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Civil Appeal No. 83 of 1973, decided on 21st January, 1986.

‑‑‑S. 172(1)‑‑Civil Procedure Code (V of 1908), Ss. 4, 5(2) & 9‑ Jurisdiction of civil Court‑‑Grant of barrage land‑‑Cancellation of grant due to non‑payment of instalments, and imposing of remokal fine by Colonization Officer‑‑Civil Court, held, had no jurisdiction to entertain suit against order of Colonization 0t icer.‑‑[Jurisdiction].

Province of West Pakistan v. Haji Muhammad Juman and another P L D 1960 (W.P.) Kar. 908 and Abdul Ghafar and others v. Government of West Pakistan and others P L D 1963 Kar. 215 rel.

Syed Nazir Hassan v . Settlement Commissioner, Lyallpur P L D 1974 Lah. 434 and Mian Muhammmad Latif v. Province of West Pakistan and another P L D 1970 S C 180 ref.

‑‑‑S. 172(1)‑‑Revenue Officer's Circular No.11893, dated 2nd November, 1946, Standing Order No. 10‑A‑‑Grant of barrage land‑‑Cancellation of allotment of land due to non‑payment of instalments‑‑Notice‑‑Cancellation, held, would be automatic and no notice before cancellation would be necessary.

Fateh Khan v. Syed Akbar Shah P L D 1985 Rev. 110 rel.

‑‑‑S. 96‑‑West Pakistan Land Revenue Act (XVII of 1967), 5.172(1)‑ Grant of barrage land‑‑Notice for cancellation of allotment‑‑Appellant, whose land was cancelled due to non‑payment of instalments, admitting before Trial Court that he was personally informed by Barrage Mukhtiarkar about cancellation of grant and that he did not deposit further instalments for reason that some money of his father was lying with Government unutilized in connection with grant of some other land which had to be adjusted against deposit of instalments as agreed by Barrage Mukhtiarkar in his meeting with him and that he filed appeal against imposition of remokal fine on him before Additional Commissioner‑‑Appellant in such circumstances, held, could have no grievance at all that he had no notice or knowledge about cancellation of grant

‑‑‑S. 172‑‑Civil Procedure Code (V of 1908), S. 96‑‑Grant of barrage land‑‑Suit against order of cancellation‑‑Appellant whose land cancelled having knowledge of cancellation of grant and action in respect thereof taken by Revenue Authorities in accordance with law and without jurisdictional defect‑‑Remedies available in that set up had been availed by appellant‑‑Filing of suit before trial Court, held, not competent.

‑‑S. 172(1)‑‑Civil Procedure Code (V of 1908), S.96‑‑Grant of Barrage land‑‑Cancellation due to non‑payment of instalments‑‑Appellant's revision against order of cancellation as well as imposition of remokal fine passed by Barrage Authorities, heard by Board of Revenue who had jurisdiction in the matter‑‑Both parties were heard and represented by advocates--- Board of Revenue passing order to the effect that land in question would be disposed of afresh and none of parties was shut out from participating in proceedings for fresh disposal of land‑‑Orders of Board of Revenue, held, were in accordance with law and no exception could be taken thereto.

‑‑‑S. 172‑‑Revenue Officers Circular No.11893, dated 2nd November 1946, Standing Order No. 10‑A‑‑Civil Procedure Code (V of 1908), S 96‑‑Imposition of Remokal fine‑‑Grant of suit land in favour of appellant cancelled and a fresh grant made in favour of respondent after about a decade of cancellation‑‑Appellant remaining in possession of land unauthorisedly for period in between for which remokal fine was imposed on him‑‑These facts admitted by appellant in his evidence‑‑Order passed by Deputy Commissioner in appeal curtailed fine to one‑half and his order becoming final as having not been challenged before any revenue authority‑‑Appellant also producing no evidence that said order was illegal‑‑Two civil suits filed by him against remokal fine withdrawn by him‑‑Imposition of remokal fine, held, legal in circumstances Finding of Trial Court to same effect maintained.

A. Wali Makhdoom for Respondents Nos. 1 to 4.

Ghulam Husain Abassi for Respondent No. 5.

Dates of hearing: 5th, 9th and 10th December, 1985.

