' Through this Civil Revision the applicant has challenged the judgment and decree, dated 12-12- 1997 passed by VI-Additional District Judge, Larkana and the judgment and decree, dated 17-6- 1990 passed by learned IIIrd Senior Civil Judge, Larkana.
2. Brief facts of the case are that applicant afore-named was granted 13 acre and 23 Ghuntas land from U.A. No,342 of Deh Unar. Taluka Ratodero by respondent No,2 (Assistant Revenue Officer Sukkur Barrage at Khairpur Mirs) in the year 1957-58 and such Ijazatnama was issued, he then developed the land, but subsequently in the year 1959-60 the land was cancelled without any notice and knowledge of the applicant and he remained in cultivating possession of the land.
According to applicant, the respondent No,2 without considering of first preferential right of the applicant wrongly granted half of the land to respondent No,1 by wrongly stating in the order, dated 27-5-1979, but it was consent of the applicant. The applicant has further alleged that the respondent No,1 had illegally and malafidely got this order of respondent No,2 which was assailed the appeal and revision before respondents Nos.3 and 4, but without success. Thereafter, the applicant being plaintiff/applicant challenged the orders of defendants/respondents Nos.2 to 4 regarding the grant of suit land to defendant/respondent No,1 as illegal, mala fide and without lawful authority. Then the applicant filed the suit with prayer that the cancellation of grant of land in favour of respondent No,1 be declared as illegal, ultra vires, void, abinitio and without lawful authority and further prayed for declaration of the grant of half of the area i.e, suit land in favour of respondent No,1 to be illegal, mala fide and without lawful authority. The applicant also prayed for injunction against the defendants/respondents not to interfere with the possession of the applicant over the suit land.
3. The respondent No,1 has filed written statement stating therein that the cancellation of earlier grant from the name of applicant, but averred that same was legally .Cancelled due to non- deposit of instalments. According to respondent No,1, the cancellation order was never challenged, hence the suit land was brought in the schedule for its fresh disposal. Thereafter, the applicant and respondent No,1 also applied for its grant and under compromise between the parties granted half of the Serial No,342 to the parties in open katchery. The respondent No,1 also denied if applicant has developed the suit land, but averred that it is still lying uncultivated and only three acres out of the Serial No, once cultivated unauthorisedly by the applicant and fine was imposed upon the applicant. Respondent No,1 has also denied that applicant ever remained hari of the suit land or in its possession. He has further denied the preferential right for the grant of suit land. The appeal and the revision preferred by applicant before respondents Nos.3 and 4 were rightly dismissed under legal and proper orders. The respondent No,1 challenged the maintainability of the suit on the ground of limitation and also jurisdiction of this Court and prayed for dismissal of the suit.
4. The trial Judge viz; III-Senior Civil Judge, Larkana framed the following issues:---
(1) Whether the applicant was granted 13.23 acres from U.A. No,342 deh Unar by the Barrage Department in year 1957-58?
(2) Whether the applicant developed the land by spending huge amount?
(3) Whether the impugned orders passed by the respondents Nos.2, 3 and 4 granting suit land to the respondent No,1 are illegal, mala fide and without lawful authority?
(4) Whether the cause of action has arisen to the applicant?
(5) Whether the suit is time-barred?
(6) Whether the suit is maintainable at law?
(7) Whether the Court has jurisdiction to entertain the suit?
(8) What should the decree be?
5. After recording the evidence of the parties, learned III-Senior Civil Judge, Larkana dismissed the suit of the applicant and who preferred an appeal before the District Judge, Larkana which came on the file of learned VI-Additional District Judge, Larkana which too was dismissed, hence this revision.
6. Learned counsel for the applicant Mr. Ghulam Sarwar Abbasi firstly raised preliminary objections that the judgment written by the appellate Court is in violation of Order 41, rule 31, C.P.C. And the judgment has not been written in accordance with the provisions of Order 41, rule 31, C.P.C. He placed reliance on 1991 CLC 1795, PLD 1989 SC 568, 1968 SCMR 464. The learned counsel for the applicant has further submitted that both the Courts have not considered the point of compromise between the parties and no issue was framed by them in respect of compromise. He further contended that there was no compromise at all between the parties and invited my attention on the para.8 of the plaint. He has further contended before me that there is misreading of evidence and both the Courts have not applied their judicial mind while passing the judgment and decree and has finally prayed for the acceptance of the revision.
