2017 Y L R 1691
(a) Civil Procedure Code (V of 1908)---
----O. VII, R. 11 & O. II, R. 2 & S. 11---Specific Relief Act (I of 1877), Ss. 42 & 39---Limitation Act (IX of 1908), Art.91 & S. 3---Sindh Land Revenue Act (XVII of 1967), Ss. 164 & 172---Sindh Revenue Jurisdiction Act (X of 1876), S. 11---Suit for declaration and cancellation of sale deed---Limitation---Res judicata, principle of---Applicability---Plaint, rejection of---Scope---Title of land in question had already been decided in the earlier suit---Judgment passed in the earlier suit would operate as res judicata---Alleged sale deed and entries in the record of rights were in the knowledge of plaintiffs---Relief for cancellation of impugned sale deed and entries was available to the plaintiffs but they themselves relinquished the said relief---Doctrine of constructive res judicata was applicable in circumstances---Judgment in the earlier suit was final not only to the matters actually determined in the decision but also to the other matters which might and ought to have been agitated and could have been resolved in that decision---Relief for cancellation which had been added in the present suit was based on the same cause of action which prompted the plaintiffs to institute the earlier suit---Second suit could not legally be sustained on the same cause of action even for the relief not claimed in the earlier suit---Law did not permit splitting of claims or relief arising out of the same cause of action---Party could not be vexed twice for the same cause of action and there should be end to litigation---Plaintiffs had knowledge of the impugned sale deed and entries in the revenue record on 13-02-2006---Plaintiffs had failed to ask for cancellation of the said documents within three years---Present suit was time-barred in circumstances---Once Court had come to the conclusion that suit was time barred, it was bound to dismiss the same on the ground of limitation only without going into the merits of the case---Sindh Land Revenue Act, 1967 was a special statute which had provided a remedy of revision against the order of District Officer (Revenue)---Plaintiffs had not filed revision against the order of District Officer (Revenue) with regard to maintaining the impugned entries in the record of rights---Plaintiffs had failed to avail remedy of filing revision in the revenue hierarchy and had bypassed the highest forum in the said hierarchy---Present suit was barred under S.11 of Sindh Revenue Jurisdiction Act, 1876---Provisions of S.172 of Sindh Land Revenue Act, 1967 were applicable to the present suit as plaintiffs' case was only for correction of entries in the revenue record---No illegality or irregularity had been committed by the courts below while rejecting the plaint---Both the courts below had exercised jurisdiction in accordance with law---Revision was dismissed in circumstances.
Case law referred.
(b) Civil Procedure Code (V of 1908)---
----S.11---Res judicata, principle of---Applicability---Principles---Principle of res judicata was of universal application based on the principle that one cause should not be tried for the second time between the same parties---Court should not try any suit or issue in which the matter directly and substantially in issue had been directly and substantially in issue in a former suit between the same parties or between the parties under whom they or any of them had claimed or litigated under the same title in a Court competent to try such subsequent suit or the suit in which such issue had been subsequently raised and had been heard and finally decided by such competent Court.
(c) Specific Relief Act (I of 1877)---
----S. 39---Limitation Act (IX of 1908), Art. 91---Suit for cancellation of instrument--- Limitation--- Suit for cancellation of instrument could be filed within three years and such time would start when facts entitling the plaintiff to have the instrument cancelled or set aside became known to him.
(d) Limitation Act (IX of 1908)---
----S. 3---Suit instituted after period of limitation---Effect---Every suit instituted after the period of limitation was liable to be dismissed although limitation had not been set up as a defence.
(e) Civil Procedure Code (V of 1908)---
----O. VII, R. 11---Plaint, rejection of---Factors to be considered---While considering application under O.VII, R.11, C.P.C. contents of plaint had to be considered with the presumption that whatever was stated therein was correct---Where plaintiff had concealed material facts and important documents in the plaint, material produced by the defendant with the written statement or application under O. VII, R. 11, C.P.C. could also be taken into consideration.
Case law referred.