This first appeal is directed against impugned judgment, dated 4‑4‑1973 of learned Additional District Judge, Dadu whereby First Class suit filed for declaration and injunction has been dismissed.

Briefly stated the relevant facts giving rise to this appeal are that Ismail Khan father of Abdullah Khan (plaintiff in suit) purchased agricultural lands from Barrage Department against three different grants (specified in the plaint) effective from Rabi 1940‑41 against payment of ten instalments. Ismail Khan died in the year 1942 and grants were cancelled due to non‑payment of instalments, which were subsequently restored after representation made by Abdullah Khan was allowed grants were again cancelled in the year 1950‑51 for the same reason and fresh grant of land 'in question to the extent of 75‑10 Guntas was made in favour of Agha Abdul Haq effective from 1960‑61. Abdullah Khan further claimed that even after fresh grant land in question remained in his possession, which was treated by authorities as unauthorised and remokal fine was imposed on him for the period 1950‑51 to 1961‑62. Aggrieved against orders of cancellations and fresh grant passed in respect of suit land, Abdullah Khan filed appeal, which was allowed by Additional Commissioner, Hyderabad Division vide his order, dated 28‑9‑1965. In consequence grant in favour of Agha Abdul Haq was cancelled and land was regranted to Abdullah Khan subject to payment of due arrears within three months. Agha Abdul Haq filed revision application which t was allowed by Member (Judicial) Board of Revenue (W.P.) vide his order, dated 17‑4‑1968 directing fresh disposal of land in question according to law as neither party was found fit for grant of land. C, Abdullah Khan then filed suit as stated above against Revenue Authorities f and Agha Abdul Haq on 7‑12‑1968. His main grievance was that orders f, of cancellation of grant and imposition of remokal fine were illegal and t without jurisdiction and the same were passed in violation of principles of natural justice and further that there were no outstanding dues and 9 the instalments were fully paid and stood adjusted.

Agha Abdul Haq (defendant No. 5 in the suit) filed written statement and took up the plea that land was granted to him with publicity and service of notice on Abdullah Khan. After the grant he also got possession of land in question. He filed suit against Abdullah Khan and others which was decreed in C . A . No. 45 of 1964. ‑

Colonization Officer, Sukkur Barrage (defendant No. 3 in the suit) filed written statement in the trial Court in which the stand was taken that on account of default, grant could be cancelled without 3 show‑cause notice and the land reverted to the Government. Facts with regard to appeal and revision decision by Additional Commissioner and Board of Revenue respectively were admitted. It was further stated that Rs.21,021.89 were outstanding against Abdullah Khan on account of remokal fine and in respect of them he filed two suits, which were withdrawn by him. It was further averred that civil Court had no a jurisdiction as the matter was decided by Revenue Authorities of competent jurisdiction. Keeping in view pleadings of the parties, the trial Court framed the following amended issues:‑‑------

(1) Whether this Court has no jurisdiction to try the suit

(2) Whether the suit is improperly stamped and if so, what is the effect

(3) Is order of Board of Revenue regarding cancellation of grant of suit land illegal and ultra vires

(4) Whether suit is time‑barred

(5) Whether possession of land in question of plaintiff is illegal and unauthorised

(6) Whether action of imposition of remokal fine is legal and bona fide

(7) Whether the plaintiff is entitled to the relief prayed for

(8) What is the effect of judgment and decree in Civil Appeal No. 45 of 1964 of District Judge, Dadu on the present suit

(9) Is the suit in proper form and maintainable in law

(10) Is the suit barred by provisions of res judicata

(11) What should the decree be

In the trial Court, plaintiff in the suit examined himself and two other witnesses. P.W. 1 is Ahmed Ali, Clerk Barrage Office, Larkana. P.W. 2 is Muhammad Sidik, Tapedar. They both produced a large number of documents. Abdullah Khan was himself examined as P.W.3. On the other hand defendants in the suit (Government functionaries) examined only one witness namely Qurban Ali, Head Munshi in the office of Barrage Mukhtiarkar, Larkana. He had brought the relevant record and produced documents. Abdul Haq (defendant No. 5 in the suit) did not examine any witness and closed his side after filing certified copy of judgment in C.A. No. 45 of 1964. Abdul Haq v. Abdullah Khan and others.

