This revision petition is directed against the Appellate Court's judgment, dated 10-6-1985 whereby he set aside the judgment and decree, dated 13-10-1983 passed by Senior Civil Judge, Larkana decreeing the suit of the plaintiffs/petitioners for declaration and permanent injunction.
2. Facts of the case in nutshell are that in satisfaction of verified claim of deceased Amir son of Ujagar father of the plaintiffs suit lands were allotted to the plaintiffs some times in 1957. As some of the lands so-allotted were Muslim properties these were excluded from such allotment. According to the plaintiffs defendant No,1 Shitab son of Noor Bakhsh was illegally holding claim in the name of Shitab son of Roora posing himself to be the said person but actually the said claim was bogus and obtained by fraudulent means and misrepresentation. He managed to get lands allotted against his claim on the basis of transfer of Produce Index Units from Tehsil Chunia to District Larkana and obtained allotment without any date. Plaintiffs approached Deputy Commissioner/Deputy Rehabilitation Commissioner, Larkana questioning the allotment of the lands in favour of defendant No,1 who as delegatee of the Chief Settlement Commissioner under section 10 of the Displaced Persons (Land Settlement) Act, 1958, cancelled the allotment of defendant No,1 obtained in the name of Shitab son of Roora with a direction that the resumed lands be allotted to the plaintiffs whereupon suit lands were allotted to the plaintiffs on or about 7- 8-1961. Later the record of rights was duly mutated in their favour and they continued to remain in possession of the lands, enjoyed the produce and paid land revenue assessment to the Government. Plaintiffs further averred that the claim of defendant No,1 in the name of Shitab son of Noor Bakhsh was originally settled in Tehsil Chunia District, Lahore but after cancellation of the bogus claim he managed to get the suit lands allotted against his claim on the strength of alleged transfer of Produce Index Units from Tehsil Chunia to District Larkana and manipulated the allotment without any date Plaintiffs challenged the allotment of suit lands in favour of defendant No,1 before Deputy Collector, Larkana who by his order, dated 18-1-1967 dismissed their appeal.
Aggrieved by such order of defendant No,4, plaintiffs preferred a revision petition to the Commissioner Khairpur Division and both the parties regularly attended the office of the said defendant. In such proceedings stay order was granted in favor of the plaintiffs. It is further the case of the plaintiffs that defendant No,5 referred the matter to Deputy Commissioner, Lahore as well as Central Record Office, Lahore for clarification but no report was received till 1971-72. In the meantime the post of Commissioner, Khairpur Division was abolished and after creation of Sukkur Division they approached the office of Commissioner, Sukkur Division and were informed about a week before the institution of the suit that their papers were not traceable. Plaintiffs feared that defendant No,1 was responsible for misplacement of the papers of their revision petition that started threatening to oust them by raising claim of ownership over the suit lands of which he was only a Hari and paying Zamindari share to them. During the pendency of revision petition he had even got the suit lands mutated in the Record of Rights with the assistance of Mukhtiarkar Dokri who was, thus, made a party to the suit. As the private defendant threatened to remove entire Rabi crop without paying Zamindari share to the plaintiffs and since the papers of their revision petition were purportedly not traceable they were constrained to file a suit for declaration and permanent injunction seeking the following reliefs:--
(a) To declare that the plaintiffs are the owners of the suit property and its allotment in favour of the defendants is illegal, subsequent and ab initio void.
(b) To grant a permanent injunction against the defendants restraining them from interfering with the possession of the plaintiffs over the suit property.
3. The case as set up by defendant No,1 Shitab in his written statement is that he being a genuine claimant had obtained the allotment of lands against his duly verified claim and never posed to be Shitab son of Roora as alleged. He denied that allotment against his claim was cancelled at any time as alleged. He disputed the allotment of suit lands in favour of the plaintiffs and asserted that he is in possession thereof with record of rights standing in his name. He admitted that his claim was duly registered in Tehsil Chunia District Lahore with assertion that part of his claim was transferred to District Larkana on or about 16-4-1960. Accordingly allotment of suit lands was confirmed against his bona fide claim as he was a temporary allottee in prior possession of lands.
