' The appeal is directed against the judgment and decree passed on 16.12-1969/20-12-1969 by the learned District Judge, Khairpur in 1st Appeal No, 23 of 1969 whereby the decree passed in Suit No, 21/65 dismissing the said suit by the learned civil Judge First Class, Khairpur was challenged.
1. The brief facts of the case are that lands bearing survey Nos. 31/1, 31/2, 83/1 and 2, 84/I, and 2, 85/1, 89/1 and 86 total measuring 35.28 acres (B & C Class lands) situated in deh Dund. Taluka Faiz Ganj, District Khairpur were offered for sale to the public by the Barrage Department, Government of Sind.
At the public auction held on 3-2-1959 the respondent Nos. 3 and 4/ plaintiffs made the offer which was accepted by the Assistant Revenue Officer on 16-5-1959 and the ljazatnama was issued to them on 4-6-1959. The plaintiffs paid the instalments and complied with the other conditions of the first grant.
' Subsequently on 18-5-1962 survey Nos. 83/2 and 84/2 (D Class lands) were taken by the plaintiffs as a Mohag right of the first grant.
' An appeal was subsequently filed by the appellants before the Colonization Officer which however was dismissed on 9-9-1959. A further appeal was thereafter filed before the Assistant Commissioner, Development which was also dismissed on 13.7-1960. After the dismissal of the abovementioned appeals, the appellants filed a revision application before the Board of Revenue which however was allowed on 22-5-1962 and the grant was cancelled and it was ordered that the land be put to auction between the parties. The observations made by the Board of Revenue while passing the above order are reproduced hereinblow "The petitioner complained to the Assistant Revenue Officer, on 28-5-1959 (vide his application at page 162 of Sindhi Papers) i,e, after only 5 days of the grant made to the respondents ; and represented what they have urged now i,e, the land is in their inohag and that they wanted to get it, but were told that there was bandish on disposal of 'D' Class land, and later the land was converted into 'C' Class and disposed of quietly. The Assistant Revenue Officer, made no inquiry into the complaint and simply endorsed an office note saying that the land was already disposed of.
' It was the duty of the Assistant Revenue Officer to have investigated the allegation i,e, that no publicity was given to the removal of bandish or conversion of the land from 'D' Class to 'C'. He simply filed the application without inquiry into the matter. This lends support to allegation and was administrabily improper.-
2. The above order of the Board of Revenue was challenged by filing Writ Petition No, 512/62 in the High Court which was dismissed on the ground that the disputes involved were purely on questions of facts and cannot be gone into writ jurisdiction of the High Court. A Petition for leave to appeal was filed being C.P.S.L.A. No, 188,63 which however was dismissed summarily. A review application was filed which also met the same fate.
3. Thereafter respondents Nos. 3 and 4 filed Civil Suit No, 21/65 in the Court of the (sic) plaintiffs respondents Nos. 3 and 4 examined Noor Muhammad (Exh. 35-A), plaintiff Ramzan (Exh. 36). They produced Ijazatnama Exh. 37, intimation regarding the disposal of the land Exh. 38, Ijazatnama Exh.
39 to 42, order of the Board of Revenue Exh. 43 and the order of Member, Board of Revenue Exh.
44.
' P. W. 1 Noor Muhammad Supervising Tapedar in the Survey Office at Khairpur produced survey register of soil classification list of Deh Dund, Taluka Faiz Gunj. According to him the survey register was for the years 1953-54 which showed that surrey Nos. 31/1, 31/2, 83/1, 83/2, 84/1-2 and 85/1 are 'C' class lands and that survey No, 89/1 is also 'C' class and that survey No, 86 is 'B' class. According to the witness this classification was from 1940 onwards. No question was put in the cross- examination and the statement made by the witness remained unchallenged.
' Piaintiff Muhammad Ramzan Exh. 36 in his evidence deposed that at the auction, held in 1959 he mace offer in his own name and that of his brother Muhammad Tufail, which was accepted and the land was granted to them on full rate. There was no rival or counter offer. According to him since then they have been cultivating the land dbd have invested about more than Rs, 10,000 on its improvement and also built houses and compound wail on the land. He further deposed that survey number 86 came into schedule six months later and then he purchased survey Nos. 84/2 and 83/2 on , Mohag rights and in support produced Ijazatnamas ails. 37 to 42. He also produced the orders rejecting the appeals filed by the appellants and the orders of the Board of Revenue as Exh. 43 and Exh.
44. Order of the High Court and the Supreme Court were also produced by him. Order of the Colonization Officer, Additional Commissioner were produced as Exhs. 48 and 49 and the notice to the Mukhtiarkar was produced as Exh.
