Through this revision petition petitioners have challenged the judgment and decree dated 16-6- 1999 passed by District Judge, Sheikhupura vide which he set aside the judgment dated 18-10-1997 passed by Mr. Muhammad Akhtar Bahadur, Civil Judge 1 Class, Sheikhupura in terms of which said Civil Judge had decreed the suit filed by the petitioners/plaintiffs.
2. Facts leading to this petition are that the petitioners filed a suit for declaration with permanent injunction to the effect that they were owners in possession of the suit-- land, that the land was allotted to one Karam Din under the Ejected Tenants Scheme, the latter died in 1970, that by operation of law the land devolved on the petitioners, as nephews of the allottee because the allottee had no issue, that the land had wrongly been allotted to respondent No.4, that the order of Collector dated 6-11-1972 vide which he upheld the allotment order passed in favour of respondent No.4, and rejected petitioners/plaintiffs' claim is not sustainable in law. The order of the Additional Commissioner (Revenue) dated 28-11-1973 which upheld the afore-referred order of the Collector was also assailed in the suit. The suit was contested. In the written statement filed by the respondents/ plaintiffs were not the legal heirs of Karam Din, that the land was resumed in favour of the State after the death of Karam Din and it was allotted to the respondent as a grant which order was challenged by the petitioners/plaintiffs before the Collector which upheld the appeal filed by the petitioners before the Additional Commissioner, the case was remanded and the Collector vide the order dated 6-11-1972 decided the matter in respondent's favour was affirmed in appeal.
3. In terms of the divergent pleas following issues were framed:--st (1)Whether the suit is not maintainable in its present form? OPD (1-A)Whether this Court has no jurisdiction to entertain this case? OPD-4 (2)Whether the plaintiffs are estopped by their words and conduct to file this suit? OPD (3)Whether the suit is hit by principle of res judicata in view of the preliminary Objection No.3 of the written statement? OPD (4)Whether the plaintiffs have not come to the Court with clean hands and as such not entitled to the discretionary relief? OPD (5)Whether the suit is times barred? OPD.
(6)Whether the plaintiffs have no cause of action? OPD (7)Whether the suit is liable to be dismissed under Order VII, rule 11, C.P.C.? OPD (8)Whether the impugned orders dated 6-11-1972 and 28-11-1978 and proceedings on impugned application dated 7-11-1991 initiated by defendant No.3 are against law and facts, without authority, void and as such ineffective qua the rights of the plaintiffs and if so, whether the plaintiffs prayed for one the grounds mentioned in the plaint? OPP (9)Relief.
4. During the trial the material evidence produced by the petitioners/plaintiffs was as under: -- (i)The oral evidence produced was Fazal P.W.1, Ahmad Ali, P.W.2 and Hakam Ali, P.W.3.
(ii)Documentary evidence produced was Exh. P.1.
Copy of Jamabandi for the year 1988/89.
Exh. P.2 copy of Jamabandi for the year 1985/86.
Exh.P.3 copy of Jamabandi for the year 1980/81.
Exh.P.4 copy of Jamabandi for the year 1968/69.
Exh.P.5 copy of Jamabandi for the year 1984/85.
Exh. P.6 copy of Khasra Girdawari from the year 1990 to 1994.
The evidence produced by the respondents/defendants was as under:-- Muhammad Amin (D.W.1), Abdul Rashid (D.W.2), Muhammad Razzaq (D.W.3) attorney of respondent No.4, Ghulam Hussain (D.W.4) Office of Deputy Commissioner, Sheikhupura.
5. The learned trial Court on the basis of its findings on Issues Nos.1 to 8 decreed the suit. This judgment and decree was set aside by the learned District Judge mainly on the ground that the petitioners/plaintiffs had challenged the allotment made in favour of respondent No.4 in the revenue hierarchy and they failed at all forums i.e. Before the District Collector, Additional Commissioner Revenue and the Member, Board of Revenue. It was further found by the District Judge that the order of the District Collector dated 6-11-1972 Exh.D.2 had rightly decided the question of entitlement of the petitioners/ plaintiffs and the said order having been affirmed by all Tribunals of competent jurisdiction no interference was called for by the Civil Court.
6. Learned counsel for the petitioners in support of this petition made following submissions:-- (i)That Karam Din deceased was allottee of the suit-land under the Ejected Tenants Scheme who died in 1970 and petitioners are in possession of the suit-land since then. The said Karam Din had no issue and the land stood devolved on the petitioners being his real nephews. The same therefore, was not available for allotment to respondent/defendant No.4.
(ii)that the learned District Judge has failed to appreciate that the suit-land which stood devolved on the petitioners as legal heirs of Karam Din could not have been resumed without prior notice under section 24 of the Colonization of Government Lands Act, 1912; (i.e)that since the land was resumed and allotted without any prior notice to the petitioners the subsequent hearing before the Collector and the Additional Commissioner Revenue would not cure the illegality; (iv)that the trial Court has rightly declared the petitioners to be nephews and therefore, legal heirs of Karam Din which finding has been upset by the learned District Judge through a complete misreading of material evidence on record.