(f) Civil Procedure Code (V of 1908)---
----S. 115---Limitation Act (IX of 1908), S. 12(2)---Revision---Limitation--- Revision was filed within seventy days after excluding the period for obtaining copies---Limitation for filing of revision was ninety days---Revision petition was within time.
Case law referred.
(g) Administration of justice---
----Court was under a duty to show awareness of the law of the land and to apply it irrespective of whether parties or their counsel invoked the same or not---Judge must wear all laws of the country on the sleeves of his robe and failure of the counsel to properly advise him was not an excuse.
Case law referred.
Abdul Sattar Janweri for Applicants.
Rafique Ahmed K. Abro for Respondents Nos. 1 to 10.
Naimatullah Burgri, State Counsel for Respondents. Nos. 11 to 14.
Date of hearing: 9th September, 2016.
NIAZ HUSSAIN VS NIZAMUDDIN
2017 Y L R 1691
[Sindh (Larkana Bench)]
Before Muhammad Humayon Khan, J
NIAZ HUSSAIN and others---Applicants
Versus
NIZAMUDDIN and 13 others--Respondents
Civil Revision Application No.28 of 2011, decided on 29/09/2016.
JUDGMENT
MUHAMMAD HUMAYON KHAN, J.---This Revision Application under section 115, C.P.C. is filed against the Judgment and Decree dated 12.12.2010 passed by the learned Additional District Judge, Mehar, in Civil Appeal No. 24 of 2009, whereby, the learned Additional District Judge dismissed the appeal of the applicants and upheld the Order dated 12.10.2009 passed by the learned Senior Civil Judge, Mehar, in. F.C. Suit No 15 of 2009, whereby, plaint was rejected under Order VII Rule 11, C.P.C.
2.The relevant facts of the case in nutshell for the disposal of this revision application are that the applicants filed F.C. Suit No. 15 of 2009 for declaration, cancellation and permanent injunction against the respondents, wherein, it is stated that Survey Nos. 190, 191, 635, 636, 637, 638 and 639 of Deh Kinaro Kakol, Taluka Mehar (hereinafter referred to as "the said land") are Na-Qabooli Government land belonging to Barrage Department and the applicants remained under cultivation possession of the said land and such entries in Khasra Gridwari are available in the names of the applicants who used to enjoy its produce and pay land revenue. It is further stated that the father of the respondent No.1 fraudulently got the said land entered in the RL-II of claimant Mst. Haseena daughter of Wazeera though the original RL-II does not contain these survey numbers and copy of RL-II shows that claimant Mst. Haseena was allotted only Survey No 194. It is further stated that entry in favour of claimant was made vide Entry No 85, Dakhal Kharja Register (Form-XV). It is further stated that the father of the respondent No.1 purchased the said land by registered Sale Deed dated 08.02.1992 and his name was entered in Village Form VII-B vide Entry No 10 dated 14.01.1996 and upon his death, the Foti Khata was mutated in favour of the respondents Nos.1 to 10. Accordingly, the applicants filed F.C. Suit No.11 of 2006, which was decided by Judgment dated 24.02.2007 and Decree dated 26.02.2007. It is further stated that the applicants filed an application before the respondent No.12 for cancellation of bogus entries, which was decided in their favour on 02.07.2008. It is further stated that the respondent No.1 preferred appeal before the respondent No.13 against the said order dated 02.07.2008, which was allowed by Order dated 09.02.2009; which is illegal, null and void and hence challenged through the instant suit.
3.The respondent No. 1 filed an application under Order VII, Rule 11, C.P.C. for rejection of plaint in the instant suit on the ground that the applicants have no cause of action to file the instant suit as the fate of the same suit land has already been decided in F.C. Suit No 11 of 2006 vide Judgment dated 24.02.2007 and therefore the instant suit is barred by res-judicata. It is further pleaded that the instant suit is also time-barred.
4.The learned Senior Civil Judge by Order dated 12.10.2009 allowed the said application under Order VII Rule 11, C.P.C. and rejected the plaint in the instant suit.
