This civil revision is directed against the judgment and decree, dated 19-3-1988, rendered by the learned District Judge, Khanewal, Mr. Ihsan-ul-Haq Bhalli, reversing the judgment and decree dated 16-10-1984, delivered by learned Civil Judge 1Class, Multan, Mr. Ghulam Ahmad Bashir, who dismissed a suit for declaration and perpetual injunction, instituted in April 1974, by Maryam Bibi etc. Against Shahab-ud-Din etc.
2. The disputed lot of land is situate in Chak No.169/10-R, Tehsil and District Khanewal, and it measures 1050 Kanals and 16 Marlas. It is State land; and was on 23-8-1960 allotted jointly in the names of Shahab-ud-Din, his son Muhammad Jamil, and two others namely, Munawar Khan and Muhammad Anwar, under Tubewell Sinking Scheme. Subsequently on 30-10-1963, names of Shahab-ud-Din and Muhammad Jamil were deleted as allottees of the land, so that the entire lot stood allotted to Muhammad Munawar and Muhammad Anwar. Shahab-ud-Din and Muhammad Jamil, petitioners before this Court, unsuccessfully approached the Commissioner, Multan Division, Multan and Board of Revenue, Punjab, Lahore, assailing the aforesaid order dated 30-10-1963. The entire lot was then shown to have been transferred by Munawar and Anwar in the names of Abdul Ghani etc.---one-fourth to Abdul Ghani, Abdul Haq and Fateh Muhammad sons of Gul Sher, one-fourth to Muhammad Siddique and Abdul Majid sons of Noor Muhammad, one-third to Muhammad Khalil son of Qutab Din and one-sixth to Wali Muhammad son of Qutab Din. Abdul Ghani, Muhammad Siddique and Muhammad Khalil died during the proceedings and were succeeded by their legal heirs. Shahab-ud-Din and Muhammad Jamil brought a civil action for declaration and mandatory injunction against Muhammad Anwar and Munawar Khan and Province of West Pakistan, on 30-4-1968, prayer being that the ordersst dated 30-10-1963, 4-3-1964 and 25-3-1965, passed respectively by Collector Multan, Commissioner Multan, and the Board of Revenue be declared as ultra vires, illegal, void and ineffective against the rights of the plaintiffs and a mandatory injunction be issued to defendant No.3 (Government) to incorporate the names of the plaintiff, alongwith defendants Nos. 1 and 2, in the array of the allottees of the land, as before. Mr. Muhammad Ahmad Afghani, Civil Judge 1Class, Multan, decreed the suit, on 9-4-1973. Those claiming to be transferees of the land preferred an appeal, before the learned District Judge, Multan, but the same was dismissed in limine on 12-4-1974. The appellants were advised io bring a suit for declaration, respecting their rights, and to assail the impugned judgment and decree, dated 9-4-1973 as being collusive. Thereupon, on 15-4-1974, the suit, out of which this civil revision has arisen, was filed by those claiming to be transferees of land, from Munawar Khan and Muhammad Anwar, defendants in the suit being Shahab-ud-Din and Muhammad Jamil, Munawar Khan, Muhammad Anwar and Province of Punjab. The suit -was dismissed on 16-10-1984 by the learned trial Judge, who directed the plaintiffs to make good the deficiency in court-fee to the tune of Rs.11,235 within a month.
3. The plaintiffs in the suit prayed that the decree, dated 9-4-1973 awarded by Mr. Muhammad Ahmad Khan Afghani, Civil Judge, Multan, being collusive, ultra vires, unjust, besides being time- barred, be declared to be ineffective against their rights and the defendants be restrained perpetually from interfering with their possession of the land and from causing adverse entries incorporated in the Revenue Record. The suit was contested by defendants Nos. l and 2, Shahab- ud-Din and his son Muhammad Jamil, but not by the Province of Punjab, defendant No.5.
Defendants Nos.3 and 4 did not enter appearance in spite of service and were proceeded against ex parte. The pleadings of the parties, which may not be narrated in detail, were reflected in the following issues, fixed for final determination by the trial Court:---
(1) Whether defendants Nos. l and 2 were also allottees of the suit-land alongwith defendants Nos.
3 and 4? OPD (2) Whether the order of the Collector dated 30-10-1963, cancelling the allotment ofdefendants Nos.1 and 2, was illegal and without jurisdiction? OPD (3)Whether the impugned decree is not binding upon the plaintiffs? OPP (4)Whether the suit is not properly valued? OPD (5)Whether defendants Nos. l and 2 are entitled to special costs? OPD (6)Whether plaintiffs are estopped to file this suit? OPD (7)Whether the plaintiffs are, owners of the disputed property? OPP (8)Whether the plaintiffs made improvements; if so, of what value and with what effect? OPP.
(9)Relief.
Issue No.7, in view of a conceding statement made by the learned counsel for the plaintiffs, to the effect that they are only allottees of the land, having not yet acquired proprietary title to it, was amended by the learned Civil Judge as follows:--- Issue No.7. Whether the plaintiffs are the allottees of the disputed property? OPP
4. Issues Nos.5 and 6 were answered against the contesting defendants Nos. l and 2, petitioners before this Court, and other issues were decided in their favour. In determining Issue No.4, the learned trial Judge came to the conclusion that the plaint was insufficiently stamped, as the valuation of the suit for the purposes of jurisdiction and court-fee had incorrectly and in- adequately been fixed. The plaintiffs were, therefore, directed to make good deficiency in the court-fee, in the amount of Rs.11,235, the plaint having been stamped with court-fee of value of Rs.15 only. In this behalf it is to be pointed out that Maryam Bibi etc.'s suit having been dismissed, they had filed an appeal in the Court of learned District Judge. The contesting defendants respondents before the learned District Judge (Nos. l and 2) had raised the preliminary objection that the value of the subject-matter of dispute being in excess of pecuniary jurisdiction of first appellate Court (then Rs.50,000) the appeal was liable to be returned, so that it could be preferredst in the High Court. The learned Additional District Judge, Multan, Ch. Muhammad A.I, who at the relevant time was seized of the appeal turned down the objection by an order made on 7-5-1985.
