S. ALI ASLAM JAFRI, J.--- Being aggrieved of and dissatisfied with the judgment and decree dated 6th November, 2000 in Civil . Appeal No. 16/2000 (Muhammad Haroon and others v. Province of Sindh and others) passed by the learned Additional District Judge, Thatta, setting aside the judgment and decree dated, 22.2.2000 and 28.2.2000 respectively passed by the learned Senior Civil Judge, Thatta in FC Suit No. 117/1991 (Abdullah and others v. Province of Sindh and others); the applicants/plaintiffs have filed this revision application praying therein for setting aside the judgment and decree passed in appeal and to restore that of the Trial Court.
2. The facts in brief giving rise to this revision application are that plaintiffs filed a suit for declaration, cancellation of entries and permanent injunction in respect of agricultural land bearing Survey Nos. 48 to 54 and 119 to 150 situated in Deh Ghorabari, Taluka Keti Bunder, District Thatta (hereinafter referred as suit land) in the Court of Senior Civil Judge Thatta praying therein that the suit lands be declared as Government "Nakaboli" land and that the order dated 15.10.1987 passed by Senior Member Board of Revenue Sindh/defendant No. 2 allowing the revision of defendants Nos. 7 to 9 holding the said defendants to be owners of the suit land be declared to be illegal, void, male fide and without jurisdiction. It was further prayed that orders dated 25.6.1974 and 25.1.1978 passed by Deputy Commissioner Thatta/defendant No. 4 and the order dated 6.3.1986 passed by Additional Commissioner Hyderabad/defendant No. 3 treating the suit land as Government "Nakaboli" land be declared lawful, valid, just and proper orders. The plaintiffs further prayed that the entries in the record-of-rights in the names of defendants Nos. 7 to 9(a)(b) and (c) be ordered to be cancelled by the Taluka Mukhtiarkar Keti Bundar/defendant No. 6 and that permanent injunction be issued against defendants Nos. 7 to 9(a) to (c) restraining them from dispossessing the plaintiffs from the suit land as the plaintiffs being haries/grantees are in possession of the same as they were apprehending forcible dispossession at the hands of defendants Nos. 7 to 9(a) to (c) who had issued such threats.
3. It is the case of the plaintiffs that the suit land bearing Survey Nos. 48 to 54 and 119 to 150 is the Government "Nakaboli land" and such entries existed in the record of Barrage Department as is evident from the order dated 25.1.1978 passed by the Deputy Commissioner, Thatta. The plaintiffs further averred that deceased Noor Muhammad son of Haji Ahmed was granted Survey Nos. 372 to 374 and 376 to 382 only and such entry was made at serial No. 10 of village from No. VII in the year 1923-24 but defendants Muhammad Haroon and Ibrahim who are sons of said Noor Muhammad in collusion with the then Mahalkari Faquir Muhammad and Tapedar Gul Muhammad Sheedi by playing fraud and forgery got the revenue record interpolated in order to show that the suit land was also granted to Noor Muhammad in the year 1923-24 alongwith survey numbers 48 and others. Subsequent entries by way of inheritance were also managed by the said persons in favour of the legal heirs of Noor Muhammad in the year 1973, in collusion with said Faquir Muhammad Mahalkari and Tapedar Gul Muhammad Sheedi.
Subsequently, another Mahalkari namely Shah Muhammad Kazi detected the above-said fraud in the revenue record and sent such report to the Deputy Commissioner, Thatta through the concerned Assistant Commissioner. The Deputy Commissioner, Thatta after making necessary inquiry ordered for cancellation of the said entries. The said forged entries were cancelled and record was corrected accordingly. Defendants Nos. 7 to 9 assailed the said order before the Additional Commissioner, Hyderabad who remanded the case to the Deputy Commissioner and the later maintained his previous order by passing a fresh order on 25.1.1978. Appeal against the said order was rejected by the Additional Commissioner on 6.3:1986 whereafter a revision was filed before Senior Member Board of Revenue who by his order dated 15.10.1987 set aside the orders passed by the Deputy Commissioner and the Additional Commissioner as referred to above.
