1. ' The facts giving rise to the present civil revision application are that the present respondents Nos. 1 to 6/plaintiffs had filed civil suit No,138 of 1983 before the Senior Civil Judge, Ghotki for declaration and injunction. Their case is that the land in suit was granted to the present respondent No,12/defendant No,11 on permanent tenure scheme which was cancelled for non-payment of price of land but subsequently the same was restored on his payment of the price and the present respondents Nos.1 to 6 are the haris of the land as they were cultivating the land and paying the batai share to the zamindar. It is further alleged that the present appellants moved an application before the Mukhtiarkar to get the possession of the suit land vacated from the present respondents Nos. 1 to 6 as the applicants had filed a civil suit bearing No 97/1981 against the Government of Sindh and present respondent No,12 only wherein status quo was ordered to be maintained. It is further submitted that the Mukhtiarkar held that the respondents Nos. 1 to 6 were not the haris of the land and should be ejected. They therefore, filed the present suit. With the suit the present appellants also filed an application under Order 39 Rules 1 and 2, C.P.C. Read with section 151, C.P.C.
2. The present applicants constested the suit and the application for grant of injunction. However, the learned Senior Civil Judge Ghotki after hearing the advocates for parties was pleased to grant the injunction restraining the present applicants from dispossessing the present respondents Nos. 1 to 6 and directing the Mukhtiarkar to maintain the status quo. Being aggrieved from the said order, present applicants filed Civil Misc. Appeal No,11/1984 which was also dismissed and therefore, the present civil revision application.
3. ' I have heard the learned counsel for parties. Mr. A.M. Mobeen Khan, Advocate for present applicants has challenged the orders of the two Courts below on the ground that the possession of the present respondents Nos. 1 to 6 is illegal and unauthorized and therefore, they are not entitled to the relief of injunction. He has submitted that the foundation of the claim of the respondents Nos.
4. 1 to 6 is based on illegality and therefore, they will not be entitled to grant o injunction which is an equitable relief. He has placed reliance on the case o Ghulam Rasul and others v. Muhammad Anwar and others 1969 SCM R 254. Th second submission of the learned counsel is that the order of the Mukhtiarkar has been passed under the provisions of section 28 of the Sindh Tenancy Act 195 and thus the remedies of appeal and revision as provided under sections 29 and 30 respectively of the same Act are available to the respondents Nos. 1 to 6 and in absence of having availed of the said remedies they cannot file the present suit which is barred under the provisions of section 11 of the Sindh Revenue Jurisdiction Act, 1876. He has placed reliance on the case of Abdul Ghafar and others v. Government of West Pakistan and others PLD 1963 Kar, 215 and Muhammad Salch v.
5. Deputy Commissioner, Tharparkar PLD 1963 Kar.
6. 613.
7. ' Repelling the above contentions Mr. Abdul Latif Gabole, the learned counsel for respondents Nos.1 to 6 has submitted that admittedly the possession of land in dispute is with them. He has also referred to the written statement filed by present respondent No,12, the zamindar, who has specifically stated in paragraph 12 of the written statement that the present respondents are the haris of land. With regard to the second contention of the Advocate for applicants, Mr. Gabole has submitted that the said order of Mukhtiarkar is void, illegal and mala fide. According to the learned counsel for the respondents Nos. 1 to 6 the said order of the Mukhtiarkar is without jurisdiction and therefore, he need not file any appeal or revision but the civil suit would be competent. He has placed reliance on the case of Muhammad Latif v. Province of West Pakistan PLD 1970 SC 180.Have considered the submissions of the learned counsel and have gone through the orders passed by the two Courts below and also the order passed by the Mukhtiarkar. It is an admitted position that the actual physical possession of the land in dispute is with the present respondents Nos. 1 to 6. The respondent No,12 who is admittedly the grantee zamindar of the said land has stated in his written statement that the present respondents Nos. 1 to 6 are the haris of the land and that the present applicants have nothing to do with the said land. The order of the Mukhtiarkar also shows that the present respondents Nos. 1 to 6 are in possession of the land in dispute and that their names are shown in Revenue Record as haris of this land. In view of these facts I am inclined to accept the contention of Mr. Gabole, Advocate for respondents Nos. 1 to 6 that prima facie the present respondents Nos. 1 to 6 are the haris of land unless proved otherwise which stage will come when the parties lead evidence in the suit.
8. ' Now I take up the second point raised by the learned counsel for the applicants. He has submitted that the order passed by Mukhtiarkar falls under section 28 of the Sindh Tenancy Act, 1950. It is a well-established principle of law that in order to ascertain the intention of Legislature and the scope of the particular enactment a reference may be had to the preamble of the enactment which enables to determine its object and scope. The Preamble of the Sindh enancy Act, 1950 and section 28 read as under:- "An Act to regulate the rights and liabilities of tenants and, landlords in Sindh.
