' The facts leading to this civil revision petition may be briefly narrated; ' The petitioners, three real brothers, instituted a declaratory suit claiming that they were entitled to possession State land measuring 260 Kanals situated in Chak No, 174/TDA as allottees under 15 years' lease scheme in terms of allotment order passed in 1971 and that the order of Commissioner, Multan Division dated 23-10-1972 declaring them to be ineligible to hold the said land was illegal and ineffective on their rights. The suit was contested both on factual as well as legal plane.
2. Out of the pleadings of the parties following issues were framed:-
(1) Whether this Court has got no jurisdiction to try the suit? OPD.
(2) Whether the plaintiffs are allottee in possession of the land in suit under fifteen years' lease scheme? OPP.
(3) Whether the order dated 23-10-1972 is without jurisdiction, illegal and void, if so, its effect? OPP.
(4) Relief.
' After recording evidence the trial Court dismissed the suit. It was held vide finding on issue No, 1 that civil court lacked jurisdiction to try the suit. On issues Nos. 2 and 3 finding was recorded against the petitioners.
3. The petitioners filed an appeal which too met with similar fate before District Judge on 23-6-1976.
Hence this revision petition.
4. It is submitted by the learned counsel for the petitioners that though the period of 15 years for which the disputed land was allotted to them had expired, the present case still involved a live issue as the rights of the petitioners to secure proprietary rights qua the same were dependent on the decision about the legality or otherwise of the order of learned Commissioner dated 23-10-1972, impugned in the suit.
' It is submitted that findings of the two learned Courts below on issues Nos.1 to 3 were legally unsustainable. It is argued that the learned Commissioner was not vested with jurisdiction to declare the allotment in the names of the petitioners to be invalid. He has drawn my attention to the order of Commissioner to contend that he has purportedly exercised powers under section 164 of Land Revenue Act read with section 7 of Colonization of Government Lands Act, 1912 for "determining proprietary (propriety) of allotment and eligibility of the allottee." The case is titled Thal Development Appeal No, 816-A/C dated 30-8-1972 (The State through Abdul Ghafoor son of Allah Yar, (2) Abdul Karim son of Bahawal, (3) Muhammad Bakhsh son of Bahawal, (4) Pathana son of Bahawal Bakhsh, (5) Abdul Razaq son of Fazal Karim, all residents of 174/TDA, Layyah, District Miwaffargah).
5. A perusal of para 2 of the order shows that on the complaint of Abdul Ghafoor etc. Made to Governor, the Assistant Commissioner was directed by the Commissioner to send a factual report and it is on the receipt of report that the petitioners were summoned and proceedings/hearing of the case took place.
' It is urged that Commissioner did not possess the powers to undertake scrutiny of the allotment of the petitioners under section 164 of Land Revenue Act and in any case not at the behest of Abdul Ghafoor etc. Who had no locus standi to intermeddle in the matter. The title of the case suggests that the matter had been registered as, an appeal and the State was the appellant, appearing before Commissioner to prosecute it through Abdul Ghafoor etc. Obviously, Abdul Ghafoor etc. Were neither the attorneys of State nor its authorised agents. In this view of the matter the very initiation of proceedings appear to be illegal. In any case, even if the proceedings could be treated to be the outcome of exercise of suo motu revisional jurisdiction, the same not having initiated by the Commissioner himself and Abdul Ghafoor etc. Being the originators, the exercise of suo motu powers also cannot be said to have taken place.
6. It is well-settled that the provisions ousting jurisdiction of Civil Courts as contained in special statutes/Ordinances do not debar the civil court to look and determine whether the order under the special statute was really passed to exercise of jurisdiction vested under the particular statutory dispensation or not. See Haji Muhammad Ibrahim and others v. Fateh Muhammad, Liquidator, Ghausia Multipurposes Co-operative Society Ltd., Lyallpur (PLD 1960 Lah. 1106).
