' It is desirable to state briefly certain facts giving rise to this litigation.
2. Lots Nos.3 and 4, measuring 177-11 acres, situated in deh Sajjan, Taluka Ubauro, were disposed of through public auction held on 13-12-1966, by Colonization Officer, Guddu Barrage, Sukkur, in favour of respondent No,8. He paid the initial amount as required under the scheme and the remaining amount was to be paid in instalments. The possession of this land was also delivered to respondent No,8. All the Government dues were paid by respondent No,8 and consequently T.O.
Form dated 22-1-1978 was issued in his favour by the Colonization Officer, Guddu Barrage, Sukkur.
After the survey the said lots were assigned different Block numbers. The respondent No,8 then sold the suit land to respondents Nos.1 to 7 through registered sale-deed. It is the case of the respondents that the applicants got their names inserted in Barrage record, but they could not claim any share as T.O. Form was already issued in favour of respondent No,8, and Revenue Record was also mutated accordingly. It is alleged that the Colonization Officer, Guddu Barrage, Sukkur, cancelled the T.O. Form issued in favour of respondent No,8, vide order dated 13-5-1978. This order was challenged in appeal before Additional Commissioner, Sukkur, who allowed the appeal and set aside the said order on 20-6-1978. The review application filed by the Colonization Officer, Guddu Barrage, Sukkur, was also dismissed. The applicants challenged this order before Member (Relief and Settlement), Board of Revenue, Sindh, who remanded the case to Colonization Officer, Guddu, Barrage for fresh inquiry and issuance of T.O. Form. The review sought by respondent No,8 was also refused by him. The respondents Nos.1 to 8, therefore, filed Civil Suit No,163 of 1979 against the applicants and other Government functionaries in the Court of Senior Civil Judge, Ghotki, with the following prayer:-- "It is, therefore, prayed that this Honourable Court may be pleased to --
(a) pass judgment and decree declaring the order of the learned Member, Board of Revenue dated 27-6-1979 and order in review and the proceedings started by the learned Colonization Officer, Guddu Barrage, Sukkur, against the plaintiffs as illegal, ultra vires, void ab initio, incompetent, without jurisdiction, mala fide, perverse, of no legal effect and of no legal consequence in respect of the land under suit.
(b) grant permanent injunction against the defendants not to interfere with the possession and enjoyment of the record of the rights of the plaintiffs in respect of the land under suit."
3. It is the case of applicants that on 15-12-1966, the respondent No,8 made an application to the Colonization Officer, Guddu Barrage, Sukkur, stating therein that applicants were also co-sharers with him and that he had purchased the suit land on his own behalf and on behalf of applicants.
This application was allowed and such order was passed on the margin of the said application and in consequence thereof the names of applicants were entered in auction sheet mentioning their shares. The applicants have alleged that although instalments were paid by all the co- sharers, but the respondent No,8 fraudulently got T.O. Form issued in his own name to the exclusion of others and immediately thereafter sold the land to respondents Nos.1 to 7. Some legal pleas about the maintainability of the suit and jurisdiction of the Civil Court were also raised.
4. On the pleadings of the parties the trial Court framed as many as 16 issues. The respondents Nos.1 to 8 examined Jan Ghulam Nabi (P.W-1), who produced all the relevant record. The official respondents examined Hizbullah A.C.O. (D.W-1). The applicants failed to produce any witness and consequently their side was closed.
5. On the assessm ent of evidence available on record, both oral as well as documentary, the learned Senior Civil Judge, Ghotki, decreed the suit vide judgment dated '7-11-1982. The applicants challenged this judgment and decree before District Court, Sukkur, in Civil Appeal No, 207 of 1982, which was heard by learned IVth Additional District Judge, Sukkur, who dismissed it on 12-9-1984.
The applicants have now assailed the concurrent findings of the Courts below before this Court in this civil revision application.
6. I have had the benefit of a very careful arguments on both the sides.
7. The scope of section 115, C.P.C. Is limited one and the High Court will interfere only when a subordinate Court appears:--
(a) to have exercised a jurisdiction not vested in it by law, or
(b) to have failed to exercise a jurisdiction so vested, or
(c) to have acted in the exercise of jurisdiction illegally or with material irregularity.
' The applicants have invoked clauses (a) and (c) of subsection (1) of section 115, C.P.C., while challenging the judgment and decree of the Courts below. Mr. Muhammad Aslam Bhutto, learned counsel for applicants has referred to several points but eventually confined his arguments in the main to four contentions.
(i) That the applicants were condemned unheard and no opportunity was afforded to them to lead their evidence.
(ii) That where fraud is committed during any proceedings, it is inherent jurisdiction of every Court or authority to inquire, if brought to its notice and the Member, Board of Revenue, Sindh, had jurisdiction to remand the case to Colonization Officer, Guddu Barrage, Sukkur, for this limited purpose.
(iii) That the jurisdiction of the Civil Court was ousted specifically and consequently the decree passed was without jurisdiction.
(iv) That there was misreading of evidence by the Courts below, resulting into grave miscarriage of justice.