50. The statement in his evidence by Ramzan that Umerdin and Barkat Ali (appellants) lived at a distance in different day was not challenged in the cross-examination. The order of the Member Board of Revenue dated 22-6-1962 Exh. 43 whereby the revision application was accepted and the order was passed for restricted auction between the two parties was produced as Exh. 43 which order proceeded as the assumption that the Revenue Officer ought to have investigated the allegation that no publicity was given to the removal of "bandish" of the conversion of the land from Class 'D' to Class 'C'. The learned Member further proceeded to observe that the petitioners who have the land in their Mohaq and "although they cannot claim it as a semi-judicial right because the area of the land is more than 4 acres the revenue authorities should not have ignored the fact that land in dispute is almost surrounded by the petitioners land" and that the respondent had no such right at all. While not granting the land to the appellants it was held that both the parties could afford to bid at auction and as the main complaint of the petitioners was that they did not get intimation, the ends of justice would be met if the land was put to auction between the two contesting parties.
' A review petition was filed by the respondents Nos. 3 and 4 on the plea that certain facts which were not in their knowledge at the time when the revision petition was decided and that they got documentary evidence to show that "due publicity" was given for the removal of brandish and conversion of land from Class 'D' to Class 'C'. The review application however was dismissed as having no merits.
4. The defendants/appellants examined Abdul Ahmad, Head Munshi, from the office Barrage Mukhtiarkar who produced certain documents, orders of the Board of Revenue and also of the High Court passed in Writ Petition No, 512/62. Order of the Honourable Supreme Court was produced Exh.
57 and the order of the Board of Revenue rejecting the review petition was marked Exh.
59. Objection of denfendant No, 3 dated 23-5-1959 addressed to A. R.
0. Was produced as Exh.
60.
' The defendants also examined Umer Din son of Jamal Din who deposed that he was attorney for the appellants/defendants and had seen the disputed land which according to him is adjacent to his land. He also referred to the appeals filed by the appellants and the disputes which went to the High Court and the Supreme Court. He admitted that the respondent/Muhammad Ramzan is in possession of the land in dispute since 1959. Evidence of this witness was recorded on 25-1-1968.
5. The learned Civil Judge by judgment and decree passed on 26-3-1968 dismissed the suit against which 1st Civil Appeal No, 23/68 was filed in the Court of the District Judge at Khairpur who by the judgment and decree passed on 16-12-1969 allowed the said appeal and granted the declaration that the plaintiffs/respondents Nos. 3 and 4 obtained the two valid and legal grants of the land from the revenue authorities and that they should not be disturbed in the manner- directed by the Board-of Revenue.
6. Aggrieved by the aforesaid judgment in the 1st Appeal, the present second Appeal has been filed under section 100, P. P. C.
7. The learned Advocate for the appellants Mr. Nasrullah Awan has not challenged the findings of facts arrived at by the learned first appellate Court which I presently would refer but contended that the matter was disposed of in the exercise of exclusive jurisdiction of the revenue authorities and accordingly the order passed by the Board of Revenue could not be challenged in the civil Court. The learned counsel in support of his argument relied upon the case reported in Haji Nek Muhammad v. Province of West Pakistan and 12 others (1).
' In order to appreciate the applicability of the principle decided in the above cited case, I would first reproduce hereinbelow the findings of the facts which have been arrived at by the learned Ist appellate Court and which have not been challenged by the learned counsel for the appellants, the same being supported by the evidence on record.
"The plaint and evidence shows that the plaintiffs obtained a grant in respect of 9 S. Nos. Bearing S. No, 31/1 and 2, 83/1 and 2 84/1 & 2, 85/1, 89/1 & 86. Out of these 7 S. Nos. Were taken by the plaintiffs under the first grant in 1959 which were of B & C Class and only 2 S. Nos. 83/2 & 84/2 were D Class land which were taken by the plaintiffs subsequently in 1962, as a Mohaq right of the first grant.
Thus most of this land was already C Class land and, therefore, the objection raised by the Member, Board of Revenue could not apply. This distinction as to the factual position with regard to the classification of the land does not appear to have been appreciated by the Member, Board of Revenue. The evidence of Noor Muhammad Supervising Tapedar P. W.
1. Adduced in the Court below shows that S Nos. 31/ I & 2, 83/1 & 2, 84/1 & 2, 85/1, 89/1 were all 'C'
Class while No, 86 was 'B' Class. According to him, this classification exists since 1940. He gave his evidence from the office record and no question has been put to him in cross examination on behalf of the respondents." It was then observed :- "The stand taken by respondents Nos. 3 to 5 is that this land was 'D' Class and that it was converted in to C category a short while before it was granted to the appellants. No evidence has been led on their behalf to substantiate their contention."
' The learned District Judge then held :- "The evidence discussed above clearly shows that this classification was revised in 1959 in respect of survey numbers mentioned in the letters xhs. 61 and 62 and that of others in 1940. The lapse of 7 years could not be termed as a short period or that no publicity was given by the concerned department. Exhs. 52 and 53 shows that publicity was made by the Revenue Officer and that the offer were invited before 31-12-1958."
