' This first appeal is directed against the judgment and decree in F.C. Suit No,49/69 dated 3-9-69 whereby the declaration and injunction sought by the appellant was refused.
2. The relevant facts alleged are that in 1958 the Government introduced the Village Aid Scheme. A council for certain villages was to be set up. The appellant was appointed as Chairman of Village Council Shadi Khan Chandio and in 1960 a sum of Rs,3,950 according to the appellant, and a sum of Rs,4,800 according to the respondents, was advanced to him for the purposes of village development for various projects. The villagers were expected to contribute an equal amount. The appellant case is that the amount was utilised for purposes of fixing water pumps, establishment of poultry farm and construction of bridge and road in village.
3. On 5-5-1969, the appellant received a notice under section 81 of Land Revenue Code from Mukhtiarkar Sakrand to pay Rs,4,800 received by him as village aid or else he would be sent to jail under section 82 of Land Revenue Code.
4. The appellant filed a suit for declaration and injunction wherein it was stated that only Rs,3,950 was paid to him in his capacity as Chairman of Village Council of Shadi Khan and that some amount was collected from villagers and the whole amount was spent on the proposed development and that the village aid was not to be recovered from the villagers and that it was never given to him in his personal capacity. Declaration was sought that aid given under village aid scheme was not recoverable and as such notice of demand was illegal.
5. In written statement the respondent No,1 submitted that Rs,4,800 was advance to the appellant for various development schemes. It was asserted that a committee formed in 1964 had found that there were no handpumps, bridges nor poultry farm in the villages for which the amount was advanced. It was further alleged that amount was given as a loan and was recoverable from plaintiff. Notice of recovery was justified as the Mukhtiarkar had been directed to issue the same as the amount had never been utilized towards development schemes and that it was a loan given by Government and hence recoverable as arrears et land revenue. It was averred that plaintiff had not exhausted all the remedies and that a similar Suit No,13/65, filed by the plaintiff, had been decided in favour of the Government. Suit was stated to be not maintainable and civil Court had no jurisdiction.
' Following seven issues were framed:- "(.1) Whether the suit amount has been utilised and spent by the plaintiff for development of the village Shadi Khan?
' Whether the suit amount is recoverable from the plaintiff? Whether the suit is not maintainable?
' Whether this Court has no jurisdiction to entertain the suit?
' Whether the suit is barred under sections 46 and 56 of Specific Relief Act?
' Whether the suit is under valued and properly stamped?
' Whether the plaintiff has not exhausted remedy available to under relevant law?
6. In support of his case the plaintiff Qaiser Khan examined himself and supported the averments in the plaint. He stated that they had installed three or four pipes and had established one poultry farm and got seven bridges constructed and accounts were maintained. He produced account Exh.34. He also stated that the villagers also spent their amount on the construction as mentioned in Exh.35. He asserted that he had not spent the amount for personal needs. He produced the notice of Mukhtiarkar Exh.36, and stated that it was illegal. He denied in cross-examination that he had received Rs,4,800 from the Government. He admitted that he had not obtained vouchers of the articles but stated that he had maintained accounts and further stated that he had produced all the vouchers to the officials. He had not got the account audited from any Government official. He asserted that none of the officials had. Come to inspect the village at any time and that he had not received any other notice before. He denied that the Deputy Commissioner had visited and did not find any articles. He denied that he had not spent the amount for any work. One Umeed Ali supported the plaintiff and stated that the Government had given some amount to the Chairman of the Village Council, Qaiser Khan and he had also collected the same 'amount from the villagers and that Qaiser Khan had installed pipes and constructed bridges and installed poultry farm. He asserted that Qaiser 'Khan had not misappropriated any amount. He stated in cross-examination that he was Hari of Mir Muhammad who was resident of the neighbouring Village. He denied that his house was in Village Mir Muhammad. He had asserted in examination-in-chief that he belongs to the Village of Qaiser Khan. In cross-examination he admitted that Qaiser Khan was his caste fellow and they were on' meeting terms with each other.
7. In the rebuttal the respondent examined Allah Mehar, Clerk in the office of Assistant Director, Local Government, Nawabshah, who had brought the relevant papers. He stated that plaintiff Qaiser Khan was Chairman of Village Council and in that capacity some loan was advanced to him in connection with the Village aid scheme for the purpose of various schemes to be carried out and that Qaiser Khan did not furnish any account for an amount of Rs,4800 advanced to him for the development of fruit nursery and repairs of model house and also for construction of bridge over minor in the Village Shadi Khan. He stated that the Deputy Commissioner, Nawabshah, had formed &committee to check the scheme of village aid and Assistant Commissioner, Nawabshah, was the Chairman of that committee while Mukhtiarkar was a member. He produced the order of Deputy Commissioner Exh.45 and the amounts to be recovered alongwith the names of the defaulters, Exh.46. He also produced the sub-committee report and inspection memo. Exh.47, which was signed by Development Officer, Mukhtiarkar, Sakrand. He asserted that amount of Rs,4,800 remained as balance of loan advanced to Qaiser Khan who did not furnish any account or any progress of work io that connection. He admitted in cross-examination that a pro forma was to be filled up by the development officer and the signature 'of the Chairman of Village Council had to be obtained on the receipt of loan. He admitted that he had not brought that pro forma under, which the loan was advanced to Chairman of Village Council Shadi Khan. He stated that the amount was advanced in 1959 .Or 1960. He did not know whether the villagers contributed some amount for the development of the scheme in addition, to the loan advanced to the Village council. He asserted that Mukhtiarkar, Sakrand, had issued notices to the plaintiff for submitting the accounts and payment of loan but admitted that he had not brought those notices. He admitted that there was no audit by any co-operative society for that purpose.