5.Against the said Order dated 12.10.2009, the applicants filed Civil Appeal No. 24 of 2009, which was dismissed by the learned Additional District Judge by Judgment dated 12.12.2010.
6.Against the concurrent findings of both the Courts below the applicants filed this revision application.
7.I have heard the learned counsel for the parties and perused the material available on record.
8.The learned counsel for the applicants raised the following contentions:--
i)the impugned Judgment of the learned Additional District judge was passed on general holiday and therefore the same is nullity in law;
ii)for the purpose of deciding application under Order VII Rule 11 C.P.C. the Court has only to consider the averments made in the plaint and has to presume that every fact pleaded in the plaint is true and correct. In support of this contention, he relied upon the cases of Karachi Development Authority through its Secretary v. Evacuee Trust Board through its Administrative Evacuee Trust Property at Karachi and 5 others (PLD 1984 Karachi 34) and Mst. Sharifan Begum and others v. Muhammad Shahbaz and others (2000 CLC (Lahore) 63);
iii)the reliefs claimed in the instant suit are different from the reliefs claimed in the earlier suit and therefore the doctrine of res-judicata is not applicable to the instant case;
iv)order dated 09.02.2009 of the District Officer (Revenue and Estate) Dadu was passed after the decision of earlier suit, which was decided on 24.02.2007 and therefore, the instant suit is maintainable in law and the plaint discloses cause of action;
v)both the Courts below have committed illegality and irregularity in rejecting plaint and therefore the instant suit may be remanded to the Trial Court for decision on merits after framing issues and recording evidence.
9.On the other hand, the learned counsel for the respondents Nos. 1 to 10 raised the following contentions:--
i)this revision application is time-barred as, the Judgment was passed on 12.12.2010 and this revision application was filed on 16.03.2011 with delay of four days, which has not been explained and therefore this revision application is fit to be dismissed as time-barred. In support of this contention, he relied upon the cases of Syed Muhammad Zubair Shamshad v. Mukhtiarkar Salehpat and 3 others (2014 MLD (Sindh) 471) and Aziz Ahmed v. Ejaz Ahmed and 3 others (2014 MLD (Peshawar) 1095).
ii)both the earlier as well as instant suits are between the same parties in respect of the same land and the cause of action is also same therefore Judgment and Decree in earlier suit operate res-judicata;
iii)the instant Suit is time barred;
v)both the courts below have rightly rejected the plaint under Order VII, Rule 11, C.P.C. and therefore this revision application against the concurrent findings is not competent.
10.The learned counsel for the respondents Nos. 11 to 14 adopted the arguments of the learned counsel for the respondents Nos. 1 to 10.
11.The first point for consideration is that whether this revision application is time-barred. On this point, the learned counsel for the respondents Nos.1 to 10 argued that the impugned Judgment was passed on 12.12.2010 and this revision application was filed on 16.03.2011 with delay of 4 days. He further argued that the delay has neither been explained in the memo. of revision application nor any application for condonation of delay has been filed and therefore, this revision application is fit to be dismissed as time-barred. On the other hand, the learned counsel for the applicants argued that this revision application is filed in time and therefore no such objection was raised by the office of this Court. In this connection, I have examined the certified copies of the Judgment and Decree passed by the learned Additional District Judge, which were passed on 12.12.2010 and the applicants applied for certified copies on the very next day i.e. 13.12.2010 and cost was paid on the same day and the copies were ready for delivery on 07.01.2011, which were delivered on the same day i.e. 07.01.2011 and this revision application was filed on 16.03 2011, which means that this revision application was filed within 70 days after the period for obtaining copies as mentioned in section 12(2) of the Limitation Act, although the limitation for filing revision application is 90 days. My this view is fully supported by the cases of Province of Punjab through Collector and others v. Muhammad Farooq and others (PLD 2010 Supreme Court 582) and Mst. Banori v. Jilani (deceased) through Legal Heirs and others PLD 2010 SC 1186. However, the learned counsel for the respondents Nos.1 to 10 relied upon the cases of Syed Muhammad Zubair Shamshad v. Mukhtiarkar Salehpat and 3 others (2014 MLD (Sindh) 471) and Aziz Ahmed v. Ejaz Ahmed and 3 others (2014 MLD Peshawar 1095), which are on a different point and hence not applicable to the facts and circumstances of this matter. Accordingly I hold that this revision application was filed within limitation.
