to, the trial Court to decide the instant suit on merits within short time.
5. The learned AAG, appearing for the respondents 2 to 6 adopted the arguments of the learned counsel for the respondent No. 1.
6. In my view, an important point to be discussed first is the procedure of acquiring land in barrage areas, which is set out in Section B of the Standing Order No.10 of the Revenue Department vide G.R.R.D (Government Resolution, Revenue Department) No. 34124 dated 30-08-1928, as amended from time to time published in the Book "Standing Orders of the Revenue Department" applicable in the Province of Sindh, Revised Edition. There are three kind of grants namely (i) full rate grant, (ii) harap and (iii) concessionary grant. Separate conditions have been made for such grants. In cases of other grants, same procedure is to be followed. The summarized chronological order of the process for conveyance of such land is described as follows: - a. The process is initiated after receiving an offer, in the prescribed form, by the intending purchaser , to the designated Revenue Office; b. If the offer is accepted, then an order to that effect has to be issued by the said Revenue Officer; c. On receipt of sanction to a sale, the Barrage Mukhtiarkar has to take the following steps: i. Recover the full price when the installments are not ordered; ii. issue intimation of the grant in the tear-off form (T.O. Form) and send two counterfoils of the form to the Taluka Mukhtiarkar , with the particulars of the Survey Nos. in question, their areas and the date from which the possession of the land is allowed; iii. On receipt of these counterfoils, the Taluka Mukhtiarkar has to pass them to the Tapedar , who will enter the details of the grant in question for the recovery of Malkano in case the area is more and for adjustment or refund, if the area is less; iv. Get an agreement executed by the purchaser in the prescribed form; v. Issue an Ijazatnama (Qabooliat); vi. Thereafter , Barrage Mukhtiarkar will prepare "A Forms" in duplicate, give serial and khata numbers to it and send one copy to the "Accounts Branch" of the Revenue Officer's Office, the other con has to be retained by his office; vii. This form is to be maintained separately for each Taluka in alphabetical order in both the offices. It is tote prepared even when the price is recovered in full; viii. Separate serial and khata numbers has to be given to A Form prepared for full rate grant; ix. A Form should be kept in chronological order; d. Then, A Form will be issued, which should clearly state the terms of the order including the date upon which the same is issued and also includes challan No. pertains thereto; e. Subsequent to the issuance of A Form , a red entry is to be made in the Record of Rights which will signify that the said property cannot be sold further without an appropriate order being passed (bandash); f. When the vrants are fully paid, the bandash is removed and intimation in the T.O. Form is to be issued by the Barrage Mukhtiarkar and sent to the T aluka Mukhtiarkar through Revenue Officer; g. The Accounts Branch of the Revenue Officer after verification with the A Form s certifies that the grant is fully paid; h. In case of lands disposed of from unassessed Survey Nos., no T.O. Form is to be issued till the land is measured and difference of Malkano if any recovered from the grantee; i. Thereafter , the Revenue Officer will issue an order for issuance of a T.O. Form and after issuance of T.O. Form, the land will go from Government Pool to private hands; j. Thereafter , the Record of Rights is to be amended in the manner that red entry is removed, stipulating that relevant T .O. Form has been issued; k. After issuance of T.O. Form, the name mentioned therein is also to be added to the share list for the apportionment of water resources.
Thus, in the cases of grant, tear-of f form (T.O. Form) is the title document and in absence of T.O. Form, entry in the Record of Rights is null and void and has no legal ef fect whatsoever .
7. It must be clarified at this stage that Tear-Of f Forms (T.O. Forms) are of two kinds and have to be issued at different times. The first T.O. Form is the intimation of the grant of land at full rate which has to be issued before execution of agreement by the purchaser in the prescribed A Form and second T.O. Form is the intimation of the removal of restriction after the grant is fully paid and after issuance of subsequent second T.O. Form, the land will go from Government Pool to private hands and thereafter , the Record of Rights will be amended in the manner that red entry will be removed, stipulating that relevant T.O. Form has been issued. Consequently , the red entry will be substituted by blue/black entry and the title would be added therein on the basis of subsequent second T.O. Form.
8. In view of the procedure discussed above, the claim of the Applicant, which is based upon two documents only i.e. A Form dated 22.05.1937 and Letter dated 08-01-2010, issued by Mukhtiarkar (Revenue) Tando Adam, is unsubstantiated by any other integral document namely (i) Offer, (ii) Acceptance, (iii) Proof of Payment, (iv) Red Entry of his name in the Record of Rights, (v) Agreement, (vi) Ijazatnama, (vii) T.O. Form, (viii) Black/Blue Entry of his name in the Record of Rights and (ix) Land Revenue Receipts. On the other hand, the claim of the predecessor in title of the respondent No.1 is not only fully supported by all the required documents but also accepted and decreed by this Court by Judgment dated 18-02-1995, passed in Revision Application No. 56 of 1987.