He was of the view that the plaintiffs were only transferees of the tenancy rights and had not pleaded proprietorship, nor had they claimed possession of the property, the same being already with them. In fact their claim was confined to an attack against validity and enforceability of the decree dated 9-4-1973, delivered by Mr. Muhammad Ahmad Khan Afghani, they were not liable to pay court-fee under section 7, subsection iv(a) of the Court Fees Act, and the case was also not covered under section 7, subsection iv(c) ibid and valuation of the suit fixed by the plaintiffs to be Rs.200 was not incorrect and the appeal had competently been filed in the District Court. The learned Additional District Judge has strangely referred to the decree-sheet prepared by the trial Court, carrying a valuation of Rs.200 and adopted it as an argument in support of his view that the same was the correct valuation. It is a matter of common observation that Ahimads and Readers, while preparing decree-sheets, generally make mention of the same valuation, which the plaintiffs in the suit have stated not caring to take into account even the divergent finding arrived at by the trial Court. Mere the observation made by the learned Civil Judge must be taken to be more apt and correct. The plaintiffs in the suit are invading the decree, dated 9-4-1973 having been rendered in a suit, in which they were not a party, in a bid to nullify its effect, and at the same time they are endeavouring to establish their rights in respect of the land, on the basis of purported sale or transfer having been effected in their favour by Munawar and Anwar. Unless such a declaration is made, the consequential relief, in the form of permanent injunction, which the plaintiffs also prayed for, will not follow. Suit for a declaration of title to a landed property has now to be valued on the market-price thereof, and the instant suit is, therefore, also covered by provisions of section 7(iv)
(a) of the Court Fees Act. The plaintiffs also pleaded to have spent a sum of RsA,50,000 on improvements of the land and on raising requisite structures there. Actually one of them, Abdul Haq, appearing as a witness, has enhanced this claim to Rs.2,50,000. On taking the claim, as incorporated in the plaint, to be the basis for the purpose, corpus of subject matter to be still vesting in the name of the Provincial Government, and Rs.75 being the quantum of court-fee for thousand rupees, at the relevant time, assessment of payable court-fee at Rs.11,250 must be taken to be correct. The plaintiffs had paid only Rs.15 as court-fee. They were, therefore, rightly directed to make up the deficiency to the tune of Rs.11,235. The plaintiffs complied with this direction and made payment of requisite amount of court-fee on their appeal before the District Judge. This amount has been ordered to be refunded to them by the learned District Judge, vide his judgment, dated 19-3-1988. Such direction being unwarranted, the same is set aside, finding of learned District Judge under Issue No.4 being untenable.
Authority cited in support of his contention by the learned counsel for the petitioners is Muhammad Sharif and another v. Azra Perveen and another 1970 CLC Lahore 867).
5. The land in suit had jointly been allotted to the petitioners, Shahab-ud--Din and Muhammad Jamil, alongwith respondents Nos.8 and 9, Munawar Khan and Muhammad Anwar, vide allotment order, dated 23-8-1960 being Exh.D-14 (page 4 of the file of the revision petition). There is no dispute about it and both the Courts below have recorded a concurrent finding in that regard.
What has given rise to the dispute between the original allottees is the order of cancellation made by the District Collector, Multan, on 30-10-1963 (EXh.PI at page 192). It is said to have been affirmed by the Commissioner, Multan, on 4-3-1964, and by the Board of Revenue, on 25-3-1965 (Exh. P8, at page 262). The District Collector held Shahab-ud-Din and Muhammad Jamil to be the defaulting partners, having taken no part in the development of the ianct and installation of the tubewell.
According to the Collector, they were living elsewhere and not at side or in the Chak. Entire development having keen made by Munawar Khan and Muhammad Anwar, they were held entitled to hold the whole lot, to the exclusion-of Shahab-ud-din and Muhammad Jamil.
6. Learned counsel for the petitioners has drawn the attention of the Court to the wangling indulged in by Munawar and Anwar, as regards this lot right from the beginning. About a couple of months after the initial allotment, having been made on 23-8-1960, Munawar and Anwar had on 2- 11-1960 made a move to the Collector for cancellation of allotment in the names of Shahao-ud-Din and Muhammad Jamil. The Sub-Divisional Officer (AC), Khanewal passed an order on 25/30-1-1961 (Exh.D-3 at page 374), to the effect that it was an internal dispute between the co-allottees and they should settle it themselves, or they should approach the competent forum for settlement of the dispute. This order was not challenged. On 28-3-1961, a similar application was made afresh to the secretary (Colonies), Board of Revenue, who sent it down to the District Collector for necessary action. The Deputy Commissioner, on 17-11-1961, addressed a letter to the Commissioner on the subject, rejecting the request of Munawar and Anwar. It was observed that the dispute about the expenses incurred on the installation of a tubewell was private matter and was of purely civil nature and the contestants could have recourse to a Civil Court. Exclusion ;f names of Shahab-ud- Din and Muhammad Jamil from the allottees of the lot was found- not to be feasible Letter exists at page 378 (Exh.D-5). A similar letter was again on 27-3-1962 addressed by the Deputy Commissioner, Multan, to then Commissioner, Multan (Exh.D-4, at page 376). Shahab-ud-Din and Muhammad Jamil were served with notices and heard on 12-1-1962 and they took up the stand that they had spent half of the amount incurred on the installation of the tubewell, the total expenditure being Rs.12,000. It was observed that the lessees were jointly and individually responsible for fulfilment of the conditions of the grant, and the dispute between the allottees being of civil nature, the aggrieved party could seek remedy in the Civil Court This was in response to the letter, dated 17-1-1962, addressed to the Commissioner. Multan, by the Secretary (Colonies), Board of Revenue (Exhs.P-45 and 46 at page 338). This order too was not challenged anywhere and must be taken to have attained finality. In an order announced on 23-7-1979 by Mr. Jiwan Khan, District Collector, Multan (P-15 at page 404), it was observed that the matter would be processed further after pronouncement of judgment by a Civil Court, in which the case between the contestants was pending. There should thus be no confusion about the nature of the controversy being of civil nature, determinable by a Civil Court.
7. There has actually occurred in the instant case good deal of manoeuvring or manipulation on the part of Muhammad Anwar and Munawar Khan, the latter being maternal uncle of the former.
