2010 PLP 1366 (MLD)

MUHAMMAD KHALID MEHMOOD KHAN, J.

This case has long and complicated history, however, the brief facts available on record are as under:--

2. The petitioner, Muhammad Nawaz son of Muhammad Rafique, filed a suit for declaration claiming that land measuring 139 Kanals, 14 Marlas falling in Square Nos.116, 117, 119, 120, 127 of Khata No.147 situated in Village SADVE, Tehsil Chiniot, District Jhang was the ownership of Provincial Government being the surrendered land under the Land Reforms, was purchased by one Muhammad Nawaz son of Fazal Ahmed (hereinafter referred to as Vendor) in public auction held on 5-9-1967 through registered sale-deed. The auction-purchaser paid the price and proprietary rights of the auctioned land were transferred in his favour, the possession of the land purchased were handed over to the purchaser by the respondents Nos. 3 to 5 (Land Commissioner). The Revenue officials through intentional or unintentional mistake, described the said land as "LOT" "1" having Khasra No.2985 in the Revenue Record. The Khasra No.2985 is a graveyard. According to law, the graveyard could not be resumed or surrendered nor owned by anyone, neither it can be auctioned. The petitioner purchased the auctioned land on 4-12-1974 through registered sale-deed. In the sale-deed, the description of the property was shown Khasra No.2985 as this was mentioned in the auction-purchaser's documents. According to plaint when the petitioner purchased the land it was "Banjar Qadeem" and there were mud heights of 25/26 feet on the land. The petitioner/plaintiff developed the said land after investing huge money and the land is now an agriculture land. The petitioner claims that from the date of purchase of land, he is in uninterrupted possession of the suit-land. The consolidation proceedings initiated in the village. The consolidation staff with the mala fide intention shown the suit-land in the ownership of Provincial Government. One Zakar Hussain got allotted the same land fraudulently in his favour from the Provincial Government and got it mutated in his name on 2-10-1980. The said Zakar Hussain started to blackmail the petitioner and threatened to dispossess him from the land, the petitioner under compelling circumstances purchased the land measuring 84 Kanals of the same land from Zakar Hussain against Rs.70,000 through registered sale-deed for protecting his possession. The Deputy Land Commissioner thereafter cancelled the land from the name of Zakar Hussain. The respondents Nos.4 and 6 declared the land purchased by the petitioner as graveyard and the land in possession of the petitioner is not that which was auctioned in favour of the vendor. The petitioner further claimed that order dated 23-2-1986 passed by Deputy Land Commissioner, Jhang and order dated 31-3-1979 passed by Additional Deputy Land Commissioner (Consolidation) are void, illegal, mala fide and are without any jurisdiction and is inoperative against his rights. The petitioner has sought a decree for declaration to the effect that he is owner in possession of suit-land, which is in his possession; the detail of which is given in the plaint and the entries in the Revenue Record in favour of Provincial Government are illegal and against facts, and as such, are void and ineffective qua the petitioner. He also prayed for consequential relief by way of perpetual injunction restraining the respondents from interfering in the ownership and possession of the petitioner qua the suit-land.

3. The respondents filed the written statement and raised legal as well as factual objections, especially the preliminary objection about the jurisdiction of civil Court. The respondents claimed that Muhammad Nawaz son of Fazal Ahmed purchased Khasra No.2985 measuring 138 Kanals 16, Marlas in public auction which he sold the same to the petitioner and land in the Khasra No.2985 is graveyard. The respondents controverted the claim of ownership of petitioner.

4. The learned civil Court on 27-1-1987 framed the following issues:-- "ISSUES:-- 1.?? Whether the plaintiff is owner in possession of the suit-land? OPP 2.?? Whether the orders of Deputy Land Commissioner dated 23-2-1986 and order of Additional Deputy Land Commissioner (Consolidation) dated 31-3-1979 are illegal, void and without any legal effect? OPP 3.?? Whether this court has no jurisdiction to entertain this suit? OPD 4.?? Whether the plaintiff has no locus standi and cause of action to file the present suit? OPD 5.?? Relief."

