This revision application calls in question the judgment and decree passed by learned II-Additional District Judge, Larkana in an appeal filed by the applicant against the judgment and decree passed by the II-Senior Civil Judge, Larkana in Suit No. 206 of 1984 filed by respondent No. l in which the prayer in the suit of the respondent No.1 was allowed. The 1st Appellate Court while affirming the judgment of the trial Court dismissed the appeal.
2. Facts giving rise to this revision application are that the respondent No. l filed the suit in the Court of II-Senior Civil Judge, Larkana being First Class Suit No.206 of 1984 and prayed for the following relief:-----
(a) That the Honourable Court be pleased to declare that the actions of the defendants and the impugned orders passed by the defendants 2 and 5 are illegal, void, mala fide, ultra vires, without notice to the plaintiff and in violation of the relevant scheme, policy and natural justice, hence of no illegal effect;
(b) to grant Permanent Injunction against the defendants restraining then from interfering with the possession of plaintiff over suit land;
(c) Costs of the suit be granted; and
(d) any other relief deemed fit.
3. The grievance of the respondent No. l arose against the order passed by Colonization Officer which reads as follows:-- " .... Abstract of order (statement) passed by the Colonization Officer. Sukkur Barrage, Hyderabad in respect of Serial No.394 and others of Deh Wasu Kalhoro Taluka Warrah, granted to Rehmatullah s/o Abdullah Kalhoro, on Harap condition in an Open Katchery held on 14-4-1977 at Camp Taluka Mukhtiar kar Office, Warrah..."
Deh Wasu Kalhoro Name of applicant Details of area Order of the Colonization Officer.
Rehmatullah S/o Abdullab Kalhoro 394, 397 & 171 =10-3 Rehmatullah Kalhoro is landless Hari of this Serial Nos.394,397 and 171 area 10-3 acres of Deh Wasu Kalhoro granted him on Harap rights.
(Sd.)
(Ghulam Mustafa Jokhio), Colons/;won Officer, Sukkur Barrage Hyderabad:
4. This order was impugned by respondent before Additional Commissioner, Sukkur Division, Sukkur, who passed the following order:-- " ....Therefore thus land was disposed of in Open Katchery. Looking to the matter of fact that the appellant is in continuous possession of the disputed land although he has been dubbed by the claimant. As such he was not present in the Katchery. But this fact has been admitted by the learned counsel for the respondent that this land is in possession of the appellant and he has cultivated the same land. In view of the above facts I remand the case back to the C.O. For fresh disposal where the claim of the appellant who has definitely better claim over the respondent must be taken into consideration while disposing of the land afresh. With these observations the appeal stands disposed of ...."
5. The applicant filed revision before Member, Board of Revenue who reversed the order of the Additional Commissioner, Sukkur and restored the order of Colonization Officer. In this background the plaintiff (respondent No. l) filed the suit and in paragraph No.6 he has stated as follows:-- "...That the Colonization Officer, defendant No.2 by his order nil from Kharif 1977/78 without due publicity and without Open Katchery granted the suit land illegally to the defendant. No.1 in utter disregard and in violation of relevant scheme and without notice and offer to the plaintiff. The photostat copy of true copy of the order of C.O. Is Annexed as "D".
6. The applicant denied various everments and in para. No.9 of the Written Statement it has been stated that possession of the respondent is illegal. The learned trial Court framed following issues:- - Issue No. 1. Whether the plaintiff is agriculturist and whether provisions of S.A.R. Act are applicable to this suit?
Issue No.2. Whether the suit land was evacuee property and was allotted to claimants Enayat Hussain and others and whether plaintiff was sitting tenant?
Issue No.3. Whether the claimant/allottees Enayat Hussain and others through their attorney sold the suit land to the plaintiff by agreement of sale-dated 5-5-1975 and transferred possession. If so, to what effect?
Issue No.4. Whether the claimant/allottees Enayat Hussain and others surrendered the suit land under M.L.R. 89 of 1991 and did not opt to purchase. If so, to what effect?