Defendant averred that the plaintiffs made an application to Mukhtiarkar Dokri for the grant of share of produce claiming to be allottees of the suit lands but it was rejected vide order, dated 24- 7-1962 as they were not the allotted of the suit lands. Likewise another application by plaintiff Sampat claiming to be allotted of the suit lands was rejected by Assistant Rehabilitation Mukhtiarkar, Larkana vide order, dated 5-1-1963. He filed an appeal from the order, dated 24-7-1962 before Deputy Collector, Larkana which was dismissed on 9-12-1964. Plaintiffs second application addressed to Mukhtiarkar and Assistant Rehabilitation Commissioner, Dokri against the allotment in favor of defendant No,1 was dismissed vide order, dated 12-4-1966 taking the view that defendant No,1 had superior claim over the plaintiffs who may be allotted other lands. Plaintiff's appeal from the order, dated 12-4-1966 before Deputy Collector/Deputy Settlement Commissioner, Larkana was dismissed vide order, dated 18-1-1967. They preferred a revision application before the Settlement Commissioner (Land), Khairpur against the order of D.S.C.(L.), Larkana, dated 18-1-1967 which was heard in presence of the parties and their counsel and dismissed on 23-10-1967. Thus, the matter was finally decided by the Settlement Commissioner (Lands), Khairpur in favour of defendant No,1 and could not be challenged before the Civil Court whose jurisdiction was barred by law by reason of sections 22 and 25 of the Displaced Persons (Land Settlement) Act, 1958 (hereinafter referred as Act, 1958) as such orders were final and absolute. All other allegations with regard to misplacement of revision papers were denied including any reference to the Deputy Commissioner or Central Record Office, Lahore. Sharing of Zamindari share with the plaintiffs was specifically denied and disputed with an averment that defendant No,1 has been in possession of the suit lands as owner by reason of valid allotment in his favor and undisturbed enjoyment of produce. Allotment of lands against the claim of Amir Son of Jaguar in favor of plaintiffs was questioned on the premise that other heirs of deceased Amir were still residing in India. Pleas with regard to jurisdiction of the Civil Court and non-maintainability of the suit were also raised. No written statement was, however, filed on behalf of official defendants Nos.2 to 6.
4. Pleadings of the parties were reflected in the following issues:--
(i) Whether the allotment of the suit property in favor of the defendant No,1 is illegal, subsequent and inoperative?
(ii) Whether the plaintiff is prior and legal allotted of the suit property?
(iii) Whether the orders in favor of the defendant No,1 by Settlement Authorities are illegal, mala fide and ultra-wires?
(iv) Whether the plaintiff is in possession of the suit property?
(v) Whether this Court has no jurisdiction?
(vi) Whether the suit is not maintainable under the Settlement Laws?
(vii) Whether the suit is barred by the provisions of section 42 of the Specific Relief Act?
(viii) What should the decree be?
5. In support of their suit, plaintiffs examined Syed Ali Nasir (Rehabilitation Tapedar) P.W.1, Din Muhammad (Kamdar) P.W.2, and plaintiff Sampat P.W.3, while defendant No,1 examined Safaid Khan D.W.1, Haji D.W.2 and Amir Bux D.W.3.
6. On assessm ent of the relevant evidence, Trial Court decided issues Nos.1 to 4 in favour of the plaintiff and issues Nos.5 to 7 in negative. Consequently their suit was decreed with costs.
7. This judgment and decree was challenged in Civil Appeal No,57 of 1983, which was heard by an Additional District Judge, Larkana who set aside the same and dismissed the suit. Learned Appellate Court found issues Nos.1 to 4 in favour of the appellant and on legal issues came to the conclusion that in view of the finality attached to the orders passed by Settlement Authorities by virtue of sections 22 and 25 of Act, 1958, Civil Court had no jurisdiction to entertain the suit. There is no specific finding with regard to maintainability or otherwise of the suit in terms of section 42 of Specific Relief Act. It is as against this judgment that the present revision was filed.
8. It is settled proposition in law that in the event of a conflict of judgment between the Trial Court and the Appellate Court, ordinarily, the view taken by Appellate Court has to be preferred unless it could be shown on the face of the record that such finding of fact is not supported by material evidence on record; that the conclusion drawn is patently illegal; that the view expressed is against the settled norms for appreciation of evidence or the judgment on the face of it is perverse.
