JUDGMENT SYED DEEDAR HUSSAIN SHAH, J. - The brief facts of the matter are that respondent No. 1 (Noor Muhammad Baran) filed a suit against the applicant (Noor Muhammad Mirbahar) and respondents Nos. 2 to 4 for declaration and permanent injunction in the Court of Senior Civil Judge.
Thatta, being lst. Class Suit No. 89 of 1986. It was stated in the plaint that on 31st March. 1961, the resnondent No. 1 (Noor Muhammad Baran) recorded the offer to purchase land bearing Survey No. 58, measuring 3-28 acres situated in Deh Abad Panchoo, Taluka Sujawal, District Thatta, (the disputed land).
2. Respondent No. 1 (Noor Muhammad Baran) stated in his plaint that after the offer was recorded on 31st March, 1961 on Zamindari tenure, the disputed land was granted to him from Karif 1963-64.
He paid the price for the disputed land and was in the cultivating possession of the same. It was also stated in the plaint that on 4th April, 1961, the applicant (Noor Muhammad Mirbahar) recorded his offer for getting land on llarap basis and was granted these survey numbers from Kharif 1961-62 and was in possession of the land. Respondent No. 1 (Noor Muhammad Baran) submitted that the applicant (Noor Muhammad Mirbahar) committed breach of conditions and his grant was cancelled. Some persons applied for grant on behalf of the applicant (Noor Muhammad Mirbahar) to the Revenue Officer, who referred the matter to respondent No. 4, Additional Commissioner, Hyderabad Division. Hyderabad. Respondent No. 4 cancelled the grant of Respondent No. 1 (Noor Muhammad Baran) on 9.7.1986. Respondent No. 1 (Noor Muhammad Baran) preferred an appeal but it did not find favour with respondent No. 3 (Senior Member Board of Revenue) and the appeal was dismissed on 2.10.1986. Thereafter, respondent No. 1 (Noor Muhammad Baran) challenged these two orders before the Court of Senior Civil Judge. Thatta.
3. The applicant (Noor Muhammad Mirbahar) contested the suit and filed his written statement, in which he stated that the offer of respondent No. 1 (Noor Muhammad Baran) was rejected by the Revenue Officer. Kotri Barrage, Hyderabad, and the disputed land was granted to him alongwith two other survey Nos. On Harap conditions permanently. He further submitted in the written statement that subsequent giant from Kharif 1963-64 in favour of respondent No. 1 (Noor Muhammad Baran) was a duplicate giant, and as such an illegal one. The grant in favour of the applicant (Noor Muhammad Mirbahar) was made in an open katchehry while the grant of respondent No. 1 (Noor Muhammad Baran) was made in collusive with the staff of Revenue Authorities. The disputed land is the only source of livelihood for the family of the applicant (Noor Muhamad Mirbahar) being a Hari 'while respondent No. 1 (Noor Muhammad Baran) is a big landlord having 300/400 acres of agricultural land in his possession.
The applicant (Noor Muhammad Mirbahar) all took-up legal pleas regarding maintainability of the suit and also jurisdiction of the Court.
4. The official respondents did not contest the suit and were declared ex parte.
5. The trial Judge was pleased to frame the following issUes:- "(1) Whether the orders passed by defendants Ncs. 2 & 3 are illegal, mala fide and without jurisdiction?
(2) Whether plaintiff is entitled for grant of suit land?
(3) Whether plaintiff has no cause of action to file the present suit?
(4) Whether this Court has no jurisdiction to try the present suit?
(5) Whether the suit is barred under Revenue laws?
(6) What, should the decree be?"
6. Respondent No. 1 (Noor Muhammad Baran) examined himself in the trial Court (Exh. 411 and he produced Form 'A' dated 6.8.1969 (Exh. 42), Ijazatnama (Exh. 43 & 44), receipt of water-course expenees (Exh. 45), receipt of payment of instalment (Exh. 46), five Revenue Bills (Exh. 47/1 to 47/5), land revenue receipts (Exh. 48/1 to 48/3), Zakat receipt (Exh. 49). Certified copy of order pessed by Senior Memlur, Board of Revenue, Hyderabad dated 2.10.1986 (Exh. 50) and vide statement (Exh. 61) he closed Ris side.
7. The applicant (Noor Muhammad Mirbahar) examined himself in the trial Court as Exh.
55. He produced Village Form VII dated 13.9.1986 (Exh. 56), land revenue receipt (Exh. 57), Village Form VII dated 27.5.1991 (Exh. 58), order dated 9.7.1986 passed by Additional Commissioner Hyderabad (Exh.