' Exhibit 45 is merely a Circular of Deputy Commissioner, Nawabshah, appointing committee to check the schemes of defunct-village aid. Exh. 46 is a Statement showing that Rs,1,500 and Rs,1,800 and again Rs,1,500 ,were to be recovered from defaulter Qaiser. Khan on account of aid for fruit nursery, repairs of model house and construction of bridge over minor. Exh. 47 which does not bear a date is a report of sub-committee on the village aid scheme in respect of Shadi Khan Chandio village/Qaiser Khan Chandio which shows that there was no fruit nursery at village Shadi Khan Chandio and that model house did not exist. The explanation of Qaiser Khan noted for these two items is that the funds had been diverted to trainees sent to Tandojam for training and to education society. In respect of handpumps it was noted in the Exh.47 that handpumps were installed at scattered places and that handpumps were available in working condition. It was also mentioned that these two schemes were implemented. In respect of bridge it was noted that on site there is not any bridge and the explanation of Qaiser Khan noted was that scheme could not be executed for want of permission of Irrigation Department but necessary material was purchased for construction of bridge which was utilised on the link road for village Qaiser Khan Chandio. However, it was noted in the report that the road is not on revenue record but it was also noted that it has been encroached upon at some places but no residue of such material was seen.
8. D.W. 2, Abdul Sattar, stated that he was Development Officer of Basic Democracy and that the committee had held meeting and had also visited the sites. Qaiser Khan was called and was questioned about the complete and incomplete schemes, who stated that amount for fruit nursery was diverted and utilised as stipend for boys sent to Tandojam for training in Hotriculture and the funds for model house were diverted to education society. He had further stated that bridge over Satoran minor was not completed and amount of Rs,1,500 was utilised for the construction of link road by him because the Irrigation Department did not allow the construction of bridge. He stated that the said report was sent to Deputy Commissioner as Exh.47 and it bore his signature. He asserted that Qaiser Khan was not competent or authorised to divert the amount for any other purpose except the purpose for-which the amount was advanced to him. He asserted in cross- examination that statement of Qaiser Khan was recorded in the presence of all the officers but he admitted that the statement of Qaiser Khan was not available with him or with the clerk who was present in the Court. He further admitted that they had not visited the site in the present case as it was not warranted to visit all the sites of schemes but they had visited the bridge site only. He denied the suggestion that the statement of Qaiser Khan was not recorded. He admitted that the report Exh. 47 was to be signed by the Assistant Commissioner but it was not so signed.
9. The learned Civil Judge held that the suit amount had not been utilised for the purpose of development of village Shadi Khan. He did not believe the statement of the plaintiff or the statement of Allah Mehar. I failed to understand' as to how he could come to this conclusion in view of what had been admitted in Exh.47 which is a report of th committee itself where it had been clearly admitted that handpumps were installed at scattered places and it was believed that these tw schemes were implemented. Reference to the words "these two schemes", is with reference to serial No,3 and 5 mentioned earlier in that Exh.47 and serial No,3 of that shows installation of two handpumps at the cos of Rs,300 and serial No,5 shows installation of handpumps in th development area at the cost Of Rs,4,000. In view of this document itself it was not possible for the learned A A.D.J. To come to the conclusio that the amount had not been spent because these two items cover a sum of Rs,4,300 and the report itself shows that handpumps are availabl in working condition. This alone was sufficient to entitle the plaintiff/ appellant to get a decision that he had spent the amount which he had obtained from the Government.
10. 1 may mention here that the appellant had asserted that he had received only Rs,3,950 from the Government for the village aid and the Government department had not proved that it had given Rs,4,800 to the plaintff.