12.Now coming to the first contention of the learned counsel for the applicants that the impugned Judgment of the learned Additional District Judge was passed on general holiday and therefore the same is nullity in law. This contention is totally misconceived for the simple reason that this ground was neither pleaded in the memo of revision application nor affidavit of the learned counsel, who appeared for the applicants before the learned Additional District Judge, was filed. Accordingly, there is no substance in this contention, which is hereby repelled.
13.The second contention of the learned counsel for the applicants is that for the purpose of deciding application under Order VII, Rule 11, C.P.C., the Court has only to consider the averments made in the plaint and has to presume that every fact pleaded in the plaint is true and correct. In support of this contention, he relied upon the cases of Karachi Development: Authority through its Secretary v. Evacuee Trust Board through its Administrative Evacuee Trust Property at Karachi and 5 others (PLD 1984 Karachi 34) and Mst. Sharifan Begum and others v. Muhammad Shahbaz and others (2000 CLC (Lahore) 63).
14.There is no cavil with the proposition of law that while considering application under Order VII, Rule 11, C.P.C., the contents of the plaint have to be considered with the presumption that whatever is stated therein is correct as has been held in the above referred cases of Karachi Development Authority through its Secretary v. Evacuee Trust Board through its Administrative Evacuee Trust Property at Karachi and 5 others (PLD 1984 Karachi 34) and Mst. Sharifan Begum and others v. Muhammad Shahbaz and others (2000 CLC (Lahore) 63).
15.It is also well settled principle of law that where the plaintiff had concealed material facts and important documents in the plaint, in that event, the material produced by the Defendant along with written statement or application under Order VII, Rule 11, C.P.C. could also be taken into consideration more particularly judicial record and admitted documents for rejecting the plaint as has been held in the cases of (i) Nazeer Ahmed and others v. Ghulam Mehdi and others (1988 SCMR 824), (ii) Muhammad Zaman v. Tariq Mahmood and 28 others (1994 MLD (Lahore) 207), (iii) Maj. ((Rtd.) Hamid Ali Khan v. Mian Muhammad Anwar (2000 CLC (Lahore) 1633), (iv) S.M. Sham Ahmad Zaidi through Legal Heirs v. Malik Hassan Ali Khan (Moin) through Legal Heirs (2002 SCMR 338) and (v) Ilyas Ahmed v. Muhammad Munir and 10 others (PLD 2012 Sindh 92).
16.The third contention of the learned counsel for the applicants is that the reliefs claimed in the instant suit are different from the reliefs claimed in the earlier suit and therefore the doctrine of res judicata is not applicable to the instant case. However, in support of his contention, he has not cited any case law. On the other hand, the learned counsel for the respondents Nos. 1 to 10 argued that both the earlier as well as instant suit are between the same parties and the cause of action is same, therefore Judgment and Decree in earlier suit operate res judicata. In support of his arguments, he relied upon the cases of (i) Barkat v. Muhammad Sadiq and others (1990 CLC (Lahore) 1532) and (ii) Sanesra Star Screen Industries through Partners v. Jamia Masjid Eid Ghah through Secretary General Trustee and another (2009 CLC (Karachi) 67).
17.The doctrine of res-judicata is of universal application and is based on the principle that public policy demands that one cause should not be tried for the second time between the same parties and there must be an end to the litigation. Section 11, C.P.C., in fact prohibits a Court from trying any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties or between the parties under whom they or any of them claim, litigate under the same title in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised and has been heard and finally decided by such competent Court. My this view is supported by the cases of (i) Barkat v. Muhammad Sadiq and others (1990 CLC (Lahore) 1532), (ii) Muhammad Salim and others v. D.C.O. and others 1994 MLD (Lahore) 295, (iii) Malik Gul Hassan and Co. v. Federation of Pakistan through the Secretary, Ministry of Health, Islamabad and 9 others (1995 CLC (Quetta) 1662) and (iv) Sanesra Star Screen Industries through partners v. Jamia Masjid Eid Ghah through Secretary General Trustee and another (2009 CLC (Karachi) 67).
