PLJ 2010
[
Present: Hafiz Abdul Rehman Ansari, J.
RAZA ALI--Petitioner
versus
PROVINCE OF PUNJAB etc.--Respondents
C.R. No. 868-D of 1996, decided on 14.12.2009.
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Civil revision--Registration of sale-deed--Proceedings for review of the mutation--Mutation was cancelled--Vires of mutation was challenged--After failing before revenue Courts the petitioners filed a civil suit before Civil Court--Facts needs be placed in chronological order of two round of litigation--First round of litigation between the parties before revenue hierarchy and second round of litigation before the Civil Court--Validity--First round of litigation started when mutation was attested and sanctioned as a review of mutation while the second round of litigation started when the petitioner filed a civil suit--Held: In the first round of litigation, on revenue side to Board of Revenue--There are concurrent findings of facts of revenue Courts against the petitioner--In the second round of litigation in the Civil Court there are again concurrent findings of facts and law--Both the Courts below have concurred the facts and not accept the prayer of the petitioner--Further held: Petitioner has also failed to prove any illegal exercise of jurisdiction or failure to exercise jurisdiction legally vested in the Court or any jurisdictional defect in the judgments and decrees nor there is any illegality or material irregularity pointed out to have been committed by trial Court or lower Appellate Court--Revision was dismissed.
[Pp. 336 & 338] A, B & C
Mian Muhammad Jamal, Advocate for Petitioner.
Rao Ubaid Ali Khan, Advocate for Respondents No. 3-A to 3-G.
Mr. Aurangzeb Khan, A.A.G. for Respondents.
Date of hearing: 29.9.2009.
Order
Petitioners Raza Ali etc. through this revision petition under Section 115 CPC seek setting aside the judgment and decree of the learned trial Court dated 03.06.1992 and the judgment and decree of the learned lower appellate Court dated 11.06.1996.
2. Brief facts of
the case are that Ilam-ud-Din, predecessor-in-interest of
Defendants/Respondents No. 2-A and 2-B sold his property to Muhammad Ali Shah,
predecessor of plaintiffs/petitioners through sale-deed registered on
9.05.1963. The sale-deed was duly incorporated in revenue record vide Mutation
No. 4 sanctioned on 03.02.1964. But later on, above said Ilam-ud-Din/vendor
initiated proceedings for review of the above said Mutation No. 4 dated
03.02.1964, which was consequently reviewed through Mutation No. 602 dated
23.08.1980, according to which, Mutation No. 4 dated 03.02.1964 was cancelled
and the land reverted to Ilam-ud-Din vendor. Muhammad Ali Shah
predecessor-in-interest of petitioners challenged the vires of Mutation No. 602
dated 23.08.1980 in
3. Ilam-ud-Din
first of all filed an application before the Tehsildar to review Mutation No. 4
dated 03.02.1964 sanctioned on 03.02.1964 in favour of predecessor of present
petitioner, which was accepted and reviewed through Mutation No. 602 dated
23.08.1980. Predecessors of the present petitioners filed appeal against the
order dated 23.8.1980 passed by AC-I, Shujabad whereby he sanctioned Mutation
No. 602 of village Merali Wahin in favour of respondent regarding Khasra Nos.
66/10; 81/14/1,15/1 measuring 16-Kanals 4-Marlas. Assistant
Commissioner/Collector, Shujabad dismissed the appeal of present petitioner
filed against sanction of Mutation No. 602 dated 23.08.1980. The order dated
13.04.1981 passed by Assistant Collector, Shujabad was assailed in revision by
the present petitioner and the learned Additional Commissioner,
4. After failing
before the revenue Courts the present petitioners on 29.02.1988 filed a civil
suit before the Senior Civil Judge,
"It is contended by the learned counsel for the petitioner that the vendor is not allowed to challenge the sale on the ground that the sale is void because it is hit by the provisions of M.L.R 64 or M.L.R. 115. Reliance in this regard is placed on Noor Samad vs. Muhammad Aslam and 16 others (1986 MLD 431) and Ghulam Muhammad alias Ghulamoon vs. Maula Dad and 6 others (1980 SCMR 314). Further reliance is placed on A.R. Khan vs. P.N. Boga through legal heir (PLD 1987 S.C. 107) to contend that a party cannot allowed both to approbate and reprobate.
