1994 PLP 894 (CLC)

(1) Whether plaintiffs are "Dakhilkar" owners of the suit land? OPP (2) Whether Mutation No.44 sanctioned on 23‑8‑1968 and reviewed on 30‑6‑1971 by AC‑11 Okara is illegal, void, based on fraud and inoperative against the rights of the plaintiffs? OPP (3) Whether plaint is insufficiently stamped? OPD (4) Whether plaintiffs are estopped to institute the present suit by their own words and conduct? OPD (5) Relief.

3. After recording of evidence of the parties, the learned first Court decided issues Nos. 1 and 2 against the petitioners and found that Laloo had made the sale of the suit land in favour of the respondents; that he had received consideration and delivered the possession of suit land to the vendees; that Mutation No.44 was correctly attested in favour of the respondents. On the question of the effect of paragraph 25 of M.L.R. 64, the learned trial Judge held that Laloo was the owner of 143 Kanals, 2 Marlas in revenue estate Naul and, therefore, was not incompetent to make the sale of the suit land in favour of respondents on account of prohibition contained in paragraph No.25 of M.L.R.

64. On this conclusion the learned trial Judge dismissed the suit on 21‑5‑1981.

4. Feeling dissatisfied with the above decision the respondents preferred an appeal which was accepted by the learned Appellate Court vide impugned decision dated 21‑5‑1981.

5. On behalf of the petitioners Mr. Tasaddaq Rasul, Advocate impugned decision of Appellate Court on two grounds: Firstly, that the two Courts below have decided issues Nos.l and 2 with patent error. According to the learned counsel the evidence of respondents on these issues was not sufficient in quality as well as quantity to prove the transaction of sale in favour of respondents. The learned counsel pointed out that D.W.1 Muhammad Zaman and D.W.2 Khan Muhammad were not witnesses to the transaction of sale while D.W.3 was the respondent himself. On this evidence the Court was legally bound to dismiss the suit. Reliance was placed on Qutab?ud‑Din v. Muhammad Siddiqui (PLD 1969 Lah. 418) and Naja and 2 others v. Shamand and 4 others (PLD 1985'Lah. 607). Secondly, that .Laloo was owner of agricultural land measuring 98 Kanals in the revenue estate Naul and he had made the sale of 16 Kanals, 3 Marlas out of the same in favour of respondents who were outsiders and not the proprietors in the relevant revenue estate. On the basis of this circumstance, it was contended that the sale if made in favour of the respondents was hit by provisions of paragraph 25 of M.L.R. 64 and was, therefore, of no legal consequence. Reliance was placed on Nawab Muhammad Farid Khan v. Muhammad Afzal Khan (1968 SCMR 262), Nasir Ahmad Khan v. Mst. Ismat Jehan Begum (1968 SCMR 667) and Hamid Hussain v. Government of West Pakistan and others (1974 SCMR 356).

6. On the other had the learned counsel for the respondents vigorously supported the impugned decision by contending that the findings of the first Court on issues Nos.l and 2 was neither challenged by the petitioners by way of filing cross‑objection in appeal filed by respondents or by way of supporting the decision of the original Court in the first Court of Appeal nor was suit assailed in the memo of revision petition filed in this Court. On the strength of these circumstances, it was contended that the petitioners were precluded to challenge the findings of the two Courts below on issues Nos.l, and 2 in revisional jurisdiction of this Court. It was next contended that the transaction of sale evidenced by Mutation No.44 was not in contravention of paragraph 25 of M.LR. 64 on the ground that according to the report of Patwari Laloo was the owner of 143 Fanals, 2 Marlas out of which he had made the sale of 16 Kanals, 3 Marlas. This being the position, the impugned sale was not hit by the provisions of paragraph 25 ibid.

7. From the above narration of facts, the circumstances of the case and the arguments of the parties, the following questions fall for determination. (i) Whether the petitioners are entitled to challenge the concurrent findings of the two Courts below on Issues Nos.l and 2 in revisional jurisdiction of this Court.? (ii) Whether the transaction of sale evidenced by Mutation No.44 is violative of paragraph 25 ibid and therefore, is null and void.

8. Having penned down the facts, circumstances of the case and the points for decision, I herein proceed to deal with first point. This point is free from difficulty. It is settled law that when party to the suit does not raise or urge a specific point before the first appellate Court, that party is not entitled to raise or urge that point before the second appellate Court or the revisional Court except where the point raised relates to question of jurisdiction or question of law on admitted/proven facts. Reference be made to Manidra Chandra Nandi v. Durga Parsad Singh (AIR 1917 P.C 23), Ram Kinkar Rai and another v. Tufail Ahir and others (AIR 1931 All. 35), Arshad Ali v. Haji Muhammad Ali (1988 MLD 780); Muhammad Sadiq Khan v. Muhammad Saleem Khan (1988 MLD 1976), Wali Muhammad v. Ghulam Rasul (1988 MLD 2804), Muhammad Aslam v. Imam Bakhsh (1980 SCMR 879) and Noor Muhammad v. Muhammad Hussain (1978 SCMR 1). This view was also followed in judgment dated 6‑12‑1992 passed in R.S.A. No.551 of 1972, titled ".lam Pallo v. Bashir Ahmad etc" (PLD 1993 Lah.168).

9. Applying this principle to the facts and circumstances of this case there appears to be considerable force in the line of? argument of the learned counsel for the respondents. It is clear that the learned original Court decided issues Nos.l and 2 against the petitioners. The learned counsel for the petitioners neither filed cross‑objection against the findings of the Courts below before the first Appellate Court nor supported the judgment and decree? of the original Court by way of assailing the findings of the Courts below on issues No.l and

2. Furthermore, the petitioners have not challenged the findings of the two Courts below on issues Nos. 1 and 2 in memorandum of this revision petition. I am, therefore, clear in my mind that the petitioners are not 8 entitled to question the propriety/validity of the concurrent findings of the two Courts below on issues Nos.l and 2 in any manner. The rule laid down in Qutab‑ud‑Din's case ibid and Naja's case ibid, cited by the learned counsel for the petitioners proceed on distinguishable facts and is not applicable to the facts and circumstances of the instant case. The findings of the two Courts below on issues Nos.l and 2 are accordingly hereby affirmed.

10. As regards the second contention, it is sufficient to note that the question whether the transaction is hit by the provisions of paragraph 25 of MLR 64, is exclusively examinable by the Chief Land Commissioner or any C other authority designated by him. The Civil Court had no jurisdiction under paragraph 27 of the MLR 64 to adjudicate upon this question. If any authority is needed reference be made to Nawab Muhammad Farid Khan v. Muhammad Afzal Khan (1968 SCMR 262), Nasir Ahmad Khan v. Mst. Ismat Jehan Begum (1968 SCMR 667) and Rulia v. Fateh Muhammad (1988 CLC 1705). When seen. from this prospective I have no doubt in my mind that the suit filed by the petitioners was clearly barred under paragraph 27 ibid and could not be adjudicated upon by the Civil Courts.

11. In the light of foregoing analysis this revision petition is found to be wholly without merit, although on different grounds. The findings of the learned two Courts below on the question of jurisdiction is accordingly set aside. The petitioners may approach the Chief Land Commissioner for seeking redress of their grievance, if any. The suit filed by the petitioners is accordingly dismissed as having been found incompetent under paragraph 27 of MLR

64. The petitioners shall bear the costs of the proceedings throughout. H.B.T./M‑1319/L ?????????????????????????????????????????????????????????????????? ??????????? Petition dismissed.