18.To decide the point whether the doctrine of res-judicata is applicable to the instant case, I have firstly considered the plaint in earlier Suit No. 11 of 2006, which was filed by the present applicants against the present respondents Nos.1 to 10 for declaration and injunction. In the said suit, the applicants in paragraphs 3 and 4 of the plaint pleaded that the elders of the respondents Nos. 1 to 10 after adjusting the said land in false and fictitious claim of lady claimant purchased the said land through registered Sale Deed dated 08.02.1992 and got change the Record of Rights vide Entry No. 10 dated 14.01.1996 and after the death of late Muhammad Usman, his Foti Khatta Badal was made in the names of the respondents Nos.1 to 10 in the Record of Rights vide Entry. No 279 dated 14.09.2004. In view of this case as pleaded by the applicants, it is established that the applicants were aware of these facts in February, 2006, when the earlier suit was filed which was decreed by Judgment dated 24.02.2007 and Decree dated 26.02.2007.
19.I have carefully gone through the Judgment dated 24.02.2007 passed in earlier Suit No.11 of 2006, wherein, the title of the said land was decided by holding that the land was allotted to Mst. Haseena as claimant and thereafter father of the respondents Nos.1 to 10 had purchased the said land by registered Sale Deed and it has not been proved that the claimant Mst. Haseena had got the said land by illegal methods or registered Sale Deed is false and managed. It was further decided that the said land is not a government land but the ownership of the said land belongs to the respondents Nos. 1 to 10.
20.After considering the plaint and Judgment in earlier Suit No. 11 of 2006, I am of the definite view that the said Judgment dated 24.02.2007 in earlier Suit No 11 of 2006 operates res-judicata and hence the instant suit is barred by the doctrine of res-judicata. However, the matter does not end here as I myself have noticed that the instant suit is also barred by the doctrine of constructive res judicata and under Order II, Rule 2, C.P.C. although these legal objections were neither raised by the respondents Nos.1 to 10 nor argued by the learned counsel for the respondents Nos. 1 to 10.
21.It is by now well settled that the Court is under a duty to show awareness of the law of the land and to apply it irrespective of whether parties or their counsel invoked it or not. Judge must know the adage that a Judge must wear all laws of the country on the sleeves of his robe and failure of the counsel to properly advise him was not a complete excuse in the matter. Reliance can be placed upon the following case-laws:--
i)Haji Abdullah Khan and others v. Nisar Muhammad Khan and others (PLD 1965 Supreme Court 690)
ii)Qutab-ud-Din v. Farzand Ali (1994 SCMR 107);
iii)Sajawal Khan v. Wali Muhammad and others (2002 SCMR 134);
iv)Muhammad Gulshan Khan v. Secretary, Establishment Division; Islamabad and others (PLD 2003 Supreme Court 102);
v)Muhammad Saleem and others v. Sardar Ali and others (2004 SCMR 1640);
vi)Government of N.W.F.P, and others v. Akbar Shah and others (2010 SCMR 1408).
22.In view of the above referred settled principle, I will deal with the contention of the learned counsel for the applicants that the relief for cancellation of Sale Deed and entries in the Record of Rights was not claimed in the earlier suit and therefore the instant suit is maintainable in law. However, in support of his contention, he has not cited any case-law. This contention, in my view, has no force. I have already discussed regarding case of the applicants pleaded in plaint in earlier Suit No. 12 of 2006 in paragraph-18 of this Judgment. From their own pleadings in the earlier Suit No. 11 of 2006, it is established that the registration of Sale Deed and all the entries in the Record of Rights were in the knowledge of the applicants and hence the relief for the cancellation of the said Sale Deed and Entries was available to the applicants but they themselves relinquished the said relief.