Anwar's father (Munawar's brother-in-law) was said to be Naib-Tehsildar, working as a Reader with some Member of the Board of Revenue. He obtained another application on 27-3-1962 from these persons and managed to get a favourable report, on the basis whereof, the Collector passed the impugned order dated 30-10-1963, cancelling the allotment in the names of Shahab-ud-Din and Muhammad Jamil (Exh.Pl at page 192). The aforesaid order was passed against Shahab-ud-Din and Muhammad Jamil for alleged breach of conditions of grant. It is to be pointed out in this regard that infringement of terms of allotment, if any, was to be taken collectively, and one or two persons, out of the 'panel', could not be picked up B for the purpose, for it was a joint grant and before obtaining it, the grantees should have cared to know whether all of them would abide by their obligations. There is another important aspect. Tubewell had to be sunk within a period of two years, but Munawar and Anwar were so impatient, ostensibly because of their influence, at the apex in the revenue hierarchy, that they, as already said, had made a move for deletion o-- the names of their co-partners, Shahab-ud-Din and Jamil, within less than 2-1/2 months after the allotment, and they had been repeating such request in quick succession. Although Munawar and Anwar's assertion has been belied by Shahab-ud-Din and Muhammad Jamil, even if it had some substance in so far as sharing of expenditure to be borne on installation of tubewell was concerned, it did not constitute a breach of any term of the grant, severally on the part of the two grantees, Shahab-ud-Din and Muhammad Jamil, as has been the view of the Revenue Authorities themselves. One permissible course was that the entire lot could have been cancelled, and one component of group of grantees should not have been singled out. Lot could be re-allotted to an eligible person or group of persons afresh.
8. The orders passed by the Collector, the Commissioner and the Board of Revenue were held by the Civil Court to be invalid, void and ineffective. Judgment was rendered on 9-4-1973 by Mr. Muhammad Ahmad Khan Afghan, Civil Judge Ist Class, Multan (Exh. F-2/14, page 196/274). It was a matter of monetary nature, as between Munawar and Anwar, on one hand, and Shahab-ud---Din and Muhammad Jamil, on the other, and if there was any lapse, on the part of one of the two components, the same did not necessarily entail exclusion of their names from the array of allottees. The order, dated 30-10-1963 has been described as an order of cancellation of the lot, although in fact it was not like that, as the grant continued to subsist in the names of the same people, of course, to the exclusion of two out of them. The decree, dated 9-4-1973 delivered by the Civil Court was not interfered with by the learned appellate Court (District Judge), although the appellants were advised to go in for a civil action to get the decree set aside, which according to them had been passed behind their back and to their ignorance. Learned counsel for the petitioner maintains that the Civil Court's decree had become final and had clinched the issue, so far as it related to the validity or otherwise of the orders made by the Revenue Authorities cancelling the lot in the name of Shahab-ud-Din and his son Muhammad Jamil. This argument, however, is not available indeed, the reason being that on merits the learned District Judge did not affirm the decree, dated 9-4-1973 of the learned trial Court, which was being described as ex-parte decree, although the Province of West Pakistan, through Collector Multan, had put in contest. Muhammad Anwar and Munawar Khan had been served in the proceedings of the said suit, but they had absented themselves and had, therefore, been proceeded against ex parte, as probably they had no longer remained interested in the result of the civil suit.
9. It is to be borne in mind that at that juncture the learned District Judge did not discuss the matter and determine it on merits and did not advert to conscious consideration of the issues involved; and it could, therefore, not be inferred that the appellants before him had been heard in regard to the merits of the case. They had, as already said, just been counselled to adopt the other course, namely, institution of a civil suit for getting the questioned decree, dated 9-4-1973 rescinded. The present suit had been filed in pursuance of such a direction or advice, and the controversy between the parties will have to be examined and decided on its own merits.
10. There is a pronounced anomaly inherent in the claim of the plaintiffs. By an order-dated 11-2- 1966, the tenancy rights available to Munawar and Anwar had been transferred in their names.
Abdul Haq, one of them, appeared as a witness as P. W.1 (copy of the statement at pages 187 to 189) and claimed to have purchased the lot from Munawar and Anwar. He, however, did not distinctly remember as to when did this development take place The learned Additional District Judge, Multan, Ch. Muhammad A.I, in his judgment dated 7-5-1985, has held otherwise. It has been observed that the appellants before him, Maryam Bibi etc. Did not press their claim to the property on the basis of any sale, gift, exchange or mortgage. He has referred to the Collector's order dated 28-1-1966, Exh.P-4 (at page 204), in that behalf. A proposal had been put up by the Sub-Divisional Officer (A.C.), Khanewal, for permission to transfer the tenancy rights in the names of these persons, as desired by Munawar Khan and Muhammad Anwar, by making an application under section 19, Colonization of Government Lands Act, 1912 and the Collector, Multan had endorsed it, by writing a brief note "allowed as proposed". It appears that, as directed by the Secretary (Colonies), BOR (as per Exh.P-45, at page 338), the matter had to be referred for final orders to the Board of Revenue. As such, the order aforesaid dated 28-1-1966 made by the Collector, seemed to be still in the nature of a proposal for permission, not having assumed the character of a final order, passed by the competent authority.
11. The learned District Judge has himself observed that transfer of the land in favour of the appellants before him, plaintiffs in the suit, had not actually been perfected, for want of any registered instrument of sale or mutation of sale. He is, however, of the view that this being a tract of agricultural land, its transfer could be made without a formal document and even sanction of mutation of sale was not necessary, as a mutation does not create any title or extinguish any right, but is only an evidence of a transaction. Transfer of the land, in this case, according to him, was made through an oral transaction. The verdict is, however, based on no evidence available on record and no valid legal plane; and it appears to have rightly been pointed out by the learned counsel for the petitioners before this Court that the same is the out-come of surmises or conjectures having as its basis no solid foundation in the form of evidence. Even according to the plaintiffs, they had acquired interest in the land by virtue of an order made in their favour by the Collector under section 19, Colonization of Government Lands Act, 1912, on a move made by the allottees or grantees of the lot, Muhammad Munawar and Muhammad Anwar, such an order having been made on 28-1-1966 (Exh.P4). The plaintiffs might have stepped into the shoes of the original allottees, but they could not be deemed to have acquired a proprietary title, better than that of the transferors, and except through a registered instrument of alienation, as sale, gift, exchange, mortgage, or any other kind of private contract, as permissible under the conditions of the grant or the relevant legal provisions. A leave granted under section 19 of the Colonization of Government Lands Act, 1912 would certainly confer no proprietary title on the transferees. The plaintiffs themselves were indeed conscious of this fact. They had on 13-4-1983 applied to the trial Court for amendment of Issue No.7, so as to be described allottees instead of owners of the land (page 593 of the said file).
