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Second Appeal No. 24 of 1964, decided on 20th April 1.965.

‑Land after disappearing by action of non‑tidal water re‑appearing gradually and imperceptibly to owners of adjoining terra firma --Such land re‑appearing suddenly or perceptibly belongs to its original owner‑Land grained from year to year for compensating loss occasioned by action of crater‑Cannot be identified as disappeared land‑Grant does not by itself create any right or title of grantee in such land.

Province of West Pakistan v. Haji Muhammad Juman P L D 1960 Kar. 908; Abdul Khaliq v. The State P L D 1963 Kar. 26; Coulson and Forbes on "Waters and Land Drainage" 6th Edn., p. 39; A. K. Rakhshit on "The Law of Alluvial Lands and Fishery in India, Pakistan and Burma", p. 305 ; Thawerdas Sirumal and another v. The Secretary of State for India 125 I C 193 (Sind); Faliz Lopez v. Muddun Mohan Thakoor and others 13 M I A 467 ; Maharaja Bahadur lieshava Prasad Singh v. The Secretary of State A I R 1927 P C 89 and The Secretary of State v. Sree Rajha Venkata Kumara Mahipathi Surya Rao Bahadur Guru, Maharajah. of Pithapur 182 I C 682 Mad. ref.

S. 100‑Jurisdiction of civil Courts‑Finding of fact given by Board of Revenue within its jurisdiction‑Cannot be questioned in civil Courts even if it is erroneous.

A. S. Pirzada for Appellant.

Muhammad Safdar for Respondents Nos. 1 and 2.

Dingomal N. Ramchandani for Respondents Nos. 3 to 13.

Dates of hearing : 21st October, 2nd, 4th and 5th November 1964.

This is a Second Appeal which has arisen from a suit which was instituted by the present appellant at Sukkur. The suit was dismissed by a First Class Sub‑Judge on the 10th of May 1962 and the First Appeal from the order of dismissal was also dismissed by the learned District Judge, Sukkur on the 30th September 1963. The plaintiff‑appellant has come in Second Appeal to this Court with the object of getting the judgments and decrees of both the lower Courts reversed.

2. The facts which form the background of this appeal briefly are that the appellant filed Suit No. 8 of 1961 against the Province of West Pakistan as defendant No. 1; the Deputy Collector, Rohri as defendant No. 2; and 11 other persons as defendants Nos. 3 to 13 for a declaration that the order of the Board of Revenue made in revision, setting aside the order of the Commissioner was improper, invalid and ultra vires and for an injunction restraining the defendants from interfering with the plaintiff‑appellant's possession of 118 acres of land. It was alleged in the plaint that the land was granted to the plaintiff/ appellant year after year in recognition of his Darya Khurdi right from 1938 till 1960‑61 (the year in which the suit was filed) and that defendants Nos. 3 to 13 had objected to that grant for the first time in 1954 when their right to do so had become barred by time. Moreover, according to the plaint, the objectors were not in possession of the land in dispute which was a part of Block No. 4‑A and had been shown by the plaint ill/appellant to be in his possession ever in the papers submitted by him tinder Martial Law Regulation No. 64.

3. The following issues were framed by the trial Court on the pleadings of the parties:

(1) Whether defendants 3 to 13 have any right over the land in suit

(2) Whether claim of defendants 3 to 13, if any, is time barred

(3) Whether the order of the Member of Board of Revenue is invalid and inoperative

(4) Whether defendants 3 to 13 have land in excess which has been resumed as per Martial Law Regulation No. 64 and hence they cannot legally retain the land in suit

(5) Whether the plaintiff has remained in undisputed posses sion and Mutasarfi of the land in suit since 1938 till today

(6) Whether the land in question was included in Block 4‑A and others of Deh Pacca Bindi Shahpur, and in sole possession of the plaintiff

(6‑A) Whether this Court has jurisdiction (6‑B) Whether the suit is maintainable according to law

(7) Whether the plaintiff is entitled to any relief

(8) What should the decree be

4. The trial Court decided issues Nos. 1, 2, 4, 5 and 6 as follows:‑--

"Therefore, my findings on issues Nos. 5 and 6 are in negative. The questions whether defendants 3 to 13 have any right over the land, that their claim is time‑barred, or that they have land in excess which has been resumed, do not arise since the property belongs to the Government."

