2009 PLP 742 (SCMR)

MUHAMMAD FARRUKH MAHMUD, J.

This petition is directed against the judgment, dated 20-11-2001 handed down by the learned Judge in chambers of Lahore High Court, Lahore, whereby Civil Revision No.760 of 1991 filed by the petitioners was dismissed.

2. The relevant facts are that suit property comprising of 84 Kanals situated in Tehsil Narowal (then), District Sialkot was mutated by the Central Government in favour of Nazir Ahmed son of Atta Muhammad, brother of Khalil Ahmed one of the petitioners vide Mutation No.114, dated 4-4-1979. Through the above-noted mutation, Nazir Ahmed became owner of the suit property. Through registered sale-deed dated 9-7-1979, Nazir Ahmed sold the suit property to Rehmat Ali and Muhammad Anwar respondents. On the application of the petitioners the Collector vide his order, dated 23-9-1981 cancelled Mutation No.114 dated 4-4-1979. Feeling aggrieved, respondents Rehmat Ali and Muhammad Anwar filed a suit for declaration claiming to be owners in possession of the suit property. They also challenged the order of the Collector, dated 23-7-1981 as being illegal and unlawful. The suit of the respondents was decreed in their favour vide judgment, dated 13-1-1988. The petitioners went up in appeal which was dismissed vide judgment, dated 26-2-1991. Thereafter, they filed above noted revision which was also dismissed. Hence this petition.

3. Learned counsel for the petitioners, has argued that Nazir Ahmed and his other family members including the petitioners were refugees who had migrated from occupied Jammu and Kashmir and the suit property was given to the petitioners and Nazir Ahmed on temporary basis for subsistence. The learned counsel while relying on the policy letter, dated 21-11-1978 relating to the grant of proprietary rights to non-claimant Jammu and Kashmir refugees temporary allottees of evacuee land (available at page 91 of the paper book), contended that the proprietary rights were to be granted in the name of the head of the family and that Nazir Ahmed who was not the head of the family, could not be granted proprietary rights and the order of the Collector was in accordance with the law. The learned counsel has further argued that the learned Courts at the maximum should have referred the matter back to the Collector.

4. The learned counsel appearing on behalf of respondents Nos.1 and 2 strongly resisted the arguments of learned counsel for the petitioners and supported the impugned judgment.

5. We have heard the learned counsel for the parties at length and have gone through the relevant record of the case. Perusal of the available record reveals that the temporary allotment of suit property was made in favour of Nazir Ahmed vide Fard Taqseem No.15. In Column No.3 of the Fard relating to the name of the head of family the name of Nazir Ahmed has been entered while the name of the petitioners has been mentioned in Column No.4 relating to members of the family. It may be mentioned here that the petitioners never challenged the entries in the above noted Fard. Thereafter proprietary rights of the suit property were transferred to Nazir Ahmed vide Mutation No.114 dated 4-4-1979. After sale of the property to respondents Rehmat Ali and Muhammad Anwar, the petitioners moved an application challenging entries in Mutation No.114, dated 4-4-1979 whereupon the Collector passed the impugned order, dated 23-9-1981. Perusal of the order (Exh.P.2) (available at page 84 of the paper book) reveals that Rehmat Ali and Muhammad Anwar respondents were not impleaded as party and the order was passed on the concessional statement given by Nazir Ahmed. Undeniably, by the time order was passed by the Collector, the respondents had purchased the suit property from Nazir Ahmed through registered deed and possession had been given to them. The petitioners deliberately concealed this fact and did not implead Rehmat Ali and Muhammad Anwar respondents as party. On this point, the learned trial Court framed Issue No.2 such as "whether the order of Collector, dated 23-9-1981 is illegal, collusive against facts and ineffective on the rights of plaintiffs". All the Courts below after analyzing the evidence on the issue concluded that the impugned order was obtained collusively by the petitioners in collusion with Nazir Ahmed who had already sold the property to Rehmat Ali and Muhammad Anwar respondents prior to the passing of impugned order. The learned Judge in Chambers rightly concluded that the order by the Collector was obtained without impleading respondents-purchasers as party and thus, the order had no legal effect on the right of the respondents and was rightly set aside by the Courts below. Perusal of the record further reveals that Khalil Ahmed petitioner moved an application before A.C., Narowal for implementation of the order, dated 23-9-1981. The application was dismissed vide order, dated 26-1-1983, it was held therein that undeniably, Nazir Ahmed had sold the property on 9-7-1979 two years prior to the order, dated 23-9-1981 and on that date, he made a statement in favour of the petitioners with mala fide intention in collusion with the petitioners. In the aforementioned order, registration of case was directed against Nazir Ahmed.

6. In the above perspective, we do not find any flaw in the impugned judgment justifying interference by this Court. Hence this petition is dismissed. Leave is refused. H.B.T./K-20/SC Leave refused.