2025 Y L R 373
[Sindh (Larkana Bench)]
Before Arbab Ali Hakro, J
GHULAM SHABIR and another---Applicants
Versus
ALI SHER and 17 others---Respondents
Civil Revision Application No. S-15 of 2020, decided on 31st October,
2024.
(a) Specific Relief Act (I of 1877)---
----Ss.8, 39, 42 & 54---Suit for declaration, cancellation of entries in the
revenue record, possession, permanent and mandatory injunction---
Maintainability---Audi alteram partem, principle of---Scope---Entries
entered into the revenue record were cancelled being fraudulent---
Applicants availed remedies in revenue hierarchy, but remained
unsuccessful---Contention of the applicants was that they were not
afforded an opportunity of hearing before cancelling their registered
sale deed---Validity---Foundational entry was found to be fabricated,
false and fraudulent by the Revenue hierarchy upon thorough
verification of the original record, of which they were the custodians-
--Such entry did not inherently provide the applicants with a cause of
action to challenge the same by filing a declaratory suit, especially
when the applicants were admittedly not in possession of the subject
property---Incompetent suit should be dismissed at its inception and
such approach serves the dual purpose of safeguarding the interests
of the litigating parties and preserving the resources of the judicial
institution---For the litigants, the early dismissal of an untenable
claim conserves both time and financial resources, sparing them the
protracted ordeal of a meritless legal battle and eliminating such
suits at the outset allows the courts to allocate their time and efforts
more effectively towards genuine and substantial causes---Both the
courts, in addition to the plaint, looked into the admitted/undisputed
documents and facts, such as record before the revenue authorities
and rightly rejected the plaint, for, an incompetent suit should be
buried without further proceedings---Applicants availed appellate
and revisional remedies against the cancellation order, in which they
were afforded an opportunity to be heard at the subsequent stages---
Principle of audi alteram partem, which mandates that no person
should be condemned unheard, becomes satisfied if the affected
parties are provided with a reasonable opportunity to present their
case at any stage of the proceedings, thus, any procedural lapse at the
initial stage, assuming there was one, had been rectified by the
subsequent hearings, as such the applicants' argument that they were
condemned unheard before passing of the order was devoid of
substantive merit, as subsequent opportunities provided to them had
redressed their grievances---Civil revision was dismissed, in
circumstances.
1996 SCMR 78; PLD 2015 Lahore 687; 1992 CLC 851; PLD 2024 SC 838;
2007 SCMR 741; 2004 PSC 1444 and 2000 PSC 746 ref.
(b) Specific Relief Act (I of 1877)---
----S. 42---Suit for declaration---Discretionary relief, grant of---Scope--
-Relief under S.42 of the Specific Relief Act of 1877 is discretionary---
Courts have the latitude to grant or deny such relief based on the
merits and equity of each case.
(c) Administration of justice---
----Wrong/illegal entries in revenue record---If the basic structure is
illegal, all the superstructure erected thereupon is similarly tainted
with illegality.
Ghulam Muhammad Barejo for Applicants.
Waqar Ahmed A. Chandio for Respondents Nos. 1 to 3.
Abdul Sattar Hulio for Respondent No. 7.
Zahid Hussain Chandio for Respondent No. 9.
Abdul Waris Bhutto, Asst. A.G. for Respondents Nos. 8 to 18.
Nemo for Respondents Nos. 4 to 6.
Dates of hearing: 16th and 22nd, October, 2024.
JUDGMENT
ARBAB ALI HAKRO, J.---Through this Revision Application under
Section 115 of the Civil Procedure Code, 1908 ("C.P.C"), the applicants
impugn the Judgment and Decree dated 18.12.2019, passed by learned
III-Additional District Judge (MCAC), Larkana ("Appellate Court"),
whereby the applicants' appeal was dismissed, thus affirming the
Order dated 05.11.2019, rendered in F.C Suit No.63/2019 by learned IV-
Senior Civil Judge, Larkana ("Trial Court"), which had rejected the
plaint under Order VII, Rule 11, C.P.C.