7. In support of submissions made learned counsel relied on Fateh Muhammad v. Mushtaq Ahmad and 9 others 1981 SCMR 1061; Capt. Shah Sarwar and others v. Muhammad Aslam etc. 1981 SCMR 911; Yousaf Ali v. Muhammad Aslam Zia PLD 1958 SC (Pak.) 104; Fazal Dad and 2 others v. Member, Board of Revenue (Colonies), West Pakistan etc. PLD 1977 Lahore 264; Mir Haji Khan etc. v. Mir Aijaz Ali etc. PLD 1981 SC 302 and Madan Gopal etc. v. Maran Bepari etc. PLD 1969 SC 617.
8. Learned counsel for the respondent on the other hand defended the impugned judgment and contended as under:-- (i)That the suit-land was allottee to Mst. Nawab Bibi respondent/defendant No.4 as a reward/Government grant as her son as Chowkidar died on duty. The land was available for allotment because Karam Din allottee died in 1970 and land was resumed in favour of the Provincial Government on 3-8-1971; (ii)that the issue has been finally resolved by the Tribunals of competent jurisdiction in revenue hierarchy and no interference is warranted by the Civil Court; (i.e)that petitioners/plaintiffs failed to produce any evidence admissible in law to prove that they were nephews or heirs of Karam Din deceased; (iv)that the Collector vide his order dated 6-11-1972 having examined the entire record came to conclusion that petitioners who were not nephews of Karam Din which finding has been upset by the learned District Judge through a complete misreading of material evidence on record.
7. In support of submissions made learned counsel relied on Fateh Muhammad v. Mushtaq Ahmad and 9 others 1981 SCMR 1061; Capt. Shah Sarwar and others v. Muhammad Aslam etc. 1981 SCMR 911; Yousaf Ali v. Muhammad Aslam Zia PLD 1958 SC (Pak.) 104; Fazal Dad and 2 others v. Member, Board of Revenue (Colonies), West Pakistan etc. PLD 1977 Lahore 264; Mir Haji Khan etc. v. Mir Aijaz Ali etc. PLD 1981 SC 302 and Madan Gopal etc. v. Maran Bepari etc. PLD 1969 SC 617.
8. Learned counsel for the respondent on the other hand defended the impugned judgment and contended as under:-- (i)That the suit-land was allotted to Mst. Nawab Bibi respondent/defendant No.4 as a reward/Government grant as her son as Chowkidar died on duty. The land was available for allotment because Karam Din allottee died in 1970 and land was resumed in favour of the Provincial Government on 3-8-1971; (ii)that the issue has been finally resolved by the Tribunals of competent jurisdiction in revenue hierarchy and no interference is warranted by the Civil Court; (i.e)that petitioners/plaintiffs failed to produce any evidence admissible in law to prove that they were nephews or heirs of Karam Din deceased; (iv)that the Collector vide his order dated 6-11-1972 having examined the entire record came to conclusion that petitioners who were not nephews of Karam Din; (v)that the land was available for allotment and that it had rightly been allotted to Mst. Nawab Bibi.
This order was affirmed by the Additional Commissioner Revenue which had not been challenged attained finality.
9. I have heard learned counsel for the parties and given anxious consideration to the submissions made at the bar and perused the evidence and have gone through the precedent case-law relied upon.
10. There is no cavil to the preposition that the suit-land was allotted to Karam Din under rejected tenants scheme and after his death it was a heritable tenancy in terms of the said scheme.
However, the question for consideration is whether petitioners are nephews of the said Karam Din or not. To prove their right of inheritance and their relationship with the said Karam Din, petitioners/plaintiffs mainly produced two witnesses namely Fazal P.W.1 and Ahmad Ali P.W.2. No pedigree-table was produced. Both the afore-referred witnesses are not related to the parties.
Although P.W.1 claims to be close enough to know about their inter se relationship, yet in cross- examination he could not tell as to when Karam Din died and what was his age at that time. He was not even aware when asked as to whether the suit --land had already been allotted to Mst.
Nawab Bibi respondent/defendant No.4. Similarly P.W.2 Ahmad Ali is admittedly not Lumberdar of the area where Hakam Ali petitioner/plaintiff resides. He could not tell the name of the father of Hakam Ali petitioner/plaintiff but after a few questions he volunteered that his name was Allah Ditta but again could not tell how many sisters of Allah Ditta had. The issue of petitioner's relationship was considered by the Collector while passing the order dated 6-11-1972 in which proceedings admittedly petitioners participated. The Collector came to .The conclusion (Exh.D.2) as under:-- "Thirdly contrary to the claim of Hakim Ali that he had been cultivating the tenancy during the lifetime of Karam Din, the land was cultivated according to extract of Khasra Girdawari on the file for the years 1956-57 to 1962 by either Karam Din, himself or Wali son of Allah Ditta, caste Kumhar.