59), order dated 2.10.1986 passed by Senior Member Board of Revenue, Hyderabad (Exh. 60) and another order in a Review Petition \ dated 13.8.1987 passed by the Senior Member of Board of Revenue, Hyderabad (Exh. 61).
8. Aft er conclusion of the trial and hearing parties' counsel, the trial Court decided issues Nos. 1 and 2 in negative, issues Nos. 3 to 5 in affirmative and on issue No. 6 the Suit No. 89 of 1986 was dismissed by judgment dated 19.1.1992 and decree dated 25.1.1992. Respondent No. 1 (Noor Muhammad Baran) challenged the above judgment and decree before the Appellate Court and the Additional District Judge Thatta was pleased to accept appeal filed, by respondent No. 1 (Noor Muhammad Baran) and the judgment and decree of the trial Court was set aside. The Additional District Judge was pleased to decree the suit of respondent No. 1 (Noor Muhammad Baran) as prayed by him. In the above background this revision application has been filed by the applicant (Noor Muhammad Mirbahar).
9. M i. Abdul Majeed Khan, learned counsel for the applicant (Noor Muhammad Mirbahar), has contended in support of his case as follows:-
(a) Tha* the orders of the Additional District Judge Thatta are quite illegal and are not to be maintained at all as the Appellate Court has not considered the evidence recorded by the trial Court, Senior Civil Judge Thatta.
(b) That the Appellate Court has based the entire judgment on the finding of survey report dated 5.10.1985. Thus the impugned judgment and decree are not .Legal but a departure from mandatory requirement of principles contained in Order XL1 Rule 3 of the Civil Procedure Code.
(c) That the appellate Court has failed to consider that in land revenue matters powers to scrutiny lies with the forum created under the Land Revenue Act. Thus anything done or.Purported to be done .Under the provisions of Land Revenue Act are immuned * from scrutiny by the civil Court under Section 172(2)(VI) of the Act.
(d) That the Appellate Court has failed to appreciate that the land revenue for the year 1991 allegedly paid by Respondent No. 1 (Noor Muhammad Baran) is dated 4.11.1991 and is in the name of the present applicant (Noor Muhammad Mirbahar). So also the bill (Rxh. 47/5) produced by Respondent No. 1 (Noor Muhammad Baran) is also in the name of the applicant (Noor Muhammad Mirbahar).
' (e) That, the applicant (Noor Muhammad Mirbahar) has already.Paid the land revenue for the year 1991 on 11.7.1991 in time as the evenue year ended on 31.7.1991 while respondent No. 1 illegally paid land revenue for the disputed land subsequently on 4.11.1991 in collusion with the Tapedar as the land revenue of the disputed land for the year was already paid by the applicant (Noor Muhammad Mirbahar).
(f) That the Appellate Court misread the evidence and held that the offer of the plaintiff- respondent No. 1 (Noor Muhammad Baran) dated 31.3.1961 was earlier than the offer made by the applicant (Noor Muhammad Mirbahar) on 4.4.1961. Furthermore the offer of the plaintiff- respondent No. 1 (Noor Muhammad Baran) dated 31.3.1961 was rejected being a big Zamindar and offer of the applicant (Noor Muhammad Mirbahar) was accepted on 4.4.1961 for Survey Nos. 57, 58 and 313 from Kharif 1961-62, and he got possession of the land and continued paying installments.
(g) That the Senior Member Board of Revenue, Sindh in his order dated 2.10.1986 in appeal rightly held that allotment of the applicant (Noor Muhamijiad Mirbahar) was earlier one than that of respondent No. 1 (Noor Muhammad Baran) and upheld the order of the Additional Commissioner Hyderabad dated 9.7.1986 cancelling subsequent grant of Respondent No. 1 Senior Member Board of Revenue also rightly rejected the appeal of respondent No. 1 (Noor Muhammad Baran) by his order dated 13.8.1987 (Exh. 61).
(h) That from Village Form VII dated 13.9.1986 it is clearly established that the disputed land was mutated in the name of the applicant (Noor Muhammad Mirbahar). As such, the applicant (Noor Muhammad Mirbahar) has acquired ownership rights in the disputed land.
(i) That the Appellate Court illegally held that the Additional Commissioner Hyderabad had no jurisdiction, who passed the order dated 9.7.1986 cancelling the illegal grant of land in favour of respondent No. 1 (Noor Muhammad Baran) being duplicate and granted the.Land in favour of the applicant (Noor Muhammad Mirbahar).