12. It was pronounced in Waryam Khan v. Ghulam Muhammad PLD 1959 WP (Revenue) 87, Dula etc. v. Shahab Din PLD 1959 WP (Revenue) 103 and Muhammad Ishaq v. Muhammad Siddique PLD 1975 Lah. 909, that transfer of rights of tenant would be ineffective, when there is no deed of sale or mutation of sale. Mere statement of the vendor made about a purported sale before a Revenue Officer would not amount to an irrevocable transfer of property. If sanction for transfer under provisions of Colonization of Government Lands Act is obtained, but no transfer deed is executed, there would be room for the transferor making denial of such transfer, and in that event it will not be proper to sanction the mutation, although it will be open to the transferee to seek remedy in Civil Court. Even if a decree for specific performance of a contract is awarded, title of the property remains vested in the alienor, till such time regular sale-deed is executed and registered in favour of the alienee.
13. The learned District Judge says that names of those who substituted Muhammad Munawar and Muhammad Anwar, as grantees of the lease of the land, had duly been incorporated in the revenue record and that amounted to giving effect to the transaction arrived at between the parties to the transfer of the tenancy rights: He goes on to say that although this development was in full knowledge of Shahab-ud-Din and Muhammad Jamil, they did not implead the transferees of the land, as defendants in their civil suit, Exh.D-1, instituted on 30-4-1968, wherein the defendants were Muhammad Anwar, Munawar Khan and the Province of Punjab. This suit, according to the learned District Judge, was decreed ex parte on 9-4-1973 by Mr. Muhammad Ahmad Afghani, Civil Judge Ist Class, Multan (judgment being Exh.P-14 and decree sheet being Exh.P-15), names of the transferees were deliberately left out and all the facts were not brought to the notice of the Court. It is, however, to be pointed out that the transferees had filed an appeal against the said decree before the District Judge, Multan, who had dismissed the same in limine on 12-4-1974 (Exh.DW-4/B).
It was observed by the learned District Judge that the appeal had been filed on 25-3-1974, long after expiry of period of limitation. This observation continues to be intact. Anyhow, as according to the appellants before the learned District Judge, the decree had been obtained by Shahab-ud-- Din and Muhammad Jamil collusively in their favour by keeping them in complete dark and the same was not binding on them, the learned District Judge had made a pronouncement that the proper remedy for the appellants in the circumstances was to assail the impugned decree dated 9-4-1973 by bringing a civil suit.
14. It is to be pointed out that when that civil suit was instituted by Shahab---ud-Din and Muhammad Jamil, on 30-4-1968, they were not necessarily in the know of the development of Munawar and Anwar having transferred their tenancy rights in favour of others, although they were well aware of deletion of their names from the array of the allottees effected by the Collector vide order dated 30-11-1963 (Exh.Pl), upheld by the Commissioner on 4-3-1964, and further by the Board of Revenue on 25-3-1965 (Exh.P8). These orders all had been assailed by Shahab-ud-Din and Muhammad Jamil and the Civil Court had by its judgment dated 9-4-1973 struck down these orders as being ultra vires, illegal and void. The earliest order dated 30-10-1963 was also said to have been passed against Shahab-ud-Din and Muhammad Jamil, without affording them an opportunity of hearing. Shahab-ud-Din states to have sent a telegram to D.C., Multan about his inability to attend the Court on 18th September, owing to his illness (Exh.P-37). It is submitted that they were not present before the District Collector even on 30-10-1963, and they were incorrectly marked present, and shown to have been heard. Shahab-ud-Din and Muhammad Jamil claim having contributed to the expenditure incurred on the installation of tubewell, vide challan form, Exh.D-12 (existing at page 398). Had they been allowed an opportunity of hearing, they could have established their claim of having, evinced keen interest in the development of the lot and given a lie to the allegation of their co-partners, Anwar and Munawar, of having exclusively undertaken the entire exercise of development of the land, all by themselves. Challan Form D-12 (page 398), application D-13 (page 400) and statements made in February-March, 1973 by the plaintiffs' witness and Shahab-ud-Din as his own witness D-8 and 10 (pages 388 to 394), in his previous suit filed on 30-4-1968, decided on 9-4-1973, as also in the statement made as D.Ws. 3 and 4 on 25-10-1979 and 26-5-1983 (pages 101-2 and 107 to 114 of the Civil Court's file), in the civil suit instituted on 15-7- 1974 against him and others by Abdul Ghani etc. Are also referred to in this behalf. The learned District Judge has made reference to Jamabandis P-2 and P-5, for the year---s 1964-65 and 1966-
67. It may pertinently be pointed out that there is no such document as Exh.P2 in the nature of record of rights available on the record of the civil revision. Judgment and decree dated 9-4-1973 delivered by Mr. Muhammad Ahmad Afghani, Civil Judge, Khanewal have been shown to twice be exhibited on the record by this Court, as P-2 and 3, as also P-14 and 15. The lame is true of the trial Court's record (in the present suit) as well, but Jamabandi for the year 1964-65 is available on the file of the Civil Judge (Mr. Ghulam Ahmad Bashir), who decided the case on 16-10-1984, at page 461, the same having also been exhibited as P-2, subsequent Jamabandi for the year 1966-67 being P-
5. In the column of remarks of the Jamabandi P-2, land was stated to have been mutated in the names of Muhammad Khalil and Wali Muhammad sons of Qutab Din, Abdul Ghani, Abdul Haq and Fateh Muhammad sons of Gulsher, Muhammad Siddique and Abdul Majeed sons of Noor Muhammad (pages 461 to 468), with reference to an order dated 11-2-1966 of the Collector Multan, Provincial Government figuring in the columns of proprietorship and cultivation. In the judgment dated 19-3-1988 of the learned District Judge, in the course of discussion under Issues Nos.3 and 7, it has been stated that in the Jamabandi for the year 1964-65, lot No. 1, under the Tubewell Sinking Scheme, stood transferred to the plaintiffs, the appellants before him, together with respondents Nos.7 to 12, the Collector having passed the requisite order on 11-2-1966.
15. Ch. Muhammad Bakhsh, Advocate appearing for the petitioners before this Court maintains with vehemence that there was in existence no such order as the one shown to have been passed by the Collector on 11-2-1966 and entry in that regard has been made in Exh.P-2 in the 'Khana-Kefiat' by an unauthorised person; it is not signed by any Revenue Officer. It does not even bear the signatures of the Patwari concerned; it is also undated. Besides the fact that the aforesaid note is unsigned and undated, there are a few other factors which serve to show that it may be a bogus entry. An order shown to have subsequently on 11-2-1966 been passed has strangely found its way in the record of rights of the previous years (1964-65). A Jamabandi is prepared after every four years. It is not understandable as to how were the two Jamabandis, one for the year 1965-66 and the other for the year 1966-67, brought into being. The order-dated 11-2-66 was not independently produced initially. At page 571 of the trial Court's file I have come across an application, submitted on 30-7-1983, under Order 13, Rule 2, read with section 151, C.P.C., for some more evidence, by the plaintiffs, according to whom they had presented as Exh.P4, copy of the order made respecting transfer of the lease rights in their favour, but the same did not carry the final order, dated 11-2- 1966, and the said order was proposed to be produced by them in additional evidence. It is to be observed that the plaintiffs themselves had admitted in their application that the order, dated 11-2- 1966 did not find mention in the list of their documents and the same did not form part of the basic document tendered by them as Exh.P.4. It was added that as an emergency measure they had got prepared certified copy of the aforesaid order and the same was intended to be adduced additionally in evidence.
