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Second Appeal No.317 of 1976, decided on 31st March, 1985.

‑‑‑S.100‑‑Appellant jurisdiction, exercise of‑‑Findings of fact‑‑Points raised before High Court in second appeal already raised and debated in Courts below‑‑High Court, held, would not permit party to raise those very points which had been duly discussed and decided by Courts below unless such finding suffers from apparent defect.

‑‑‑Ss.37 a 38‑‑Lands assigned /reserved as village‑‑Mode of de- assigning‑‑Land assigned or reserved as village could not be used without sanction of Collector‑‑De‑assigning of village by Revenue Officer without sanction of Collector, held, would be illegal, without jurisdiction and nullity in eye of law.

Fazle Ghani for Appellant.

Hassan Inamullah for Respondents.

Dates of hearing: 22nd April, 1984 and 31st March, 1985.

This appeal against the judgment and decree of the learned District Judge, Badin, dated the 1st April, 1976, dismissing the appellant's appeal against the judgment and decree of the Second Senior Civil Judge, Hyderabad; dated the 20th September, 1974, whereby the respondent No.1's suit for a declaration and injunction that the village is existing and inhabited and its assignment as abondoned village and then disposal of it as agricultural land by respondent No.2 is without lawful authority and jurisdiction and to restrain the respondent No.2 by way of permanent injunction not to interfere with the possession of respondent No.1 and other village's.

The facts which give rise to this appeal are that the village Khanghar of Deh Taib Sahito, Taluka Tando Bago, District Hyderabad as existing village inhabited by the person shown in schedule of plaint which was sanctioned by Government in 1886/87, having been earmarked as such in Deh map and set apart for public purpose in Government record. The said village, though inhabited has been treated as deserted and has been disposed of as agricultural land by respondent No.2 and 3 to the appellant and Khanzado Saeed Jaffer which came to the knowledge of the respondent No.1 and his co‑villagers when the appellant and Khanzado Saeed Jaffar brought the tractors on the site to demolish the house of the villagers on 4‑6‑1969. According to sections 37 and 38 of Land Revenue Code, 1879 and Standing Order 10, the Respondents Nos.2 and 3 have no power to dis-assign and dispose of the existing inhabited village as agricultural land. The respondent No.1 filed suit No.159 of 1969 in the Court of Second Senior Civil Judge for declaration and injunction. The appellant and respondents Nos.2 and 3 filed their written statement. They denied the case of the respondent No.1 and have averred that the said village is and was uninhabited and the respondents 2 and 3 have legally exercised their powers to disassign the said village and that it was disposed to respondent No.1. They raised additional pleas that suit is barred by section 11 of Revenue Jurisdiction Act.

On the pleadings, the following issues were framed by the trial Court: ‑

(1) Whether the suit is not maintainable

(2) Whether the suit is insufficiently stamped

(3) Whether the suit is barred under section 11 of the Sind Revenue Jurisdiction Act

(4) Whether the suit is barred under section 74 of the A.D.C. Ordinance, 1953

(5) Whether the suit is barred under section 91, C.P.C.

(6) Whether this Court has no jurisdiction

(7) Whether the suit is barred by law of limitation

(8) Whether village Khanghar, is existing and inhabitative village

(9) Whether this assignment as an abondoned village of village Kanghar and its disposal as agricultural land by defendants Nos.1 and 2 is ultra vires, unlawful and without: jurisdiction

(10) Whether the plaintiff is entitled to any relief

(11) What should the decree be

The respondent No.1 examined himself. The appellant examined Rehmat Ali, Muhammad Uris, Ghulam Rasool and Misri son of Ahmed.

The learned Second Senior Civil Judge on the basis of the evidence produced by the parties and taking into consideration the arguments advanced by the learned counsel for the parties, decide issues 8 and 9 in the affirmative and issues 1 and 7 in the nagative and decreed the suit, vide his judgment and decree, dated 31‑7‑1974.

The appellant being aggrieved by judgment and decree, dated 31‑7‑1974, of the learned Second Senior Civil Judge, filed Civil Appeal No.20 of 1975 in the Court of District Judge, Hyderabad which ultimately transferred to the Court of District Judge, Badin. The learned District Judge, Badin, by his judgment and decree, dated 1‑4‑1976 dismissed the appeal and affirmed the judgment and decree of the learned second Senior Civil Judge, for the reasons given in the said judgment.

The appellant abovenamed, being aggrieved by the judgment and decree, dated 1‑4‑1976 has preferred this Second Appeal on the grounds mentioned in the Memo. of Appeal.

"The question which falls for determination is:‑---

Whether the Revenue Officer was competent to order dis-assignment of a village from 'head village' site to 'head agricultural."

The learned Senior Civil Judge as well as the learned District Judge has recorded well‑reasoned out judgments and I do not find any reason to disturb the finding on the points which have been raised before me and had been taken and debated in the Courts below. It had repeatedly been emphasised that the High Courts would not permit a party to raise those very points, which have been duly discussed and decided by the Courts below unless such finding suffers from any apparent defect.

In this case the learned District Judge has applied his mind to the facts of the case and has come to the conclusion, and in my view very rightly, that the learned Senior Civil Judge has correctly recorded a finding that the Revenue Officer acted illegally and his power by invoking provision of section 38 of the said Code.

The provision of Land Revenue Code and Standing Order X which are relevant for the purpose are sections 8‑A and 38 of the said Code and part 2, item No.4, clause B of Standing Order No.10.

"8‑A Notwithstanding anything contained in section 8, the Provincial Government may in any District appoint an Additional Collector. Such additional Collector shall be subordinate to the (Revenue Commissioner) and shall, throughout the district or in such part or parts thereof as the Provincial Government may direct, exercise all or any of the powers and discharge all or any of the duties conferred and imposed upon the Collector by this Act or any other law for the time being in force, as the Provincial Government may direct.

Subject to the general orders of (the Provincial Government), it shall be lawful for survey officers whilst survey operations are proceedings under Chapter VIII * * *, and any other time for the (Collector), to set apart lands the (property of the Crown for the purposes of the Province) and not in the lawful occupation of any person or aggregate of persons, in unalienated villages or unalienated portions of villages, for free pasturage for the village cattle, for forest reserves, or for any other public or municipal purpose; and lands assigned specially for any such purpose shall not be otherwise (used) without the sanction of the (Collector) and in the disposal of land under section 37 due regard shall be had to all such special assignments."

Section 38 provides that lands assigned or reserved as a village, then it will not be used without sanction of the Collector. This means that a sanctioned village can be disassigned only with the sanction of the collector or the officer competent to exercise the powers of collectors under the Land Revenue Code. It is not disputed that the Revenue Officer is not a Collector under Land Revenue Code. Learned counsel for the appellant has placed reliance on Notification, dated 16‑4‑1959 purporting to invest the Revenue Officer Barrage with the power of a Collector. But this notification shows that the Revenue Officer shall act as a Collector only for the related purposes of exercising powers which have been noted down in the schedule to the notification. The schedule says that such powers which can be exercised by the Revenue Officer will be only under section 8‑A of the Code with regard to disposal of land and matters connected therewith. The schedule is absolutely silent about the powers of dis-assignment under section 38 of the Code. The notification shows that the Revenue Officer has not been invested with the power of a Collector except in cases of disposal of law under section 8‑A of the Code. I am of the view that the learned Courts below rightly, held, that the order of the Revenue Officer dis-assigning the disputed village was illegal, without jurisdiction and nullity in the eyes of law.

The net result of the above discussion is that the Second Appeal has no merit and is, therefore, dismissed with no orders as to costs.

A. A Appeal dismissed.

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