1990 PLP 1642 (SCMR)

MUHAMMAD AFZAL ZULLAH, C J.‑‑‑This is an appeal through leave of the Court. The leave granting order reads as follows:‑‑ "The petitioners seek special leave to appeal against the judgment of the Lahore High Court, Lahore dated 19th of November, 1979, by which writ petition No.7414 of 1979 was dismissed in limine. "The petitioners herein are the legal representatives of Roshan Din who, by mutual agreement with the first respondent, exchanged 120 kanals of his land situate in village Rohilanwali, District Muzaffargarh with the same area of land belonging to the first respondent in Mohal Khakhi Somali situate in the same District in September, 1959. In this connection two exchange mutations were entered bearing Nos.1133 and 2505 dated 29th of September, 1959 and 28th of September, 1959 in the respective villages. The parties also took possession of the land. However, during the consolidation proceedings in 1963‑64, it turned out that the exchange mutation bearing No.1133 was hit by Martial Law Regulation No.64. Therefore, the Saddar Qanungo, on 3rd of March, 1971, reported to the Collector that as the land was under mortgage, it could not be exchanged without the permission of the Custodian. The Deputy Commissioner, accordingly permitted the review of this mutation by the order dated 11th of March, 1971; and mutation No.72 was attested by which mutation No.1133 was cancelled. Again, mutation No.2505 dated 28th of September, 1959, was also cancelled by mutation No.2896 dated 20th August, 1971, as it was also held to be hit by Martial Law Regulation No.64. Muhammad Shard, alone filed an appeal against the attestation of Mutation No.72 which was accepted by the Assistant Commissioner/Collector on 12th of July, 1971. Roshan Din did not, however, challenge the legality of Mutation No.2896 before the Revenue Authorities. This led to a dispute between the parties as a result of which Roshan Din and one of his sons were murdered; but before his death he filed a suit against the order of the Assistant Commissioner dated 12th of July 1971, before the Civil Court but the suit was dismissed for want of jurisdiction. It was then that the appeal to the Additional Commissioner against the impugned order was filed by the legal representatives of Roshan Din which was dismissed on 7th April, 1977. "The revision before the Board of Revenue also failed as it was held to be time‑barred and, accordingly, rejected by order dated 21st of May, 1977. They then filed Writ Petition No.1573 of 1979 in the Lahore High Court, Lahore, which was accepted and the case was remanded to the Board of Revenue for deciding the revision petition. In this connection it would be of advantage to refer to the following observations of the High Court: "It was just a chance of inconsequential nature that property happened to be located in two villages which necessitated two mutations of exchange. If the exchange transaction in respect of one village stood the test of the law but of the other village did not the whole exchange as such covered by both the mutations had to go putting the parties back to their original positions. The legality or the illegality of it could not be examined in parts. The departmental authorities at the higher level have actually attempted the impossible by maintaining the legality of the mutation of Rohillanwali while subscribing indirectly to the undoing of the exchange in the other, the transaction being one and the same. "On remand the Board of Revenue again dismissed the revision by order dated 30th of October, 1979, and the writ petition filed against this order was dismissed in limine. However, despite the fact that the possession of the exchanged land was restored to the respective owners on 3rd of May, 1971, yet by the cancellation of mutation No.72 the exchange mutation No.1133 remained intact which had led to an anamolous situation as highlighted in the above observations of the High Court. "The grievance of the petitioners is that in not giving effect to these observations, which had assumed finality, the Board of Revenue fell into an error in not placing both the parties on the same footing. The learned counsel further contended that if the exchanged mutations were invalid, as they violated Martial Law Regulation No.64, the proper course for the Board of Revenue would have been to wipe them off and restore the parties to their original position. It was next urged that the order dated A12th of October, 1971, was uncalled for as by wiping off mutation No.72 the first respondent had become virtually the owner of the land at both places. Lastly, the learned counsel took exception to the inconsistent orders passed by the revenue authorities which had led to the deprivation of the land owned by the petitioners in an illegal manner. 'The contentions raised require consideration. Accordingly, we would grant leave to appeal to the petitioner. Security Rs.500. In the meantime status quo as to possession." Although none has appeared from the appellants' side, learned counsel for the respondents has assisted us on a very vital point which, in our view, could be resolved and decided instead of dismissal of the appeal for non‑prosecution. The main point, apart from some legal and technical questions, on which leave to appeal was granted related to the argument advanced from the appellants' side at that stage that "by wiping off mutation No.72 the first respondent had become virtually the owner of the land at both places". It was an alternative extension of the other similar argument that there was inherent inconsistency because "the orders passed by the revenue authorities had led to the deprivation of the land owned by the petitioners". When confronted with this position learned counsel for the respondents tried to explain that the appellants themselves were to be blamed; because after having entered into a solemn transaction of exchange as a result of which the respondents' side also allegedly planted a garden and improved the land taken by them in exchange, the appellants wanted to make illegal gain by avoiding transaction of exchange. He, however, conceded that the respondents having succeeded through the impugned orders in retaining the land obtained in exchange, they had no right to retain the land which had to be given in exchange to the appellants. Accordingly, he submitted the following statement and undertaking: Accordingly, instead of dismissing this appeal for non‑prosecution we dispose it of on the afore recorded basis. Order accordingly. There shall be no order as to costs. AA./1‑126/S Order accordingly.