16. Actually the tenor of the submission and the prayer made by the plaintiffs in the aforesaid application brings the cat out of the bag. Copying Agency of the D.C. Office had prepared the copy of the order, on 19-10-1977, and the same had been produced in evidence by the plaintiffs themselves as Exh.P4, existing at page 179 of the trial Court's file. Permission had been sought for transfer of the lot in question by the S.D.O. (Assistant Commissioner) on 20-1-1966. Even if what is written as a marginal note in the document that exists at page 513, in the form of Collector Multan's order dated 28-1-1966 "Allowed as proposed", is, taken to be correct, the said order is stated to have not been implemented, according to the petitioners, whose counsel maintain that till today no orders have been made by the competent Authority about actual transfer of rights of lease from the names of Munawar and Anwar in favour of Abdul Ghani etc., who had instituted this suit on as back as 15-4-1974. Actually even the marginal order dated 28-1-1966, in the photostat and exact copy of the document at page 513 of the trial Court's file also seems to be somewhat suspicious. It has been inserted in the margin, a little above the SDO's order dated 20-1-1966.
Probably the Tehsildar had put up a report on the same day i.e. 20-1-1966 and underneath, the SDO had written his order in the manner of a recommendation. It was reported that sanction of permission for transfer of tenancy rights would be proper. Collector of the district had to make the final order. He was shown to have written, "Allowed as proposed". There are two dates inserted beneath his signatures and designation. One is legible as 28-1-1966 and the other is not clearly legible, and appears to be over-written or mutilated. Normally that order would have sufficed. It however, appears that the plaintiffs wanted to make it sure that although the District Collector had o'kayed, implementation of that order needed another order by the SDO/Assistant Collector, or by the District Collector. It is to be pointed out that photostat copy of the document in question also exists at page 395 of the Civil Court's file, and a look at the same reveals that there was scarcely available some space underneath, for another order. When however, the document at page 395, with the addition in the form of SDO's order, dated 11-2-1966, was proposed to be produced, in additional evidence, it was so arranged that field staff's report and the SDO's order dated 20-1-1966 were shown to cover a little more than half of the page, leaving room for another order underneath.
The order-dated 11-2-1966 was added or appended afterwards, and the same finds mention in the document at page 513. I find that with C.M. No.438-C-93, submitted on 7-7-1993, in this Court, there is annexed photostat copy of the order dated 11-2-1966 (certified copy having been issue on 8-7- 1993). In the copy of Roznamcha Waqiati for the year 1965-66, in the entry dated 28-2-1966, fact of the lot having been transferred in the names of Muhammad Khalil etc. With reference to the SDO Khanewal's order, dated 11-2-1966 also finds mention. Strangely, the Naib-Tehsildar, Khanewal had recorded a note on 26-2-1966 (two days before the above said entry) to the effect that the concerned person had presented the ' Roberkar' by hand. He had asked the Girdawar to furnish a report in detail and the Girdawar had passed it on the Circle Patwari. It is interesting that the order, dated 11-2-1966 in detached form had been produced, although it was shown to be a part of the document carrying the Naib-Tehsildar's report, and the SDO's order dated 20-1-1966, followed by Collector Multan's order, dated 28-1-4966. Apprehension expressed and allegation made by the petitioners is that the order-dated 11-2-1966 was never a component of the document existing in its present form at page 513 of the trial Court's file. It pertained to some other case and its photostat print was secured beneath SDO's order/report dated 20-1-1966. Even in its detached form, as appended with C.M. No.438-C-93, it did not carry particulars of the file, where it existed, and from where its copy was secured. Obviously, the title at the to, Shahab-ud-Din v. Maryam Bibi, Lot No. 169, Tubewell Scheme, Khanewal, and copy of SDO Khanewal's order dated 11-2-1966, were inserted at the top of the copy, by the Copying Agency; or it had actually been copied on 8-7-1993 from the document, copy of which was shown to have been issued on 28-7-1983 by the Copying Branch available at page 513 of the file of the Civil Judge; but it was supposed to have its independent existence elsewhere. That has not been established as a fact.
17. The learned trial Judge Mr. Ghulam Ahmad Bashir had made a regular order in that behalf on 5- 1-1984, while disposing of the plaintiffs' application dated 30-7-1983, under Order 13, rule 2 read with section 151, C.P.C. (page 571 of the Civil Court's file). He had requisitioned the original record from the Colony Branch of the Deputy Commissioner's Office and carefully perused it. He has given cogent reasons for doubting the authenticity of the order, while rejecting the plaintiffs' prayer for permission to produce a copy of the order in question in additional evidence. Copy of this order is available at page 178 of the file of the civil revision, and the original order is at page 142-143 of the file of the Civil Judge; having been recorded in the order-sheet itself. Ch. Muhammad A.I, Additional District Judge, Multan had, on 29-4-1984, dismissed the revision petition filed by the plaintiffs, Maryam Bibi etc., assailing the validity of the aforesaid order dated 5-1-1984, passed by the learned trial Judge. The plaintiffs do not seem to have agitated the matter further, with the result that the disputed order shown to have been passed by the SDO/Assistant Collector on 11-2-1966 is not a part of the record, as an exhibited document, and cannot be made the basis of their claim by the plaintiffs. I do not think that what is urged in this regard by the learned counsel for the petitioners are devoid of force. According to him, it is a forged document, having been manufactured or manipulated by the plaintiffs at a much too belated stage. Father of Anwar and husband of Munawar's sister were working as Reader with a Member of Board of Revenue, Punjab, Lahore. He had obviously lot of influence in the Revenue Department and was also a revenue-knowing person being a Naib Tehsildar. He is said to have secured favourable and fabricated reports from .The field staff of the Revenue/Colony Department, Khanewal/Multan and in a fraudulent manner manoeuvred to obtain a copy of the order from some other unrelated file and collusively got it smuggled into the file of this case and succeeded in misleading the officers. Note recorded in the column of remarks of the Jamabandi for the year 1964-65, with reference to the Collector's order, dated 11-2-1966, must be taken to be a bogus one, carrying no presumption of correctness. It may passing be remarked that the order, dated 11-2-1966 is shown by the plaintiffs to have been passed by the SDO/Assistant Collector, Khanewal, but in the record of rights for the year 1964-65 it is stated to have been passed by the Collector Multan. Then the AC/SDO used to exercise powers of Assistant Collector and' not those of the Collector, which vested with the Deputy Commissioner of the District.