5. The petitioner examined two witnesses including himself. He also placed on record following documents, Jamabandi for the year, 1924-25 (Exh.P.1), copy of Register of Record of Rights for the year 1958-59 Exh.P.2, Exh.P.3 copy of Register of Record of Rights, Exh.P.4 copy of notice of confirmation dated 18-4-1968, Exh.P.5 copy of possession letter, Exh.P.6 copy of Mutation No.232, Exh.P.7 copy of Register of record for the year 1970-71, Exh.P.8 copy of Register 'of record of rights for the year 1979-80, Exh.P.9 copy of Mutation No.455, Exh.P.10 copy of register of Record of Rights 1979-80 of Khata No.92, Exh.P.11 copy of Register of Record of Rights for the year 1979-80 of Khata No.149 village Sadev, Exh.P.12 crop inspection report. Exh.P.13 copy of Khatuni Ishtmal village Sadev, Exh.P.14 copy of order for approval of scheme of consolidation village Sadev, Exh. P.15 copy of Khatuni of consolidation No.19, Exh. P.16 copy of sale-deed by Muhammad Nawaz, Exh.P.17 copy of sale-deed of Zakar Hussain, Exh.P.18 copy of mutation in favour of Zakar Hussain No.472, Exh. P.19 copy of Parcha Zamindaran consolidation of village Sadev, Exh.P.20 copy of Register of Record of Rights for the year 1966-67 of village Sadev, Exh.P.21 copy of crop inspection report from Kharif 1980 to Kharif 1982, Exh.P.22 copy of Register Exh.P.23 copy of Khata No.77 Exh.P.24 copy of statement of Maqsood son of Ahmad Ali before Assistant Collector, Chiniot, Exh.P.25 copy of list of Field Members, Exh.P.26 copy of Form of supply of copies, Exh.P.27 copy of order dated 17-11-1983, Exh. P.28, Exh. P.29, Exh. P.30, Exh. P.31, Exh. P.32, Exh. P.33, Exh.P.34, Exh.P.35, Exh.P.36, Exh.P.37, Exh.P.38, Exh.P.39, Exh.P.40. The respondents examined Patwari (DW.1). The learned trial Court decreed the suit vide judgment and decree dated 9-9-1991, the respondents Nos.1 to 4 filed an appeal, the appeal was allowed by the learned appellate Court vide judgment and decree dated 24-7-1994. The petitioner assailed the judgment and decree dated 24-07-1994 through this petition.

6. The learned counsel for the petitioner submits that judgment and decree was well-reasoned and passed on the basis of record produced by the parties but the learned appellate Court has accepted the appeal without any reason, the learned appellate Court has failed to appreciate that vendor of the petitioner has purchased the land through open auction from respondents Nos. 2 to 6 representing Government of Punjab, they handed over the possession of the land sold, the learned appellate Court has failed to consider the most important fact of the case that land, subject-matter of the suit, is a surrendered land under the Land Reforms and graveyard could not be resumed or surrendered according to law. The learned appellate Court has wrongly concluded that the remedy of the petitioner lies with the Federal Land Commission and the civil Court has no jurisdiction, he adds that civil Court is the Court of ultimate jurisdiction and the suit was rightly filed with the civil Court, the learned counsel submits that petitioner has purchased the land from a vendee of Government and the Government cannot commit any fraud with its citizens, the transaction subject-matter of suit, is hit by doctrine of promissory estoppel. The learned counsel further submits that, respondents Nos.1 to 6 have failed to establish that they resumed graveyard and sold the graveyard to the vendor of the petitioner against consideration, lastly submits that impugned judgment and decree suffers from misreading and non-reading of the evidence available on record, he submits that learned appellate Court has not considered the admissions of D.W.1 who is the Patwari produced by the respondents Land Commission.