7. On the other hand Mr. Mohan Lal contended that the judgment passed by the appellate Court has been written in accordance with the provisions of Order 41, rule 31, C.P.C. And the appellate Court has taken into consideration all the issues discussed by the trial Court and has placed reliance on PLD 1999 Karachi 354(b), 1987 SCMR 1149 and 1991 SCMR 1816. He further contended that by virtue of section 36 of Colonization Government Act, Civil Court had no jurisdiction and the suit was not maintainable filed by the present applicant and in support of his contention, he has placed reliance on PLD 1963 Karachi 215, PLD 1966 Karachi 315, PLD 1976 Karachi 85 and PLD 1974 SC
139. He has further contended that the question of fact is involved in the matter which cannot be discussed in revision application and has further placed reliance on 1986 CLC 1836. Mr. Mohan Lal has further submitted that on the contrary the applicant has admitted and his counsel with regard to the compromise before Member Board of Revenue and now it is being contended by the learned counsel for the applicant that no compromise was ever effected and according to him on admission with regard to the compromise the applicant has not said in the matter and has placed reliance on PLD 1976 SC 395. He has further invited my attention at page No,81 of the record and proceedings of lower part in F.C. Suit No,84 of 1984 which is order passed by Member Board of Revenue, Sindh, Hyderabad wherein the counsel for respondent/present applicant has admitted that after compromise no cause of action can accrue to the petitioner and according to Mr. Mohan Lal the cancellation has not been challenged. He has further contended that two appeals have been dismissed filed by the applicant. He has drawn my attention on the page No,69, dated 18-7- 1979 passed by Additional Commissioner, Sukkur wherein both the parties are said to be present alongwith their Advocates. It has been held by the Additional Commissioner, Sukkur that the name of the respondent/applicant does not appear in the impugned order. Hence the applicant has got no cause of grievance. The name of respondent does not appear in the impugned order, therefore, appeal is infructuous and is rejected accordingly. He has further drawn my attention on the page No,71, dated 29-41980 passed by Additional Commissioner. Sukkur wherein the Additional Commissioner, Sukkur has held that the Advocate for appellant raised objection that name of Ghulam Hussain in previous appeal between the same parties resident of same village was decided by former Additional Commissioner on 18-7-1979, therefore, he is not competent to hear second appeal. The appellant is advised to go in revision and appeal was rejected. Mr. Mohan Lal has laid much stress over the maintainability of revision filed by the applicant and has placed reliance on 1984 SCMR 504. He has also emphasised over the question of fact which cannot be decided in Revision and has placed reliance on 1997 SCMR 1139 and 1975 SCMR 471. He has also contended that mala tide is on the part of the applicant and when mala fide is established and in this regard he has placed reliance on 1985 SCMR 1650 and 1986 SCMR 233 with regard to jurisdiction of civil Court. Mr. Mohan Lal has placed reliance on 1982 CLC 55, 1983 SCMR 726, PLD 1986 Karachi 315, PLD 1974 SC 139 and 1978 SCMR 167.
8. I have heard the learned counsel for the parties and have gone through the judgments and decree passed by the Courts below very carefully and have also seen the record and proceedings and have also gone through the law cited by the learned counsel for the parties.
9. As far as the preliminary objection raised by the learned counsel for the applicant is concerned that the judgment has not been written in accordance with the provisions of Order 41, rule 31, C.P.C., I have gone very carefully through the impugned judgment passed by. VI-Additional Sessions Judge, Larkana and I am not in agreement with the learned counsel for the applicant Mr. Ghulam Sarwar Abbasi and the appellate Court has taken into consideration all the issues involved in the matter and, therefore, there is no violation of the provisions of Order 41, rule 31, C.P.C. It is alleged in the plaint as well as in evidence that the impugned orders passed by the respondents Nos.2 to 4 granting the suit land to respondent No,1 are illegal, mala tide and without lawful authority, but I have very carefully examined that there is no explanation whatsoever offered by the applicant 'that how those orders are illegal and no reasons have been assigned by the learned counsel for the applicant with regard to the orders impugned as illegal. Under the law grant policy admittedly the respondents Nos.2 to 4 are competent authorities to pass the orders and to dispose of the State land in accordance with the Land Grant Policy under section 10(2) of the Colonization of Land (Punjab Act, 1912). It has not been averred or deposed that these authorities have no jurisdiction to dispose of the said land. The applicant who was plaintiff before the lower Court has not been able to appreciate through any reliable piece of evidence as recognized by the Land Grant Policy excepting that previously the suit land as a whole was the grant of the applicant, therefore, at the time of its disposal he had preferential right. This ground requires proof or support of the policy and the applicant being plaintiff before the lower Court failed to prove the same. As far as the allegation of the mala tide against the Government functionary is concerned, that is of no help to the present applicant until and unless it is proved through evidence and such evidence is lacking in the case of the applicant and, therefore, it cannot be said that official respondents had acted malatidely. I have also examined very carefully the impugned orders passed by the respondents Nos.2 to 4, and the same have been passed having the jurisdiction over the matter and their orders are based on sound reasons and they are competent authorities to pass such orders.