Issue No.5. Whether the actions and orders of the defendants Nos.2 to are illegal, mala fide, void, ultra vires without notice and in violation of the relevant scheme and policy. If so, what effect? .
Issue No.6. Whether the possession of the plaintiff is illegal as alleged by the defendant No. l?
IssueNo.
7. Whether the suit is not maintainable?
Issue No.8. Whether this Court has no jurisdiction?
Issue No.9. Whether the plaintiff is estopped from challenging the jurisdiction of the Revenue Officers?
IssueNo.10. Whether the plaintiff is entitled to relief sought?
Issue No.11. What should the decree be?"
7. The respondent No.1 examined himself in support of his case. He produced the documents including circular pertaining to the surrendered lands which is Exh.75 and includes the disputed survey numbers which was the basis of the orders. The applicant examined himself as his own witness. As stated earlier the trial Court decreed the suit of respondent No. l and the same was maintained by the 1st Appellate Court and against both these orders this revision application was filed.
8. On behalf of the applicant the learned counsel Mr. Mohan Lal argued that both the Courts below have not appreciated the legal aspect of the case. The actual order passed by the Colonization Officer was not produced which was available before the Additional Commissioner as well as Member, Board of Revenue.
9. The grounds urged in paragraph No.6 of the plaint were never urged before the authorities concerned.
10. His further contention was whether the respondent was purchaser or sitting tenant which was the basis of his claim and both such pleas were contradictory to each other as such this aspect of the case has not been examined.
11. Mr. Rahmat Ally Rajput learned counsel for respondent No. l contended that the land Was surrendered land to which M.L.R. 89 of 1991 would be applicable. The land was illegally disposed of without Open Katchery, without notice to the respondent No. 1, no wide publicity for Katchery was given and that the land was granted in flagrant violation of the Land Grant Policy. The orders of the Courts below are just valid and sustainable on the basis of evidence and do not call for any exception. According to him there are concurrent findings which may not be disturbed in exercise of revisional jurisdiction under section 115 of Code of Civil Procedure. Mr. Irssardas learned counsel appearing of the respondents Nos.2 to 8 has supported Mr. Mohan Lai learned counsel for the applicant. According to him the order passed by Member, Board of Revenue was unassailable in the suit filed by the respondent No. l and the findings of the trial Court, subsequently affirmed by 1st Appellate Court are not sustainable in law.
12. I have given anxious consideration to the pleas urged by the parties and have gone through the record with their assistance. After concluding the arguments, by a short order, this revision application was allowed, impugned judgment and decrees were set aside, the matter was remanded to the trial Court and the trial Court was directed to dispose of the case within six months for the following reasons:---
(i) Admittedly if the tribunals of the limited jurisdiction commit error of law the jurisdiction of Civil Courts is always available to correct errors of law. Secondly, if the matter is decided wrongly the Court deciding such matter commits error of jurisdiction and goes outside the jurisdiction conferred on such Court. This is the ratio of Utility Stores Corporation case PLD 1987 SC 448. Besides to be dealt in accordance with law is inalienable right of every citizen, and it is for the Court to see as to whether a particular person is dealt in accordance with law. There is no dispute because Civil Courts are the Principal Courts created for adjudicating the rights of the parties unless their jurisdiction is specifically or impliedly barred by law. Although the laws create the tribunals do confer finality on the judgments and orders passed by those authorities in exercise of the power conferred on them through the special laws, nevertheless, any finding which may be perverse in law, not sustainable on record, suffering from lack of jurisdiction, or suffering from excess of jurisdiction, can always be assailed before the Civil Court in case if the disputed questions are involved, or in the High Court in Writ Jurisdiction if disputed question of fact are not involved under Article 199 of the Constitution. I would, therefore, hold that Civil Courts have the jurisdiction to hear and decide the matter such as the one which is the basis of this revision application.