9. ' Whereas it is expedient to regulate by law the rights and liabilities of agricultural tenants and their landlords in land in Sindh and matters connected therewith it is hereby enacted as follows:"
10. "28. (1) A tenant or a landlord may personally or by an agent make an application to Tribunal appointed for the area in which the land in question is situated to decide any dispute between the tenant and the landlord arising out of the application of the provisions of this Act. When applications have been made by both the parties in the same connection, the applications shall be consolidated. No court-fee stamp shall be required to be affixed to such applications and no lawyer shall be allowed to represent the parties to such dispute."
11. The above provisions would show that the purpose of legislation of this Act is to "regulate by law the rights and liabilities of the agricultural tenants and their landlords in land". This read with the above provisions of section 28 would show that the object is the determination of disputes between agricultural tenants and their landlords for which such tribunals are created. Thus it can safely be concluded that any dispute falling outside the above scope of the Sindh Tenancy Act 1950 is not covered and the tribunal created under the Act will not have the jurisdiction to determine the same. In such case, any order passed by the Tribunal would be an order not contemplated under the Act and a mala fide order. The Civil Court in such cases has the jurisdiction to examine the same. Reliance can be placed on the case of Abdul Rauf and others v.
12. Abdul Hamid Khan and others PLD 1965 SC 671 wherein their Lordships have held:-- ' The question as to whether the act of an executive or administrative officer or a quasi-judicial or judicial tribunal is without jurisdiction, illegal and not binding on a party, being a matter of civil nature, is always to be decided by the Civil Courts except to the extent to which such jurisdiction may have been taken away." (p. 674)
13. "Of course it is open to the Legislature to provide that not only acts done under an enactment, but even acts which purport to be done under an enactment, will be immune from challenge. Such a provision will however be a very exceptional one, a provision which we are likely to come across only during a national emergency.
14. ' The decision of the question whether the Civil Court had jurisdiction in the present case would depend on Whether the imugned orders and proceedings were without jurisdiction. There is in this case an attack on the proceedings on the ground of mala fides too. A mala fide act is by its nature an act without jurisdiction. No Legislature when it grants power to take action or pass an order contemplates a mala fide exercise of power. A mala fide order is a fraud on the statute. It may be explained that a mala fide order means one which is passed not for the purpose contemplated by the enactment granting the power to pass the order, but for some other collateral or ulterior purposes."
15. ' Reliance can also be placed on the case of Muhammad Jamil Asghar v. The Improvement Trust, Rawalpindi PLD 1965 SC 698.
16. ' Reliance may further be placed on the case of Muhammad Latif v. Province of West Pakistan PLD 1970 SC 180 wherein also it has been held:-- "There is no doubt that under it ordinarily a party in revenue matters should exhaust 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 PC 105. It was held in that case:-- "It is also well settled that even if jurisdiction is so excluded, the Civil Courts have jurisdiction to examine into cases where provisions of the Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure."
17. ' In our opinion this well-established principle also applies to the facts of the present case. The allegation of the appellant is that the imugned certificate for various reasons mentioned above is a nullity in the eye of law and has not been passed in accordance with the provisions of relevant law.
18. On the above principle the Civil Courts have jurisdiction to examine these questions. We would, therefore, hold that the learned Courts below, in these circumstances, were not justified in holding that the appellant's suit was not competent."
19. In the present case the present applicants had moved the application before the Mukhtiarkar for dispossession of the present respondents Nos. 1 to 6 and for striking off their names as haris and to enter the names of present applicants. It is thus not a dispute between hari and zamindar and thus would not fall within the scope of Sindh Tenancy Act, 1950 and the order of Mukhtiarkar is therefore without jurisdiction and the present respondents Nos. 1 to 6 have a strong prima facie case in their favour. The learned counsel for the applicants then took the alternate plea that the orders passed by the Mukhtiarkar are under the provisions of the West Pakistan Land Revenue Act, 1967 and, therefore, an appeal is competent under section 161, and thereafter the revision under section 164 of the West Pakistan Land Revenue Act and thus also the suit without exhausting all above remedies available is barred under section 11 of the Sindh Revenue Jurisdiction Act, 1876. This plea was never taken by the applicants in two Courts below. On the contrary in paragraph No,5 of their written statement they have specifically pleaded that the Mukhtiarkar has passed the said orders in exercise of the powers vested in him under the Sindh Tenancy Act and MLR 115. This plea, not taken in two Courts below cannot therefore be permitted to be taken at this revisional stage. Even otherwise the learned counsel has not been able to show any provision of West Pakistan Land Revenue Act whereby the Mukhtiarkar is competent to order ejectment in a dispute between two parties claiming to be the haris.
20. ' In view of the above discussion I find no force in the present revision application which is dismissed with costs.