PLJ 2009 Lahore 913

Present: Maulvi Anwar-ul-haq, J.

MUHAMMAD NAWAZ and others--Petitioners

versus

MUHAMMAD KHAN and others--Respondents

C.R. No. 245 of 2002, heard on 3.2.2009.

Civil Procedure Code, 1908 (V of 1908)--

----S. 115--MLR 115--Para 24(3)--Civil revision--Suit for declaration--Sale deed in favour of petitioners and sale being of partial holding is liable to be cancelled being violative of MLR 115 so plaintiffs are owners of land on basis of decree--Original owner of land executed of sale-deed of a small portion of his land in favour of his son--Since after such sale he was still left with more than a subsistence sale was valid--Admittedly, he sold entire remaining land to petitioners and executed sale-deed--Such sale, therefore, is perfectly valid and permissible by virtue of proviso to Para 24 (3) of MLR 115--Subsequent setting aside of sale in favour of son of owner on basis of consenting statement in a case between father and son would have no effect whatsoever on sale in favour of petitioners which was past and closed transaction--Revision allowed. [P. 916] A

MLR-115--

----Jurisdiction--Suit for declaration--Seeking cancellation of sale-deed--Sale deed and sale being of partial holding is liable to be cancelled being violative of MLR 115--Jurisdiction of Civil Court--Jurisdiction to declare any transaction to be void under MLR 115 exclusively vests in Land Commission or its subordinate officers--Jurisdiction of Civil Court as also all other Tribunals/Authorities is absolutely excluded.

[P. 916] B

MLR 115--

----Validity--MLR 115 stand declared to be repugnant to injunctions of Islam by Shariat Appellate Bench of Supreme Court and as such void--Suit filed seeking declaration after judgment took effect on 1.1.1990 on touch stone of provisions of MLR 115 could not even be entertained. [P. 917] C

PLD 1990 SC 99, rel.

M/s. Ch. Haroon Akbar Cheema, Sardar Mohabbat Ali Dogar & Malik Allah Yar, Advocates for Petitioners.

Syed Shamim Abbas Bokhari, Advocate for Respondents.

Dates of hearing: 2.2.2009 & 3.2.2009.

Judgment

This case has a chequered history. The facts need be placed in chronological order. Karam Ali, predecessor-in-interest of Respondents No. 5 to 12 owned land measuring 146 kanals in village Jalap, Tehsil Bhalwal, District Sargodha. In the first instance he sold the land measuring 2 kanals 15 marlas to his son Amjad Ali vide registered sale-deed No. 457 (Ex.D3) dated 25.7.73. On the same day he sold the remaining land measuring 143 kanals 5 marlas to the petitioners vide registered sale-deed No. 458 (Ex.D4). I may note here that the land was sold for a consideration of Rs. 80.000/- which amount was paid in front of the Sub-Registrar. Karam Ali filed a suit against the petitioners vide plaint Ex.D15 stating that he sold the land to the petitioners vide the said registered sale-deed but the mutation was rejected on 30.5.74 as sale was found against the MLR 115 and paid back the consideration amount of Rs. 80,000/- to the petitioners. He accordingly sought a declaration that he is owner of the land. While this suit was pending he filed another suit on 10.5.75 against his son Amjad Ali. The declaration was sought that the sale of the said 2 kanals 15 marlas of land is a result of fraud and is void and be set aside. This suit was decreed within 6 days on 16.5.75 on the consenting statement of the said son of Karam Ali. Respondents No. 1 to 3 became parties to the suit on the ground that on the basis of an award dated 30.9.76 (Ex. P1) and order dated 13.10.76 making it a rule of Court (Ex.P2) Karam Ali transferred the same land to them. They were accordingly impleaded as defendants. In the said suit issues were framed. Evidence of the parties was recorded. It was dismissed vide judgment dated 2.3.80. Karam Ali as well as Respondents No. 1 to 3 filed separate appeals. These appeals were heard together by the learned District Judge, Sargodha, who dismissed both the appeals on 14.6.83. Meanwhile, Karam Ali died and his L.Rs were brought on record (i.e present Respondents No. 5 to 12). An appeal was filed in this Court which was allowed and the suit was remanded back with direction that the said plaintiffs be allowed to add the relief of possession. The said suit was ultimately dismissed as withdrawn on 6.5.93.

