1998 PLP 1521 (SCMR)

NASIR ASLAM ZAHID, J.

This review petition has been filed by petitioners Gul Muhammad and others seeking review of the judgment dated 30-4-1997 passed by this Court in Civil Appeal No.638 of 1996, whereby the judgment dated 1-10-1995 of the Peshawar- High Court allowing petitioner's Civil Revision No. 12 of 1994 was set aside. As a result, the suit filed by the petitioners stood dismissed. We have heard Mr. Gul Zarin Kiani, learned Advocate Supreme Court for the petitioners, and Khawaja Muhammad Farooq, learned Senior Advocate Supreme Court for respondents Nos. l to 13 (Fazal Yazdan and others), who has appeared on caveat.

2. The dispute in the litigation between the parties is property measuring about 573 Kanals and 4 Marlas in village Shah Mansoor, Tehsil and District Swabi. N.W.F.P The land was admittedly owned by one Akbar Khan son of Akram Khan, who left Swabi sometime in 1911 and settled in what is now part of Inida, but, before he left, Akbar Khan appointed original defendant No.1 Shahzada, his close relative, as his attorney through a power of attorney dated 11-10-1911 registered at Swabi. Akbar Khan died in India in 1956. Petitioners, Gul Muhammad and others (plaintiffs in the suit) claimed ownership and possession on the basis that they were collateral of Akbar Khan, who had died issueless, and that the defendants were trespassers on the land. During his lifetime, defendant Shahzada, as attorney of Akbar Khan, had transferred, by way of exchange, part of the disputed lands to his sons Sherzada and Fazal-ur-Rehman, which transfer was also challenged by the plaintiffs/petitioners in the suit filed by them in 1958 in the Civil Court at Swabi. Defendants' stand was that the plaintiffs, as collateral, had no claim over the disputed lands as Akbar Khan did not die issueless but had left behind 4 sons, namely, Shahzada, Akram Khan, Ziarat Khan and Hameedullah, and that, after the death of. Akbar Khan, Fazal-ur-Rahman son of original defendant Shahzada had gone to India and Akbar Khan's 4 sons executed a power of attorney dated 29-11-1957 in his favour which was registered by a Sub-Registrar at Akhlora, which power of attorney was then got attested before the Pakistan High Commission in New Delhi. The case of the plaintiffs/petitioners depended on their claim that Akbar Khan had died issueless, as otherwise they could not have inherited the land in the presence of any son left by Akbar Khan. Plaintiffs/petitioners had also challenged the authenticity and admissibility of the second power of attorney dated 29-11-1957 executed in favour of Fazal-ur-Rahmati. The suit was hotly contested. Evidence was recorded by the trial Court. Some witnesses were examined on commission in India on the application of the defendants. Suit as well as first and second appeals filed by the plaintiffs were dismissed. This Court, however, granted leave to appeal to the plaintiffs, Fazal-ur-Rehman was also examined by this Court as a Court witness. The appeal remained pending for some time before this Court but, ultimately, the case was remanded for re trial and fresh decision. On remand, on the application of other respondents, Niamatullah and others, also claiming to be collateral of Akbar Khan, they were impleaded as co-defendants. Further, evidence was recorded by the trial Court on remand. Suit was again dismissed as also the appeal filed by the plaintiffs. Peshawar High Court, however, allowed the Revisions filed by the petitioners/plaintiffs and other respondents Niamatullah and others, 'by the impugned judgment dated 1-10-1995, which judgment has been set aside by this Court allowing the appeals filed by the defendants represented by Khawaja Muhammad Farooq, Senior Advocate Supreme Court, and as observed, the suit filed by the plaintiffs stood dismissed.