2. Admit. Notice.
C.M.NO. 1/96
3. The respondents are restrained from alienating or changing the nature of the suit land in the meanwhile subject to notice.
4. It is a short matter, therefore, the office is directed to list the main petition for final hearing immediately after summer vacations before any available bench."
5. The plaintiffs/petitioners alongwith their mother Mst. Hafeez Begum (since deceased) being his successors filed a suit for declaration and for possession claiming to be the owners of the land through Mutation No. 4 dated 03.02.1964 and they also challenged the vires of orders passed in revenue forum. Defendants, Ilam-ud-Din and Shah Muhammad predecessor-in-interest of respondents, submitted written statement on 14.06.1988. Learned trial Court vide order dated 20.06.1988 framed as many as nine issued including that of relief:--
1. Whether the impugned order passed by Collector dated 13.4.1981, order of Additional Commissioner dated 30.10.1985 and order of Member Board of Revenue dated 22.1.1987 are illegal, void, without lawful authority against facts, as such, inoperative on the rights of plaintiffs?
2. Whether the suit is not maintainable in its present forum?
3. Whether the suit has been deliberately wrongly valued for the purposes of Court fee?
4. Whether the plaintiffs are estopped to file present suit?
5. Whether the suit is time barred?
6. Whether the description of said property is incorrect?
7. Whether the suit is bad for min-joinder of necessary parties?
8. Whether the defendants are entitled for special costs under Section 35-A CPC?
9. Relief
6. One of the plaintiffs, Imtiaz Ali appeared as PW-1 and the plaintiff produced a copy of sale-deed Ex.P. 1. copy of Mutation Ex.P.2, copy of order of Collector Ex.P.3, copy of order of Addl. Commissioner Ex. P.4, copy of Khasra Girdawari Ex.P.5, copy of Jamabandi Ex.P.6 and copy of the order of Member Board of Revenue Ex.P.7. Ilam Din appeared as DW-1, Muhammad Zaman as DW-2.
7. The petitioners
challenged the vires of judgment and decree of learned trial Court in appeal
before the learned District Judge,
8. Learned counsel
for the petitioner submits that impugned judgments and decrees of both the
Courts below are against law and facts, against the record, fanciful,
arbitrary, result of mis-reading and non-reading of evidence, and are based on
misconception of law on the subject, hence, untenable in the eye of law; that
the suit land was purchased by Muhammad Ali Shah, predecessor-in-interest of
plaintiffs/petitioners through registered sale-deed after payment of valuable
consideration. The vendor, Ilam-ud-Din appeared before the Registrar and made
statement acknowledging the sale and receipt of consideration, on the basis of
said registered sale-deed, Mutation No. 4 dated 03.02.1964 was sanctioned in
accordance with law, after completion of sale and transfer of possession, the
vendor, Ilam-ud-Din had no right to initiate the proceeding for review of
Mutation No. 4 dated 03.02.1964; that Ilam-ud-Din, vendor, if was aggrieved by
the sale-deed registered in favour of Muhammad Ali Shah,
predecessor-in-interest of petitioners, he himself should have challenged the
same in the suit before the competent Court, asserting that fraud had been
committed with him, but no such proceedings were initiated by him in any
competent forum; that construction was not raised on the suit land due to
initiation of litigation on behalf of Ilam-ud-Din. Moverover, Mutation No. 4
dated 03.02.1964 could not be cancelled due to violation of MLR 115 as the said
provisions has since been declared repugnant to Injunctions of Islam by the
9. Learned counsel
for respondents submits that mutation regarding property in dispute was attested
in favour of father of petitioners of civil revision petition which was duly
challenged by way of filing appeal before the Collector, Shujabad on the ground
of fraud misrepresentation lack of jurisdiction by the father of the Respondent
No. 1-A & 1-B in which he took plea that the wife of Respondent No. 1 of