4. It is also the case of the plaintiffs that suit land was granted to the plaintiffs Nos. 1, 9 and 11 in blocks by the Deputy Commissioner, Thatta recognizing their "HARAP" (cultivation) right and since then they are in possession and enjoyment of the suit land. On coming to know about the order dated 15.10.1987 passed by the Senior Member Board of Revenue, the plaintiffs filed a revision petition before him in the year 1989 but it was withdrawn . Subsequently an application for taking- up the matter in exercise of his suo motu powers under Section 164 of the Sindh Land Revenue Act was filed before the Senior Member Board of Revenue in the year 1990 referring to the fraud committed by the legal heirs of Noor Muhammad in collusion with revenue staff in the record in order to usurp the Government Land. Relevant record was summoned by the Senior Member Board of Revenue and it was found that some leaves (pages) of the relevant register were missing whereafter the said suo mow revision was fixed for hearing on 16.8.x990. The defendants Nos. 7 to 9 challenged the said order in this Court through Constitution Petition No. 1015/1990 (subsequently dismissed for non-prosecution on 23.2.2000) which was pending at the time of filing of the suit.
Since the plaintiffs were being issued threats and they were apprehending forcible dispossession at the hands of respondents/defendants hence they filed Suit No. 117/1991 for the above-mentioned reliefs.
5. In their written statement the defendants Nos. 7 to 9 (a) to (c) stated that suit land was granted_ permanently to Noor Muhammad alongwith other land in the year 1923-24. It was denied that any fraud was played or any interpolations were made in the revenue record. The order passed by the Senior Member Board of Revenue in their favour was defended and supported. Certain pleas regarding maintainability of this suit and the suit being time-barred were also raised by defendants Nos. 7 to 9(a) to (c). Written statement was also filed by Deputy Commissioner, Thatta who supported the case of the plaintiffs to the extent that order of cancellation of the entries in the name of Noor Muhammad and his heirs were passed after hearing the parties, examining the record and applying the judicial mind.
6. In view of the pleadings of the parties, the learned Trial Court framed the following issues:-- "(1) Whether the suit land is a naqaboli land and it was not granted to deceased Noor Muhammad Kanad in 192324?
(2) Whether the defendants 7 to 9 mutated the suit land in the name of their favour fraudulently and subsequently got the fotikhata badal of the same changed in their 2002 favour in collusion of revenue officials?
(3) Whether the defendants 7 to 19 are not in possession of the suit land and they have not cultivated the same?
(4) Whether the order of defendant No. 2 are not legal?
(5) Whether the defendants 7 to 9 have not mutated the suit land in the name of their father by way of fraud and subsequently got the same fotikhata changed in their favour in collusion of Revenue Officers?
(6) Whether defendants 7 to 9 are in possession of suit land?
(7) Whether the defendants 7 to 9 are legal owners of suit land?
(8) Whether the suit is maintainable in law?
(9) Whether the suit is not time-barred?
(10) Whether the plaintiffs are entitled to file this suit?
(11) Whether the plaintiffs have any cause of action to file this suit?"
Plaintiff Abdullah examined himself and produced certified copies of the orders passed by respondents Nos. 2, 3 and 5. He also produced the certified true copy of the entries in the revenue record and the jamabandi. P.W.-2 Abdullah Shah and PW-3 Yar Muhammad were also examined in support of their case by the plaintiffs and thereafter the plaintiffs closed their side.
7. The defendants Nos. 7 to 9 examined DW Muhammad Haroon who produced the original power-of-attorney, attested copy of the entry in revenue record showing the suit land alongwith other lands having been entered in the name of said Noor Muhammad since 1925-26/1935-36 and that thereafter in the name of his heirs vide entry No. 134, dated 17.11.1987. He also produced the orders dated 15.10.1987 and 28.12.1987 passed by respondent No. 2. They also produced the land revenue bills and khasra girdawari in respect of the suit land.
The defendants Nos. 1 to 6 examined a Clerk by name Sher Muhammad who produced the authority delegated to him to depose in the Court.
8. After sifting the evidence on record, suit was decreed by the learned Trial Court but in appeal instead of recording its findings on all the issues the learned Appellate Court after formulating the following three points, dismissed the suit by ,deciding only point No. 1 against the plaintiffs:-- "1 . Whether the suit was barred by limitation and the findings of learned lower Court on issue No. 9, requires interference?
