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IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR
Civil Revision No. S – 52 of 2006

(Rustam and others vs. Khan Muhammad & others)
Date of hearing: 24-01-2022

Date of judgment: 24-01-2022
Mr. Safdar Ali Bhatti, Advocate for the Applicants.

Nemo for Respondents.
JUDGMENT
Muhammad Junaid Ghaffar, J. – Through this Civil Revision, the

Applicants have impugned judgment dated 09-01-2006 passed by 1st.
Additional District Judge, Khairpur in Civil Appeal No.23 of 1993, whereby,
while allowing the Appeal, judgment dated 29-06-1993 passed by the
Senior Civil Judge, Khairpur in Civil Suit No.86 of 1991 through which the
Suit of the Respondents was dismissed, has been set-aside and the said
Suit has been decreed.
2. Heard learned Counsel for the Applicants and perused the record.
3. Insofar as the Respondents are concerned, despite issuance of

various notices nobody has turned up, though Vakalatnama of their
Counsel is on record and has never been discharged.
4. It appears that the Respondents filed a Suit for declaration and

injunction seeking the following prayers; -
(a) That this Hon’ble Court may graciously be pleased to declare

that plaintiffs are owners of agricultural land bearing Survey
Nos.700 (1-09), 1391 (1-24), 1392 (1-33) and 1533 (0-35)
total area measuring (5-21), acres of deh Shah Ladhani,
Taluka Khairpur, thereby correcting the entries in record of
rights by entering the names of plaintiffs in mutation register,
deleting the names of defendants.
(b) To grant permanent injunction, restraining the defendants,

their representatives, assignees and any person on their
behalf from interfering in the right, title and interest and
possession of the plaintiffs, over the suit land, further
restraining them from executing agreements, sale deeds,
mortgage or any sort of transaction.
(Civil Revision No. S – 52 of 2006)
5. The trial Court after exchange of pleadings settled as many as 12

issues and was pleased to dismiss the Suit of Respondents on the ground
that the same was not maintainable and even no case was made-out on
merits. The said judgment and decree was challenged in Appeal by the
private Respondents and through impugned judgment the Appeal was
allowed by setting-aside the judgment of the trial Court and Suit has been
decreed.
6. The precise case of the Respondents’ was to the effect that the Suit
land belonged to their father who had inherited the same long ago,
whereas, the Respondents had manipulated the revenue record and had
got mutation entries in their names fraudulently. In fact, the Suit was
seeking cancellation of mutation entries in the name of the Applicants.
7. Insofar as the very maintainability of the Suit is concerned, it

appears from the perusal of the record that the Respondents failed to
specifically mention the cause of action1 for filing of the Suit. Instead a
very vague averment was made without giving any details of the dates on
which the said cause of action had accrued. This is a very important
aspect of the matter, as apparently the Suit was filed much belatedly in
respect of some claim accrued in favour of the predecessors in interest of
the Respondents by virtue of some decree of a Suit pertaining to year
1928. For that a proper cause of action was required to be disclosed so as
to see that whether the Suit was within time or not. It is a matter of record
that the entry of present Applicants is of the year 1942 and if that is so
then how and in what manner the Suit of the Respondents was within time
either for a declaration and or for cancellation of the entries. This has gone
unexplained insofar as the Respondents are concerned. The learned trial
Court was fully justified in holding that the Suit was not maintainable,
whereas, the learned Appellate Court has failed to exercise due diligence
and has erred in law by holding that the Suit was maintainable. Even
otherwise the Suit was also barred for want of jurisdiction in as much as, it
was only a mutation entry which was being agitated and of which the
cancellation was being sought. In that case, if there is no objection
regarding jurisdiction and authority of the Officer for passing of an order of
1
15. That cause of action arose to file this suit on or about few days back when the names of the defendants
were entered in place of their father and plaintiffs came to know about this false and fabricated entry
thereafter every day till today within the jurisdiction of this court.
2
mutation, then even if such order is illegal; then the jurisdiction of the Civil
Court is barred and cannot be invoked in absence of such lack of
jurisdiction. The proper course was to avail the remedy in the Revenue
hierarchy. The learned trial Court was fully justified in holding that the
Court lacked jurisdiction; but the Appellate Court has set-aside the same
without any cogent reasoning or finding. It is also a matter of record that
after dismissal of their Suit, the Respondents did approach the Revenue
authorities by way of an appeal who vide his order dated 25.5.2000,
though held that the entry in favor of the Applicant is an old entry
pertaining to the year 1943; whereas, the Respondents have failed to
show any illegality in the recording of these entries; however, since the
matter is sub-judice in Appeal, the parties may seek their remedy before
the said Court. Hence, by conduct of the Respondents they were
estopped in pursuing the remedy before the Appellate Court, as it is they
who themselves abandoned their remedy before the Court and
approached the Commissioner by way of an appeal. And this was an act
after dismissal of their Suit, whereas, they could not have pursued both
the remedies simultaneously. The law in this regard is already settled that
once a party has selected a legal forum for seeking any relief, then the
said party cannot abate such proceedings in between and seek any other
remedy for the same relief. Once that remedy was elected, then, by
implication of the doctrine of election, the other remedy by way of a civil
suit was barred2.
8. Another aspect of the matter which has prevailed upon the

