This Civil Revision Application is directed against the judgment and decree dated 30-5-1985 passed by learned counsel II-Additional District Judge, Dadu dismissing the appeal filed by the applicant from the judgment and decree passed by learned Senior Civil Judge, Dadu dismissing his suit for declaration and permanent injunction.
2. Survey Nos.739/1 to 4 measuring 16 acres of land in Deh Keenjhar, Taluka Dadu was granted of full rate Malkano by the Barrage Authorities to Jan Muhammad ancestor and father of respondents Nos.3 to 6 in 1948 under the Land Grant Policy in respect of landless haris. It is the case of the applicant that in fact purchase of this land was sponsored by him as deceased Jan Muhammad a poor person after his migration from Punjab had sought his assistance. He pleaded that the suit land was jointly purchased by both of them but Ijazatnama could not in law be issued in favour of two persons therefore it was issued in the name of Jan Muhammad. He' maintained that he paid the instalments to Barrage Mukhtiar kar and up to 1950 both of them remained in joint possession and enjoyment of the suit land as joint owners but thereafter Jan Muhammad being unable to pay his 50% share of instalments surrendered all his rights and interests in the suit land in his favour and executed an affidavit/deed of surrender dated 21-4-1951 in his favour and since this date he became full-fledged owner of the suit land and remained in exclusive possession and enjoyment thereof. Moreover he relied upon an agreement of sale dated 7-1-1958 executed by Jan Muhammad in his favour acknowledging earlier deed of surrender with regard to his rights and interests in the suit land but no sale-deed was registered in his favour as allegedly there was ban on transfer of Barrage lands. After the death of Jan Muhammad on 20-6-1966 he approached respondents Nos.3 to 6 for execution of a sale-deed in his favour but they kept him on false hopes and went on avoiding on one or the other pretext.
3. Claiming that he was in open, exclusive, adverse possession and enjoyment of the suit land and paying land revenue assessm ent, since 1951 he stated to be in possession of all original documents relating to the suit land and thereby acquired ownership under the law. On 31-7-1978 respondent Khushi Muhammad for self and on behalf of other respondents moved an application before Mukhtiar kar, Dadu against the applicant and his relatives seeking possession of the suit land which was rejected with the observation that they should approach the competent Civil Court. It is the case of the applicant that instead of approaching the Civil Court or adopting legal course they approached the Martial Law Authorities at Dadu' who forwarded their application to the Mukhtiar kar Dadu who forced him to hand over possession of the suit land to the respondents or face coercive action. While reserving his right to file a suit for Specific Performance of Contract he filed a suit at Dadu on 5-12-1979 for a declaration that he had acquired the right of ownership in the suit land by adverse, possession and on the basis of deed of surrender executed by deceased Jan Muhammad. He further prayed for a declaration that the respondents cannot forcibly oust him from the suit land otherwise than in due course of law. He asked for a permanent injunction against the respondents from interfering with his peaceful possession and enjoyment of the suit land.
4. Respondents Nos.3 to 6 contested the suit and denied various allegations of the applicant. They contended that the suit land being State land was disposed of by the Barrage Authorities according to Land Grant Policy in favour of their father who had also obtained other agricultural lands measuring 27-30 Ghuntas in Deh Keenjhar prior to the grant of the suit land. They denied the payment of earnest money for grant of suit land by the applicant and disputed if there was any bar to the grant of land to more than one person on a single "A" Form. They denied that the applicant was in possession of original documents in respect of land grant or payment of the price.
They denied all other allegations relating to payment of price by applicant or surrender of his rights and title in his favour by deceased Jan Muhammad with an assertion that he had engaged the applicant as Hari on the suit land. They denied exclusive possession of the applicant and asserted that their father dealt with the suit property in his own rights exclusively till 1956 when he shifted to village Rahuja, Taluka Dadu where he expired on 20-6-1996. According to them the applicant used to deliver Zamindari share of produce to him and after his death to their mother who died at Dadu on 27-2-1974 whereafter he stopped giving share of produce from the suit land. In July 1978 record of rights was mutated in their names as legal heirs of deceased Jan Muhammad. They challenged maintainability of the suit on two inconsistent pleas as well as execution of agreement of sale dated 7-1-1958 which essentially required compulsory registration and did not confer any title on the applicant. Ban on transfer of lands under the provisions of Sindh Rural Land Credit Transfer Act was admitted but the assertion of the applicant with regard to adverse possession was expressly controverted. They advanced pleas with regard to bar of limitation and under valuation of the suit.
5. On the pleadings of the parties learned trial Court settled the following issues:
(1) Whether the suit is not maintainable?
