2003 PLP 259 (CLC)

4. The learned counsel of the, petitioner in rebuttal submits that the petitioner has placed on record certain documents qua other reference in which the name of Abdul Aziz has mentioned, therefore, judgment of respondent No.5 is not sustainable in the eyes of law as respondent No.5 passed the impugned judgment and decree by misreading and non‑reading of the record.

5. I have given my anxious consideration to the contentions of the learned counsel for the parties and perused the record myself.

6. It is better and appropriate to reproduce the material facts chronological order to resolve the controversy between the Parties.‑

(1) original owner of the land in question, was Nazir Ahmad Who sold tick land in question to Hassan Dirt, etc. vide Mutation No.828 attested on 19‑11‑1959 and (2) Hassan Din, etc. sold the land to the aforesaid Hafiz?ul‑Hzssan and Farhat Begum, etc. Hassan Din, etc. also sold the land in excess of their shares in favour of aforesaid Jalees Ahmad etc. The documentary evidence did not mention that Nazir Ahmad or his alienee mentioned above had sold any land to Abdul Aziz. The petitioner purchased the land from Abdul Aziz vide registered sale‑deed dated 28‑8‑1975. Mutation was also sanctioned in favour of the petitioner on 4‑4‑1990. Respondent No.4 acquired the land in question for execution its Housing Scheme known as Allama Iqbal Town Scheme. The possession was also handed over to respondent No.4 by the Competent Authority on 13‑11‑1975. The Land Acquisition Collector announced the award on 12‑2‑1975 alongwith list of owners of the land. The list mentioned the name of respondent No‑5 instead of. the petitioner. The petitioner submitted an application before the Land Acquisition Collector, who forwarded the reference to respondent No.5 on 13‑11‑1999. Respondent No.5 dismissed the reference on 3‑9‑2001. The petitioner filed this writ petition on 24‑11‑2001. Office raised following objections on 13‑11‑2001 with the direction to the petitioner to remove the office objections within 7 days:‑‑ (i)???????? Uncertified and dim copies to be replaced with bright handwritten/typed ones. (ii)??????? Detail of Annexure mentioned in the Index be given i.e. original, certified or uncertified. (iii)?????? Photostat of the N.I.C. of the petitioner, to be filed. The petitioner removed the aforesaid objections and refiled the written petition which was fixed before this Court on 27‑12‑2001 and respondents were directed to file report and parawise comments.

7. It is better and appropriate to reproduce the operative part of the impugned judgment to resolve the controversy between the parties:‑‑ "The statement of R.W.1 Muhammad Amin, Qanoongo being contradictory of the entries contained in Fard Chhant Exh.A/1 cannot be safely relied upon. Copy of registered sale‑deed Exh.A./3 is to the effect that Abdul Aziz had alienated the land in favour of the petitioner. As discussed earlier, there is nothing on record to prove that Abdul Aziz was lawful owner of the land in dispute and as such this sale‑deed cannot be relied upon for holding that the petitioner is a lawful owner of the land in dispute. Mutation Entries Exh.A/4 is to the effect that Nazir Ahmad had alienated the land in dispute to favour of the petitioner. As discussed earlier, after having sold his entire land to Hassan Din, etc. vide Mutation No.828, dated 19‑11‑1959 Nazir Ahmad was left with no in saleable interest in the land in dispute and as such the Mutation Entry Exh.A./4 also cannot be pressed into service. The, petitioner having failed to establish that he had purchased the land in dispute from its lawful owner, this reference is answered in the negative and the petitioner cannot be held entitled to its compensation." The aforesaid operative part clearly reveals that respondent No.5 passed the impugned judgment after applying his independent mind after proper appreciation of the evidence on record. The learned counsel of the petitioner failed to bring on record any sufficient material to prove that Abdul Aziz had purchased the land in question from the original owner Nazir Ahmad or his alienees namely Hassan Din, etc. It is admitted fact that the petitioner has to fall in the footprint of Abdul Aziz, in case Abdul Aziz is owner of the land in question, then sale‑deed executed by him in favour of the petitioner is a valid in the eyes of law. In case, late Abdul Aziz was not owner of the land in question, then sale‑deed executed by him in favour of the petitioner has no sanctity in the eyes of law as mentioned above. The petitioner failed to bring on record any documentary evidence to prove that Abdul Aziz had purchased the land in question from the original owner Nazir Ahmad, or from persons to whom he had sold the land in question. The petitioner failed to connect late Abdul Aziz as owner of the land in question in any capacity, therefore, respondent No.5 was ‑ justified to non‑suit the petitioner. It is also settled principle of law that this Court has no jurisdiction to A substitute its own findings in place of findings of the Tribunal below as per principle laid down by the Division Bench of this Court in Musaddaq's case PLD 1973 Lah. 600, law laid down by the Honourable Supreme Court in Qaiser Shafi Ullah's case 1994 SCMR

859. Coupled with the fact that the petitioner filed this writ petition against the judgment of respondent No.5 dated 3‑9‑2001 on 24‑11‑2001, therefore, the same is liable to be dismissed on the well‑known principle of laches as per principle laid down by the Honourable Supreme Court .in the following judgments: ‑‑ "Khiali Khan v. Haji Nazir and 4 others PLD 1997 SC 304 and Federation of Pakistan v. H. Muhammad Saifullah etc. PLD 1989 SC 166." The award was announced on 12‑2‑1975. Reference was made by the Land Acquisition Collector to respondent No.5 on 13‑11‑1999, this fact brings the case of the petitioner in the area that the petitioner does not approach this Court with clean hands. It is settled principle of law that d Constitutional jurisdiction is a discretionary in character. Keeping m view of the aforesaid circumstances, I am not inclined to exercise my discretion in favour of the petitioner as per principle laid down by the Honourable Supreme Court in Nawab Syed Raunaq Ali's case PLD 1973 SC

236. In view of what has been discussed above, this writ petition has no merits and the same is dismissed. H.B.T./A‑599/L ????????????????????????????????????????????????????????????????????????????????? Petition dismissed.