11. I do not see any justification to disbelieve the statement o plaintiff or his witness Allah Mehar when a part of the scheme is admitted by the Government department itself to have been implemented. Moreover, Abdul Sattar had himself admitted that they had not visited any other site except the bridge site and, therefore, the statement o Qaiser Khan that he had spent the amount on the village development merited to be accepted. Disbelieving the statement of Allah Mehar onl because he was a Chandio was not justified. After all the village itsel was Shadi Khan Chandio village and, therefore, it would be the villag inmates themselves who could depose whether the village developmen had taken place or not. No person from the village was examined b the Government to show that there had been no development in th village.##TED##
12. More important was issue No,2, whether the amount was recoverable from the plaintiff/appellant and in this respect the plaintiff had stated that the amount had been given to him not as a loan, for his personal self, but as advance for development of village and it was given to him in his capacity as Chairman of village Council. Even the Government witness had admitted that position. The Government witness had not been able to prove that it was a loan given to Shadi Kh and, therefore, the submission of the appellant that he was not personal responsible for the payment of that amount was certainly a correct plea. The learned A.D.J. Has not applied the mind correctly to this aspect of the case. In the first instance, there was no proof of th payment of Rs,4,800 and, therefore, notice for recovery of Rs,4,80 was completely uncalled for. The reliance upon Exh.46 and Exh.4 should not have been placed because they were not the receipts from the appellant and, therefore, in the absence of any receipt from the appellant his oral statement should have been believed. The observation that the plaintiff had misappropriated the amount is completely believe by Exh.47 itself which is a report of the Inspection Committee which had found at least the handpumps having been installed. In fact, this committee had also found the encroachment in respect of road having been made and that would again suggest some development work having been carried out by the village council.
13. In any case, it was the village council which had been paid the amount through its Chairman and, therefore, it was the village count which could have been called upon to account for this amount and no the plaintiff in his personal capacity. The whole thing appears to hay been misconceived by the learned A.D.J. And in any event he has failed to take into consideration a very material document produced by the Government department itself, namely, Exh.47, which had proven the bona fides of the plaintiff/appellant. The judgment in question is, therefore, vitiated. I find plenty of justification in respect of the submission made by the appellant. The learned A.D.J.
Has failed t note that right from 1958/1959 to 1969 there was not a single notice proved to have been given to the appellant and this reticence or lack of any action on the part of the Government agency shows that some development work had been carried out by the appellant in his capacity as Chairman of the Union Council. It was only a question of authority to divert the funds from one item to the other which was really matter in issue and, therefore, the Government was reluctant to take any action against the appellant for a period of about eight years. More important is the fact that the personal liability of the appellant was not involved in any case and, therefore, the notice issued to the appellant under section 81 of the Land Revenue- Code was completely uncalled for.
I am quite clear in my mind that village aid advanced to a Union Council could not be treated as a loan advanced to the Chairman of that Council in his person capacity and, therefore, the same could not be treated as a due of the Government from the appellant and, therefore, obviously the provisions of section 81 of Sind Revenue Ac was not called for application.
14. The learned A.D.J. Decided issues Nos. 3, 4, 5, 6 and 7 together and held that since validity of directions made by the Deputy Commissioner is not challenged how could the notice Exh.36 be challenged which was issued by Mukhtiarkar who merely acted as per directions of the Deputy Commissioner and, therefore, the suit is not maintainable. I do not find any justification for the same because the suit had been filed against the Deputy Commissioner as well as the Mukhtiarkar and it had been claimed that the amount given for village aid was no recoverable and the defendants Nos. 1 and 2 be restrained through injunction from recovering the amount shown, in the notice and; therefore, obviously the order or direction of the Deputy Commissioner in this respect had also been challenged in the suit and, therefore, the sui was competent. Moreover, no directions as such which had been issue by the Deputy Commissioner in respect of the issue of notice or recover of the amount has been placed on record and, therefore, the suit directed against the notice was clearly competent and maintainable. The notice having been issued by the Mukhtiarkar, and the respondent No,1; namely, the Deputy Commissioner, having accepted the responsibility for the issue of the said notice, it was incumbent upon them to show the justification for the issue of the said notice and to establish o record that there were any arrears of revenue due from the appellant to the Government but they have not shown any arrears of revenu being due from the appellant personally and, therefore, there was no justification for issuing of notice under section 81 of the Land Revenu Act and hence no other remedy in respect of that was really available to the appellant and, therefore, the suit was competent as provide under section 9, C.P.C.
15. The reliance upon the provisions of section 56 of Specific Relied . Act was completely misconceived in the present case as the appellant had merely sought an injunction against the recovery of an amount which was not really due from him. And therefore the appellant was not hampering the working of the defendants. The appellant was simple seeking a declaration and injunction in respect of an illegal notice of demand and he was entitled to do so in law.
16. Even in respect of the court-fee the learned A.D.J. Has made an incorrect decision. The suit had been correctly valued at Rs,20 for the purpose of declaration on which Rs,15 court-fee was payable and it has also been correctly valued at Rs,200 for the purpose of H injunction on which Rs,15 court- fee was payable and I find from the plaint itself that court-fee of Rs,30 has been affixed on the plaint an there is also an endorsement from the office of the Civil Judge that court-fee of Rs,30 has been affixed on the plaint. The result is that the court-fee was correctly paid.
17. In view of the above discussion I had allowed this appeal with cost on 24-11-1985 for reasons to be recorded and, therefore, I hereby set aside the judgment and decree of the learned A.D.J. And decree the suit of the plaintiff/appellant as prayed.