2. Meanwhile, on 28.4.93 the suit out of which this civil revision has arisen was filed by Respondents No. 1 to 3 i.e subsequent vendees from Karam Ali (hereinafter to be referred as the plaintiffs). It was stated in the plaint that they acquired land measuring 145 kanals 15 marlas from Karam Ali vide Civil Court decree dated 13.10.76 and they are in possession as owners the decree was incorporated in the revenue record vide Mutation No. 56 attested on 25.4.77. Reference was then made to the said suit filed by Karam Ali and their being impleaded as party therein. Thereafter they filed an application to be transposed as plaintiffs, which was rejected. They are apprehending collusion between the petitioners and L.Rs of Karam Ali and are filing the suit. The plea taken was that registered sale-deed dated 25.7.73 in favour of the petitioners is void and liable to be cancelled under MLR 115 and cannot be incorporated in the revenue record. It was explained that whereas Karam Ali was owner of 145 kanals 15 marlas of land in the revenue estate, he sold 143 kanals 5 marlas vide said sale-deed and sale being of partial holding is liable to be cancelled being violative of MLR 115 and for this reason the plaintiffs are owners of the land on the basis of decree dated 13.10.76. A declaration was sought accordingly. The suit was contested by the petitioners, who stated that the sale is valid and the Civil Court had no jurisdiction to declare the same to be void under MLR 115; that the sale stands incorporated in the revenue record. The Respondents No. 5 to 12 denied having transferred the land to the plaintiffs while they did not deny the transaction in favour of the plaintiffs. Inter alia, following Issues No. 3 and 10 were framed by the learned trial Court:--

3. Whether the Court has no jurisdiction to try this case? OPD

10. Whether the sale-deed dated 25.7.73 is illegal, against facts, void and as such is in-operative against the rights of the plaintiffs? OPP

Evidence of the parties was recorded. Vide judgment and decree dated 25.2.99 the learned trial Court dismissed the suit with costs. A first appeal filed by Respondents No. 1 to 3 was allowed by a learned Additional District Judge. Sargodha, on 26.1.02 who decreed the suit of the plaintiffs as prayed for.

3. Learned counsel for the petitioners contend that the impugned judgment and decree of the learned Additional District Judge is wholly without jurisdiction. According to them, Civil Court had no jurisdiction to adjudge the validity of a sale under MLR 115. Reliance is placed on the case of Mst. Aisha Bibi v. Nazir Ahmed and 10 others (1994 SCMR 1935). Further contention is that by the time the suit was filed MLR 115 itself had been declared to be repugnant to the injunctions of Islam by the Shariat Appellate Bench of the Supreme Court of Pakistan in the case of Qazalbash Waqf and others v. Chief Land Commissioner, Punjab Lahore and others (PLD 1990 S.C 99). Learned counsel vehemently urge that in any case the transaction was not at all hit by provisions of MLR-115. Learned counsel for the plaintiffs/respondents, on the other hand, contends that notwithstanding the fact that sale was valid in its inception, because of the setting aside of the sale of 2 kanals 15 marlas in favour of the son of Karam Ali vide the Court decree the sale in favour of the petitions became liable to be cancelled being violative of the provisions of MLR-115. He insists that the Civil Court has jurisdiction to grant the requisite declaration.

4. I have gone through the copies of the records. I have narrated the facts in some details above in chronological order. There is no dispute regarding material facts that total holdings of Karam Ali was 146 kanals. First of all he executed a sale-deed of 2 kanals and 15 malas of land in favour of his son Amjad Ali vide Sale-Deed No. 457 dated 25.7.73. Since after this sale he was still left with more than a subsistence holdings this sale was valid. Admittedly vide Sale-Deed No. 458 dated 25.7.73 (Ex.D4) he sold the entire remaining land i.e 143 kanals 5 marlas to the petitioners. This sale, therefore, is perfectly valid and permissible by virtue of proviso to para 24 (3) of MLR 115. Subsequent setting aside of the sale in favour of Amjad Ali son of Karam Ali on the basis of consenting statement in a case between father and son on 16.5.75 would have no effect whatsoever on the said sale in favour of the petitioners which was past and closed transaction.

5. Apart from the said facts apparent on the face of record the settled rule of law is that jurisdiction to declare any transaction to be void under MLR 115 exclusively vests in the Land Commission or its subordinate officers and jurisdiction of the Civil Court as also all other Tribunals/Authorities is absolutely excluded as laid down in the case of Mst. Aisha Bibi being relied upon by the learned counsel and which has since been followed by all Courts in the country. The impugned judgment and decree of the learned Additional District Judge, therefore, is wholly without lawful authority.

6. Needless to state that the relevant provisions of MLR 115 stand declared to be repugnant to injunctions of Islam and as such void vide the said judgment of the Shariat Appellate Bench of the Hon'ble Supreme Court of Pakistan and the judgment took effect on 1.1.1990. The present suit filed on 28.4.93 seeking cancellation of the sale-deed on the touch stone of the said provisions of MLR 115 could not even be entertained.

7. For all that has been discussed above, the civil revision is allowed.

The impugned judgment and decree dated 26.1.2002 of the learned Additional District Judge, Sargodha is set aside while one passed by the learned trial Court on 25.2.99 dismissing the suit of the plaintiffs/respondents is restored with costs throughout. Counsel fee is fixed at Rs.20,000/-.

(A.S.Sh.) Revision allowed.