3. The final position that emerges is that the land in suit came to be owned by the four sons of original owner, late Akbar Khan. Defendants/respondents Fazal Yazdan and others have admitted that they are in possession of the lands but they hold the same as trustees for the owners i.e. sons of Akbar Khan. In this regard we may refer to para. 19 of the judgment dated 30-4-1997 of this Court:-- "During the proceedings we have pointedly asked Khawaja Muhammad Farooq, learned counsel for the appellants, whether they had any interest in `the lands in question or they were in possession on the basis of the two power of attorney issued previously and he informed that the appellants have no interest in the land in question, which was inherited by the 4 sons in 1956 on the death of Akbar Khan and thereafter, by legal heirs of the 4 sons of Akbar Khan and that the appellants have been in possession of the land initially on the basis of power of attorney of 1911 and later on the basis of power of attorney executed by the 4 sons on 29-11-1957 in favour of Fazal-ur-Rehman. It is further informed that a fresh power of attorney has now been executed in favour of the appellants. On a further query, Khawaja Muhammad Farooq, on instructions, states that the appellants will not transfer or alienate the land in question which belongs to the 4 sons of Akbar Khan and their legal heirs and that they are also liable to account for the income that they have derived from the land in question to the legal heirs of Akbar Khan and that they will not get land in question mutated either in favour of the appellants or in favour of a third party. According to Khawaja Muhammad Farooq, the land is being held by the appellants in trust for the legal heirs of Akbar Khan and his sons. All these statements made by Khawaja Muhammad Farooq, learned Advocate Supreme Court on behalf of the appellants are taken on record." Being concerned that the real owners should become aware of the judgment, which finally confirmed their status as the rightful owners so that they may take further action in the matter, this Court, in the last para. of its judgment, gave the following directions:-- "The lands in question belong to the sons of Akbar Khan and their legal heirs who are. settled in India. It is admitted by all the learned counsel that the land in question which are situated in Swabi are very valuable. Perhaps for the reasons that they have been hesitant to go to a foreign land and/or for any other reasons not known, the owners have not come to Pakistan. A copy of this judgment may be sent to the Secretary, Ministry of Law and Justice for being sent to the President of the Supreme Court Bar Association, India, Delhi, thorough proper channel so that the real owners of the lands in question may be contacted and informed about this judgment and the fact that they own this land so that if desired by them they may take further action in the matter as advised."

4. Mr. Gul Zarin Kiani, learned Advocate Supreme Court for the plaintiffs, has very frankly submitted that he is not challenging any findings or conclusions reached on any question of fact or law in the judgment dated 30-4-1997, but contended that, while giving its judgment, this Court has overlooked two very important aspects which are causing grave injustice to the real owners of the disputed land, and, for that reason, this review petition is maintainable and the Court may pass such orders while exercising its powers of review and under Article 187 of the Constitution read with Order XXXIII, rule 6 of the Supreme Court Rules. to redress the wrong being done to the real owners. 5(a). The first point on which our attention was drawn is contained in para. (D) of the grounds of this Review Petition, which reads as follows:-- "That land measuring 161 Kanals and 19 Marlas recorded in the names of sons of Akbar Khan was acquired for public purpose and a. sum of Rs.25,24,144.60 was assessed as compensation. It is in deposit of the office of Land Acquisition Collector, Swabi. Appellants had no right to receive the above compensation. The above amount was required to be saved from wastage and invested in some profit bearing scheme for eventual-disbursement to either the sons of Akbar Khan if they ever turn up at any time or in the event of their presumed death in terms of section 107/108 of Evidence Act, 1872 their heirs at law. In exercise of powers vested in the august Supreme Court of Pakistan under Article 187 of the Constitution of Islamic Republic of Pakistan, 1973 read with Order XXXIII, Rule VI of the Supreme Court Rules, 1980, an appropriate direction was required to be made in the judgment of the Supreme Court of Pakistan. Absence of such a direction shall cause immense miscarriage of justice." (b) The other aspect brought to our notice by Mr. Gul Zarin Kiani is dealt with in para. (b) of the grounds in the , Review, Petition a which is a under:-- That the appellants were/are getting produce of the land in suit without sharing it with the real owners. They have not deposited the share of produce of the sons of Akbar Khan with any safe agency as yet and there was no check on the appellants to this effect passed in the judgment of the august Supreme Court. They misappropriated the income from the land in suit in the past and will do so in future also and unless some proper arrangements were made for management and recovery of income/produce from the land in suit, the appellants shall be clear beneficiaries without accounting for it.

6. Khawaja Muhammad Farooq, learned Senior Advocate Supreme Court for respondents Gut Muhammad and others, did not change the stand taken by his clients during the hearing of the main appeals and confirmed that they do not claim any right in the disputed lands and the same was being held by them as trustees for the rightful owners i.e. sons of late Akbar Khan. Learned Senior Advocate Supreme Court has confirmed the position recorded in para. 19 of the judgment dated 30-4-1997. On being pointedly asked, Khawaja Muhammad Farooq stated that his clients are in possession of the lands, except those acquired by the Government under the land acquisition laws, and that all along they have been ready to render accounts to the real owners but so far they have not rendered any accounts as the owners have never asked for any such accounts, and also that no payments have been made by them so far to the legal heirs of late Akbar Khan.