the deceased was got abducted by the father of the revision petitioner and for
her return father of the petitioner got some thumb impression on blank paper,
which later on transpired that he got the mutation attested in collusion with
revenue staff, in fact father of the respondent never sold or exchanged his
property to the father of the petitioners, in fact the impugned mutation is a
result of fraud misrepresentation was liable to be cancelled, which was
assailed in appeal and the said appeal was accepted by the Collector, Shujabad;
that father of the petitioner agitated the matter before Additional
Commissioner, Revenue, which was dismissed by the same Court. After this father
of the petitioner filed a revision petition before the Member Board of Revenue,
which also met the same fate; that the present petitioners being a, legal heirs
of Muhammad Ali Shah filed a civil suit in the Court of Senior Civil Judge,
Multan against the father of present respondent and against Province of the
Punjab in which they prayed for declaration of ownership of disputed land on
the basis of mutation in favour of father of plaintiffs/petitioners on behalf
of the father of present respondents, who challenged the orders of the Revenue
Courts with regard to impugned mutation. The suit was dismissed on 03.06.1992, the present petitioner filed an appeal in the
Court of District Judge,
10. Arguments heard. Record perused.
11. This case has
a chequered history. The facts needs be placed in chronological order of this
case of two round of litigation. First round of litigation
between the parties before the revenue hierarchy and second round of litigation
before the
12. First round of
litigation started when Mutation No. 602 dated 23.8.1980 was attested and
sanctioned as a consequence of review of earlier Mutation No. 4 dated
03.02.1964 sanctioned on 03.02.1964. After subsequent Mutation No. 602 dated
23.08.1980 land in dispute was reverted to Ilam Din/vendor. First of all
Muhammad Ali Shah, predecessor-in-interest of the present
petitioners/appellants challenged the vires of Mutation No. 602 and filed an
appeal before the District Commissioner, Shujabad, passed by ACE whereby he
sanctioned Mutation No. 602 Muhammad Ali Shah predecessor of the present
petitioner assailed Mutation No. 602 dated 23.8.1998 to village Merale Wali in
favour of Ilam Din son of Raheem Bukhsh and dismissed the appeal of Muhammad
Ali Shah, predecessor-in-interest of the present petitioner on 13.4.1981 and
decision of the Tehsildar is upheld. Muhammad Ali Shah filed Revision Petition
No. 444-R-81 before Additional Commissioner,
"Muhammad Ali Shah etc. purchased 8 Kanals of land for residential purpose from Ilam Din through registered deed and Mutation No. 4 was attested on 24.8.1963. Later on, the present petitioners exchanged the purchased residential site with an agricultural land. The disputed land was purchased for residential purpose on 24.8.1963 and since then the petitioner have not constructed any house on the disputed land but the same has been cultivated by them. The land was purchased for residential purpose then there was no need to exchange the residential site with the agricultural land. This shows that the petitioners in fact, had purchased land for agricultural purpose to owners in the village. The land was purchased in 1963, there was no justification for not constructing the houses on the purchased residential purpose and not utilized for the same purpose, after lapse of 22 years. It clearly show that the land was purchased is in contravention of MLR 64/116."
This matter went to the Board of Revenue upto that time Muhammad Ali Shah had died. The ROR No. 540-1986 was filed by the predecessor of Muhammad Ali Shah assailing order dated 30.10.1985 passed by Additional Commissioner, Multan by which order Additional Commissioner, Multan has upheld the order passed by Assistant Commissioner/Collector, Shujabad dated 13.04.1981. Member Board of Revenue dismissed ROR vide order dated 22.01.1987 filed by successors/legal heirs of Muhammad Ali Shah.
