' This appeal is against the judgment and decree of the Additional District Judge, Tharparkar at Sanghar in Civil Suit No. 31 of 1965 decreeing the suit of the respondents Nos. 1 and 2.
2. The appellants are displaced persons from an agreed area and since 1958 were respectively the allottees of Survey Nos. 811/1, 2, 3, 825 and 419 in Deh Buriro, Taluka Shandadpur, District Sanghar. In between and surrounded by the said survey numbers, there was a disused canal or strip of land measuring 1 acre 35 ghunta in area called "Bhada land". The respondent No. 1, Hajee Khamiso owned survey Nos. 990 and 812/4,
5. According to the Deh map (Exh. 38) produced in the case, Survey No. 990 is a small piece of land and it adjoins a portion of the "Bhada land" at its bottom tip end, while survey No. 812/4, 5 is situated at a little distance away at the edge of land in dispute, but is not adjoining the "Bhada land". On 12-4-1960, the Assistant Revenue Commissioner, Sukkur Barrage granted to the respondent No. 1, Hajee Khamiso the whole strip of the "Bhada land" on the basis of alleged "Muhaga" rights (frontage) arising out of his Survey Nos. 990 and No. 812/4, 5 on payment of Rs. 620 towards the malkana. Subsequently, he transferred the said "Bhada land" to his cousin Suleman, ,respondent No. 2 after obtaining necessary permission and it is alleged by the second respondent that he incurred expenses and improved it and brought it under cultivation. In October, 1962, the appellants came to know of the transfer of the "Bhada land", presumably when respondent No. 2 took possession of portion of it and began to cultivate it. The appellants then filed an appeal before the Colonization Officer, Sukkur Barrage but it was dismissed by his order dated 20-2-1963 on the ground, principally, that the appellants were not holders of Kabuli lands for a period of at least 10 years prior to 31-7-1957, as required by memo. Of Commissioner, Hyderabad No. 357-F/1961 dated 19-7-1961. The appellants then appealed to the Commissioner, Hyderabad Division. Who also rejected it by his order dated 31-12-1963 on the same ground. Finally, the appellants filed a Revision to the Board of Revenue, which was allowed by the order dated 3-5- 1965. The Board of Revenue cancelled the grant in favour of the respondent Khamiso and held that the geographical situation of the survey numbers of the respective parties was such that the respondent No. 1, Khamiso had got no land adjoining the "Bhada land" except a small survey No.
990. On the other hand the appellants' lands were adjoining the "Bhada land", as their lands surrounded it from all sides and therefore they had a material, if not a technical claim to the grant of the "Bhada land".
3. The respondents Nos. 1 and 2 therefore, filed Suit No. 31/65 in the Court of the Additional District Judge, Tharparkar at Sanghar against the appellants for a declaration that the order of the Board of Revenue dated 3-5-1965 passed in Revision was illegal, inoperative and ultra vires and for a permanent injunction. On the pleadings, the trial Court framed issues, the main issues being issues Nos. 1 and 2. Issue No. 1, raised the question whether the order of the Member, Board of Revenue cancelling the appellants' grant was illegal, ultra vires and inoperative and not binding on the respondents. Issue No. 2 was whether the Court had any jurisdiction to entertain the suit.
4. The respondents/plaintiffs examined two witnesses namely Lekhraj, the Barrage Mukhtiarkar, who produced the relevant orders of the Revenue authorities as well as the true copy of the policy letter from the Commissioner, Hyderabad Division No. 357-F/1961 dated 19-7-1961 (Exh. 29) regarding disposal of "Bhada land" and "Muha.Ga" claims. The other witness was Suleman, the respondent No.
2. The appellants/defendants examined Mahomed Hanif (appellant No.
2. Herein) who succeeded as heir of Ruidu Khan, allottee of Survey No.
419. He produced Deh map (Exh. 38). On issue No. 1, the learned Judge held in favour of the appellants that the order of the Board of Revenue was not illegal or ultra vires. But he held that the order was mala fide and hence decided the issue No. 2 against the appellants that the Court had jurisdiction to entertain the suit. Hence, he decreed the respondents' suit by the impugned judgment dated 17-5-1966.