7. After hearing learned counsel and referring to the relevant parts of the judgment dated 30-4-1997, we are of the view that it is a case where it was required to pass orders and give specific directions in respect of the two points highlighted by learned counsel for plaintiffs. Accordingly, in exercise of the powers conferred on this Court by Article 188 of the Constitution read with Order XXVI, rule 1 of the Supreme Court Rules, 1980, and under Article 187 for doing complete justice read with Order XXXIII, rule 6 of the Supreme Court Rules, the following orders/directions are passed/given:-- (i) The entire amount (Rs.25,24,144.60 mentioned by the plaintiffs/petitioners in ground (d) of the memo. of their Review Petition dated 9-6-1997 or any other amount, if different from the amount mentioned by the petitioners/plaintiffs) assessed as compensation for acquisition of lands measuring about 161 Kanals and 19 Marlas or thereabouts out of the disputed lands in Tehsil and District Swabi and which were recorded in the names of the sons of Akbar Khan, and lying deposited in the office of the Land Acquisition Collector, Swabi, shall be remitted to this Court by the Collector through a cheque made out in the name of 'The Registrar, Supreme Court of Pakistan, Islamabad' to reach here by 30-6-1998. The cheque will be sent under cover of a letter addressed to the Registrar giving details including reference to any amount withdrawn by the respondents Gut Muhammad and others. On encashment of the said cheque, the entire amount will be invested in Defence Saving Certificates in the name of the Registrar. In case any part of or entire amount lying deposited with the Land Acquisition Officer, Swabi, Las since been withdrawn by the respondents/defendants, such amount will be deposited in this Court by the respondents/plaintiffs through a pay order made out 'account payee only' in the name of the 'The Registrar, Supreme Court of Pakistan, Islamabad.' This will be done by 30-6-1998. On encashment of the pay order, the proceeds shall be invested in Defence Saving Certificates as aforesaid. The amounts so invested with profits earned thereon shall be released to the legal heirs of late Akbar Khan son of Akram Khan on production of a succession certificate from a competent Court but after obtaining prior orders front this Court. (ii) Respondents/defendants' own case has been that they are in possession of the disputed lands (minus such portions acquired by the Government) and they are holding such lands as trustees for the Teal owners, who are the legal heirs of late Akbar Khan son of Akram Khan. All such legal heirs are in India and have not appeared personally before any Court during the entire litigation. Respondents/defendants have neither rendered any accounts nor they had any accounts ready with them when the hearing of the appeals took place before this Court. Admittedly the lands in question are very valuable. In the circumstances, the Assistant Registrar of this Court at Peshawar and Collector, Swabi, are appointed as Joint Receivers of the entire suit property (minus the lands acquired by the. Government) with the following powers:-- (a) Take over formal possession of the said property without disturbing physical possession of any person found to be in possession; (b) Take full and complete accounts of the income from the said property from the respondents/defendants. Accounts shall be taken from 1-1-1957 i.e. after the death of Akbar Khan son of Akram Khan till the 8 time formal possession is taken over by the Joint Receivers. Accounts of the acquired lands shall be taken up to the date possession thereof is taken over from the respondents/plaintiffs by the receivers. If the Joint Receivers are not satisfied with the correctness of the accounts submitted by the respondents/defendants, the Joint Receivers shall themselves settle the accounts on the basis of such material and evidence that may be available and after hearing the respondents/defendants and any other concerned persons. This exercise shall be completed by the Joint Receivers by 31-7-1998 and the amount found due from the respondents/defendants shall be recovered from them by the Joint Receivers by 30-9-1998 and remitted to the Registrar of this Court through pay orders made out 'account payee only' in the' name of 'The Registrar, Supreme Court of Pakistan, Islamabad', who will invest the same in Defence Saving Certificates as aforesaid. After the Joint Receivers take over formal possession of the said property, they will make their own arrangements for collection of the rents and/or owners' share of the said property/lands and remit the receipts, after deduction of expenses, if any, every six months to the Registrar of this Court who will invest the same as aforesaid. The amounts invested by the Registrar with profits shall be released to the legal heirs of late Akbar Khan son of Akram Khan on production of a succession certificate from a competent Court but after obtaining prior orders from this Court. (iii) Fee of the Joint Receivers is fixed at 5% of the amount recovered by them which will be deducted by them from the receipts and any expenses that might be incurred by them before the same are remitted to the Registrar of this Court. The fee will be shared by the Joint Receivers with 3-1/2% for Collector Swabi and 1-1/2% for the Assistant Registrar of this Court at Peshawar. Civil Review Petition No.21 of 1997 stands disposed of in the above terms. Copy of this order may also be sent to the Secretary, Ministry of Law Justice and Parliamentary Affairs, Government of Pakistan for taking similar action as mentioned in the last para. of judgment dated 30-4-1997 of this Court. A. A./G-18/S Order accordingly