(2) Whether the defendants Nos. l and 2 are necessary parties?
(3) Whether the late Jan Muhammad and plaintiff had jointly taken the suit land from Barrage Mukhtiar kar, Larkana?
(4) Whether the plaintiff has remained in exclusive possession and enjoyment of the suit land ever since 21-4-1951? If so, in what capacity?
(5) Whether the defendant Khushi Muhammad admitted adverse possession of the plaintiff over the suit land in application preferred to Mukhtiar kar, Dadu on 31-7-1978?
(6) What should the decree be?
6. Both the parties adduced evidence. Learned trial Court held that the suit was not maintainable; that there was joint holding of the suit land by deceased Jan Muhammad and the applicant; that the applicant failed to establish exclusive possession and enjoyment of the suit land and that his adverse possession was never admitted by respondent Khushi Muhammad. Issue No.2 was not pressed. In the result the suit was dismissed vide judgment dated 27-1-1982.
7. Applicant impugned the judgment and decree before the District Court in Civil Appeal No.33 of 1982 which was dismissed on the ground of limitation whereas he did not press his right of ownership on the basis of documents relied upon by him. It is as against both the concurrent finding of both Courts that the instant revision application was filed.
8. Scope of revisional jurisdiction is confined to the grounds mentioned in section 115, C.P.C. And grounds beyond the ambit of this provision of law cannot possibly be considered in the exercise of revisional jurisdiction. The jurisdiction so conferred on a Court is purely discretionary and is required to be exercised on some general principles on which discretionary orders are made. The jurisdiction under section 115, C.P.C. Cannot be invoked against conclusions of law or fact which do not in p, any way affect the jurisdiction of the Court, no matter however erroneous, wrong or harsh these may be. The decision might be either on a question of fact or law unless the decision involves a point of jurisdiction, no revision application would be competent. It may be observed that if a Court has jurisdiction, then in that case, it has jurisdiction to decide the lis one way or the other and every erroneous conclusion of law or fact can only be corrected in appeal but revision will not be competent on such a ground. Since this jurisdiction is purely discretionary High Court will not interfere under section 115, C.P.C. To correct every irregularity in the exercise of jurisdiction except in cases where grave injustice or hardship would result on account of its non-interference.
9. In the present case first Appellate Court while dealing with the issue regarding limitation has observed that according to Article 144 of the Limitation Act applicant/plaintiff was competent to file suit for declaration of his ownership rights on the basis of possession within 12 years and since suit was filed in December 1979 it was barred by time hopelessly. The conclusion drawn by the lower Appellate Court is not supported by the evidence on record and principles of law covering the provisions of Limitation Act in a suit for declaration. It would be seen that the applicant did not file a suit for possession so as to account for his dispossession or discontinuance thereof within a period of 12 years prior to filing of the suit. Case of the applicant consistently has been that he has been in possession of the suit land throughout right from 1951 on the basis of affidavit/surrender deed executed by the original grantee thus there was no occasion for him to ask for relief of possession as there was no threat or invasion to his possession from the suit land till 1979 when he approached the Court of law.
10. Applicant approached the Civil Court after his apprehended threat to possession in consequence of an application moved before the Martial Law Authorities by respondent Khushi Muhammad and brought a suit for declaration of his title and permanent injunction against the respondents. Since the threat to his right, if any, under the law, arose in November, 1979 suit filed by him on 5-12-1979 was well within time and the learned lower Appellate Court committed a gross error of law in assuming that the suit for declaration was barred by Article 144 of the Limitation Act.
A reference was made to a Single Bench judgment in the case of Syed Ghulam Mustafa Shah and another v. Syed Muhammad A.I Shah and 2 others, PLD 1993 Karachi 369 which has been wrongly printed as a Division Bench case. In this judgment view taken was that where a party pleads that it had a valid title through purchase, it would become impossible for such a party to succeed in the alternative on the pleading that the possession being open and hostile had matured otherwise on account of influx of time through adverse possession. Earlier judgment of the Honourable Supreme Court in the case of Ghulam Qadir v. Ahmed Yar and others PLD 1990 SC 1049 was referred in this case by the learned Single Judge. There is absolutely no cavil with the proposition of law laid down in the above-cited cases but the issue of limitation was not dealt with in both the above-cited cases. Needless to observe though the applicant had initially founded his title in his own right consequent upon surrender of the rights and interests by the predecessor of the respondents in his favour and subsequently execution of sale agreement in his favour some time in 1958 as well as his adverse possession maturing into title, it is evident from the record that in the first Appellate Court he had abandoned and given up his claim on the basis of his own right to the suit land and confined to right acquired by adverse possession.