' The learned Judge further observed that the appellants have not produced any evidence to show that there was bandish on the sale of 'D' Cltss land at any time before grant in suit was made.
' The other important finding of fact arrived at by the learned 1st appellate Court was to the effect that the appellants who claimed to be Zamindars of the locality have not produced any documentary evidence to show that they actually possess land in the locality or that they had a valid claim of Mohag right.
' The learned 1st appellate Court further gave the finding of fact as follows :- "As already pointed out, respondents Nos. 3 to 5 have not shown that they own any land in this area at all, muchless contiguous to the land in dispute and on that account were entitled to such notice.
Besides the land in dispute measures 35 acres and 28 ghantas, whereas the Revenue Officer's Circular No, 1949, dated 20th May, 1942 which is quoted in the case cited by Mr. Ghulam Ali Shaikh, shows that Mohagdar could claim such right only if the land was less than 4 acres. It has not been pointed out how the respondents could claim Mohag right over such a large piece of land, in spite of the aforesaid circular."
8. Reference now be made to the case of Nek Mahammad v. Province of West Pakistan and the following observation on which the learned counsel relied.
"The Board of Revenue has observed that the possession of the appellant was unauthorised. This is a finding of fact and cannot be questioned in civil Courts, even if it is erroneous, because it was clearly within the jurisdiction of the Board to give that finding."
' I find that the above observation relied upon by the learned counsel for the appellant cannot advance the case of the appellants inasmuch as the Board of Revenue proceeded to decide the matter without any evidence before it and on assumption of facts which have been found by the learned first appellate Court not to exist. Nothing has been pointed by the learned counsel for the appellants that the findings of the facts given by the lower appellate Court are erroneous. The learned 1st appellate Court rightly relied upon the case reported as Muhammad Jamil Asghar v.
The Improvement Trust, Rawalpindi (1) wherein the Honourable Supreme Court observed as follows :- "It appears to us that this contention of the respondent which has found favour with the learned Single Judge of the High Court is founded on a misconception. A purely administrative Officer who is empowered to pass an order if certain circumstances exist has no jurisdiction to determine those circumstances is an essential condition of the validity of his order. In respect of every order passed by him the Court can make an enquiry and if it finds that all the circumstances needed for passing the order were not present it will declare the order to be void."
' The Honourable Supreme Court further observed :- "So far as Special Judicial Tribunals are concerned they are given jurisdiction to determine certain facts but they are not judges of the facts which are the foundation of their jurisdiction nor can they define the limits of their own jurisdiction.
' Reference may here be also made to the case of Mian Muhammad Lad/ v. Province of West Pakistan (1) wherein at page 184 the Honourable Supreme Court held :- "There is no doubt that under it ordinarily a party in revenue matters should exhuast all his remedies by way of appeal before invoking the aid of the civil Court. But there are different considerations where the allegation of a party is that the impugned order is a nullity in the eye of law. There is ample authority that in such cases the jurisdiction of the civil Court is not barred. This aspect of the question was considered by the Privy Council in the case of Secretary of State v. Mask & Co. AIR 1940 P C 105. It was held in that case - "It is also well-settled that even if jurisdiction is so excluded, the civil Courts have jurisdiction examine into cases where provisions of the Act have not been complied with or the statutory tribunal has not acted in confirmity with the fundamental principles of judicial proced ure .
' Lastly the reference may be made to the case of province of West Pakistan v. Abdul Razzak Shah
(2) wherein on a question of jurisdiction Mr. Justice Muhammad Afzal Zullah (as he then was) observed as follows :-- "I have already held that the determination, under paragraph 21 (2) of the Regulation, of the Mukhadimi rights is a substantive matter and affects valuable rights of the parties concerned. It is not a question of mere procedure. Therefore, I hold that by ignoring the other revenue records, the Chief Land Commissioner has not acted under the Regulation and thus his order is illegal, void and ineffective and has been correctly declared to be so by the learned lower courts."
9. In the light of the above authoritative principles laid down, it would be seen that in the face of the findings of facts arrived at as above by the 1st appellate Court supported by the evidence, the only objection raised by the learned counsel for the appellant that the matter was within the exclusive jurisdiction of the revenue authorities, cannot be sustained. The Board of Revenue has passed the order without any material befor it on assumption of facts which the 1st appellate Court has found not to exist.
10. No other point was urged by the learned counsel for the appellants. In the circumstances this appeal has no merit and is liable to be dismissed.
11. Before concluding I would like to mention here that the respondents No, 3 and 4 purchased the land on 16-5-1959 and the other two survey numbers in 1962 and have built houses and developed the land since now almost for last 23 years. They appeared in person in the Court and stated that the appellants have left the place long back and their whereabouts are not known and that they have returned to their original province from where they came.
Mr. Nasrullah Awan, advocate stated, that he had written letters to the appellants but the same have been returned undelivered.
12. By a short order passed on 26-8-1982 the appeal was dismissed with costs, and the above are the reasons for the same.