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Regular Appeal No. 169 of 1979, decided on 3rd October 1979.

-- S. 115 and O. XXXIX, r. 1--Concurrent findings of fact of two Courts below regarding respondent being in possession of suit land- Courts not acting illegally or with material irregularity-Decision of two Courts below issuing temporary injunction, held, quite legal and in exercise of jurisdiction vested in them-Revision application dismissed. [Injunction-Findings of fact].

Haji Mohammed Ibrahim v. Fateh Muhammad and others P L D 1960 Lah. 1106 and Secretary of State v. Mask & Co. A I R 1940 P.C 105 ref.

Ansar Hussain for Appellant.

Samiuddin Sani of S. M. Raze & Co. for Respondents.

Date of hearing : 29th September 1979.

In March 1974, respondent No. 1, Maher Ali Shah, was granted as landless Hari, 13.15 acres from unassessed No. 174, Deh Thariri Hajran, Taluka Warah, District Larkana, by the Colonisation Officer, Sukkur Barrage. Possession of the land granted was also given to Maher Ali Shah. The two applicants---Muhammad Saleh and Hidoyatullah, preferred an appeal against this grant, to the Additional Commissioner, Sukkur Division, who by order dated December 27, 1975, dismissed the appeal. The two applicants filed revision application before Member, Board of revenue, Sind, against the order of the Additional Commissioner, Sukkur. On the date of hearing before the Member, Board of Revenue. Maher Ali Shah respondent was absent. The Member heard the Revision Application ex parte, and by order dated January 2, 1978, set aside the order of Additional Commissioner, and grunted the disputed land to the two applicants in equal shares.

2. By notice dated June 21, 1978, the Mukhtarkar of Warah asked respondent Maher Ali Shah to hand over possession of the disputed land to the two applicants, failing which coercive methods would betaken against him.

3. On June 26, 1978, respondent Maher Ali Shah brought Suit No. 218 of 1978 before the Senior Civil Judge, Larkana, for declaration that the order of the Member, Board of Revenue, cancelling the grant was illegal, void and without jurisdiction, and for permanent injunction restraining the two applicants and other defendants from taking forcible possession of the land. Respondent Maher All Shah also applied. for temporary injunction 'to restrain defendants from interfering with his possession of the suit land.

The Senior Civil Judge, Larkana, by his order dated February 11, 1979, issued temporary injunction, sine notice Of the "Mukhtiarkar to respondent Maher Ali Shah clearly showed latter was in possession of the suit land. In appeal by the two applicants the Additional District Judge, Larkana, by order dated June 2, 1979, upheld the order of the Senior Civil Judge.

5. This is a revision application fled by the two applicants against the order of the Additional District Judge.

6. Counsel for the applicants has urged that jurisdiction of the Civil Courts is barred by virtue of section 36 of the Colonization of the Govern ment Land (Punjab) Act, 1912,'as applicable to Sind, and subsection (1) of section 172 of the Sind Land Revenue Act, 1967, in that the order of the Member, Board of Revenue Sind can not questioned in civil Court But to spite of these provisions, the civil Courts are entitled to see whether authority concerned acted in compliance with law. Haji h1uhammad Ibrahim v. Fateh Muhammad and others (P L D 1960 Lah. 1106) and Secretary of Stato v. Vnsk & Co. (AIR 1940 P C 105). Here respondent Maher Ali Shah has brought this suit that order of Member. Board of Revenue, is illegal because it was passed without hearing him anti without notice having been served on him. Under section 164 of the Sind Land Revenue Act, 1967, no order shall be passed in Revision reversing or modifying any order of a subordinate Revenue Officer affecting any person without giving such person opportunity of being heard. Since it is alleged that the above provision of law is not complied with, civil Court has got jurisdiction to go into that question.

7. In plaint para. 9, it is averred that order of the Member, Board of Revenue was fraudulently obtained because (i) some bogus person appeared to have been served with a notice of Revision Petition (ii) it was misrepre sented to the Member, Board of Revenue, that respondent Maher Ali Shah was 2:amiadar owning about SV acres, whereas he is only a landless Hari; (iii) it was misrepresented to the Member, Board of Revenue, that respondent No. I lives 4 miles away from suit land, though in fact he lives only J mile away from there; (iv) it was concealed from the Member that Maher Ali Shah was a Hari in Deh Thriri Hajran where the suit land is situated. Plaintiff respondent No. 1 is, therefore, entitled to show under section 44 of the Evidence Act, that the order of the Member, Board of Revenue was obtained by fraud.

8. There is concurrent finding of fact of the two Courts below that) respondent Maher Ali Shah is in possession of the suit land. The Courts have not acted illegally or with material irregularity. The decision of the two Courts below issuing temporary injunction is quite legal and in exercise of, jurisdiction vested in them. Revision application is, therefore, dismissed with costs.

M. Y. M. Appeal dismissed.

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