I have heard at great length Mr. Gulab M. Rang, Advocate for appellant Abdullah Khan, Mr. Abdul Wali Makhdoom for A.‑G., Sind for respondents 1 to 4 (Government functionaries) and Mr. G. H. Abassi, Advocate for respondent No. 5 Abdul Haq. The first issue in the suit is most important side because it deals with crux of the matter, which is whether civil Court has jurisdiction to try the suit.

Now so far issue No. 1 is concerned section 9 of the Civil Procedure Code envisages that Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. Section 4 of C.P.C. saves local and special procedures and contemplates that if special law is silent then provisions of the Code would apply but it will not prevail or override any provisions to the contrary in the special or local laws. Section 5(2), C.P.C. defines 'Revenue Court' to mean a Court having jurisdiction under any local law to entertain suits or other proceedings relating to the rent, revenue or profits of land used for agricultural purposes but does not include a civil Court having original jurisdiction. Section 135‑L of the Sind Land Revenue Code 1879 expressly imposes bar of suits and contemplates that no suit shall lie against the Crown or any servant of the Crown in respect of a claim to have an entry made in any record or register that is maintained under this chapter of the Code. Further section 172 of the Land Revenue Act, 1967 (which is now applicable) expressly excludes jurisdiction of civil Court in matters which lie within the jurisdiction of Revenue Officers. It is clearly provided in the section mentioned above that no civil Court shall have jurisdiction in any matter, which Government, the Board of Revenue or any Revenue Officer is empowered by this Act to dispose of.

Subsection (2) of the section mentioned above provides that without prejudice to the provisions of subsection (1) a civil Court shall not exercise jurisdiction over any of the following matters. Twenty‑one classes of cases have been specifically mentioned in which the jurisdiction of the civil Court is barred.

In the instant case the prayer in the suit from which this appeal arises is to seek declaration that cancellation of grants in the name of Abdullah Khan and imposition of remokal fine upon him for unauthorised occupation are illegal. The prayer as worded and stated above clearly shows that the case is covered by subsection (1) of section 172 of the Land Revenue Act, 1967 as the Revenue Officer is empowered by this Act to cancel the grant and also to impose remokal fine. Cancellation policy is specified in detail alongwith procedure in Standing Order 10‑A, which further empowers Taluka Mukhtiarkar to take remokal action against the defaulters, in case they raise cultivation during Rabi after making corrections in the record. (Revenue Officer's Circular No. 11893, dated 2nd November, 1946). In the instant case, therefore, both orders complained of have been passed by the Officer duly authorised under the Revenue Law.

In the case of Province of West Pakistan v. Haji Muhammad Juman and another P L D 1960 (W.P.) Kar. 908, Qadeeruddin Ahmed, J. (as he then was) held that civil Courts cannot sit in judgment over the decisions of the Revenue Officers acting in exercise of their jurisdiction. It was further observed that so long as a question is decided within the limits of a jurisdiction, it is material, from jurisdiction point of view, whether the decision is right or wrong. Civil Courts can check errors of usurpation of power made by Revenue Courts or officers but not the errors of their judgments, which could be done within the hierarchy on the Revenue side. View expressed above was subsequently reiterated in the case of Abdul Ghafar and others v. Government of West Pakistan and others P L D 1963 Kar. 215. It was further held therein that order of Revenue Authority alleged to have been passed on misappreciation of evidence could not be made subject‑matter of dispute in a civil Court.