23.Accordingly, the doctrine of constructive res judicata applies, to the instant suit as the relief for cancellation of the said Sale Deed and Entries was available to the applicants at the time of earlier suit, which was not claimed and hence the doctrine of constructive res judicata bars the trial in subsequent suit of all the matters which might and ought to have been alleged. In view of the doctrine of constructive res judicata, Judgment in the earlier suit is final not only to the matters actually determined in the decision but also to the other matters which might and ought to have been agitated and could have been resolved in that decision. Therefore, the relief for cancellation, which has now been added in the instant suit, is based on the same cause of action, which promoted the applicants to institute the earlier suit and this being available at the time of filing the earlier suit could have been based on the same cause of action but now the second suit cannot legally be sustained on the same cause of action even for relief not claimed in the earlier suit. My this considered view finds support from the cases of (i) Allah Dad v. Mehmood Shah (1990 CLC (Peshawar) 33), (ii) Pardool and 3 others v. Gulzada and others (PLD 1995 Supreme Court 410), (iii) Syed Imtiaz H. Rizvi v. Abdul Wahab and another (2007 CLC (Karachi) 483) and (iv) Dilawar Khan and others v. Ghulam Nabi and others (1991 SCMR 398).
24.The instant suit is also barred under Order II Rule 2, C.P.C., which provides that if the plaintiff omits to sue for all the claims and reliefs to which he is entitled on a cause of action then the plaintiff would not be entitled afterwards to sue in respect of the portion of claim so omitted or relinquished. It is thus well settled that the law does not permit splitting of claim or relief arising out of the same cause of action as a party cannot be vexed twice for the same cause and it will avoid multiplicity of suits. My this considered view finds support from the cases of (i) Abdul Hakim and 2 others v. Saadullah Khan and 2 others (PLD 1970 Supreme Court 63), (ii) M.K. Abbasi v. United Bank Ltd. (1983 CLC (Karachi) 482), (iii) Aziz Ahmad and others v. Mst. Hajran Bibi and another (1987 SCMR 527), (iv) Mahndi v. Muhammad Ramzan and 3 others (1994 MLD (Lahore) 686), (iv) National Bank of Pakistan v. Hashim Khan (1994 CLC (Quetta) 88), (v) Sahibdaza Muhammad Salim and another v. Mst. Bibi Zuhra and others (1996 MLD (Peshawar) 1409) and (vi) Akbar Ali Malik v. Chairman, A.K. M.I.D.C. Jalalbad Colony, Muzaffarabad and another (1999 MLD Supreme Court (AJ&K) 236).
25.The next contention of the learned counsel for the respondents Nos. 1 to 10 that the instant suit is time barred and in support of his arguments, he relied upon Article 91 of the Limitation Act to show that the applicants had knowledge of the said Sale Deed and entries in the Record of Rights on 13.02.2006, when the applicants filed earlier Suit No.11 of 2006 but they sought relief for cancellation of the said Sale Deed and entries in the Record of Rights in the instant suit on 19.02.2009. On the other hand, the learned counsel for the applicants submitted that the instant suit is in time as the limitation is six years. However, he has not cited any provision of law or case law in support of his arguments.
26.Article 91 of the Limitation Act provides three years time to cancel or set aside an instrument not otherwise provided for and such time starts when facts entitling the plaintiff to have the instrument cancel or set-aside became known to him. In view of this provision of law, I agree with the learned counsel for the respondents Nos. 1 to 10 that the instant suit is time barred as the applicants had knowledge of the said Sale Deed and entries in the Record of Rights on 13.02.2006 and since they failed to ask for cancellation of the said documents within three years, the instant suit is time barred.
27.Section-3 of the Limitation Act provides that every suit instituted after the period of limitation shall be dismissed although limitation has not been set-up as a defence. This provision of law is mandatory and once the Court comes to the conclusion that the suit is time barred then the Court is bound to dismiss it on the ground of limitation only without going into the merits of the case.