Jurisdiction of Civil Court is never altogether barred, because the very question of its jurisdiction is to be decided by the Civil Court. Proceedings tainted with fraud, irregularity/illegality or other defects like failure to act in conformity with the fundamental principles of judicial procedure can always to be declared to be of no legal effect by the Civil Court even though they may have been passed purportedly under the cover of the powers conferred on the statutory functionary designated by a special statute. See Secretary of State v. Mask & Co. (AIR 1940 Privy Council 105).
' When tested on the touchstone of the principles of law deducible from the above-quoted authorities, the impugned order merits to be declared to be an exercise in clear violation of authority of law. Abdul Ghafoor etc. Had not filed any appeal and their complaint to Governor, even it had reached the Commissioner could not be dubbed as an appeal. As regards the so-called exercise of suo motu revisional jurisdiction, it is well-settled that in cage the proceedings have been initiated at the instance of an individual the same cannot be termed/treated to be suo motu as the phrase itself suggests and the exercise so undertaken would be a contradiction in terms.
7. These jurisdictional aspects of the impugned order of Commissioner were not taken note of by the two learned Courts below and a finding on issue No, 1 was recorded against the petitioners. This finding cannot be sustained and merits reversal. It is so reversed.
8. As regards issues Nos. 2 and 3 are concerned, I find that here too both the learned lower Courts have not addressed themselves properly to the facts noticed and adjudicated upon in the order of Commissioner, Para 5 of impugned order reads as under:- "5 Abdul Karim, Muhammad Bakhsh and Pathana sons of Bahawal Bakhsh are reported having owned 80 Kanals and 12 Marlas each. Abdul Razaq has no area himself but his father owns 190 Kanals in village Amir Kalasra and Abdul Razaq is expected to inherit from his father 36 Kanals 19 Marlas of land i,e, more than 4 acres. It is thus reported that each of the five repondents either himself owns or is a prospective heir of more than 4 acres of land and for that matter is ineligible to hold allotment of land under the new 15 years' lease scheme.
' Para 6 reads as under:-- "6 the complainant Abdul Ghafoor and the respondent allottees of land as also Patwari Halqa with record of the case are present and they have been heard. The record of the Patwari has been examined which shows that Muhammad Bakhsh, Abdul Karim and Pathana sons of Bahawal, own more than 4 acres of land each. Haq Nawaz son of Allah Yar owns some area and is also a prospective heir of more than 4 acres of land. Abdul Razaq son of Fazal Karim is also a prospective heir of more than 4 acres. Thus all the five allottees are ineligible to hold allotment under this scheme. Their allotment is, therefore, cancelled."
' Though in para. 5 allegation that the petitioners owned 80 Kanals and 12 Marlas each has been noticed. Yet in para. 6 the extent of area owned by each petitioner is not mentioned. It is stated, rather loconically, that as per record of the Patwari the petitioners were found to be owner of more than 4 acres each but neither the description of area with reference to Jamabandi, rectangle No, and Khasra Nos. Is given nor the village/villages where these lands were situated are mentioned. It is not only an unsatisfactory treatment of the point in issue but it amounts to illegal disposal of the same. Obviously, the valuable rights of the petitioners in the disputed land could not be taken away on the basis of slipshod decision taken by --the Commissioner. It cannot be sustained and thus the finding of two learned Courts below on issues Nos. 2 and 3 based as these are mainly on the order of Commissioner cannot be upheld. This is particularly so as documents P-1 to P-6 produced by the petitioners showing them to be owners of 16 Kanals 3 Marlas each have not been adverted to.
Statement of Nazim Hussain P.W.1 (Head Clerk in the Office of EACO) has also not been attended to and appraised.
9. Since the oral as well as documentary evidence on record has not been appraised, there is no course open for me but to set aside the findings of two learned courts below on issues Nos. 2 and 3 and remand the case to trial Court to decide these issues afresh .In the light of the evidence available on record. If need be, the parties may be granted opprotunity to produce additional evidence so that the truth of the matter is fully unravelled and justice administered in the real sense.
' No, costs.