13. Second round of litigation started when the present petitioners filed a civil suit in the Court of Senior Civil Judge Multan on 29.02.1988 assailing the Mutation No. 602 dated 13.4.1981 declaring the same illegal, void, ab initio not effected on the rights of the plaintiff petitioners; Ilam Din contested the same filed written statement on 14.06.1988. This Court admitted the civil revision for regular hearing:
"It is contended by the learned counsel for the petitioner that the vendor is not allowed to challenge the sale on the ground that the sale is void because it is hit by the provisions of MLR 64 or MLR 115. Reliance in this regard is placed on Noor Samad vs. Muhammad Aslam and 16 others (1986 MLD 431) and Ghulam Muhammad alias Ghulamoon vs. Maula Dad and 6 others (1980 SCMR 314). Further reliance is placed on A.R. Khan vs. P.N. Boga through legal heirs (PLD 1987 S.C. 107) to contend that a party cannot be allowed both to approbate and reprobate."
14. In the first round of litigation, on revenue side, Assistant Commission/Collector, Shujabad to Member Board of Revenue present petitioner failed, there are concurrent findings of facts of revenue Courts against the present petitioner. All the three revenue Courts upheld the fact that land was purchased for agricultural purpose and no construction was made:
"I have heard the learned counsel for the parties and perused the impugned orders. The AC-II while reviewing the order on Mutation No. 4 dated 3.2.1964 heard both the parties. This mutation was sanctioned for sank purposes and it is an establish facts that the petitioners have been in possession of the land in dispute from 1963 onwards but no residence has been constructed over land in dispute till today and the land is being used for cultivation purposes. The obvious conclusion is that the land was purchased for agricultural purpose. Therefore, the transaction is violative of MLR 64/115. No irregularity has been established to interfere with the concurrent findings of the lower Courts."
In the second round of litigation in the
"The contention of learned counsel for the
appellants is devoid of force because no doubt according to judgment passed by
Federal Shariat reported in PLD 1989 Federal Shariat Court page 80, Martial Law
Regulation was declared repugnant to injunction of Islam but Hon'ble Federal
Shariat Court desired that President of Pakistan should take steps to get it
amended before 1.1.1990, in the light of discussion in the judgment, failing
which the said Para No. 24 shall cease to have effect. It means that this
judgment will take effect from the 1st January 1990. The impugned orders were
passed by Collector on 13.4.1981, by Addl. Commissioner on 30.10.1985 and by
Member Board of Revenue on 22.1.1987 i.e. before the judgment of
Cases cited by the petitioner do not in any manner
advance or support the contentions of the petitioner. In case reported as
Manzoor Ahmad vs. S. Taslim Hussain and others (1980 SCMR 314) in this case,
the question of sale prior to obtaining proprietary rights of Government land
was in issue. Applicability of Section 19 of the Colonization of Government
Lands (
"I have heard the learned counsel for the parties and perused the impugned orders. The AC-II while reviewing the orders on Mutation No. 565 dated 29.3.1963 heard both the parties. This mutation was sanctioned for sakni purposes and it is an established fact that the petitioners have been in possession of the land in dispute from 1963 onwards but no residence has been constructed over the land in dispute till today and the land is being used for cultivation purposes. The obvious conclusion is that the land was purchased for agricultural purpose. Therefore, the transaction is violation of MLR 64/115. No irregularity has been established to interfere with the concurrent findings of the lower Courts. The revision is accordingly rejected."
The same findings of facts are upheld by the civil Courts as well as by the lower appellate Courts.
15. The cases cited by the learned counsel for the petitioner do not advance the case of the present petitioners. The concurrent findings of both the Courts below are based on best appraisal of evidence which are not arbitrary, fanciful, are based on cogent reasons. Learned counsel for the petitioner could not point out any non-reading or misreading of evidence in the impugned judgments. Learned counsel for the petitioner has also failed to prove any illegal exercise of jurisdiction or failure to exercise jurisdiction legally vested in the Court or any jurisdictional defect in the said judgments and decrees nor there is any illegality or material irregularity pointed out to have been committed by the learned trial Court or Lower Appellate Court. I would not like to interfere in the judgments of the Courts below.
16. In the light of the above discussion, this civil revision is dismissed with no order as to cost.
(R.A.) Revision dismissed.