28.The next contention of the learned counsel for the applicants is that the Order dated 09.02.2009 of the District Officer (Revenue and Estate) Dadu was passed after the decision of earlier suit, which was decided on 24.02.2007 and therefore the instant suit is maintainable in law and the plaint discloses cause of action. He further argued that since the said Order dated 09.02.2009 was illegal, null and void and therefore the Civil Court has jurisdiction to set aside the suit order under section 53 of the Sindh Land Revenue Act, 1967. However, the learned counsel for the applicant has not cited any case law in support of his arguments. On the other hand, the learned counsel for the respondents Nos. 1 to 10 submitted that even on this score the jurisdiction of Civil Court is barred under section 172 of the Sindh Land Revenue Act, 1967. However, the learned counsel for the respondents Nos. 1 to 10 has also not cited any case law in support of his arguments.
29.After the judgment dated 24.02.2007 in earlier Suit No.11 of 2006, the applicants filed an application for cancellation of entries before the Deputy District Officer, Revenue, Mehr. Upon this application, the DDO (Revenue) cancelled the entires in favour of the respondents Nos.1 to 10 by Order dated 02.07.2008. Against this Order, the respondent No.1 filed an application under section 161 of the Sindh Land Revenue Act, 1967 before the District Officer (Revenue and Estate) Dadu. This appeal was allowed and Order dated 02.07.2008 of DDO (Revenue) was set aside and entries in favour of respondents Nos. 1 to 10 were maintained vide Order dated 09.02.2009.
30.The Sindh Land Revenue Act is a Special Statute and it provides for a remedy by way of revision against the said Order dated 09.02.2009 under section 164 of the Sindh Land Revenue Act, 1967, which was not filed by the applicants. Reliance can be placed upon the cases of (i) Khuda Bakhsh v. Member, Board of Revenue (Colonies) and 3 others (1976 SCMR 26) and (ii) Khuda Bux v. Government of Sindh and others (PLD 1989 Karachi 85).
31.Since the applicants failed to avail the remedy of filing revision under section 164 of the Sindh Land Revenue Act, 1967, the instant suit is barred under section 11 of the Sindh Revenue Jurisdiction Act, 1876, which provision is mandatory and provides that:--
"No Civil Court shall entertain any suit against the Government on account of any act or omission of any Revenue Officer unless the plaintiff first proves that, previously to bringing his suit, he has presented all such appeals allowed by the law for the time being in force as, within the period of limitation allowed for bringing such suit, it was possible to present."
The applicants have not disclosed any reason to bypass the highest forum in revenue hierarchy and without exhausting the remedy provided under the Sindh Land Revenue Act, 1967, filing of suit directly before the Civil Court. Accordingly, I am of the definite view that the instant suit is barred under section 11 of the Sindh Revenue Jurisdiction Act, 1876. My view finds support from the cases of (i) Muhammad Saleh v. Deputy Commissioner, Tharparkar at Mirpurkhas and others (PLD 1963 Karachi 613), (ii) Hawaldar Sawar Khan through General Attorney v. Province of Sindh, Revenue Department through Deputy Commissioner, Shikarpur and 5 others (1998 CLC (Karachi) 382), (iii) Jan Muhammad Abbasi v. Mukhtiarkar Estate, Larkana (Barrage Mukhtiarkar) and others (2007 CLC (Karachi) 1790) and (iv) Zahid Hussain and 10 others v. Shamsuddin and 9 others (2014 CLC (Sindh) 1334).
32.The learned counsel for the applicants relied upon section 53 of the Sindh Land Revenue Act, 1967, which provides that:--
"if any person considers himself aggrieve by an entry in a record of rights as to any right of which he is in possession, he may institute a suit for declaration of his right under Chapter VI of the Specific Relief Act, 1877 (Act I of 1877)."
