1999 PLP 2665 (SCMR)

MUHAMMAD BASHIR JEHANGIRI, J.

The dispute in this case is about an area of land measuring 15 Kanals aid 6 Marlas of land out of 25 Kanals and 9 Marlas comprising of Khasra No. 1174 situated in village Tano, Tehsil and District Swabi. Sherin plaintiff/petitioner filed a suit wherein besides seeking a declaration that he was in possession of the aforesaid land as a mortgagee while Ghulam Rasool respondent No.5 was the allotee-mortgagor (perhaps under the Displaced Persons) (Land Settlement) Act, 1958, also sought the cancellation not only of Mutation No.3941 sanctioned on 3-2-1972 but also sought to have annulled the judgments and the decrees passed in the Application No.48/13 decided on 30-9-1974 by the Collector, Swabi, to the Board of Revenue, N.-W.F.P. on the ground of fraud. Consequential possessory decree and order of injunction were also claimed.

2. The brief facts which glean from the record are that in the civil suit filed by the plaintiff-petitioner against the defendant-respondents it was averred that the disputed land originally belonged to Jawaja Singh evacuee. He mortgaged it to the petitioner by means of Mutation No.1652 attested on d9-6-1946 and that since then the petitioner was in. occupation thereof as mortgagee. In consequence of migration of the evacuee owner-mortgagor, the land was allotted to Muhammad Ramzan (since dead and represented by respondent No.5) subject to the petitioner's rights of mortgage. The grievance of the petitioner indicated in the plaint precisely was that Haji Mir Akbar defendant-respondent No.l fraudulently acting as Attorney of Muhammad Ramzan deceased allottee got the land redeemed through Application No.48/13 filed before Collector, Swabi, on 12-9-1973 and decided on 30-9-1994 titled Haji Mir Akbar v. sherin and 2 others which order had been maintained by the hierarchy on the revenue side upto the Board of Revenue N.-W.F.P. In this context, it was urged that long before the execution of the so-called power in favour respondent No.1 Muhammad Ramzan allottee-mortgagor had died and, therefore, the alleged power suffered from the serious infirmities of forgery and fraud. In this view of the matter the reliefs noted above were sought.

3. The learned Civil Judge, Swabi, by the judgment and the decree dated 9-5-1990 non-suited the petitioner, holding that "that petitioner was not mortgagee on behalf of defendant No.5;" that power of attorney in favour Mir Akbar respondent executed on behalf of Muhammad Ramzan was neither fraudulent nor forged; that order of redemption passed in Application No.48/13 passed by Collector Swabi "was not obtained through fraud and; finally that the petitioner was devoid of any cause of action."

4. The petitioner, feeling aggrieved, filed an appeal but without any success as the same was dismissed by the learned District Judges, Swabi on 3-10-1991.

5. The plaintiff-petitioner then filed a civil revision being C.R. No. 410 of 1991: The learned Chief Justice who was seized of civil revision, observed that the petitioner had impugned in the second round, the judgments and the decrees of the forums in the revenue hierarchy before the High Court in Constitution Petition No. 411 of 1979 (Copy Exh. DW-1/1) which had been dismissed on 14-3-1982 and, therefore, the suit, giving rise to civil revision before the learned Chief Justice brought by the petitioner for a declaration that he was in possession of the land as mortgagee and that the impugned judgments of the Revenue Courts were void and ineffective was rightly dismissed and so were the appeal there against. According to the learned Chief Justice, this issue could not be re -agitated in civil suit after dismissal of the writ petition in the same matter. The civil revision, therefore, met the same fate and was dismissed on 29-6-1989.

6. The plaintiff-petitioner has come up in petition for leave to appeal against the same to this Court.

7. Mr. Mumtaz Muhammad Khan, learned Advocate Supreme Court, in support of this petition contended that since the alleged power of attorney on behalf of Muhammad Ramzan in favour of respondent was the result of forgery and fraud and in fact had never been executed, therefore, respondent No. l could not validly transfer any interest in the land in dispute in favour of the other respondents. In this context, it was pointed out that Muhammad Ramzan owner- mortgagor whose date of death had been proved by adducing positive evidence and, therefore, the judgments of the learned three Courts were not sustainable.

8. Looked at from whatever angle, the point raised by the learned counsel (which even otherwise has no support from the record) cannot help his client in any manner inasmuch as he was devoid of both the cause of action and locus standi as he was possessed of only rights of a mortgagee which had validly come to an end by the competent Revenue forum by virtue of orders of redemption of the land and will not warrant any interference in the orders impugned before us. In this context, reference is made to the judgment of the Peshawar High Court in Writ Petition No.411 of 1997, decided on 14-3-1992 titled Sherin Khan v. Mohy-ud-Din and 4 other and which had been upheld by this Court in Civil Petition No.76-P of 1982, decided on 7-7-1982 titled Sherin Khan v. Haji Mir Akbar and others. In the last mentioned order, this Court had upheld the findings of the learned Single Judge recorded in Writ Petition No.411 of 1979 affirming the finding as under: "We have heard Mr. Abdul Samad Khan but are clearly of the opinion that the view of the High Court was plainly correct. The whole question was discussed at length in a judgment of the Full Bench of the West Pakistan High Court (Lahore) in Muhammad Nawaz Khan and others v. Muhammad Amin and others (PLD 1969 Lahore 622 which was delivered by one of us (Nasim Hasan Shah, J.) and it was held that the rights of the Muslim mortgagees in respect of the mortgage of the land of non-Muslim evacuees stood converted by the amendment made to Section 14-A 1958 into a mere charge on such land to the extent of the mortgage money and that the mortgagee could no longer claim the right to remain in possession and had ceased to be entitled to the possession of such land. Consequently, on the payment of the amount of the mortgage money the petitioner had no right left in the land in question and cannot, therefore, be considered to be an aggrieved person with regard to the order whereby the mortgage stands redeemed. His petition was, therefore, rightly dismissed by the High Court on the ground of lack of locus standi."

9. The question argued by the learned counsel for the petitioner is essentially a question of fact on which the three learned Courts including the High Court have recorded concurrent findings wherein we had not been able to discover any misreading of evidence or non-consideration of any material piece of evidence. Even in earlier round of litigation, the petitioner had been clearly held to have got no locus standi by the High Court which finding had been duly affirmed by this Court as reproduced above.

10. We have, therefore, not been persuaded to accept the contentions raised by the learned counsel. He was unable to point out any infirmity in the above conclusions arrived at by the two Courts below duly affirmed by the learned Chief Justice of the Peshawar High Court.

11. The petition having no merit is accordingly dismissed. M.B.A./S-147/S Petition dismissed.