He decided issues Nos. 3, 6‑A and 6‑B as under:‑

"Therefore, my finding is that both on facts and on law, the plaintiff cannot challenge the decision of the Board of Revenue, which is valid and operative. I further find that this Court has no jurisdiction, and consequently, the suit is not maintainable."

5. As a result of the above decision, the suit of the present appellant was dismissed. He, therefore, preferred an appeal, and supported it by contending in the first place that the trial Court was wrong in holding that the Civil Courts have no jurisdiction to entertain the suit, and in the second place that the Revenue Authorities including the Board of Revenue had no jurisdiction in terms of paragraph 27 of the Martial Law Regulation No. 64 to grant the land to the objectors (defendants Nos. 3 to 13), because the Deputy Land Commissioner, Sukkur had already allowed the appellant to retain the land.

6. The learned District Judge relied on the judgments in the Province of West Pakistan v. Haji Muhammad Juman (P L D 1960 Kar 908) and Abdul Khaliq v. The State (P L D 1963 Kar. 26) and held that Civil Courts have no jurisdiction to interfere with the decisions of the Revenue Authorities so long as they acted within the ambit of their lawful jurisdiction irrespective of whether their decisions were right or wrong. Secondly, he held that the Land Reform Officer could not be taken to have decided that the appellant was the owner of the land in dispute merely because he allowed him to retain the land. That officer was not concerned with the disputes relating to the title of private parties. Thirdly, he took the view that the scope of paragraph 27 of Martial Law Regulation No. 64 was so wide that if it barred the jurisdiction of the Revenue Authorities to examine the right of the plaintiff‑appellant to get the land then it would bar the jurisdiction of the Civil Courts also for doing so.

7. Mr. A. S. Pirzada has criticized the above views of the learned District Judge by contending‑

(i) that paragraph 27 of the Martial Law Regulation No. 64 barred the jurisdiction of the Revenue Authorities to reopen the question that was decided by the Land Reform Officer vide his order dated the 30th of June 1959 by which he had allowed the plaintiff-appellant to retain the entire land that was shown in the return submitted by him as his property and as in his possession.

(ii) the plaintiff/appellant was entitled by virtue of Standing Order No. 10 of the Revenue Department and Government Resolution No. 3462/29 dated 15‑10‑35 to get the land annually allotted to himself in recognition of his Darya Khurdi right; therefore, the Revenue Authorities had no jurisdiction to dispose of the land contrarily. This declaration involved the determination of the title of the plaintiff-appellant to get the land and the determination of the limits of the powers of the Revenue Courts or Revenue Authorities; therefore, the Civil Courts had the jurisdiction to give the declaration.

(iii) The Board of Revenue has missed the essential point which is the determination of the title of the plaintiff/appellant and has erroneously allowed its mind to be influenced by con siderations or authorised or unauthorised possession of the land and by the entries found in Charakh‑Shumari which are not material for determining the title of the plaintiff/appellant. If this aspect of the case is kept in mind then there can be no doubt that the Civil Courts have the jurisdiction to entertain the suit of the plaintiff/appellant, and that sections 4 and 5 of the Sind Revenue Jurisdiction Act, 1876 too do not come in the way.

8. The above contentions of Mr. A. S. Pirzada are founded on two essential arguments, one of which is contained in the contention numbered (i) and the other in the contentions numbered (ii) and (iii). They have been underlined by me to make them distinct. The rest of the material in (i), (ff) and (iii) is secondary and unimportant.

9. In order to understand the first contention, which is that the jurisdiction of the Revenue Authorities was barred by virtue of paragraph 27 of the Martial Law Regulation No. 64 to reopen the decision of the Deputy Land Commissioner, it is necessary to state a few more relevant facts. They are that the appellant was in possession of the land in dispute at the time of making a declaration under Martial Law Regulation No. 64 by virtue of the order of the Revenue Commissioner dated the 27th of August 1957. That order had set aside the order of the Deputy Collector dated the 17th of May 1954 by which the Deputy Collector had allotted the land to respondents Nos. 3 to 13. The appellant, therefore, made a declaration under the Regulation that he was in possession of the land. The Deputy

Land Commissioner accepted that declaration on the 30th of June 1959, as follows:‑

"I have satisfied myself about the veracity of the information furnished by the declarant and the extent of the area owned and possessed by him is such that he does not attract any of the provisions of the Martial Law Regulation No. 64. I have, therefore, allowed him to retain the entire area owned and possessed by him."