Besides in the Scrutiny Report of the Governor Inspection Team it is stated that allottee had no "' male issue and that the land was cultivated by his brother. On the 7 other hand, it is stated by Hakim Ali in his statement dated 7-9-1971 before the Additional Deputy Commissioner (Cons.) /Collector that his father Allah Ditta who is claimed to be brother of Karam Din allottee died in India.
If so the brother of Karim Din stated to be in cultivation of his tenancy cannot be b father of Hakim Ali. Consequently his claim to be nephew of Karam Din deceased fails. "
(One page of the afore-referred order was missing. A photocopy of the said order has been placed by the respondent's learned counsel which is being placed on record as mark (A)).
11. In the backdrop of the afore-referred evidence on record the petitioners/plaintiffs failed to establish that they were nephews of Karam Din deceased and were entitled to inheritance of lot in question.
12. Moreover even if the petitioners are nephews of Karam Din deceased/allottee, the land under the ejected tenant scheme could devolve on them as heirs if they fulfilled the condition. In terms of Memorandum No.4843/63-4276-C(G) III dated 30-11-1963 which stipulates the following pre-- conditions:-- (i)They did not cultivate any area during the lifetime of the original allottee; (ii)the family entirely lived on the allotted area; (i.e)no other land was acquired by them.
Neither in the plaint nor in the evidence led they have asserted that they fulfilled the afore-referred conditions.
13. No documentary evidence was produced to show that the petitioners/ plaintiffs were in possession of the suit-land at the time of the death of the original allottee. The Collector Sheikhupura in his detailed order dated 6-11-1972 had after a thorough examination of the Revenue Record given a finding to that effect that they were not in possession which finding was affirmed in appeal (Exh. D.2 and Exh.D.3). Before the suit-land was allotted to respondent No.4 (mother of Chowkidar who had died on duty) it was resumed in favour of the State and Exh.D.2 further indicates that the land at the time was in possession of Sher Muhammad son of Eisa. The Collector held as under:-- "First of all it is clear that the tenancy was resumed vide order of Collector dated 3-8-1971 as evident from page 121 of the file of one Sher Muhammad son of Eisa who had illegally occupied it. "
There is nothing in evidence to show that the afore-referred findings of fact are contrary to record.
The learned Civil Judge while decreeing the suit totally non-read this piece of evidence which judgment and decree, therefore, reflected material irregularity and had rightly been set aside by the learned District Judge.
14. There is yet another aspect of the matter. It is conceded before this Court that having failed before the Collector order (dated 6-11-1972) and Additional Commissioner order (dated 28-11-1973), the petitioners never challenged the afore-referred orders before the Board of Revenue. In these circumstances they could not have challenged the orders before the Civil Court without availing the remedy available to them in the revenue hierarchy. This is in line with the law laid down in Province of Punjab through District Collector Vehari v. Rana son of Sardar 1989 MLD 1009; Muhammad Aslam v. Member (Colonies), Board of Revenue, Punjab, Lahore etc. 1988 SCMR 1803 and Alam Sher through Legal Heirs v. Muhammad Sharif etc. 1998 SCMR 468. In 1989 MLD 1009 it was held at page 1011 as under:-- "6. Apart from it, the jurisdiction of Civil Court was barred for another reason too. Section 7 of the Colonization of Government Lands (Punjab) Act provided that the Land Revenue Act, 1967, applied to proceedings taken thereunder. It manifestly envisaged that orders passed by the Collector could have been challenged before the Commissioner and then before the Board of Revenue. The respondent did not prefer any appeal before the Commissioner or revision before the Board and straightaway came to the Civil Court. This he could not do as the basic rule is to always first exhaust the remedies provided by a Statute in any special hierarchy. In Sultan Ali Nangiana v. Nar Hussain AIR (36) 1949 Lahore 131); Central Government through Income Tax Officer, Dera Ismail Khan v. Sher Muhammad Khan and others PLD 1971 Peshawar 153 and Abdul Aziz v. Syed Arif Ali and 6 others PLD 1978 Lahore 441, civil suits brought without first availing remedies at various tiers of the special hierarchy were held incompetent. Thus, even if it be accepted that the order dated 8th of February, 1981, of the Collector was bad in law, the forum to get it corrected was the Commissioner and the Board of Revenue. Without having recourse to them in the first instance, the suit was barred."
"We accordingly, hold the view that Civil Court was not competent to interfere where the Revenue Courts/ Authorities had the exclusive jurisdiction. Even on merits, the petitioners had no case inasmuch as they violated the conditions on which they were given the disputed land. They did not cultivate the land in accordance with the terms and conditions of their allotments. The land had., thus, rightly been allotted to the respondent as Islamabad affectees because it became available by operation of law. In such a situation, the judgments of the Courts below are not open to exception."
For what has been discussed above, the order passed by the District Judge dismissing petitioners' /plaintiffs suit is neither illegal nor arbitrary nor against the evidence led, the same is therefore, not amenable to revisional jurisdiction of this Court. The revision petition having no merit is dismissed.