7. Learned Assistant Advocate-General, Punjab supports the impugned judgment and submits that Zakar Hussain fraudulently got allotted the part of suit-land, and mutation in his favour was attested on the basis of fraudulent allotment and when these facts came into the knowledge of the respondents, his allotment was cancelled and mutation was set aside. The respondent No.1 directed to register an F.I.R. against him, and the trial of Zakar Hussain is pending disposal before Special Court. He further submits that petitioner is claiming title under the sale-deed executed by Zakar Hussain hence he is not entitled to get a decree on the basis of fraudulent sale. He further contends that, the FARD NILAM shows that there was no Khasra number and the boundaries of the auctioned land and as such the land in possession of the petitioner was never sold to the vendor of the petitioner. He adds that if the petitioner has any grievance, he should approached the Land Commission which is the proper forum for the redressal of his grievance and the civil Court has no jurisdiction to decide the issue. He admits that no doubt it was not mentioned in the FARD NILAM,' the details of description of Lot No. 1 but when possession was handed over to the vendor of the petitioner, the Khasra No.2985 was mentioned in the document of confirmation of sale, this shows that he purchased the land fallen in the said Khasra, hence it is proved.on record that Muhammad Nawaz (vendor) purchased the land situated in Khasra No.2985. Mr. A. Waheed Khan, learned counsel for the applicant in C.M.No.1/1997 supports the impugned judgment and decree, however, he admits that his arguments are subject to acceptance of his civil miscellaneous which was dismissed vide order dated 10-7-1996 but vide order dated, it was ordered that C.M.No.1/1997 will be decided along with the main petition.

8. Heard and record perused.

9. It is an admitted fact between the parties that the property sold by the respondent No.7 was a surrendered land under the Land Reforms. It is also an admitted fact that Muhammad Nawaz son of Fazal Ahmad purchased land measuring 138 Kanals, 14 Marlas being the surrendered land through public auction conducted by Federal Land Commission. This is also not disputed by the parties that in "FARD NILAM" (Exh.P.4), no description of property is given and only the name of village is mentioned. It is also not disputed by the parties that vendor of the petitioner was put into possession of the land by the respondent No.5 on the day of confirmation of sale. The dispute is that property in possession of the 'petitioner was not auctioned in favour of vendor and the property purchased by the vendor of the petitioner falls in Khasra No.2895, which is factually a graveyard. Against this stance of respondents, the claim of the petitioner is that Revenue officials have wrongly inserted the Khasra No.2895 in the Revenue Record against the property auctioned on 5-9-1967 and purchased by the vendor against valuable consideration. The Khasra number of the land in dispute came into picture first time thorough a confirmation letter of sale (Exh. P.5) which shows the name of purchaser of land, Muhammad Nawaz son of Fazal Ahmed, name of village "SADEV", "Lot No.1". Khasra No.2985, measuring 138 Kanals 16, Marlas, price of land Rs.1,015, the possession of sold land was handed over by the respondent No.4 to the auction-purchaser on the day of auction.

10. Letter (Exh.P.6) on behalf of Deputy Land Commission, Jhang to Sub-Assistant Land Commission, Chiniot confirms that auction-purchaser has paid the entire price of land, the said letter further confirms that auction-purchaser paid the price of land being lot No.1 village Sadev, Tehsil Chiniot, District Jhang, and it was directed to the concerned officer to attest the mutation of said land in favour of the auction-purchaser and communicate the number of mutation to Deputy Land Commissioner, Jhang for incorporation in Register LC-XI-C B maintained by the Assistant Land Commissioner, Jhang. Exh.P.7 shows that mutation attested in favour of purchaser/the vendor of petitioner and the measurement of land is shown as 138 Kanals, 16 Marlas, the status of land is shown as "Ghair Mumkin", the Khasra No.2985 is mentioned, in column of ownership the name of Provincial Government is mentioned and after change in the column of ownership it is mentioned Muhammad Nawaz son of Fazal Ahmad, the reason for transfer the land is shown sale through auction against consideration of Rs.1,015 vide order dated 17-6-1969 passed by DLC Jhang.

11. It is an admitted fact that petitioner is in possession of that land, the possession of which was handed over to his vendor by the respondent No.4.