9. In the present case it would appear that the petitioners while seeking declaration of title in their favor are seeking a negative declaration with regard to ownership right and interest of the respondent to the suit land without directly or indirectly assailing various orders passed by Rehabilitation and Settlement Authorities passed more than a decade before the institution of the suit except the last order passed by Settlement Commissioner (Land), Khairpur, dated 23-10-1967.
In law, petitioners might be justified and legally entitled to seek a declaration of their right to property as envisaged by section 42 of the Specific Relief Act. I have serious reservations whether they were entitled to seek a negative declaration as to the entitlement of respondent No,1 without directly or indirectly impugning variety of orders passed in relation to the suit lands in his favour.
10. A glance at the averments in the plaint tends to show that both the parties are claimants under the provisions of Displaced Persons (Land Settlement) Act, 1958 and allotted suit lands at different times in satisfaction of their claim. On their own showing petitioners had challenged the allotment of suit lands in favour of respondent Shitab son of Noor Bux before the Settlement and Rehabilitation hierarchy under the provisions of Act, 1958 but without any success. After failing to obtain relief from Assistant Rehabilitation Commissioner, Dokri as well as Deputy Collector/Deputy Rehabilitation Commissioner, Larkana vide order, dated 18-1-1967 admittedly they preferred a revision petition before the Settlement Commissioner (Land), Khairpur Division against the order of Deputy Rehabilitation Commissioner, Larkana on appeal under section 11(1) of the Rehabilitation Act, 1956 read with section 18 of Act, 1958, and obtained a stay order but without any ultimate success. In order to overcome this difficulty petitioners dishonestly pleaded that after the shifting of office of Commissioner, Khairpur Division to Sukkur they were made to believe by the office of Commissioner, Sukkur Division that the papers relating to their revision petition were misplaced and were not traceable. Indeed this averment is belied by the material documents placed on record by the contesting respondents who have placed on record a certified true copy of the order passed by the Settlement Commissioner (Land) Division dismissing the revision petition on 23-10- 1967 after hearing their counsel and the parties. Even after such categorical written statement by respondent Shitab petitioners did not care to challenge the validity and correctness of such order which has been seriously impugned during the course of arguments before me at this stage. No doubt, Trial Court had settled ati issue whether orders passed in favor of respondent No,1 by Settlement Authorities are illegal, mala fide and ultra vires and whether the Civil Court had no jurisdiction to entertain the suit, such issue in fact is not borne out from the averments in the plaint and appears to have been erroneously settled at their instance. In fact respondent Shitab had divulged such orders in his written statement which are deemed to be valid, legal, bona fide and passed with jurisdiction. Furthermore, it transpires from the evidence of petitioner's witness Syed Ali Nasir, Rehabilitation Tapedar that the allotment of Shitab son of Roora was cancelled vide order, dated 18-1-1967. Indeed it is an order passed by Deputy Collector and Deputy Settlement Commissioner (Larkana), which refers to an order of cancellation of allotment in favour of petitioners by Assistant Rehabilitation Mukhtiarkar, Larkana, dated 5-1-1963 which had never been challenged. On the other hand petitioner Sampat in his evidence asserted that Deputy Commissioner, Larkana had cancelled the claim of Shitab son of Roora in 1961 whereafter the suit lands were allotted to him in the same year. Above order was intentionally and deliberately suppressed by the petitioners in the plaint in order to persuade the Civil Court to pass a decree in their favour. Having chosen to adopt this novel attitude, I am of the view that they cannot be permitted to impugn and assail such acts on the part of Rehabilitation and Settlement Authorities before this Court for the first time without appropriate pleadings. In this regard I am also of the opinion that the petitioners cannot succeed in their suit for declaration and injunction on the weakness in the case of respondent Shitab by pointing out that extract from RL-H or that their Khatooni papers do not bear any date. Authenticity of such documents, however, remains intact.