18. Plaintiffs in the suit having fictitiously and wrongly been shown to be finding mention in the record of rights for the year 1964-65, the next Jamabandi, in the normal course, was to be prepared for the years 1968-69, and the same supposedly could carry such an entry. When therefore Shahab-ud-Din and Muhammad Jamil filed their suit on 30-4-1968 (Exh.Dl at pages 307 to 317 of the trial Court's file), they did not necessarily have the knowledge about certain other people having figured in the picture, at that time. In the present suit, Shahab-ud-Din as D.W.4 had deposed that he was ignorant about transfer of the land by Anwar and Munawar in the names of others, at the time of institution of his suit on 30-4-1968. The learned District Judge was therefore not correct in observing that entries in the revenue record were sufficient to put a reasonably prudent person on an enquiry and the then plaintiffs, having complete awareness about the existence of the names of their adversaries in the Revenue Record, had intentionally omitted to implead them as co-defendants in the suit dated 30-4-1968. The said suit resulted in the decree- dated 9-4-1973, which thus could not be said to have been obtained in a collusive manner by Shahab-ud-Din and Muhammad Jami1.
19. Although the names of those persons did find mention in the subsequent Jamabandis and Khasra Girdawaris, the same, it is submitted by the learned counsel for the petitioners, would be of no avail to the plaintiffs in the present suit, as subsequent developments were without a true genesis, and superstructure raised on an infirm foundation, legally speaking, is bound to fall with the foundation. The learned District Judge is of the view that the petitioners (contesting respondents before him) had no locus standi to call in question the allotment of the land in favour of the appellants before him, as the said order did not suffer from any legal infirmity. He refers to section 36 of the Colonization of Government Lands Act, 1912, in maintaining that jurisdiction of the Civil Court in the matter was barred and orders passed by the Revenue Authorities could not be interfered with. It is, however, so well known that if an executive authority or a quasi-judicial tribunal acts in excess of jurisdiction or without jurisdiction, a Civil Court, being a Court of general jurisdiction, is embowered to examine the vires of such orders, even though there is express or implied ouster of jurisdiction of Civil Court. The learned District Judge forgets that even the Revenue Authorities are themselves of the view that the dispute by its very nature was between the co- allotters of the land and they should have gorse to the Civil Court for settlement for such a dispute.
Discussion made in para. No.6 of the judgment may advantageously be adverted to in this context.
It will not be denied that there was no breach of conditions of grant' involved in the affair, for all the four allottees had to jointly develop the land, and if at all there was any infringement of a condition, or any complacence or negligence or lapse on the part of the grantees, in the matter of making the land cultivable, they were all to be held jointly responsible for the same. In this view of the matter, the decision rendered by the learned Civil Judge on 9-4-1973 (Exhs.P2 and 3 Exhs.P14 and 15), depicted an absolutely correct view, on factual as also legal plane.
20. The suit dated 15-4-1974 (decided on 16-10-1984 by Mr. Ghulam Ahmad Bashir, Civil Judge Ist Class, Multan) was instituted originally by Abdul Ghani, Abdul Haq, Fateh Muhammad, Abdul Majid and Muhammad Siddique, through Abdul Ghani, their Special Attorney. Two powers of attorney were shown to have been executed in favour of Abdul Ghani, one by Abdul Haq, Abdul Majeed and Fateh Muhammad, and the other by Muhammad Siddique. These were, however, meant for filing first appeal against the decision of the Civil Judge, Mr. Afghani in the previous civil suit dated 30-4- 1968. That appeal was dismissed by the learned District Judge on 12-4-1974. The powers of attorney did not obviously ensure for institution of the subsequent civil suit against Shahab-ud-Din etc. Muhammad Khalil was one of the transferees, who, on his death, were survived by Muhammad Tufail etc., who appointed Muhammad Suleman as their general attorney. The said power of attorney was not placed on record of the Civil Court. It was, therefore, rightly inferred by the learned trial Judge that there was no proper institution of the suit, in the Court of the first instance. Learned counsel for the petitioners has relied, in this regard, on Abu Bakar Saleh v. Abbot Laboratories 1987 CLC Karachi 367, Muhammad Afsar Khan etc. v. Khadim Hussain etc. PLD 1978 SC (,J&K) 143, Gul Taj Begun v. Lai Hussain etc. PLD 1980 SC (AJ&K) 60, Muhvnmad Hussain v. Bashir Ahtnad etc. PLD 1987 Lah. 392 and Central Bank of thdia v. Taj-ud-Din Abdur Rauf etc. 1992 SCMR 846. The power of attorney has to be strictly construed, and a person authorised to do a particular act will do only that specific act and will not travel beyond the authority vested in him. Judicial proceedings launched in a manner not authorised by a power of attorney executed in favour of a person and conferring on him certain authority will be a nullity in the eye of law. Muhammad Suleman, as general attorney of Mst. 1Jlfat etc. Legal heirs of Muhammad Khalil (respondents Nos. l l to 16, in the present revision petition, and 6 to 11 in the appeal before the District Judge) had, in the proceeding of the civil suit, made a statement, acting for the said plaintiffs, withdrawing their claim against the contesting defendants (Shahab-ud---Din and Muhammad Jamil), and the suit had been dismissed to the extent of their share in the land. I do not think that it is possible to displace the finding of the learned Civil Judge made to the effect that the suit by the remaining plaintiffs (except the legal heirs of Abdul Ghani) had not competently been instituted.