12. The issue about the identification of the land arose when one Zakar Hussain approached the petitioner and informed that he is the owner of land in his possession as the same has been allotted to him by the Deputy Land Commissioner, Jhang and mutation in his favour has been attested, one Zakar Hussain claimed the possession of the land in dispute on the basis of alleged allotment in his favour. The petitioner resisted his claim against the land but subsequently purchased 87 Kanals land from the said Zakar Hussain through registered sale-deed dated 2-6-1981. However, the main claim of the petitioner is on the basis of sale-deed executed by vendor.

13. The issue between the parties is about the description of said land. The civil Court framed Issue No.1 on the said controversy. The petitioner examined the Lumberdar of village No.144 as P.W.1. It is an admitted fact that the Lumberdar in the revenue hierarchy is most important person, he is the person who knows each and every inch of land in the village as well as its owner. P.W. is the Lumberdar of adjacent village of Sadev, he deposed that Khasra No.2985 is an old graveyard, the petitioner is in possession of suit-land after purchase from one Muhammad Nawaz.? Muhammad Nawaz purchased the land through auction from Land Commissioner, Muhammad Nawaz took the possession of the land from respondents Nos. 1 and 2 when he was suggested in cross-examination that Muhammad Nawaz purchased graveyard, he denied the suggestion. In fact, the defendants/respondents could not ask this question being the seller of land. If they are suggesting that Muhammad Nawaz purchased the graveyard then they are admitting their guilt. The respondents if are claiming that they sold the graveyard to auction-purchaser, then it is their primary duty to prove on record that they resumed the graveyard from the earlier owner in terms of Land Reforms and while auctioning the land through public auction, they have made it clear to the public at large that they are selling the graveyard and the purchaser will purchase the graveyard and not the agricultural land. Exh.P.30 is the schedule of auction of land, which shows the detail of surrendered land of three Tehsils of District Jhang i.e. Tehsil Jhang, Chiniot and Shorkot which they put to auction from 5-9-1967 to 9-9-1967. In this schedule the description of land offered for sale is detailed. Tehsil Chiniot, village Sadev, number of Lot-1, number of Khasra 2985, measurement of land 138 Kanals, 16 Marlas, the status of land is Ghair Mumkin Darya. The other land of the said village is Lot No.2, Khasra Nos. 3050, 3056, 3057, 3059, 3060 and 3074 (6 plots) measurement 52 Kanals, 14 Marla, status of land (Nahri). This schedule shows that there were only two pieces of land of the village Sadev which were the part of auction schedule. The suit property remained under River and with the passage of time, when the River changed its way, the suit-land come out and in the Revenue Record, it was shown as "Ghair Mumkin Draya". The question arose how much land was the subject-matter of land reforms in the village SADEV. Exh.30 gives the detail of land confiscated by the Government under Land Reform Regulation No.64, Tehsils Jhang, Chiniot, and Shorkot. The land offered for sale are Lot No.1, Lot No.2 and Lot No.3, the detail of land included in each lot is shown separately with the specification of each Khasra No., for example, in Lot No.2, the total land offered is 52 Kanals, 14 Marlas, in column No.6 "Nahri", in Lot No.1138 Kanals, 14 Marlas "Ghair Mumkin Darya". It is nowhere mentioned that out of two lots, any land is graveyard, meaning thereby no graveyard was surrendered by the earlier owner nor any graveyard was offered for sale and Khasra No.2985 was wrongly mentioned in the column of Khasra.

