2005 PLP 2305 (YLR)

To deal with legal propositions of a case, knowledge of the facts and the appreciation of those, is a mandate for doing the justice in a given case. Commencement of the events/happenings shaping and forming into facts of the instant case are being laid down first.

2. One Sharif son of Lashkari was owner of 420 Kanals, 6 Marlas of agricultural lands, situated in Mauza Wahi Motan Mal, Tehsil and District Lodhran. There was a transaction in between Wali Muhammad, Ali Muhammad and Abdul Ghani sons of Abdullah. Aforesaid Sharif son of Lashkari, had questioned it before the Revenue Officer, Multan and order was passed in his favour on 30-9-1969. To take exception to that order, dated 30-9-1969, above mentioned persons Wali Muhammad, Ali Muhammad and Abdul Ghani filed a suit against Sharif son of Lashkari in which aforesaid Sharif himself appeared in person before the learned Civil Judge, Lodhran and made a consenting statement and got the suit decreed in favour of those persons on 15-1-1980 vide Exh. P-9 (statement of Sharif) and Exh.P-10 (decree, dated 15-1-1980). So, a Mutation No.136 was got sanctioned on the basis of that decree in favour of Wali Muhammad, Ali Muhammad and Abdul Ghani, thus reducing the land holdings of aforesaid Sharif. After the sanction of above mentioned Mutation No.136, Sharif alienated 123 Kanals, 13 Marlas of land in favour of Mst. Bashiran, his wife, as additional dower through Registered Deed No.2738, dated 22-11-1982. Mutation No.155 was also sanctioned on the basis of this registered deed on 19-3-1983 (Exh.P-2). Afterward, Sharif got 96 Kanals sold out from his wife to Abdul Ghaffar, Abdul Sattar, Abdul Jabbar, Abdul Shakoor and Muhammad Sharif sons of Abdul Razzaq, while 25 Kanals, 18 Marlas of land to Mst. Farida Begum through registered Sale-deed No.299, dated 15-3-1992 for Rs.13,00,

000. At that stage, Mst. Bashiran had, to her score, the ownership of 121 Kanals, 18 Marlas of lands, in the above mentioned Wahi Motan Mal. On the basis of that registered sale-deed, Mutation No.452 (Exh.P-3) was also sanctioned on 21-9-1992 in the Revenue Record. After having earned a huge amount through this mechanism, scheme/planning, Shull' son of Lashkari filed an appeal against Mutation No.136, dated 20-12-1980 before the Assistant Commissioner Collector, Lodhran against Wali Muhammad, Ali Muhammad and Abdul Ghani. It is pertinent to point out that Mst. Bashiran was not made party in that appeal although at that time of announcement of the order by the aforesaid Assistant Commissioner/Collector, Lodhran on 25-10-1983, Sharif had already transferred 123 Kanals, 13 Marlas of lands to his wife, Mst. Bashiran as an additional dower, through deed, dated 22-11-1982 and through Mutation No. 155, dated 19-3-1983 (Exh.P-2). The learned Assistant Commissioner/Collector, Lodhran dismissed that appeal, against which aforesaid Sharif filed revision petition before the learned Additional Commissioner (Consolidation), Multan Division, Multan, which was accepted on 21-5-1986 and a revision filed by Wall Muhammad and 2 others, above mentioned persons, before the learned Member, Board of Revenue, also met with the same fate on 22-11-1989. A review petition moved by above-mentioned persons, namely Wali Muhammad and others was withdrawn on 20-12-1992 as the parties allegedly had effected compromise.