Appellate Court in setting-aside the judgment and decree of the Trial Court
is apparently some Application filed under Order 41 Rule 27 read with
Section 151 CPC before the Appellate Court on behalf of the
Respondents, wherein certain documents were relied upon which are
dated much later in time as to the judgment of the trial Court. The learned
Appellate Court has taken into consideration all these documents in
deciding the appeal in favor of the Respondents. In that case such
documents could not have been relied upon by the Appellate Court and
the proper course was either remand of the matter and to permit the
parties to lead their evidence before the concerned trial court on such
documents which were issued subsequently or were later in time as
against the judgment of the trial court; or in the alternative record evidence
2
Reliance can be placed on the cases of Trading Corporation of Pakistan v. Devan Sugar Mills Ltd. (PLD
2018 SC 828); and Daan Khan v. Assistant Collector (2019 CLC 483)
3
by itself. However, mere filing of an application along with such documents

does not suffice and the Appellate Court is not empowered to take the
same on record. Not only this, even they have been relied upon while
setting aside the judgment and decree of the trial Court before whom no
such documents were ever produced or relied upon. This is a gross
illegality committed by the Appellate Court and has become the prime
reason to set aside the judgment of the trial Court. This perhaps in law,
cannot be sustained.
9. It is also a matter of record that the learned Appellate Court has

seriously fallen in error to observe that voluminous documents were
placed on record by the Respondents. It would suffice to observe that
voluminous documents are not of any consideration; but it is the quality
and the reliability of the documents which matters in evidence. Though the
judgment of the learned trial Court may not have been properly worded or
reasoned; but in essence the conclusion drawn was very clear inasmuch
as the suit was not maintainable, whereas, on merits they had failed to
prove their case; therefore, only on this reason the said judgment could
not have been set-aside. The findings of the learned Appellate Court
appear to be based on presumptions and on the fact that various
documents have been relied upon; hence, the Suit must be decreed. This
approach was in incorrect approach and is not supported by law.
10. Lastly as to decree in favour of predecessor-in-interest of

Respondents in Suit No.327 of 1928 is concerned, it may be relevant to
observe that firstly, that Suit was in respect of some private partition
between the parties and cannot be relied upon for a declaration; secondly,
if that being so, then it was for the executing Court to execute such
decree; but in no manner by way of a second civil suit, the same can be
executed or for that matter be relied upon to get a decree of declaration. It
is also a matter of record that insofar as the present Applicants are
concerned, they were not a party to that Suit.
11. In view of hereinabove facts and circumstances of this case, it

appears that the learned Appellate Court has fallen in error and has failed
to appreciate the law as well as the evidence while setting aside the
judgment of the trial Court; hence this Civil Revision Application merits
consideration, and therefore, by means of a short order in the earlier part
4
of the day the same was allowed by setting aside the impugned judgment
dated 9.1.2006 and these are the reasons thereof.
Judge

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IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Civil Revision No. S – 52 of 2006

Date of hearing: 24-01-2022

Mr. Safdar Ali Bhatti, Advocate for the Applicants.

Muhammad Junaid Ghaffar, J. – Through this Civil Revision, the

3. Insofar as the Respondents are concerned, despite issuance of

4. It appears that the Respondents filed a Suit for declaration and

(a) That this Hon’ble Court may graciously be pleased to declare

(b) To grant permanent injunction, restraining the defendants,

5. The trial Court after exchange of pleadings settled as many as 12

7. Insofar as the very maintainability of the Suit is concerned, it

8. Another aspect of the matter which has prevailed upon the

by itself. However, mere filing of an application along with such documents

9. It is also a matter of record that the learned Appellate Court has

10. Lastly as to decree in favour of predecessor-in-interest of

11. In view of hereinabove facts and circumstances of this case, it

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