14. D.W.1 the only witness of the respondents who is Patwari when appeared in witness box, deposed, land measuring 138 Kanals, 16 Marlas was owned by Tahir Ahmed Shah, who surrendered the same in favour of Land Commissioner, Land Commissioner sold the said land to Muhammad Nawaz son of Afzal Ahmed through auction. In cross-examination, he admits that land under graveyard cannot be surrendered nor sold, the possession of land is given at the time of auction. He admits that possession of land was given to Muhammad Nawaz the auction-purchaser and he sold the said land to petitioner. Now the question arose the possession of which land was given to the auction-purchaser. According to D.W.1, the Land Commission was handing over the possession of auctioned land to every auction-purchaser on the day of auction at site as per procedure of the Land Commission. In the present case, the land was sold to one Muhammad Nawaz son of Afzal Ahmed and possession of the SOLD LAND was handed over to him, when the possession of sold land was handed over to the auction-purchaser, admittedly that was not the graveyard as the auction-purchaser has not complained about the land nor the Land Commission at site observed that land sold is graveyard. It is also an admitted fact that till today, the land is in possession of the petitioner and no one is claiming its ownership except the Land Commission. If the land sold was a graveyard, then how the possession of the present land was handed over to the auction-purchaser especially when the respondents are not alleging that petitioner is an illegal occupant or he trespassed the land. Why the Land Commission has not recalled the auction proceedings dated 5-9-1967 and if they were confident that they have sold the graveyard why they have not returned the price of land to the purchaser. If the claim of respondents is that they have sold the graveyard then they should have recalled the auction the moment they came into knowledge that they have sold the graveyard. They are claiming that they sold the graveyard but are not rectifying their mistake, they are just agitating that land under the possession of petitioner was not sold to him. If this is the case then the respondents should have recalled the auction and the price received should have been returned to the purchaser according to law or he should have been offered some alternate land. The respondents have received the entire price of the land and issued sale certificate to the auction-purchaser and handed over the possession of the land when the petitioner has developed the suit-land they started to claim that land sold by them is a graveyard. Their stance that they have sold the graveyard amounts to fraud with the public as well as Government. If the land surrendered by the original owners was graveyard why the benefit of graveyard was given to declarant and why the actual land was not demanded from the declarant, If it is admitted that declarant surrendered the graveyard, why, the action was not taken against the declarant and the officials of Land Commission who accepted the declaration of erstwhile owner. This shows that declarant was allowed to retain cultivated land and the graveyard was adjusted against his valuable land which otherwise was the property of Government under the Land Reforms. The respondents while submitting their written statement, have replied as under in para No.1 of the plaint which is read as under:-

15. The defence of respondents shows that they are admitting the description of land as correct. The possession of the land described in para (sic) is that land which was handed over to the auction-purchaser on confirmation of auction as per the procedure of Land Commission (the seller of the land). This admission on the part of respondents shows that the land sold to the auction-purchaser was not a graveyard nor it could be for the simple reason that ownership of graveyard could not be termed the property of any one except the Government if it is not a private graveyard. If the declarant managed to surrender the graveyard in favour of Government, that was with the active connivance of respondents official. If we accept the argument of learned counsel for the respondents that petitioner has purchased the graveyard in an open auction conducted by the Land Commission then the onus to prove the said fact shifts on the respondents as they are the sellers, the evidence produced by the respondents goes against them because they have not made known to the petitioner and even to the Court, that they have allowed the declarant to surrender the graveyard and they have sold the graveyard to petitioner, this act of the respondents is sufficient to repel their defence. They confirmed to the prospective buyers that land offered for sale is the surrendered land under Land Reforms by its owner whose entitlement was hit by Land Reforms. It is the petitioner who brought the documents on record pertaining to land.

16. The documents produced by the petitioner prove that he purchased that land which is in his possession for the last 53 years and t it is the officials of respondents who wrongly and fraudulently mentioned the Khasra No.2985 against Lot No.1 after the sale of land. The argument of learned A.A.-G. that civil Court has no jurisdiction to decide the issue has no force. The civil Court is the .court of competent jurisdiction where the parties are at liberty to produce evidence. The respondents Nos. 2 to 6 are the party to the dispute, hence how the said respondents can be the judge of their own cause, it is an established principle of law that no one can be the judge of his own cause, hence this argument of learned A.A.-G. is devoid of any meant. Learned Civil Judge has rightly passed the decree against the respondents.

17. In view of the above, I am of the view that the judgment and decree dated 24-7-1994 passed by the learned appellate Court is against law and facts, the same is hereby set aside. Resultantly, this revision petition is allowed. The net effect of this judgment is that judgment and decree, dated 9-9-1991 passed by the learned civil Court stands restored.

18. C.M. No.1 of 1997 has become infructuous as the revision petition has been allowed. There is no order as to costs. S.A.K./M-304/L????????????????????????????????????????????????????????????????????????????????? Revision accepted.