In my view the provisions of section 53 of the Sindh Land Revenue Act, 1967 applies to a case where the plaintiff institute a suit for declaration of his right in the subject property and aggrieved by an adverse entry in the Record of Rights, which is not the case of the applicants. The applicants have challenged the order dated 09.02.2009 whereby the entries in the Record of Rights were maintained and hence the provisions of section 53 of the Sindh Land Revenue Act, 1967 are not applicable to the facts and circumstances of this case. My this considered view finds support from the cases of (i) Jan Muhammad Abbasi v. Mukhtiarkar Estate, Larkana (Barrage Mukhtiarkar) and others (2007 CLC (Karachi) 1790) and (ii) Zahid Hussain and 10 others v. Shamasuddin and 9 others (2014 CLC (Sindh) 1334).
33.In my considered view, the provisions of section 172 of the Sindh Land Revenue Act, 1967 are applicable to the instant suit for the reason that the applicants' case was only for the correction of entries in the Record of Rights, for which the Board of Revenue or any Revenue Officer is empowered under the Sindh Land Revenue Act, 1967 and hence the instant suit is barred under section 172(1)(2)(vi) of the Sindh Land Revenue Act, 1967, which provides that:--
"(1) Except as otherwise provided by this Act, 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, or take cognizable of the matter in which Government, the Board of Revenue, or any Revenue Officer exercises any powers vested in it or him by or under this Act.
(2) Without prejudice to the generally of the provisions of subsection (1), a Civil Court shall not exercise jurisdiction over any of the following matters namely:--
(i) .
(ii) .
(iii) .
(iv) .
(v) .
(vi) the correction of any entry in a record of rights, periodical record or register of mutations."
My this considered view finds support from the cases of (i) Muhammad Din and 3 others v. Adminsitrator-General of Auqaf, Pakistan, Islamabad and 2 others (1979 CLC (Lahore) 551), (ii) Ghulam Muhammad v. Mst. Shahnaz Bibi and 10 others (1989 CLC (Lahore) 831), (iii) Muhammad Bashir v. Lal Din and others (1990 MLD (Lahore) 1907), (iv) Muhammad Yousaf Khan Bugti and another v. Province of Sindh through Senior Member, Board of Revenue and 5 others (2013 CLC (Sindh) 1155) and (v) Zahid Hussain and 10 others v. Shamsuddin and 9 others (2014 CLC (Sindh) 1334).
34.The last contention of the learned counsel for the applicants is both the Courts below have committed illegality and irregularity in rejecting the plaint and therefore this revision application may be allowed and the instant suit may be remanded to the Trial Court for decision on merit after framing issues and recording evidence. However, he has not cited any case-law in support of his arguments. On the other hand, the learned counsel for the respondents Nos.1 to 10 submitted that both the Courts below have rightly rejected the plaint under Order VII, Rule 11, C.P.C. and therefore this revision application against the concurrent findings is not competent. However, he has also not cited any case-law in support of his arguments.
35.To attract the provisions of section 115, C.P.C., the applicants have to satisfy this Court that the subordinate Courts have:
a)exercised a jurisdiction not vested in them by law, or
b)failed to exercise a jurisdiction so vested, or
c)acted in the exercise of the jurisdiction illegally or with material irregularity.
The learned counsel for the applicants has not been able to point out any illegality or irregularity committed by both the Courts below while rejecting the plaint under Order VII, Rule 11, C.P.C. However, I myself have gone through both the order of the learned Senior Civil Judge as well as the Judgment of the learned Additional District Judge and found that both of them have exercised their jurisdiction in accordance with law and have not committed any illegality and irregularity in deciding the instant suit and accordingly my considered view is that this revision application under section 115, C.P.C. is not competent against the concurrent findings. My this considered view finds support from the cases of (i) Muhammad Bux v. Muhammad Ali (1984 SCMR 504), (ii) Haji Muhammad Zaman v. Zafar Ali Khan and others (PLD 1986 Supreme Court 88), (iii) Muhammad Nawaz and others v. Muhammad Sadiq and another (1995 SCMR 105) and (iv) Abdul Hakeem v. Habibullah and 11 others (1997 SCMR 1139).
36.In view of the above discussion, this revision application along with listed applications was dismissed by short order dated 09.09.2016 and the above are the reasons for the said short order.
ZC/N-51/Sindh Revision dismissed.
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