3. In the meanwhile, Sharif son of Lashkari met with death and his legal representative came into picture. Basing their claim upon the strength of order, dated 22-1-1989, passed by the learned M.B.R., they got a Mutation No.510, dated 22-8-1993 (Exh.P-4) attested in favour of Sharif, their predecessor, in the Revenue Record and, thus, smashing transactions, which were brought into record by Sharif, himself in favour of Mst. Bashiran, their mother, and in favour of Abdul Ghaffar and others. The impact created through mutation was that the lands sold out to Abdul Ghaffar and others by Mst. Bashiran, had also returned to Sharif son of Lashkari, through that Mutation 'No.510, dated 22-8-1993 (Exh.P-4), naturally and consequently in favour of heirs of Mst. Bashiran and Sharif. Aggrieved from that sanctioning of mutation, Abdul Ghaffar and others, the vendees, filed a suit before the learned Senior Civil Judge, Lodhran, challenging the validity and lawfulness of that disputed Mutation No. 510, dated 22-8-1993 (Exh.P-4) which was contested and resisted by Habib Ahmad and others, the legal representatives of Sharif. Ultimately the decree was passed by the learned Civil Judge, Lodhran on 7-4-2001. The legal battle fought in appeal by Habib Ahmad and others, L.Rs. of Sharif was also lost by them before the learned District Judge, Lodhran on 20-10-2003. Hence, this regular second appeal.

4. Learned counsel appearing on behalf of L.Rs. of Sharif, the appellants, has submitted by stating that consent decree, dated 15-1-1980 got passed by Shari in favour of Wali Muhammad and others (Exh. P-10) was in violation of Martial Law Regulation No. 115 (1972). So it was a void transaction and decree. Due to that, learned Member, Board of Revenue and upheld the order, dated 21-5-1986, passed by learned Additional Commissioner (Consolidation), Multan Division, Multan and had declared the above-mentioned decree to be a void decree. Therefore, entries of transaction in favour of Abdul Ghaffar and others were correctly removed/deleted from the Revenue Record and the land sold out by Mst. Bashiran, their mother and predecessor-in-interest had correctly reverted to Sharif son of Lashkari, their predecessor-in-interest. The learned Courts below have wrongly decreed the suit in favour of Habib Ahmad and others, vendees.

5. On the other hand, respondents learned counsel submits that there was no violation of provisions of M.L.R. No.115. The decree passed on 15-1-1980 could not be held void as on the basis of a decree, the economical holding of an owner could be reduced. It has also been argued by the learned counsel that Abdul Ghaffar and others were not party to the proceedings before the Revenue Officials/Authorities. Therefore, the order passed by learned Member, Board of Revenue, Punjab could not be applied to the transaction of Mst. Bashiran and to her alienees. The learned Courts below have therefore, correctly passed the decrees.