10. There is nothing in the above order to warrant the inference that the appellant was declared by the Deputy Land Commissioner to be the owner of the land in dispute. The appellant himself has not claimed to be the owner of the land in the suit from which this appeal has arisen. He has simply alleged in the plaint that defendant (present respondents) Nos. 3 to 13 could not object to the grant or allotment because their claim was barred by time, the land was included in Block No. 4‑A, the plaintiff had shown the land to be in his possession while filing up the form which was submitted by him under Martial Law Regulation No. 64, and that the yearly grant or allotment was made to him in recognition of his Darya Khurdi right. This yearly recognition of his Darya Khurdi right was, accorded by the Revenue Department, and it happened in the Department itself that, on an application for revision, that the Board of Revenue reversed the order of the Revenue Commissioner which was in favour of the present appellant and restored the order of the Deputy Collector as follows:‑---

"The respondent filed an appeal before the Commissioner whose order dated 27th August 1957, is irregular, as it has been passed on his behalf by some other Officer. The Commissioner relied on the Charakh‑Shumari, which as I have already stated was right rejected by the Collector. The possession of the respondent is shown in the Charakh‑Shumari In the first place "unauthorised" possession could not give an) legal right. Secondly, Charakh‑Shumari does not appear to be reliable. That being so, the order of the Commissioner allowing the appeal of the respondent cannot be sustained.

The result is that the appeal is allowed and the order of the Collector declaring that the disputed area falls to the share of the appellant is restored."

11. There is no reference in the order of the Deputy Collector, the Commissioner, the Board of Revenue and even in the plaint to any claim of the appellant to the ownership of the disputed land. In these circumstances the appellant's counsel cannot rightly contend that his client is or has become the owner of the land in dispute or that he has been recognised to be its owner by the Deputy Land Commissioner. That officer has simply observed:

"I have, therefore, allowed him to retain the entire area owned and possessed by him."

This means that he merely allowed the present appellant to retain the entire area which was shown in his return, irrespective of whether it was owned by him or was possessed by him. His order cannot be said to be a determination of the title of the appellant, much less a determination adversely affecting the claims, contentions or objection; of respondents Nos. 3 to 13 who were neither impleaded in those proceedings nor were represented before the Deputy Land Commissioner. Thus the contention that the Revenue Authorities had no jurisdiction to reopen the question of title on the ground that the title had been determined by the Deputy Land Commissioner is erroneous on facts and therefore irrelevant to the precise background of this appeal.

12. Mr. A. S. Pirzada attempted to raise the question of the title of the appellant to the disputed land by urging that the appellant could claim that the land be always allotted to him and never to respondents Nos. 3 to 13, because it was his land which had submerged in water but had re‑appeared. The Revenue Authorities were, according to counsel, bound to grant the land to the appellant, and if they failed to recognise his right, the Civil Courts had the jurisdiction to correct the error, because it amounted to a wrong determination of the title of the appellant. Let me note here once again that the appellant does not claim to be the owner of the land or to be permanently entitled to it, but claims to enjoy the right of yearly grant or allotment of the land to himself to the exclusion of respondents Nos. 3 to 13.

13. There appears to be a self‑contradiction in the claim itself that the appellant is entitled to retain the land perpetually by way of yearly grants, If he were entitled to retain it permanently, then there would not have been any need for the land to be granted to him annually. The very condition of getting the land granted to himself every year is inconsistent with the claim of its perpetual retention.

14. There is no statute, applicable to the former area of Sind, containing alluvion law. Perhaps the only statute, that was enacted before Partition on this subject was the Bengal Alluvion and Diluvion Regulation, 1825 but it was never extended to Sind, where the rights and liabilities of riparian proprietors have been governed by the provisions contained in the Land Revenue Code, and the Rules, Standing Orders and Circulars made or issued by the Government. They are generally founded on English Common Law.