21. Reverting to reappraisal of, and summing up the discussion respecting, the two basic documents vie. District Collector's order, dated 30-10-1963 cancelling the lease in the names of Shahab-ud-Din and Muhammad Jamil, and the order dated 11-2-1966 transferring the tenancy rights in favour of Abdul Ghani, Muhammad Khalil, etc., on the request of Anwar and Munawar, it may be observed that both the orders, as per petitioners' contention, had been passed without notice to them and without affording to them an opportunity of hearing. They maintain that they had been condemned unheard and the Authorities had fallen prey to the wangling or manoeuvring resorted to by Munawar and Anwar, with the blessings of their closest relative and 'patron', who was active in the affair, while sitting at the apex in the revenue hierarchy, namely, Board of Revenue, Punjab, Lahore. The Revenue Authorities proceeded in the matter in a purely executive fashion and were not mindful of the fact that they were acting in their judicial capacity and were taking a step, which vitally concerned important interests and rights of the erst-while allottees of the grant, Shahab Din and Muhammad Jamil. The grant had been given on as back as 23-8-1960 by the Assistant Commissioner, Khanewal (Exh.D14). Through a letter addressed to Muhammad Anwar Khan, Munawar Khan, Muhammad Jamil and Shahab-ud--Din, the Deputy Commissioner, Multan had called upon them to take possession of the lot, letter being Exh.Dl1. Very shortly afterwards on 2-11-1960 and then on 29-4-1961, Anwar and Munawar made a move to the Member (Colony), Board of Revenue, for cancelling the lot in the names of Shahab-ud-Din and Muhammad Jamil (Exh.P47 at pages 340-342 of the file of the civil revision). They obtained reports in their favour and against Shahab-ud-Din and Muhammad Jamil from the field staff, whereupon the District Collector made an order on 30-10-1963 (Exh.Pl), cancelling the lot, in so far as Shahab- ud-Din and Muhammad Jamil were concerned, with the result that the entire estate came to be vested in the names of Anwar and Munawar. This order was affirmed by the Additional Commissioner Multan on 6-3-1964 and by the Board of Revenue on 25-3-1965 (Exh.P8). Then a move was made by Anwar and Munawar for transfer of the tenancy rights in the names of others, and an order was made on 28-1-1966 by the Deputy Commissioner/Collector, Multan, on the report submitted by T.W.C. On 20-1-1966, endorsed by the SDO on the same day, document being Exh.P4.
An order is said to have been passed subsequently on 11-2-1966 by the SDO/Assistant Collector, Khanewal, about implementation of the orders of the Deputy Commissioner/Collector, Multan.
Authenticity of this order has come under exhaustive discussion in the foregoing paragraphs.
22. In so far as the order, dated 30-10-1963 of the Collector Multan is concerned, the same had been made in derogation to the previous orders of the Revenue Authorities themselves. Reference in this behalf may be made to the documents Exhs.D3 to D5 and Exh.P45. All the lessees had been considered to be collectively responsible for fulfilment of conditions of the grant and the dispute had been treated to be falling outside the domain of the Revenue Department, and to be purely of private or civil nature. Request made for exclusion of the names of Shahab and Jamil had expressly been turned down. It is not known as to how was the somersault taken and how did the revenue people retrace the steps and allowed themselves to be subdued by the intrigue of Anwar and Munawar, who successfully secured orders opposed to the earlier ones. Mr. Muhammad Ahmad Afghani, Civil Judge,. Multan had struck down these orders as being invalid and ineffective against the rights of the plaintiffs before him, Shahab-ud-Din and Muhammad Sum:?- the judgment having been rendered on 9-4-1973, Exh.P14. The decree dated 9-4-1973 of the Civil Court was not interfered with by the District Court., The learned District Judge, Multan, on 12-4-1974, dismissed the appeal, having been filed by the defendants in the aforesaid suit, copy of the judgment being Exh.D.W.4/B. Thereafter those claiming to be transferees of the tenancy rights instituted the instant suit. They were non-suited; but they succeeded in appeal. The observations madd and the findings recorded by the learned District Judge, Khanewal, Ch. Ihsan-ul-Haq Bhalh, have come under scathing criticism by the learned counsel for the petitioners before this Court, defendants Nos.1 and 2 in the civil suit. Learned counsel maintains, not entirely without force, that the learned f). i. Has failed to discuss and appreciate the evidence on record. In that regard he has referred to the statements of the D.Ws. Arid the documents Exhs.D3 to D13 (excepting D11), This evidence, it is submitted, had nothing in rebuttal in the form of evidence led by the plaintiffs. It is urged that a judgment which does not consider, discuss, appraise and appreciate the evidentiary material on record and proceedings unilaterally must be treated not to be sacrosanct and has to be set aside.
The findings arrived at in the impugned judgment are stated to be the outcome of non- consideration, misreading and misconstruction of the evidence, as also conjectures and surmises on the part of the appellate Court below. The verdict is based on no legal evidence and at so many places contradictory observations have been made, and it seems that the learned District Judge had proceeded in the matter with preconceived motions and had faithfully adopted and endorsed the view-point of the plaintiffs, appellants before him, and had travelled even beyond that. The respondents have not claimed verbal sale in their favour, but the D.J. Says that Anwar and Munawar might have effected sale of their rights verbally, and the Provincial Government had conceded to such a claim. Petitioners' counsel relies in this regard on 1991 CLC Note 300 at p.228 (Mst. Nasim Akhtar v. L.D.A.), (1989 ALD 423(1), (Raza Muhammad Khan v. Ashiq Hussain Khan) and (1992 SCMR 846) (Central Bank of India v. Taj-ud---Din Abdul Rauf) where the appellate Court fails to consider material evidence and does not advert to the reasons which prevailed with the trial Court in deciding the suit, the appellate judgment suffers from misreading of evidence, reversing well-reasoned findings of the trial Court, with no factual and legal justification. The appellate Court's judgment must not be permitted to remain intact, and even in its revisional jurisdiction the High Court would be well within its powers to set aside such a judgment and restore that of the trial Court. His Lordship Mr. Justice Shahur Rahman held in Raisat A.I v. Muhammad Jaafar Khan 1991 SCMR 496, that powers conferred by section 115, C.P.C. Are restricted or exceptional, but for securing ends of Justice such powers may liberally be exercised and the same must not be allowed to be inhibited by technicalities of the procedure. High Court's superintending and visitatorial powers for correction of jurisdictional errors and material irregularities, occurring in the findings of the subordinate Courts, must come into play in appropriate cases. Where glaring instances of non- consideration of material evidence, erroneous assumption of facts and patent errors of law have been committed by Courts below, the High Court must not restrict the scope of its Jurisdiction and bind its hands, but should interfere, keeping the ultimate ends of justice in view (1975 SCMR 352 Chief Land Commissioner, Punjab v. Makhdoom Syed Nazar Hussain etc.). A mala fide act by its nature is an act without jurisdiction. Law does not contemplate mala fide exercise of powers by statutory functionaries. High Court, in exercise of its power of judicial review, would always be competent to examine bona fides of and justification for executive actions (1991 CLC 1001 Mst.
