2010 PLP 958 (CLC)

CH. MUHAMMAD TARIQ, J.

This writ petition has been directed against the order dated 14-12-2002 passed by the Members, Board of Revenue, Punjab, Lahore.

2. The brief facts of the case as narrated in the petition are that the predecessor-in-interest of the petitioners was owner of land measuring 38 Kanals 12 Marlas situated in the Revenue Estate of Kot Dina, Tehsil Daska, District Sialkot according to the register haqdaran-e-zameen for the year 1908-09. The owner mortgaged the suit land with non Muslim Evacuees. The mortgager redeemed the suit land. Thereafter mutation No.63 was entered but it could not be sanctioned for the reasons not given in the revenue record. The suit land was shown under mortgaged even at the time of independence. Respondent No.2 alleges that the suit land was allotted to him as refugee but possession of land remained with the petitioners continuously. On 29-4-1980, the petitioners filed an application in the Court of Collector, Daska for restitution of the suit land and accordingly mutation No.216 was attested by the Revenue Officer on 23-11-1980. Respondent No.2 challenged the order of the Collector, Daska dated 14-7-1980 before the learned Additional Commissioner (Revenue), Gujranwala who vide order dated 14-5-1986 accepted the appeal and set aside the order of Collector, Daska. The petitioners challenged the order of learned Additional Commissioner (Revenue), Gujranwala before the Members, Board of Revenue, Punjab, Lahore who accepted the petition and remanded the case to the learned Additional Commissioner (Revenue), Gujranwala for decision afresh. After hearing the case on remand, the learned Additional Commissioner (Revenue), Gujranwala vide order dated 15-4-1997 dismissed the appeal of respondent No.2 and maintained the order of the Collector, Daska dated 14-7-1980. Respondent No.2 filed ROR No.1905/1986 in the Board of Revenue, Punjab assailing the order dated 15-4-1997 passed by the learned Additional Commissioner (Revenue), Gujranwala who referred the matter to Full Board and vide order dated 14-12-2002, the Full Board, Board of Revenue, Punjab allowed the appeal and set aside the orders dated 14-7-1980 and 15-4-1997 of the Collector Daska and the learned Additional Commissioner (Revenue), Gujranwala respectively, hence this writ petition.

3. Learned counsel for the petitioner submits the following submissions:-- "(a) That the petitioners are admittedly the owners of the suit-land and cannot be deprived of their rights, by its so-called allotment to the refugees wrongly presuming that it was the evacuee property. (b) That respondent No.1 has ignored the decision of the Supreme Court of Pakistan which categorically holds that mortgagee right in the suit-land did not make it available as evacuee property. Any assertion of the respondent No.2 of its allotment in his favour was illegal, ultra vires and void ab initio. (c) That acquisition through adverse possession has been declared illegal in the case of Maqbool Ahmad reported in 1993 SCMR 2386. Thus no body can claim adverse possession against the real owners by virtue of the authority of the Supreme Court of Pakistan. (d) That there is no judgment or decree of the Court through which the respondent No.2 or the Central Government had acquired ownership right of the suit-land by virtue of the adverse possession. (e) That the limitation stopped running under the Rehabilitation and Settlement Laws promulgated in 1948. Thus the land mortgaged and redeemed in 1914 could not be claimed by respondent No.2 or by Central Government through adverse possession. (f) That it is settled law that acquisition in the mortgaged land is confined only to the interest of the evacuee and cannot extend to the acquisition of non-evacuee rights."

4. On the other hand, the learned counsel for the respondents resists this petition and inter alia contends that no date of mortgage of the land has been provided in the petition. There are crucial controversial question of facts involved which could not be examined in the constitutional jurisdiction of this Court.

5. Arguments heard. Record perused.

6. The petitioner himself is not ascertaining about the date of mortgage. In para 1 of the petition, it is only mentioned that the suit-land was shown under mortgaged at the time of independence and also in the Jamabandi for the year 1908-09. Neither the date of mortgaged of the land known to the petitioner nor in support of mortgage any documents i.e. mutation or mortgage deed is attached with the petition. The possession of suit-land is also disputed because both the parties claim that they are in possession of the suit-land. Again a very crucial question of limitation is involved in this petition because period of 60 years has been provided under the law for the redemption of a mortgaged land and according to the petition and jamabandi for the year 1908-09, the suit-land was shown as mortgaged land. These complicated questions could be resolved only by the civil Court who after framing of issues and recording of evidence can declare the title and about the possession of the parties. Further the law relied upon by the learned counsel for the petitioner pertains to the civil suit that in all the citations, the matter was filed before the competent Court of law who after due consideration decided the matter because such questions could not be probed into in the Constitutional jurisdiction of this Court.

7. In view of the above discussion, this writ petition fails and is dismissed. M.H./K-17/L Petition dismisse