Mr. Gulab, Advocate for the appellant submitted that legal position enunciated into two. Karachi cases quoted, above is beyond dispute, to which no exception can be taken but his grievance is that the grant cancelled initially by the Colonisation Officer vide order, dated 30‑3‑1951 was without notice, as such an illegality has been committed which has created jurisdictional defect. In fact appellant Abdullah Khan after cancellation of grant filed appeal before Additional Commissioner which was allowed vide order, dated 28‑9‑1965, in consequence of which grant was restored in favour of Abdullah Khan and being aggrieved against that order Abdul Haq perused remedy before Board of Revenue and vide order, dated l ‑4‑1968 Board of Revenue held that both parties are not entitled to the grant and further directed fresh disposal of land in question according to law. Mr. Gulab, Advocate further submitted that if order is passed without notice then it will amount to jurisdictional defect which would not be cured if subsequently an opportunity of hearing is afforded in the other forums provided under that law. It was further submitted that in the instant case against the order of cancellation of grant appeal was filed by Abdullah Khan and it was allowed by Additional Commissioner but even then jurisdictional defect would still stand uncurred for the reason that afterwards order passed by Additional Commissioner was set aside subsequently by the Board of Revenue. In the circumstances hearing given once during appeal would not cure jurisdictional defect. Reliance was placed on the case of Syed Nazir Hussain v. Settlement Commissioner, Lyallpur P L D 1974 Lah. 434. The reported case is a decision in a writ petition, in which the facts are different. Settlement Scheme No. 1 prepared under section 19 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 acquired statutory status, under which notice and inquiry on C.H. Form were necessary. It was held that Deputy Settlement Commissioner by not issuing any notice or affording any opportunity of being heard to the petitioner and not conveying the ex parte order to him had clearly violated the provisions of Settlement Scheme No. 1. It was, therefore, not only violation of 'audi alteram partem' but clear defiance of statutory provisions of the scheme. In such circumstances, it was further held that hearing granted to the petitioner in appeal or revision before the Settlement authorities would not remove infirmity suffered by the order of Deputy Settlement Commissioner.

Another case cited is Mian Muhammad Latif v. Province of West Pakistan and another P L D 1970 S C 180. It is held in that case that no doubt under section 11 of the Sind Revenue Jurisdiction Act, 1876 ordinarily a party in revenue matters should exhaust all remedies available in that set up before coming to civil Court but civil Court does have jurisdiction to examine into cases, where statutory provisions have not been complied with or statutory Tribunal has not acted in accordance with fundamental principles of judicial proceedings. First Class suit was filed challenging recovery of Ijara Tax in which temporary injunction was granted but in appeal injunction was vacated on account of bar in section 11 of the Sind Revenue Jurisdiction Act, 1876. High Court dismissed revision application in limine upholding the above state view. The Supreme Court interfered on the grounds that at the relevant time the Sind Revenue Jurisdiction Act was not applicable in Khairpur State and secondly at the relevant time under the Ijara Rules and the Resolution of the council of Ministers no Ijara was leviable on the goods in question.

Legal position stated in the case‑law quoted above would not apply to the facts of the instant case for two reasons. Firstly there is no provision for issuance of notice at the time of cancellation of grant on the ground of non‑payment of instalments. Three 'A' Forms showing grant of land in question made to Muhammad Ismail father of Abdullah Khan are on the record as Exhs. 44/1, 2 and 3. On their back at the] foot there are printed instructions of which instruction No. 3 categorically provides that postponement of recovery of instalment can be sanctioned only by the Commissioner and when such sanction is received the dates and amounts of instalment postponed should be recorded in red ink and a note made in the remarks column of the authority therefor. This clearly shows the intention that instalments were to be paid promptly and postponement was allowed by the sanction of the Commissioner. This instruction is to be read in conjunction with cancellation policy in Standing Order 10‑A, which contemplates that where there is default in payment of one instalment or more, the grant becomes due for cancellation. Distinction is made only for those grantees, who have failed to pay the last instalment or part thereof and provision is made that their cancellation would be due one year after the date on which the final instalment is due. Then procedure is prescribed for cancellation once a year on 15th June. It is provided that after cancellation within one month from the date of cancellation, Barrage Mukhtiarkar shall issue notice to the grantees informing them about the cancellation of l grant. This is notice after cancellation and is not to be confused with notice before cancellation.