Nasreen v. M.D.A.). If the basic order carries taint of mala fides all subsequent orders passed by the executive authority or a quasi-judicial tribunal are bound to crumble (PLD 1990 Lah. 330 Ch. Muhammad Aslam etc. v. Minister of State for Finance etc.) Availability of jurisdiction is a prerequisite and the authority should decide a matter in accordance with law. If the tribunal goes wrong, it goes outside the jurisdiction conferred on it. An action or order which suffers from legal infirmity may be quashed without any hesitation, (PLD 1987 SC 447 Utility Stores Corporation v.
Punjab Labour Appellate Tribunal). Maxim audi alterm partem is not I confined only to judicial proceedings but extends to all proceedings affecting a person or property of a person. Mere absence of provision as to notice in a certain statute cannot override the principle of natural justice. No order affecting rights of a party may be passed without affording him an opportunity of hearing (PLD 1964 SC 410 Commissioner of Income-tax v. Fazal-ur-Rehman and Saeed--ur- Rehman).
23. The learned District Judge has fallen in error in holding that under section 36, Colonization of Government Lands Act, the Civil Court had no jurisdiction in the matter and Shahab-ud-Din and Muhammad Jamil couldn't question the orders passed by the Revenue Colony Officers, in regard to the lot of the land in dispute. If Mr. Muhammad Ahmad Afghani, who decided Shahab---ud-din and Muhammad Jamil's civil suit on 9-4-1973, had no jurisdiction in the matter, it is not understandable how has the learned District Judge assumed the jurisdiction in the subsequent suit filed by the adversaries of Shahab-ud-Din and Muhammad Jamil. The learned Civil Judge had dismissed the suit and the learned District Judge had undertaken an exhaustive appraisal and made determination of the different issues and had not just taken his hands off, by saying that the Civil Court having no jurisdiction in the matter, the judgment delivered by the Civil Judge was liable to annulment on that sole score. The colony/revenue people had passed palpably invalid orders-- -'and the same were liable to interference by the Civil Court in exercise of its general jurisdiction.
Rulings on the subject have already been referred.
24. Repeating, before closing, the stand-point of the plaintiffs that they had purchased tenancy rights in respect of the lot from Anwar and Munawar, on obtaining regular sanction in that behalf from the Collector, it may be observed that there seems to be force in the contention put forth by the learned counsel for the petitioners. The permission in that regard had been sought by the parties to the transaction, namely, Anwar and Munawar, on one side, and Abdul Ghani etc., on the other, but the same did not mature, and would be deemed to have come to an end, on expiry of a period of six months. Basis for such a claim of the plaintiffs is the disputed order dated 11-2-1966, having been scribed underneath the SDO's order dated 20-1-1966, existing at page 513 of the Civil Court's file, which was not accepted in additional evidence, intended to be adduced by the plaintiffs, and the learned trial Judge rejected their prayer made in that regard. Learned counsel for the petitioner relies on 1979 CLC 533 (Lahore), Waris A.I v. Ghulam Rasool etc. It was pronounced that if such a request is made too late in the day and the document sought to be tendered in additional evidence was within the knowledge of the party and could have been produced earlier, allowing production of such a document afterwards would amount to giving premium to the contumacy or negligence on the part of a party. Such permission has not to be granted, except in very exceptional circumstances, in view of the settled proposition that Courts do not help the indolent. The order in question having not been accepted in evidence has therefore to be excluded from consideration; and the learned D.J. Had erred in according it importance and in basing his findings on the strength thereof. He had also given recognition to a note in the Khana-Kefiat in the Jamabandizer-kar' for the year 1964-65, Exh.P2 (at pages 461 to 468 of the file of the trial Court), although it had strenuously been urged before him by the contesting defendants Shahab-ud-Din and Muhammad. Jamil (respondents Nos.1 and 2 in the appeal before the D.J.) that it was a bogus entry, having as its foundation no independent order having been passed by the competent authority. It was held in 1988 CLC 2063 (Karachi), Qadri Brothers Foundry Workshop and others v.
Mst. Safia, that mere averments made in the pleading would not constitute evidence, unless the same are legally proved, and the mode prescribed by law for proof of pleadings, oral as well as documentary, must not be lost sight of. In 1987 CLC 437 (Karachi), Chakar Khan and others v.
Deputy Commissioner and another 1983 SCMR 988, Muhammad Bakhsh v. Zia Ullah etc. 1982 CLC 1309 SC (AJ&K) it was pronounced that wrong entries in record of rights confer no title and the party must establish the title on the strength of reliable evidence. Mere entry in Revenue Record,, supported by no other evidence, cannot be accorded any sanctity and has to be construed in the light of the attendant circumstances and facts of the case. Entries in the Jamabandi do not provide foundation of title, and the party has to establish its title, by adducing evidence. Such entries carry a rebuttable, presumption of correctness.
25. There hardly remains any doubt about the order dated 11-2-1966, and its mention in Jamabandi for the year 1964-65, being fictitious or fabricated, conferring no real rights on the party claiming to have got the land from Anwar and Munawar, who had been held by the Collector, the Additional Commissioner and the Board of Revenue to be exclusive grantees of the lot, following deletion of Shahab-ud-Din and Muhammad Jamil, which orders, as already discussed, were diametrically opposed to the previous orders of the competent authorities, and the same had been obtained by Anwar and Munawar in a collusive and fraudulent manner, by keeping Shahab-ud-Din and his son Muhammad Jamil in dark and without affording them an adequate opportunity of hearing.
26. I, as such, find it wholly difficult to see eye to eye with the observations made, and to endorse the findings recorded, by the learned appellate Court below, in its impugned judgment and decree dated 19-3-1988, reversing the judgment and decree dated 16-10-1984, passed by the learned trial Court. The judgment and decree dated 19-3-1988 rendered by the learned District Judge are set aside, and those dated 16-10-1984 delivered by the learned Civil Judge, are upheld, with minor modifications as above.
27. In the course of arguments learned counsel for the petitioners had laid claim to special costs, while maintaining that the other side had been responsible in dragging them into a long-drawn litigation, inflicting upon them immeasurable expenditure and untold hardships. That may be true; but the contesting respondents too have suffered, in terms of physical inconvenience, mental affliction and financial drain. Then, the judgments of the Courts below have also been at variance; and it cannot be said that throughout this litigation, extending over decades, the petitioners have never met failure. Their claim to special costs, as such, has no sound basis. But in so far as this revision petition is concerned, the petitioners have emerged as successful. The revision petition is therefore accepted with costs.