9. It is relevant to mention here that during the period from 1879 to 1967, the provisions of Bombay Land Revenue Code, 1879 were applicable and were amended for Sindh by Sindh Land Revenue Code, 1879, which was applicable. The said Sindh Land Revenu e Code, 1879 was repealed in 1967 and Sindh Land Revenue Act, 1967 came into force. However , Section 184 of Sindh Land Revenue Act, 1967 was repealed by Sindh Act XVII of 1975 but it is applicable to pending cases.
10. It is further relevant to mention here that, Record of Rights were first enacte d in Act IV of 1903, which was repealed and incorporated in Chapter X-A of the Sindh Land Revenue Code, 1879 (Sections 135-A to 135-L) by Bombay Act IV of 1913.
11. Sum up of above discussion is that the applicant has no legal title of the subject land, whereas, the respondent No. 1 has legal title and therefore, the contention of the learned counsel for the applicant regarding title is wholly perverse and hence repelled.
12. The next contention of the learned counsel for the applicant that the instant suit is barred under Section 36 of the Colonization and Disposal of Government Lands Act, 1912, Section 11 of Sindh Revenue Jurisdiction Act, 1876 and Section 172 of 'Sindh Land Revenue Act, 1967 is also devoid of force in as much as neither Section 36 of the Colonization and Disposal of Government Lands Act, 1912 nor Section 11 of Sindh Revenue Jurisdiction Act, 1876 nor Section 172 of Sindh Land Revenue Act, 1967 is applicable to the instant matter in as much as there is neither any dispute regarding policy of land or any act or omission of any Revenue Officer has been challenged nor the correction of any entry in the Record of Rights has been challenged. Accordingly , the case-law relied upon by the learned counsel for the applicant namely (i) Muhammad Ali v. Province of Punjab and others (2001 SCMR 1302),
(ii) Administrator , Thal Development v. Ali Muhammad (2012 SCMR 730) and (iii) Raja Khan v. Shah Nawaz and others (2019 CLC (Sindh) 2061) are not applicable to the facts and circumstances of the instant matter .
13. Now coming to the application under Order VII, Rule 11, C.P.C., filed by the applicant before the trial court on the sole ground viz., pendency of an application under Section 12(2), C.P.C., before this court, in Revision Application No. 56 of 1987. I have gone through the contents of the said application under Section 12(2), C.P.C. and also plaint in the instant suit and I have come to a definite conclusion that the cause of action and reliefs claimed in both the matters are different, therefore, bar of Section 12(2), C.P.C. does not apply to the instant suit.
Apart from this, the applicant's said application under Section 12(2), C.P.C. was dismissed by this Court by order dated 02-03-2018, which was challenged by the Applicant before the Hon'ble Supreme Court of Pakistan, in CPLA No. 566-K of 2018, which was also dismissed by order dated 01-08-2019. I deem it expedient to re-produce the said order hereunder:- "The application under section 12(2), C.P.C. filed by the petitioner was dismissed on proper appreciation of facts and law and without prejudice the case it was observed that the finding recorded on application are of tentative nature and shall cause no prejudice upon the adjudication of any dispute between the parties before a proper forum of appropriate jurisdiction. In this view of the matter , we are not inclined to give any indulgence to this matter .
Leave to appeal is declined and the petition is dismissed."
14. It is well settled principle of law that to decide an application under Order VII, Rule 11, C.P.C., only the plaint has to be considered and it has to be presumed that whatever is pleaded therein is true and correct. In view of this settled principle of law, I have carefully gone through the plaint, which discloses cause of action against the applicant and does not appear to be barred by any law.
15. The upshot of above discussion is that the Order of the Trial Court was perverse and, therefore, the learned appellate court rightly set it aside. No interference is, therefore, necessary with the impugned order . Consequently , this Revision Application has no merits and is dismissed. In view of very long and inordinate pendency of the instant suit, the Trial Court is directed to decide the instant suit within three months from the receipt of this Judgment. Office is directed to send copy of this Judgment to the Trial Court immediately . Applicant and Respondents are directed to appear before the learned Senior Civil Judge, Tando Adam, on 16-11-2020 without any Court Motion Notice.