On this point evidence on the record shows that P. W. 1 Ahmed Ali had stated before the trial Court that grants were cancelled on 30‑3‑1951 for non‑payment of instalments. On that day out of ten instalments, in respect of 'A' Form No. 1853, four were due and in respect of 'A' Form No. 1557 three were due and in respect of 'A' Form No. 1135, five were due. He further stated that record did not show that notices were issuer, to the grantees. In the cross‑examination this witness admitted that he had not brought the entire record with him. It would not be out of place to mention here that this witness was produced by appellant Abdullah Khan himself. Furthermore, appellant Abdullah Khan himself has made categorical admission in his deposition before the trial Court that in the year 1951‑52 Barrage Mukhtiarkar had encamped at Mehar and had called him and personally informed him about cancellation of grant. It was further admitted by him that he did not deposit further instalments from 50‑51 to 66‑67 for the reason that some money of his father was lying with Government unutilised in connection with grant of some other land, which had to be adjusted against deposit of instalments in this case as agreed by the Barrage Mukhtiarkar in his meeting with him. In such circumstances, Abdullah Khan can have no grievance at all that he had no notice about the cancellation of grant. Learned trial Judge has observed in the impugned judgment on the basis of judgment in C.A. No. 45 of 1964 between the same parties (copy of this judgment is part of the record) in which it is held that necessary notice was issued by Barrage authorities to the heirs of Ismail and served on Abdullah Khan vide Exh. 61. In this case Abdullah Khan has admitted in his deposition before the trial Court that he had filed appeal against imposition of remokal fine on him before the Additional Commissioner. He has also admitted that he had filed appeal against cancellation of his grant and fresh grant in favour of Abdul Haq, which was allowed by Additional Commissioner. In these circumstances, I am of the view that Abdullal. Khan had knowledge of cancellation of grant and action in respect of that taken by Revenue Authorities is according to law and within jurisdiction and remedies available in that set up have been availed as such filing of suit in the trial Court was not competent.

Issue No. 2 is regarding suit being insufficiently stamped. On this issue finding of the trial Court is not assailed by the learned counsel for appellant. It is admitted by him that relief for injunction also should have been valued at Rs.200 instead of Rs.100 and he undertook to pay deficient court‑fee of Rs.7.50. Order accordingly.

Issue No. 3 is whether order of Board of Revenue regarding cancellation of grant of suit land is illegal and ultra vires. In this context Mr. Gulab Rang submitted that this issue for the main part is already covered by issue No. 1 and cited some more rulings on the point of notice and hearing on the principle of natural justice. It is not necessary to go into this case‑law for the reason that I have already held in issue No. 1 that appellant Abdullah Khan was heard by Barrage Mukhtiarkar and had full knowledge of cancellation. Now so far order of Board of Revenue is considered, the jurisdiction is not called in question, both parties were heard and the Board was quite competent to pass the order. Both parries were represented by the Advocates, before the Board, which was informed by them that in spite of the fact that parties had gone into litigation still there was no stay order against the Board, which was quite competent to dispose of revision application. The order of the Board is that land in question be disposed of afresh in accordance with law. This shows that none of the parties is shut out from participating in the proceedings for fresh' disposal of the land in question. No exception can be taken to the order of the Board.

Issues No. 4 that whether suit is barred by time was found by the trial Court in favour of appellant, hence, it was not pressed before me.

Issue Nos. 5 and 6 are interconnected. Issue No. 5 is whether possession of land in question of the plaintiff is illegal and unauthorised. Issue No. 6 is whether action of imposition of remokal fine against plaintiff is legal and bona fide. There is no dispute about this fact that grant of suit land in favour of Abdullah Khan was cancelled in the year 1950‑51 and fresh grant was made in favour of Abdul Haq in the year 1960‑61. For the period in between Abdullah Khan remained in possession unauthorisedly for which remokal fine was imposed on him. These facts are unequivocally admitted by Abdullah Khan in his evidence. D.W. 1 Qurban Ali, Head Munshi in the office of Barrage Mukhtiarkar brought relevant record in the Court and after perusal of which reiterated the facts stated above. Colonisation Officer defendant No. 3 in the suit has averred in the written statement filed in the trial Court that remokal fine to the tune of Rs.32,628.36 was imposed on Abdullah Khan, who filed an appeal, which was partly allowed by Deputy Commissioner, Dadu vide his order, dated 30‑10‑1961 to the extent that fine was reduced to 1. land revenue making Abdullah Khan liable to pay Rs.21,021.89 to the Government. This order had become final because it was not challenged by Abdullah Khan before any higher Revenue Authority. Furthermore Abdullah Khan in the trial Court has not produced any evidence whatsoever to show that this order was illegal. It is further stated in that written statement that Abdullah Khan had filed two civil suits against the levy of remokal fine and subsequently withdrew the same. In these circumstances findings of the trial Court on these two issues against the appellant are upheld.