2. Whether the learned lower Court failed to consider the material placed on record while deciding issues Nos. 1 to 6?
3. What should the judgment be?"
9. I have heard the learned counsel for the parties.
10. Mr. Qamar Muhammad Khan, learned counsel for the applicants/plaintiffs has argued that the suit was not barred by time and the view taken by the learned first Appellate Court that suit stands governed under Article 14 of the Limitation Act is based on misconception of law and facts. He has further argued that an order passed by the Member, Board of Revenue while exercising his power under Chapter XIII of the Sindh Land Revenue Act, 1967 or the Board of Revenue Act, 1957 relating to appeals, revisions or reviews is not an order of a Government official falling within the ambit of Article 14 of the Limitation Act but in fact it is a judicial order for all intents and purposes. The learned counsel has further argued that admittedly the last order allowing the revision application filed by defendants Nos. 7 to 9 was passed by the Senior Member Board of Revenue on 15.10.1987 in his judicial capacity. The suit was filed on 15.12.1991 and that a suit for declaration otherwise not provided by the Limitation Act stands governed under Article 1 20 of the Act under which the period of limitation for filing a suit is six (6) years. The learned counsel has further argued that the alleged ownership of the respondents Nos. 7 to 9(a) to (c) is based on fraud and it is well-settled that an order obtained through fraud is a nullity in law and can be questioned at any time and can be ignored by any Court of law before whom it is produced. In support of his contention the learned counsel has placed reliance on the case of Muhammad Younus Khan and others v. Government of N.W.F.P. (1993 SCM R 618). He has further urged that the order passed by the Member, Board of Revenue was in fact a void order hence no limitation is provided for challenging such orders. He has also placed reliance on the cases of Muhammad Riaz Munna v. The State (PLD 1982 Kar. 172) and Mst. Fatima Bibi v. Mst. Raheem Bibi (1999 M LD 1026).
11. I find no force in the contentions of the learned counsel for the applicant as there is nothing on record to show that the order dated 15.10.1987 was obtained from the Member, Board of Revenue through fraud. Moreover, an order passed by a Member, Board of Revenue in exercise of his revisional powers and jurisdiction under Section 164 of the Land Revenue Act cannot be deemed to be a void order in the absence of material to justify the same and it shall be premature to hold as such at this stage. So far the contentions that suit was time-barred in view of Article 14 of the Limitation Act, I propose to deal with this point in later part of this judgment.
12. Mr. Pertab R.I, learned counsel for the respondents has argued that this civil revision application is not maintainable in view of the bar contained in proviso to sub-section (1) of Section 115, CPC as the plaintiffs have failed to furnish copies of the pleadings and documents and on this score alone the revision is liable to be dismissed. The learned counsel in support of his contention. Has relied upon the case of Muhammad Bashir and others v. Muhammad Hussain (1994 CLC 1207). There appears to be no force in his contention for the reason that the copies of the pleadings and the evidence produced by the parties before the learned Trial Court have been filed alongwith this revision application and the same are very much available on the record. So far other documents are concerned, indeed the same do not find place in the file but in my opinion it is not always fatal to a revision resulting in its dismissal in each and every case. The very object of proviso (1) added to Section 115, CPC through Law Reforms Ordinance X of 1980, is to avoid unnecessary delay in disposal of revisional proceedings. It has been held by the Hon'ble Supreme Court in Riasat Ali v.
Muhammad Jaffar Khan (1991 SCM R 496) that the rule in any case is not founded in terrorem, to be visited invariably with the dismissal of the revision petition at the very first hearing on the slightest violation of the rule by the party filing the petition. Even otherwise it is well-settled that procedural technicalities should not be allowed to come in the way of administration of justice. Further more I find that this revision which was admitted on 19.1.2001 fully stands covered under the rule laid down by the apex Court in Muhammad Hanif v. Muhammad and others (PLD 1990 SC 859) that after admission of a civil revision, the production of certified copies is impliedly dispensed with.
13. I have given due consideration to the arguments of the learned counsel for the parties and gone through the record made available in this revision application. I had also ordered to summon the R&P of this suit and the same has also been perused. Arguments have also been re-heard thereafter on 12.1.2002.