8. The perusal of the record shows that the applicants were afforded proper opportunities to adduce their evidence but it appears that they were mainly interested in protracting the suit which was instituted as far back as 28-11-1979. The learned Senior Civil Judge had given equal treatment to both the parties by rejecting their applications made on 30-10-1982, seeking adjournment. The applicants were afforded another opportunity to produce evidence on 6-11-1982, but on this date also an adjournment was prayed which was refused and the side of applicants was closed. The applicants should, therefore, thank themselves for this situation. Nobody can be allowed to regulate the workings of a Court.
9. It is the case of the applicants that although they were co-sharers with respondent No,8, but he obtained the T.O. Form in his own name to their exclusion by playing fraud. On this assumption the learned counsel for applicants has submitted that Member, Board of Revenue, Sindh, was justified in re-opening the case. He has placed reliance upon cases reported as Mst. Latifan and 7 others v.
Muhammad Ishaq and 3 others PLD 1974 Lahore 65, The Chief Settlement Commissioner, Lahore v.
Raja Muhammad Fazil Khan and others PLD 1975 SC 331 and Shamrooz Khan v. Muhabbat Khan and another 1989 SCMR 819. These cases are, however, distinguishable. Mr. Farman Ali learned counsel for respondents Nos.1 to 8 has assailed the order of Member, Board of Revenue, Sindh (Ex.54), because,
(i) After the issuance of T.O. Form and mutation of record of rights, the Colonization Officer, Guddu Barrage, Sukkur, had no powers to cancel the T.O. Form as he was not competent to do so without obtaining prior permission.
(ii) The view taken by Additional Commissioner, Sukkur in his order (Ex.52) was legal and proper, which has not been touched by Member, Board of Revenue, Sindh, in his Order (Ex.54).
(iii) that the Member, Board of Revenue had no authority and powers to pass the orders disturbing the lands of respondents Nos.1 to 8, so far as the title and ownership was concerned.
(iv) If there was any dispute of title and ownership or of share, that had to be resolved by the competent Civil Court.
' There is good deal of force in all these contentions, which get support from a judgment of Division Bench of Lahore High Court, reported as Anjuman Talib-ul-Islam (Regd.), Sheikhupura v. Province of West Pakistan, Punjab Province and 2 others PLD 1983 Lahore 294, wherein it was held that before executing a sale-deed and conferring proprietary rights the Collector has to see that purchase money is paid awl the conditions of sale are fulfilled and he has no jurisdiction to intervene after conferment of proprietary rights even though there has been breach of some conditions of sale- deed. The case of Muhammad Din and others v. Imamdin, PLD 1947 PC 317, is also relevant in the above circumstances and was relied upon in the above cited authority of the Lahore High Court. In my view after the issuance of title deed in favour of respondent No,8, the Colonization Officer, Guddu Barrage, Sukkur, had become "Functus Officio" and he was not competent to cancel the T.O.
Form issued in favour of respondent No,8.
10. The question 'of jurisdiction of Civil Court was also examined in the above judgment of Lahore High Court, and was resolved in the following words:- "The learned counsel for the appellant also challenged the view taken by the two Courts below that the Civil Court had no jurisdiction in the matter. It is to be noted that the ouster of the jurisdiction of Civil Court is not to be presumed or readily admitted. Ther is a plethora of case-law laying down that despite a clear ouster of jurisdiction of a Civil Court in a particular law, there are situations in which the jurisdiction can be exercised. One of such important cases is of Aslam Zia PLD 1958 SC 101.
It was held in Karim Dad v. Arif Ali etc. PLD 1978 Lahore 679 that section 36 of the Colonization of Government Lands Act would oust the jurisdiction only where the authorities concerned acted within power or the four corners of their jurisdiction and not where their acts are ultra vires, without jurisdiction, void or in excess of their jurisdiction.
' Reference be also made to Jewana v. Mst. Sakhi PLD, 1954 Lah. 253 and Government of Punjab v.
Harbhagwan and another 1940 PLR 529, laying down that section 36 did not oust the jurisdiction of the Civil Courts in certain cases. The same view was taken in the case of Sardar Habibullah also as referred to in para 15 below. Thus if it is shown that the order passed cannot be accommodated within the ambit of power of a particular authority, the Civil Court would intervene. Similarly, the Civil Court can intervene in case of fraudulent and mala fide orders. In this view of the matter, jurisdiction of the Civil Court could only be ousted if it was found that the order passed by the statutory functionary lay within the ambit of its power and was neither based on fraud nor mala fides."
11. As to the last of the contentions of Mr. Muhammad Aslam Bhutto, learned counsel for applicants, I have carefully examined the evidence of the witnesses, and I think that there has been no misreading of evidence. Ordinarily, a concurrent finding of fact arrived at by the Courts below is not open to revision. A Court of revision should not take upon itself the task of weighing the evidence afresh, but its powers are not confined where the conclusion of fact is not warranted by the facts.
No such situation exists in this case. The conclusions so drawn are based on proper appreciation of evidence which consists of bulk of documentary evidence.
12. No case for interference. Is made out and the revision application is dismissed with no order as to costs.
THE END