2. In summation, the factual matrix reveals that Applicant No.1,
Ghulam Shabir, effectuated the purchase of 00-20 acres from Survey
No.838 (04-00 acres) situated in Deh Badeh, Taluka Dokri, District
Larkana, from Abdul Sattar through registered Sale Deed No.455 dated
07.11.1995. Applicant No.2, Abdul Ghaffar, subsequently purchased 1-
38 acres of the same survey from Gul Hassan vide Sale Deed No.96
dated 02.02.2002. Possession of the subject properties was duly
transferred to the applicants, and the record of rights was accordingly
mutated with entries No.402 dated 16.12.2001 and No.1367 dated
13.3.2002. The applicants allege that Respondents Nos.1 to 7
endeavoured to usurp the land illicitly. Following a demarcation
report on 18.5.2016, the Additional Deputy Commissioner-I, Larkano
cancelled all entries on 08.6.2018 without providing the applicants an
opportunity for a hearing. Subsequent appeals to the Additional
Commissioner and the Board of Revenue were dismissed on 18.9.2018
and 16.9.2019, respectively. On 25.8.2019, Respondents Nos.1 to 7,
abetted by Respondents Nos.8 to 10, unlawfully occupied the subject
property. Consequently, the applicants instituted a suit seeking a
declaration of ownership, annulment of the aforementioned orders,
repossession of the property, and the issuance of permanent and
mandatory injunctions.
3. Upon presentation of the plaint, the trial court, after reviewing its
contents and the accompanying documents, rejected the plaint by
Order dated 05.11.2019. The applicants, aggrieved by this decision,
filed an appeal before appellate Court, which was also dismissed by
the judgment and decree dated 18.12.2019. Consequently, the
applicants now seek to challenge the concurrent findings of both lower
courts through the instant revision application.
4. At the outset, learned counsel representing the applicants submits
that the Order dated 08.06.2018, passed by the Additional Deputy
Commissioner-I, Larkana, was ultra vires as no notice was issued to
the applicants prior to the passing of the Order, and this fact has not
been considered by the courts below. He submits that the applicants
are lawful owners of the subject property through registered Sale
Deeds; hence, the Revenue Authorities lack jurisdiction to cancel the
entries based on these registered Sale Deeds. Additionally, he submits
that the applicants were in possession of the subject property when
the entries were cancelled and were subsequently dispossessed by the
private respondents, as stated in the plaint. He further submits that
the plaint cannot be summarily rejected as the matter requires
evidence to elucidate the question of fraud. Lastly, learned counsel for
the applicants prays that the instant revision application be allowed by
setting aside the impugned judgment, decree, and Order passed by
both lower courts. In support of his contentions, learned counsel relies
on the case laws reported as 1996 SCMR 78, PLD 2015 Lahore 687 and
1992 CLC 851.
5. Conversely, learned counsel representing Respondents Nos.1 to 3
contended that the learned trial court had rightly rejected the plaint
maintained by the learned appellate Court, with no material
irregularity or illegality committed by both courts below. It was argued
that Survey No.838 was not included in the decree passed in F.C. Suit
No.45 of 1986. It was fraudulently included in the entry, justifying its
cancellation by the Revenue Authorities. He placed reliance on the
cases reported as PLD 2024 SC 838, 2007 SCMR 741, 2004 PSC 1444 and
2000 PSC 746.
6. Learned A.A.G., while advocating in favour of the impugned
judgment, decree, and order passed by both lower courts, asserted that
the subject property is owned by the Government. This assertion was
bolstered by the Recordical Statement provided by the Mukhtiarkar
Taluka Dokri and the Additional Deputy Commissioner-I, Larkana.
7. Learned counsel representing Respondent No.7 has adopted the
arguments presented by learned counsel for Respondents Nos.1 to 3.
8. The contentions have been meticulously scrutinized, and the
accessible records have been assiduously evaluated. To ascertain
whether an adequate and exhaustive dispensation of justice was
accomplished, it is imperative to scrutinize the concurrent findings
articulated by both the Courts below.
9. Upon scrupulous examination of the case record, it is manifestly
apparent that the foundational entry No.222, dated 27.11.1986, in the
name of Ghulam Rasool son of Jan Muhammad, was predicated on a
Judgment and Decree dated 30.06.1986, passed in F.C. Suit No.45 of
1986 by the III-Senior Civil Judge, Larkana, ostensibly in favour of the
aforementioned Ghulam Rasool. This Judgment and Decree
purportedly included Survey No.838, among other survey numbers.
Leveraging this initial entry, Ghulam Rasool subsequently alienated
00-20 acres out of Survey No.838 to Abdul Sattar vide a registered Sale
Deed, resulting in entry No.612 dated 28.02.1994, being recorded in
Abdul Sattar's favour. Thereafter, Abdul Sattar transferred the said 00-
20 Ghuntas to Applicant No.1 through another registered Sale Deed,
culminating in entry No.402 in favour of Applicant No.1. Additionally,
Ghulam Rasool disposed of 02-00 acres of Survey No.838 to Gul Hassan
vide a registered Sale Deed, leading to entry No.617 dated 04.04.1994,
in favour of Gul Hassan. Subsequently, from the aforementioned 02-00
acres, Gul Hassan sold 01-38 acres to Applicant No.2 through a
registered Sale Deed, resulting in entry No.1367 dated 13.03.2002, in
favour of Applicant No.2.