Issue No. 7 is whether plaintiff is entitled to the relief prayed for.‑ Finding of this issue is dependent on findings of other issues. Consequently, the finding on this issue is negative.

Issues Nos. 8 and 10 being inter‑connected can be dealt with together. Issue No. 8 is as to what is the effect of judgment and decree in Civil Appeal No. 45 of 1964 of the District Court, Dadu on the present suit and issue No. 10 is whether the suit is barred by the provisions of res judicata. Judgment mentioned above is on the record of this case as Exh. 97 having been produced in the trial Court by Abdul Haq (defendant No. 5). Case of Abdul Haq in the written statement in the trial Court is that suit land was granted to him by Barrage authorities in the year 1960‑61 and he filed suit for declaration and injunction against Abdullah Khan and others which was decreed in C . A . No. 45 of 1964. Perusal of judgment in appeal Exh. 97 shows that Abdul Haq claimed that after grant, he was put in possession of the suit land, which was being interfered with by defendants in that suit including Abdullah Khan. This claim was denied by Abdullah Khan and keeping in view the pleadings of the parties nine issues were framed including issues relating to the mutation in record of rights in favour of Abdul Haq, possession of the suit land and jurisdiction of civil Court. Suit was first decreed but in appeal was remanded for retrial. The suit was then dismissed on merits against which appeal was filed, which was allowed vide judgment of learned District Judge, dated 26‑3‑1966 Exh. 97 decreeing suit in favour of Abdul Haq. Aggrieved against this judgment Abdullah Khan filed second appeal in the High Court. I had sent for the record of this appeal in the High Court, perusal of which shows that appeal (II.A. 483 of 1966 Abdullah Khan v. Abdul Haq) was dismissed vide short order, dated 3‑4‑1972 as infructuous on the statement of Mr. Abdul Mateen, counsel for appellant Abdullah Khan, who produced copy of the order of Board of Revenue, dated 17‑4‑1968 in which it is held that grant in favour of either party was illegal. While dismissing appeal, an observation was made in the order that that order would not prejudice the case of either party. This observation was made because Mr. Abdul Mateen counsel for Abdullah Khan made a statement in the Court that his client had already filed suit impugning the order or Board of Revenue mentioned above. Keeping in view the fact that second appeal mentioned above was pending in the High Court the trial Court gave finding on this issue that judgment in C . A . No. 45 of 1964 operated as res judicata subject to any modification made by the High Court in the judgment of second appeal. High Court has dismissed second appeal as infructuous at the instance of Abdullah Khan. This clearly shows that judgment impugned in second appeal remains in the field as it is not set aside. Observation made in the judgment of second appeal is that order would not prejudice case of any party, which means both parties are left wits position that judgment in C. A. No. 45 of 1964 which is against Abdullah Khan and in favour of Abdul Haq holds field and for the purpose of section 11, C.P.C., will act as res judicata. Finding on this issue is as stated above.

On issue No. 9 finding of the trial Court that suit is not maintainable but in proper form is upheld. On issue No. 11, which is the last issue, I am in agreement with the finding of the trial Court. In fact issues 9 and 11 are formal and consequential in nature and are dependent upon findings of other co‑related issues.

At the end of arguments Mr. G.H. Abbasi cited case of Fateh Khan v. Syed Akbar Shah decided by Member, Board of Revenue and reported in P L D 1985 Rev. 110 in which it is' held that if there is default in the payment of instalments then cancellation of grant is automatic as provided in Standing .Order No. 10 and notice is not necessary. Mr. Abdul Wali Makhdoom for A.‑G. for respondents Nos. 1 to 4 (Government functionaries) whole heartedly supported Mr. G.H. Abbasi, Advocate and submitted that correct legal position is enunciated in the Revenue ruling cited above.

For the facts and reasons stated above I am entirely in agreement with the findings of trial Court on all issues. The impugned judgment is, therefore, upheld and appeal is dismissed. However, there will be no order as to costs.

M. Y. H. /5022/K Appeal dismissed.

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