10. I have also examined very carefully that the burden of proving with regard to issue No,2 on the part of applicant to establish that he had developed the suit land by spending huge amount and he has failed to establish the same. He has deposed in his evidence that he had developed the land and is cultivating the same. In support of his contention, he has produced land revenue receipts Exhs.104 to 106. Mere production of land revenue receipts is no proof of being in possession of the suit land until and unless it is shown in Khasra Girdawari that the land was actually cultivated. Nowhere it is stated in the evidence of P.W. Yaha that the disputed piece of land has been developed by the present applicant after spending huge amount over it. So, even the application failed to prove over the Issue No,2 that he incurred heavy expenses on the cultivating of suit land in question.
11. The grant of land is matter of authority under Colonization of Government Lands Act to adjudicate as special tribunal and the jurisdiction of the Civil Court is ousted. The Civil Court has only jurisdiction when the orders passed by the authority under the Act were not within jurisdiction and the same are found to be wrong. Mr. Mohan Lal in this regard has already placed reliance on the decision and authority of this Court and Honourable Supreme Court and I am being fortified by the same. The jurisdiction of the Civil Court is barred under section 9 of C.P.C. And reliance can be placed on PLD 1963 Karachi 215 and other aforementioned law cited by Mr. Mohan Lal wherein it has been held that the Civil Court has no jurisdiction to entertain the suit against the order passed by the Revenue Authorities except where the powers have been usurped by the Revenue Authorities and the same can be checked. It am being fortified by a case of Muhammad Bux v.
Muhammad Ali reported in 1984 SCMR 504, wherein the revision application has been dismissed on the ground that "mere fact that findings of Courts below may be wrong on a point of fact or on a point of law unrelatable to exercise of jurisdiction---Held, would not bring case within four corners of section 115" and in view of the aforementioned authorities of the Honourable Supreme Court the revision application is not maintainable.
12. Revisional jurisdiction of High Court and its scope and limitation. Principles for exercise of revisional power-Scope of interference with concurrent finding of fact by High Court in exercise of its revisional jurisdiction is very limited. High Court while examining legality of judgment and decree in exercise of its power under section 115, C.P.C. Cannot upset finding of fact, however, erroneous such finding is, on re-appraisal of evidence and taking different view of evidence. Such findings of fact can only be interfered with by High Court under section 115, C.P.C. If Courts below had either misread evidence on record or while assessing or evaluating evidence had omitted from consideration some important piece of evidence which had direct bearing on issues involved in the case. Findings of fact would also be open to interference under section 115, C.P.C. Where approach of Courts below to evidence is perverse. Where High Court re-assessed entire evidence on record and then discarded conclusions of Courts below on account of being inconsistent with its own assessm ent of evidence such process of examination for upsetting concurrent finding of fact in exercise of revisional jurisdiction was not permissible by law. Wrong or erroneous conclusion on question of fact by Courts below was not open to interference by E High Court in revisional jurisdiction. In the present matter question of fact is involved and there is no misreading of evidence and the evidence adduced before the lower Court is not perverse and I am being fortified by the authority of Honourable Supreme Court in a case of Abdul Hakeem v. Habibullah and 11 others reported in 1997 SCMR 1139. I am being further fortified by a case of Khan Muhammad v.
Muhammad Ishaque and another reported in 1975 SCMR 471-472, wherein Honourable Supreme Court has held that section 115---Revision---Concurrent finding of two Courts below on a pure question of fact---Involves no question of jurisdiction so as to attract operation of section 115--- Dismissal of revision on such ground, held, not faulty. In view of the aforementioned authorities of Honourable Supreme Court, I am of the considered view that this revision is not maintainable.
13. Upshot of the above discussion is that the judgment of the appellate Court is not in violation of Order 41, rule 31, C.P.C. As material points involved in the case have been discussed by the appellate Court and there is no misreading of evidence in the findings of the Courts below and the Civil Court has no jurisdiction as discussed supra. I have also reached the irresistible conclusion that the question of fact is involved in the matter which cannot be taken into consideration and the revision is not maintainable and I do not see any justification to interfere with the judgments given by the Courts below and I do not find merit in the revision application which is accordingly dismissed.
14. Above are the reasons for my short order, dated 22-5-2001.