(k) My attention has also been drawn to the evidence furnished by respondent No. 1 (Noor Muhammad Baran) being plaintiff in Silit No. 89 of 1986, wherein in his cross-examination carried on by the advocate for defendant No. 4 (Noor Muhammad Mirbahar) in the Court of Senior Civil Judge Thatta (Exh. 41), page 83 of this revision application, he has admitted as under:- Tt is correct to suggest that defendant No. 4 has deposited all the installments and the T.O. Form has been issued in his favour."
The applicant (Noor Muhammad Mirbahar) has produced the order of the Additional Commissioner Hyderabad Division, Hyderabad (Exh. 59), page 77 of this revision application, in which the Additional Commissioner has held as follows:- "1, therefore, maintain grant of Noor Muhammad Mirbahar and cancel the grant of subsequent grantee Noor Muhammad Baran."
The applicant (Noor Muhammad Mirbahar) has also produced certified true copy of the order of Senior Member Board of Revenue at page 81 of this revision application, who, after hearing the parties, has held:- "The allotment of Noor Muhammad Mirbahar is earlier than of Noor Muhammad Baran and takes precedence. I uphold the order of Additional Commissioner Hyderabad. The appeal is rejected accordingly."
Subsequently, review petition filed by respondent No.l?-Noor Muhammad Baran, was also dismissed by the Senior Member Board of Revenue vide his order dated 13.8.1987.
10. I have also perused order of the Additional District Judge, Thatta and find that actually he had not discussed the evidence adduced by the parties in the suit and has entirely based his findings on the report of Tapedar as discussed earlier and that he has set aside the order of the trial Court without applying his judicial mind and considering the fact that the .Disputed land was earlier Granted to the applicant (Noor Muhammad Mirbahar) by t he competent Revenue Authorities and that the findings of the trial Court on all issues are found to be correct, legal and convincing and based on very sound reasons.
11. 1 have also heard Mr. Muhammad Rafique Khanzada, learned counsel for respondent No. 1 (Noor Muhammad Baran), was has contended that the judgment of the Additional District Judge may be upheld and that the findings of the trial Court on the point, that in view of the clear cut findings of the Revenue Authorities civil Court has no jurisdiction, is not maintainable. Mr. Muhammad Rafique Khanzada, learned counsel for respondent No. 1 (Noor Muhammad Baran), has also placed reliance on the case of Mian Muhammad Latif vs. Province of West Pakistan, reported in PLD 1970 SC 180, which states as follows:- Tliere is no doubt that under section 11 of the Sindy Revenue Jurisdiction Act, 1876, 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. The civil Courts have jurisdiction to examine into cases where statutory provisions have not been complied with or the Statutory Tribunal has not acted in conformity with the fundamental principles of judicial procedure."
Mr. Muhammad Rafique Khanzada, learned counsel for respondent No. 1 (Noor Muhammad Baran), has also referred the case of Muzafar Husain vs. Nur Ahmad, reported in (2) PLD 1959 (Revenue) 17, which states as follows:- "Colonization of Government Lands (Punjab) Act (V of 1912), S. JO--Purchase of proprietary rights- Proprietary dues deposited-- Conveyance still necessary-Delay in conveyance de'ed- Consequence-Punjab Colony Manual, Vol.II, (1922 Edn.) page 57, sub-clause (3)-Words "when any tenant shall have purchased the proprietary right in any lands".-Meaning." l2-. . I have perused both the Authorities cited by Mr, Muhammad Rafique Khanza'da, learned counsel for respondent No. 1 (Noor Muhammad Baran) which are qdite clear and distinguishable and do not help the contentions of the learned counsel for respondent No. 1 but actually the case reported in (1) PLD 1970 SC 180 helps the case of the applicant because orders passed by the Revenue Officers in this case are quite legal and within their jurisdiction because: (a) land was granted in an open katchehry by Revenue Officers; and '(b) Appeals, Revision and Review Petition were decided by I he Revenue Officers after giving notice and hearing the parties as per spirit of the Land Grant Policy and purely on merits. Therefore, when there is no nullity in the eye of law, so far grant in favour of the applicant is concerned, the jurisdiction of civil Court is correctly barred. Here in this case, as per evidence adduced by the parties in the Court of Senior Civil Judge, the case of the plaintiff-respondent No. l,(Noor Muhammad Baran) was correctly dismissed by the trial Court. The other reported case, (2) PLD 1959 (Revenue)
17. Is not applicable on the facts and circumstances of this revision application. '
13. After going through the entire evidence, the documents produced by the parties, and perusing the authorities cited above and applying my mind, I had allowed the revision application by setting aside the judgment and decree passed by the Additional District Judge, Thatta by my short order on 11.10.1994. Above are the reasons for the same.
The parties to bear their on. Costs.