10. However, it is a trite proposition of law that if the basic structure
is illegal, all the superstructure erected thereupon is similarly tainted
with illegality. In this context, the Additional Deputy Commissioner-I,
Larkano, by an Order dated 08.06.2018, annulled the foundational
entry No.222 and all subsequent entries on the premise that Survey
No.838 was fraudulently incorporated into entry No.222. The Judgment
and Decree dated 30.06.1986, upon which entry No.222 was predicated,
did not encompass Survey No.838, and the original record exhibited
conspicuous overwriting. Consequently, the entire chain of
transactions predicated on illegitimate entry No.222, including the
sales to Abdul Sattar and the applicants, is vitiated by the initial
illegality, rendering all derivative entries null and void ab initio.
11. It is well-established that the function of a Revenue Officer is to
prepare accurate revenue records based on evidence regarding one's
title or interest. Consequently, the law restricts the jurisdiction of Civil
Courts from undertaking functions assigned to Revenue Officers,
including the methodologies they adopt in performing their duties.
The Civil Courts do not have jurisdiction to correct entries made by the
Revenue Officer in the course of his duties. In the present case, the
Additional Deputy Commissioner-I, Larkano passed the Order dated
08.6.2018 thoroughly after verifying the original records within the
scope of his powers.
12. Concerning the contention that no notice was issued to the
applicants before passing Order dated 08.06.2018 by the Additional
Deputy Commissioner-I, Larkano, allegedly resulting in the applicants
being condemned unheard: Upon a scrupulous examination of the
case record and considering the fact that the applicants subsequently
availed themselves of appellate and revisional remedies against the
said Order, it is manifest that they were afforded an opportunity to be
heard at these subsequent stages. The principle of Audi alteram
partem, which mandates that no person should be condemned
unheard, is satisfied if the affected parties are provided with a
reasonable opportunity to present their case at any stage of the
proceedings. Therefore, any procedural lapse at the initial stage,
assuming there was one, has been rectified by the subsequent
hearings. Thus, the applicants' argument that they were condemned
unheard before passing of the Order dated 08.06.2018 by the
Additional Deputy Commissioner-I, Larkano, is devoid of substantive
merit, given the subsequent opportunities provided to them to address
their grievances.
13. The plaint's averments fail to delineate that the Orders passed by
the Revenue hierarchy were either ultra vires or exceeded the
statutory confines of their authority. Furthermore, it does not establish
that these orders were vitiated by any jurisdictional infirmity, thereby
rendering them susceptible to scrutiny under the jurisdiction of the
Civil Court, in view of dicta laid down by the Supreme Court of
Pakistan in the cases of Abdul Rab and other1 and Bashir Ahmed and
others2.
14. Indeed, the discretionary nature of declaratory relief under
Section 42 of the Specific Relief Act of 1877 is well-established. The
plain reading of Section 42 underscores the principle that the courts
have the latitude to grant or deny such relief based on the merits and
equity of each case.
15. In light of the aforementioned considerations, I hold the view
that the alleged foundational entry, deemed fabricated, false, and
fraudulent by the Revenue hierarchy upon thorough verification of the
original record, of which they are the custodians, does not inherently
provide the applicants with a cause of action to challenge such Orders
by filing a declaratory suit. This is especially pertinent given that the
applicants are admittedly not in possession of the subject property.
16. It is a fundamental tenet of legal jurisprudence that an
incompetent suit should be dismissed at its inception3. This approach
serves the dual purpose of safeguarding the interests of the litigating
parties and preserving the resources of the judicial institution. For the
litigants, the early dismissal of an untenable claim conserves both time
and financial resources, sparing them the protracted ordeal of a
meritless legal battle. From the perspective of the judiciary,
eliminating such suits at the outset allows the courts to allocate their
time and efforts more effectively towards genuine and substantial
causes. Both the Courts below, in addition to the plaint, looking into
the admitted/undisputed documents and facts, such as record before
the revenue authorities relating to Judgment and Decree dated
30.6.1986 passed in a F.C Suit No.45 of 1986, rightly rejected the plaint,
for, an incompetent suit should be buried without further proceedings.
17. In light of the foregoing, I am of the considered view that the
trial Court, while rejecting the plaint and the appellate Court by
dismissing the appeal against the Order of the trial Court, has not
transgressed any legal boundaries, nor is there any discernible
infirmity or jurisdictional defect in their exercise of jurisdiction in
rendering the impugned Order, judgment and decree, invoking the
provisions of Section 115, C.P.C. Accordingly, the instant Civil Revision
Application is devoid of merit and is hereby dismissed.
SA/G-20/Sindh Revision dismissed.
;