6. The arguments of the learned counsel and the perusal of the record have led me to conclude through the following paras:-- (a) Sharif son of Lashkari while filing appeal before the Assistant Commissioner/Collector, Lordhran had not made party to it, the present respondents-plaintiffs or his own wife. Mst. Bashiran, in whose favour, he had himself alienated agricultural lands, measuring 123 Kanals, 13 Marlas, through registered deed as additional dower on 22-11-1982. During all these proceedings before the Revenue Officials/Authorities, he never got impleaded Abdul Ghaffar and others, the purchasers from his wife Mst. Bashiran, which transaction he had himself got settled and completed. Therefore, no exception can be taken by his legal heirs to that alienation. Rule of estoppel was applicable in its most effective form. (b) As Abdul Ghaffar and others, and their alienor, Mst. Bashiran were not party to the proceedings being conducted before the learned Revenue Officials/Authorities/ M.B.R., so the order, dated 22-11-1989 passed by the learned M.B.R. was passed in violation of golden principle of audi alteram partem. Mst. Bashiran had become owner through registered deed, dated 22-11-1982 before tiling of appeal before the learned Additional Commissioner (Consolidation), therefore, it was incumbent upon Sharif to implead her at least in that appeal. Non impleadment of Mst. Bashiran and her alienees, namely Abdul Ghaffar and others, has got the impact of declaring this order, dated 22-11-1989 passed by learned M.B.R. to be void, illegal and unlawful, as against the plaintiffs-respondents. The impugned order, dated 22-11-1989, passed by the ,learned M.B.R. cannot take any effect against those persons, who were not party before the aforesaid learned M.B.R. and were not granted opportunity of being heard. (c) The dispute was raised by Sharif son of Lashkari against Wall Muhammad and others. What was that dispute and whether it had any repercussion upon the case of the present plaintiffs and their alienor, Mst. Bashiran. It was to be adjudicated upon, which exercise was not done by any Revenue Authorities. Therefore, the decision/order of above noted Revenue Authority, could not automatically apply to the subsequent transactions which were never challenged by the defendants/appellants before any authority or forum. Automation and self-conceived orders by the parties cannot be made the basis of bringing into Revenue Record the change of ownership of any party without any lawful order from a competent Authority or Court. Unless the impugned transaction of additional dower and sale were held void by any Court or authority, the transactions could not be removed from the. Revenue Record. (d) It has not been disputed by the appellants that Mst. Bashiran was never transferred land as an additional dower or she had not sold out the lands to Abdul Ghaffar and others, so, the concurrent findings of fact that Abdul Ghaffar and others were bona fide purchasers for value without notice, cannot be upset. (e) The impugned order, dated 22-11-1989, passed by learned M.B.R., when was brought for implementation process, as against these persons, how could it be acted upon or implemented, through the sanction of Mutation No.510 in the year, 1993? The date of commencement as against these persons would be of the year, 1993 when the provisions of M.L.R. No.115 had already been held repugnant of the injunctions of Islam by the Hon'ble Supreme Court in Qazalbash's case. As there was no law empowering any Revenue Authority to scrutinize and to determine a holding/ transaction/alienation to be against the provisions of Land Reforms in the year, 1993, therefore, Mutation No.510 was illegal and unlawful sanctioned as these were plaintiffs. (f) The appellants having stepped into shoes of Sharif and Mst. Bashiran, who were their father and mother respectively, how they could be allowed to take any step contrary to the actions of their predecessors. Both these persons had not, in their life time, challenged the validity of alienation in favour of Abdul Ghaffar and others, plaintiffs. Therefore, the L.Rs. of Sharif and Mst. Bashiran are now estoppel to challenge the validity of those transactions. In fact, the L.Rs. are now trying to defraud Abdul Ghaffar and others, the plaintiffs, by inventing a mechanism and playing a trick of legal complication, by displaying the order, dated 22-11-1989 to have granted benefit to them to get the sale transaction set aside which was never assailed by their predecessors. They cannot he permitted such an illegal course being adopted as it would tantamount to grant premium/bonus for their own wrong, act and conduct. (g) As the predecessor-in-interest of Habib Ahmad and others, namely Sharif and Mst. Bashiran had received a huge amount from Abdul Ghaffar and others, the vendees/plaintiffs, therefore, they could not rely upon para. No.24 of M.L.R. No. 115 (1972), for cancellation of the sale in favour of plaintiff-purchaser. How, they can swallow the price received by their predecessor without repayment of it to the vendees. They cannot be permitted to take back the lands without paying the price they had already received from their purchasers, who had paid a huge amount/consideration by selling their other lands, home and hearth. They cannot be allowed to turn turtle by taking a chance of legal interpretation and getting the sale transaction declared void. No law and moral rules of ethics and the tenets of Islam allow them such a recourse to be adopted. I am fortified for this view through a citation, which was published in 1980 SCMR 314 (Ghulam Muhammad alias Ghulamoo v. Maula Dad and 6 others). It may be added here that defect in title or bar in the power to sell, if any, was the duty to tell by the vendor, who had failed to point it out at the time of the transaction. Therefore, it was, then the choice and option of the vendee to rescind or not, the contract. The vendor cannot retract from his own steps taken forward. (h) As the provisions of M.L.R. No.115 with regard to restraint of alienation have been declared against the Injunctions of Islam, therefore, these provisions cannot be now applied to the case of the plaintiffs in the year, 2005. As appeal is also a continuation of the suit and the matter is re-opened by filing of the appeal. The happenings and events after the filing of the suit and even during the appeal, can be taken into consideration, therefore, I am of the considered view that the learned Courts below have correctly passed the decree in favour of respondents-plaintiffs, which do not call for any interference in this R.S.A., which is, therefore, dismissed with costs throughout. H.B.T./H-81/L Appeal dismissed.