5. Mr. Syed Anwar Ali, learned Advocate for the appellants assailed the finding of the lower Court on the second issue with regard to the jurisdiction of the Court to entertain the suit. He submitted that the proposition of law is not in dispute that the question of grant of Government land is within the exclusive jurisdiction of the Revenue authorities, and the decision of the Revenue authorities on the question cannot be challenged in a civil Court solely on the ground that it was passed on misappreciation of evidence or on an erroneous view of the law. This proposition of law was succinctly expressed by Waheeduddin Ahmad, J (as he then was) in Abdul Ghafar and others v.
Government of West Pakistan and others (1) His submission is that while the lower Court has rightly accepted the above proposition of law, as laid down in that case, he erred in holding that the order of the Member, Board of Revenue was mala fide and hence the Court had jurisdiction to entertain the suit. According to counsel, there is no foundation whatever for a case of mala fides on the part of the Member, Board of Revenue.
6. The lower Court found that the order passed by the Member, Board of Revenue was mala fides because he had departed from the principle of policy formulated by the Land Utilization Committee, as stated in the memo. Of the Commissioner, Hyderabad dated 19-7-1961 (Exh. 29) which he set out in full in his judgment. The policy laid therein provides that only those persons may be granted land on "Muhaga" right, who held land on their khata for over 10 years on or before 31-7- 1957 and no exception was to be made even in the case of new land-holders who have been allotted evacuee lands in satisfaction of their claim. According to the learned lower Court, she present appellants, who are allottees of evacuee lands since thel year 1958 do not qualify for grant of "Muhaga" rights under this policy ; that therefore, the grant of the land in favour of the appellants by th Member, Board of Revenue was mala fide. In my opinion, this conclusion of the lower Court is misconceived. An act done in the exercise of powe is mala fide, when it is done maliciously, or for a collateral purpose and I fraud of the power. In this connection, the observations of the Suprem Court in The State v. Zia-ur-Rehman and others (2) may be referre to. Having held that the impugned order is not illegal or ultra vires unde his first issue, it is difficult to understand how it can at the same time mala fide. There is no plea of mala fides in the plaint, but the submission of Mr. Nizamani, learned Advocate for the first two respondents, is that the plea is included in paragraph 8 of the plant, which attacks the order of the Member, Board of Revenue as being bad in law and without jurisdiction. This submission cannot be accepted, because mala fides must be specifically pleaded. There is also nothing in the evidence of the two witnesses produced by the respondents even to suggest mala fides.
7. Mr. Nizamani further submitted that the policy letter (Exh. 29) has the force of law and the Member, Board of Reuenue was bound in law to apply it. He referred to Pakistan v. Sheikh Abdul Hamid (3), The Province of West Pakistan and another v. Ch. Din Muhammad and others (4) and Ali Jan and 5 others v. Commissioner, F. C. R., Quetta Division and 7 others (5). These cases are clearly distinguishable on their own facts. It would appear that the policy letter was issued in order to provide guidance to the Revenue authorities in the matter of grant of "Muhaga" rights. No legal right can be founded thereon. In holding that the order was not illegal or ultra-fires, the lower Court impliedly held that the Policy letter did not have the force of law.
8. Mr. Nizamani next submitted that the Member, Board of Revenue misappreciated the evidence and that as held by the lower Court, the order was also against equity and justice. But the order passed in the exercise o exclusive jurisdiction cannot be challenged on the ground that it was pass {{FOOT NOTE}}
(1) PLD 1963 Kar. 215 (2) PLD 1973 SC 49
(3) PLD 1961 SC 105 (4) PLD 1964 SC 21
(5) PLD 1970 Quetta 93 {{FOOT NOTE}} on a misappreciation of evidence. A close scrutiny of the order of the Member, Board of Revenue shows that he found that the appellants hadi a preferential and material claim to the grant of the "Bhada land" because the situation of land was such that the respondents had got no land adjoining the "Bhada land" except the small Survey No. 990, whereas the lands of the appellants were adjoining it from all sides. It is not known, what the area of survey No. 990 is, but from the Deh map (whose authenticity was not challenged), it seems to be very insignificant when compared to the area of the lands of the appellants. Although the appellants did not qualify as "Muhagdar" in the technical sense, the Member, Board of Revenue was influenced by considerations of merit of their case, despite the fact that the respondents had incurred expenses to develop about 2/3rd portion of the "Bhada land" and were in cultivating possession thereof. It therefore, cannot be said that his order was inequitable or unjust.
9. For the foregoing reasons, I find force in this appeal. Accordingly, the Appeal is allowed and the judgment and decree of the lower Court dated 17-5-1966 is set aside with no order as to costs.