15. The relevant principle of that law is that the land which disappears by the action of non‑tidal water, and then re‑appears gradually and imperceptibly belongs to the owners of the adjoining terra firma. If it re‑appears suddenly o perceptibly, then it belongs to its original owner. This principle has been stated by Coulson and Forbes on Waters and Land Drainage in the 6th Edition of that book, at page 39 as follows:‑

"Land formed by alluvion or gradual and imperceptible and accretion from the sea, and land gained by dereliction, or the gradual and imperceptible retreat of the sea, belongs to the owner of the adjoining terra firma. Where the increase is sudden or perceptible, the land gained still belongs to its original owner. The word imperceptible' means in progress, and not in result that is to say, where the increase cannot be observed as actually going on, though a visible increase is observable every year,"

The above principle has been stated by A. K. Rakhshit in his book on the Law of Alluvial Lands, and Fishery in India, Pakistan and Burma, at page 305 for purposes of Sind as follows:‑

"Lands washed away and afterwards reformed on an old site which can clearly be recognised, remain the property of the original owner. This is a general principle of law as well a the law applicable in Sind under Special Circular No. 23 of the Commissioner in Sind."

The above proposition is supported by the case of Thawerdas Sirumal and another v. The Secretary of State for India (125 I C 193 Sind); Faliz Lopez v. Muddun Mohan Thakoor and others (13 M I A 467) and Maharaja Bahadur Keshava Prasad Singh v. The Secretary of State (AIR 1927 P C 89). The same principle is further elucidated by the learned author in the following sentence, which is based on The Secretary of State v, Sree Ralha Venkata Kumara the Mahipathi Surya Rao Bahadur Garu. Maharajah of Pithapur (183 I C 682 Mad,) and appears at page 635 of the book:--

"A title founded on the original ownership and identification of site is to be confined prima facie to the reformation on that site."

16. In the present case the appellant has not contended that the land in dispute belongs to him. If it could be identified to be the same land that had disappeared by the action of water, then he could claim to be its owner, and exercise his proprietory right on it without depending on its annual grant or allotment. The fact that he depends on its annual grant to himself is a patent indication of the absence of his title to the land. His claim that it should be annually granted to him means that the loss of his land occasioned by the action of water, needs to be equitably considered by the Authorities for compensating it by annually granting or allotting to him the land which has re appeared; but cannot be identified to be the same land that had disappeared. The repeated grant of the land to the appellant does not by itself create any right or title of the appellant in the land, or create any claim that it should be perpetually granted to him year after year. In this respect, the following part of paragraph 1 of Standing Order No. 10, on which counsel for the appellant has relied, is significant: -----

"The fact of any land having been repeatedly held on one year's tenure or on a lease for a longer period does not, of itself, confer any right over its permanent occupation, on the expiry of the term covered by the tenure or the lease."

There is nothing in Chapter IV of the Bombay Land Revenue Code or the Sind Revenue Code and the Rules made thereunder to be helpful to the appellant in this case. This is tile reason why the appellant did not rely on any of these provisions or on Standing Order No. 10 or on any Government Resolution during the proceedings before the Deputy Collector, the Commissioner and the Board of Revenue. In these proceedings also, learned counsel for the appellant has not relied on any particular section or rule of the Revenue Codes, nor has he pointed out any part of the said Government Resolution as helpful to his client.

17. The relevant portions of the orders made by the Commissioner and the Board of Revenue which have been reproduced above, leave no doubt that no question as to the title of the appellant was before the Department, or was considered and determined by the Revenue Authorities. On the contrary, the allegation of the appellant that the disputed land is situated in Block No. 4‑A, and the decision of the Board of Revenue that it is not situated in that block, shows that the disputed land is not only not identifiable as the land of the appellant, but that it is not situated at the place which had been annually granted to the appellant. The Board of Revenue has observed that the possession of the appellant was unauthorised. This is a finding of fact, and cannot be questioned in Civil Courts, even if it isle erroneous, because it was clearly within the jurisdiction of the Board to give that finding.

18. From the above view of the appeal, it follows that it cannot be accepted. It took a good deal of time at its hearing, and gave me some anxious moments before I felt that my ideas relating to the relevant principles of law, and to their application to the facts of this appeal had become clear. The above discussion would disclose that apart from the lengthy arguments of learned counsel for the appellant containing references to several principles, whose irrelevancy had to be discovered, there was little substance in this appeal. I accordingly dismiss the appeal with costs.

S.Q. Appeal dismissed.

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