11. Learned counsel for applicant referred to cases of Abdul Haq and others v. Muhammad Ismail and others 1995 CLC 1406 and Haji Sher Muhammad v. Mst. Amoo and others PLD 1960 W.P. (Kar.)
428 but both the cases are distinguishable on facts and of no assistance.
12. On the merits of the case I am of the considered view that the applicant utterly failed to plead the claim of possession over suit land by way of adverse possession in the plaint for want of material particulars and details. In para. No. 16 of the plaint he simply pleaded that even otherwise he is in open, exclusive possession and enjoyment of the suit land and is paying land revenue assessm ent to the Government since 1951 till this day and is m possession of all the original documents relating to the suit land and acquired ownership under the law of land. In my view this plea on the face of it does not reflect upon his claim of an adverse possession which has to be open, hostile, exclusive uninterrupted notorious and to the knowledge of every person including the true owner. Obviously the applicant did not say as to against whom he had acquired the title by way of open, active, exclusive and hostile possession of the suit land. In his evidence, as well, he could not establish this case which is slip-shod and scanty. It may be observed that initially he sought to obtain right to the suit land by way of sponsoring payment in the name of deceased Jan Muhammad to Barrage Authorities and admitted joint holding with him till 1951 when the latter allegedly executed an affidavit/deed of surrender in his favour. This would at make out a case of permissive possession. Even after the death of the deceased he had been approaching respondents Nos.3 to 6 for execution of a sale-deed in his favour which would show that he had been accepting them as true owners of the suit land and no hostile claim to their rights had been raised at any time before the respondents approached the Mukhtiar kar and Martial Law Authorities seeking possession. Applicant also pleaded that in his application to the Mukhtiar kar Dadu seeking delivery of possession respondent Khushi Muhammad for self and on behalf of other co-owners had admitted his adverse possession but it is not borne out by the material on record.
Since the applicant initially obtained possession of the suit land with the permission and authority of the lawful owner and continued to be in possession thereof he could not legally set up a hostile title against the respondents. His plea that he has been in possession of the original title deeds relating to the suit land was found to be false as not a single original document was produced by him at the stage of evidence before the trial Court.
13. It was contended on behalf of the applicant that the learned lower Appellate Court by not deciding all issues of fact excepting issue of limitation as required by the provisions of Order XLI, Rule 31, C.P.C. The judgment could not be sustained at law. As observed hereinabove the applicant had abandoned his plea of title on the basis of his own right before the Appellate Court whereas the issue with regard to adverse possession over the suit land-has been dealt with in the context of issue of limitation.
14. Issue No. 3 whether late Jan Muhammad and the applicant had jointly taken the suit land from the Barrage Mukhtiar kar, Larkana has no material bearing on the fact of the case. His possession over the suit land has not been disputed and it has been made to appear on record that the respondents had filed First Class Suit No. 102 of 1982 before the Senior Civil Judge, Dadu for possession and mense profits which was pending decision at least till 1984. There is thus hardly any substance in the point raised by the learned counsel in support of this revision application. At any rate this circumstance does not affect the jurisdiction of the Appellate Court and evidently there has been no miscarriage of justice by not discussing each issue separately. Suffice to say that issue relating to maintainability has been elaborately discussed; issue whether respondents Nos. l and 2 were necessary party to the suit was not pressed while all other material issues have been dealt at length and no jurisdictional error appears to have been committed by the lower Appellate Court.
15. Lastly it was maintained that even if the applicant was not entitled to the relief of declaration sought by him permanent injunction ought to have been granted in order to preserve his possession. I am least impressed by this argument which on the face of it is fallacious. The relief of injunction is purely discretionary and equitable in law and no party is entitled to it as a matter of course. Applicant having failed to establish his title to the suit, in the peculiar circumstances of the case would not be entitled to solitary relief of injunction in isolation from the relief of declaration. As observed in the foregoing paras. Even on the point of alleged threat of dispossession he could not make out any case worth consideration. Moreover this argument does not seem to have been advanced before the lower Appellate Court and this Court in the exercise of discretionary jurisdiction under section 115, C.P.C. Would not be legally entitled to interfere with the discretion exercised by the two Courts below who have recorded concurrent findings of fact against the applicant. It is doubtful whether in the event of failure to obtain a declaratory decree relating to his title to the suit land the applicant would be entitled to the relief of permanent injunction in the wake of a suit for possession having been instituted against him by the respondents.
16. No other point was urged in support of this Revision Application which is without any substance.
Both the Courts below neither acted illegally nor without jurisdiction or with material irregularity leading to miscarriage of justice. Revision application is accordingly dismissed.