14. It appears that the learned first Appellate Court while allowing the appeal has dismissed the suit only on the point of limitation and so far points Nos. 2 and 3 as determined by the learned Appellate Court are concerned the learned Judge has not decided the same and held as under:- "In view of the finding of point No. 1, I need not to deal with these points."
14. The set aside any act One year The date of the or order of an officer act or order. Of Government in his official capacity, not herein otherwise expressly provided for ,
15. The applicability and scope of this Article has been examined by the Courts from time to time, In the case of Jagun Nath Hazarvimal v. State (AIR 1963 Bombay 83), it was held by a Division Bench that a judicial order is not an "act or order of an officer of the Government" within the meaning of Article 1.4 of the Limitation Act. The act or order of an, officer of the Government referred to in Article 14 of the Limitation Act must necessarily refer to the executive act or administrative act.
16. I am also of the view that an order passed in exercise of the appellate or revisional jurisdiction under Sections 161, 163 and 164 (Chapter XIII) of the Sirdh Land Revenue Act, 1967 or under Sections 7 and 8 of the Board of Revenue Act, 1957, broadly speaking shall be deemed to be a judicial order for all intents and purposes and, cannot be deemed to f be an act or order of the officer of the Government as referred in Article 14 of the Limitation Act.
17. The words "judicial order" is defined in Black's Law Dictionary VIth Edition as "one which involves exercise of judicial discretion and affects a final result of litigation". Again words "judicial proceedings" are defined as "A proceedings wherein there are parties, who have opportunity to be heard, and wherein the Tribunal proceeds either to a determination of facts upon evidence or of law upon proved or conceded facts".
18. In an unreported judgment in CP No. 270/2001 a Division Bench of this Court while examining the "Judicial nature" of the functions performed by "authority" or the "Commissioner" under the Payment of Wages Act and the Workmen's Compensation Act and while relying upon a recent pronouncement of the Hon'ble Supreme Court in Ghu/am Mustafa's case (Civil Petitions Nos. 356-K and 359-K of 2001, decided on 18.2.2001) observed that there are four requisites for a forum to be characterized as judicial;-
(i) Presentation of a case by a party;
(ii) Ascertaining facts by means of evidence; (i.e) Submission of legal arguments if dispute involve a question of law; and
(iv) Pronouncement of decision which disposes of the whole matter by finding of facts and application of law to facts as found.
It was concluded with reference to Philips Electrical Industries of Pakistan v. Pakistan and others (SBLR 2001 Kar. 760) that the powers of the authority under the Payment of Wages Act are judicial in nature and the authority under the Payment of Wages Act or the "Commissioner" under the Workman Compensation Act can be broadly specified as "judicial".
19. Applying the test referred to above in order to determine the nature of an order being "judicial" or otherwise, passed by an appellate or revisional authority under Sindh Land Revenue Act, 1967 and the procedure as laid down in Land Revenue Rules, 1968 framed by the Board of Revenue with the prior approval of the Government and in case of rules under Section 170 of the said Act with the concurrence of the High Court, I am of the considered view that an order passed by a Revenue Officer under Chapter XIII of the Sindh Land Revenue Act, 1967 and under Sections 7 and 8 of the Board of Revenue Act, 1957 can be broadly specified to be a "judicial order".
The view taken by the learned first Appellate Court is therefore, not based on correct appreciation of the law and facts involved in the suit hence liable to be set aside. Since the learned first Appellate Court has not recorded its finding on all the issues or the points for determination as framed by it, it is not possible for this Court in the absence of the findings on said issues to decide the suit as a whole completely and effectually et this revisional stage and as such it is necessary to send back to case to the learned first Appellate Court to decide the matter afresh on merit on all the issues (except the issue pertaining to 'limitation which already stands decided by this Court holding the suit to be within time) after providing a reasonable opportunity of hearing to the parties.
Before parting with this judgment, I would also like to observe that the observation/remarks recorded by the learned first Appellate Court against the learned Senior Civil Judge Thatta (Mr, Iqbal Ahmed Khawaja) in the last paragraph of his judgment are uncalled for and unjustified.
Resultantly this revision is allowed, the appeal shall be deemed to be pending before the learned District Judge, Thatta, who .Shall decide the same either himself or assign it to any other Additional District Judge except the learned Judge who decided the same while passing the impugned order for decision as per law.
However, there shall be no order as to costs. .