(ii) Jurisdiction given, it has to be decided whether the land which is bone of contention between the applicant and respondent No. l is governed by the Colonization of the Government Land, statement of conditions for the grant of said land to Haris (peasants), small Khatedars, Muhagdars as reported in PLD 1973 Sindh Statutes' 17, or the principles for disposal of land surrendered under paras. 8 and 9 of M.L.R. 89 of 1991 applicable which is to be determined by the trial Court. It is also to be assessed by the trial Court on the basis of record and liable with the Revenue Authorities which was not summoned by the trial Court and also did not determine whether the applicant or the respondent No. l meet those conditions and whether they have been so determined by the Revenue Authorities in accordance with law before the orders were passed by the Revenue Authorities. Such exercise was not undertaken by the trial Court. The case of respondent No. l is that he purchased the lands from the original owner to whom it was transferred by Evacuee Authorities.
He subsequently came to know that it is surrendered land. His further claim is that he was a sitting tenant. Whether he is a purchaser or he is a tenant as two different claims while the claim of the applicant that he is a landless Ha ri and therefore, the scheme as published in PLD 1997 Sindh Statutes 17, is applicable. This aspect of the case is to be determined as well.
(iii) The respondent No. l has not filed his Memo. Of Appeal which he preferred before the Additional Commissioner, equally, the applicant has not filed his Memo. Of Revision or the application which was basis of his claim before the Colonization Officer and maintained by the Board of Revenue.
These documents were essential to determine the eligibility of the parties for the disposal of Government land. Since that evidence was not available, therefore, the findings recorded by the trial Court and affirmed by the Appellate Court are with material irregularity /illegality apparent on the face of record and as such assailable in the revisional jurisdiction. Normally, I agree with Mr. Rahmat Ally Rajput, the concurrent findings recorded by the trial Court and maintained by the Appellate Court may not be disturbed in the revisional jurisdiction but this proposal has no universal applicability. Once the Court comes to the conclusion that findings are recorded without proper evidence or without looking to the evidence, which was necessary but not brought on record, then in order to do complete justice between the parties this Court can interfere in the revisional jurisdiction conferred on this Court under section 115, C.P.C.
(iv) This leads to me scrutinize the record and I notice in the first instance, that the impugned order of the Colonization Officer is abstract from the order, it is not the whole order nor the whole order passed by the Colonization Officer was placed on record. Neither parties requested the Court for summoning the record of the Revenue Authorities who has passed the orders. The basis of claim of the plaintiff (respondent No.1) is based upon paragraph No.6 of his plaint, those bases could only be looked into once the Court has the excess to the full text of order passed by the Colonization Officer. Admittedly full order of the Colonization Officer was not produced. Whether the case of the respondent No. l set in the plaint is in consonance with his appeal filed before the Additional Commissioner could be gone into provided that the Memo. Of Appeal filed before the Additional Commissioner be available to the Civil Court and that was also not there. That Memo. Was also not placed and lastly whether the Member, Board of Revenue exercised the jurisdiction properly could only be seen whether the Memo. Of Revision on the basis of which impugned order was passed be available before the Civil Court that was also not available in absence of these documents, in my humble view, the findings of the trial Court and maintained by the Appellate Court would be conjectural and surmises as such illegal. For these reasons the concurrent findings which are conjectural in nature were set aside by me in exercise of powers conferred of this Court under section 115, C.P.C. Since the matter was pending in the Court since 1981 while allowing this revision application I would direct the trial Court to summon the record of authorities which was the basis of original order passed by the Colonization Officer, the appellate order passed by the Additional Commissioner and the record of the Member, Board of Revenue who exercised revisional jurisdiction under the Land Revenue Act. After perusal of that record the trial Court may determine whether the land has been properly given to the applicant or the order passed by the Additional Commissioner remanding the case to the Colonization Officer was valid or for that matter whether the revisional authorities exercised the jurisdiction in accordance with law. These documents would be very material for granting relief to the respondent No. l or for that matter to the applicant who was granted relief by the Revenue Authorities, and I direct the trial Court to dispose of the case within six months and report compliance to the Additional Registrar through report and such report to be placed in revisional file of this Court. In case the parties are not cooperating with the trial Judge such report may also be sent to this Court. The parties are directed to appear before the trial Court on 29-4-1997 and file appropriate application for summoning the record in the light of observation made in this judgment. Office is directed to send record and proceedings without any delay to the trial Court.
There will be no order as to costs.