11. Adverting to the possession of suit lands it is an admitted position that respondent Shitab and after his death his legal heirs have remained in physical possession and enjoyment of the suit lands from the very beginning. Indeed the stand taken by the respondents is that they remained in possession and enjoyment of the suit lands in their own right as allottee and transferee thereof in satisfaction of their verified claim, while the case set up by the petitioners is that deceased Shitab was in possession of the suit lands as their Had and giving Zamindari share of the produce to them for a very long period. No evidence from the Record of Rights or otherwise has been placed on the record to substantiate this position. On the contrary various documents exhibited in evidence by contesting respondents tend to show that petitioner's complaint for recovery of Zamindari share from the respondents failed before Mukhtiarkar, Dokri as well as Deputy Collector, Larkana. Their representation before the Assistant Rehabilitation Commissioner, Dokri impugning the allotment of suit lands in favour of respondent Shitab as well as their appeal before the Deputy Collector/Deputy Settlement Commissioner (Land), Larkana also failed right up to the level of Settlement Commissioner, Khairpur vide order, dated 23-10-1967. Only possible inference that can be justifiably raised is that the respondents have remained in possession of the suit lands in their own right.
12. The matter does not end here. Respondent Safaid Khan son of late Shitab has been able to produce the evidence relating to mutation in the Record of Rights in his favour in addition to a good number of land revenue receipts right from 1961 to 1983 when his evidence was recorded. This circumstance furnishes an additional factor for believing that the petitioners at no point of time remained in possession of suit land as wrongly asserted. They are, thus, not entitled to the relief of injunction as well, and their suit has been rightly dismissed.
13. Learned counsel for petitioners vehemently contended and was at pains to persuade me that the Appellate Court committed a gross illegality by holding that the Civil Court had no jurisdiction to entertain this suit or that it could not examine the vires of various orders passed by Settlement and Rehabilitation Authorities. In this connection, he relied upon cases reported as Sultan Mehmood v. Government of West Pakistan PLD 1964 SC 302, Hamid Hussain v. Government of West Pakistan 1974 SCM R 356, Shafi Muhammad v. Government of Sindh PLD 1993 Kar. 410, Abdul Sattar v. Settlement Commissioner PLD 1981 Kar. 413.
14. On the other hand learned counsel for the contesting respondents referred to Majid Ali Naqvi v.
Additional District Judge Ex-Officio Settlement and Rehabilitation Commissioner 1970 SCM R 375.
15. In Sultan Mahmood's case which was essentially an appeal arising out of service matter of a Government servant, reliance is placed on the paragraph expressing the view that order of Government can be proved by producing original or certified copy of order. It was further observed that letter containing reference to order having been already passed is not legal proof of order. In Hamid Hussain's case Supreme Court laid down that jurisdiction of Civil Courts even if barred and conferred upon Special Tribunals, Civil Courts being Courts of ultimate jurisdiction, have jurisdiction to examine acts of such forums to see if such are in accordance with law, or illegal or even mala fide. In Abdul Sattar's case Zafar Hussain Mirza, J. (as his Lordship then was) speaking for the Division Bench expressed the view that finality attaches to orders passed by Settlement Authorities only when order is passed with jurisdiction, within four corners of Act and in respect of matters Settlement Authorities are empowered under Act to determine. In Shafi Muhammad's case learned Single Judge of Sindh High Court expressed the view that bar of jurisdiction under sections 22 and 25 of the Act, 1958 was not attributed in suit having been filed after repeal of Act XXVIII of 1958.
16. On the other hand in Majid Ali Naqvi's case Supreme Court declined to entertain the question of jurisdiction of Settlement Commissioner as it had not been raised in the Court of first instance and there was no evidence on the record to show as to whether the Settlement Commissioner had been properly authorized by the Chief Settlement Commissioner to hear the revisions.
17. There can be hardly any cavil with the proposition of law laid down by the Superior Courts. There is consensus of opinion that Civil Court is a Court of plenary jurisdiction and entitled to examine the decisions and orders passed by Special Tribunals unless such jurisdiction is expressly barred and provided such Tribunals acted within four 'corners of the authority vested in them and within the limits of the statute under which they are created. At any rate, this issue having not been agitated before the Trial Court and there being no averment challenging the validity and legality of variety of orders passed by Settlement and Rehabilitation Authorities, this question cannot be raised for the first time before the Provisional Court. Learned counsel strenuously urged that this being a question of law can be raised at any stage but it is not so because it is mixed question of fact as well as law and expression of opinion on the question of jurisdiction would necessarily have nexus to the examination of the factual aspect of the case.
18. No other point was urged in support of the revision application and in my view learned Appellate Court was legally right in disturbing the findings of fact and taking a different view from that of the Trial Court which does not suffer from any legal infirmity.
19. For the aforesaid facts and reasons there is no merit in this revision petition which must fail and is accordingly dismissed with costs.