1998 PLP 408 (SCMR)

KHALIL-UR-REHMAN KHAN, J.

This petition for leave to appeal is directed against the order dated 23-11-1995 whereby Constitution Petition filed by the present petitioners was dismissed in limine along with another Constitution Petition involving the same controversy, by a learned Judge of the Lahore High Court, Lahore, recording the conclusions that the allotment of land in dispute made in the name of Muhammad Rafique son of Abdul Aziz against Claim Form No.4692 in Mauza Noorpur, Tehsil Noorpur, District Sargodha, was an outcome of fraud and misrepresentation and was bogus. Learned Judge also found no justification to differ with the aforesaid finding recorded by the Notified Officer as the same was based on Revenue Record and the statements made by the witnesses.

2. The dispute in this protracted litigation pertains to the allotment of land statedly obtained in the name of one Muhammad Rafique son of Abdul Aziz, through a bogus Claim No.4692 in Mauza Noorpur, Tehsil Noorpur, District Sargodha. These assertions were brought to the notice of Chief Settlement Commissioner, Lahore, by moving a Mukhbari application filed on 27-3- 1974. The land so got allotted changed many hands, through many transactions such as Mutation No.7890 entered on 4-2-1971, again statedly in favour of a fictitious person namely Muhammad Shafique Khan son of Muhammad Rafique Khan, simultaneously entering the exchange mutation No.7891 on the same day i.e., 4-2-1971 between the said fictitious person Muhammad Shafique Khan and Khizar Hayat. Both these mutations were attested on 10-2-1971. Land measuring 1298 Kanals 19 Marlas was thus statedly transferred fraudulently in the name of fictitious person Muhammad Shafique Khan on the basis of a forged Mukhtar Nama and by virtue of fraudulent Mutation No. 7891 The total land was exchanged in the name of Khizar Hayat in lieu of only few Marlas of land on 10-12-1971 on verification of one Ahmad Sher Khan the then Councilor, petitioner herein. Ahmad Slier Khan etc., the petitioners, allegedly got land measuring 131 Kanals 9 Marlas vide Mutation No.8163 dated 17-8-1972 from Abdul Jabbar to whom the land was transferred through Mutation No.8065.

3. Mr. A.R. Shaukat, Senior Advocate, learned counsel for the petitioners in support of the petition argued that the Notified Officer failed to record the finding on the question on which the matter was remanded to him by the High Court vide judgment dated 6-11-1988 passed in Writ Petition No. 130-R of 1988. According to him, the remand was made to determine the question whether the Mukhbari application made against dead person was maintainable and whether the petitioners who are bona fide purchasers for value could be deprived of their valuable rights in the land. The other question noted in the remand order was that "the record does not indicate that the deceased's son who made the transaction in respect of the land in dispute or for that matter the petitioners who became the owners of the land as a result of these transactions, were impleaded as a party" and as they were condemned unheard. the impugned order earlier passed was quashed being violative of the principles of natural justice. , Mr. A.R. Shaukat, learned counsel, however, pointed out that most of the land has been transferred to others by the petitioners and presently the petitioners are pursuing this litigation to claim rights in the land measuring 11 Kanals 4 Marlas only. He explained that out of this land 10 Kanals was purchased from aforesaid Abdul Jabbar on 16-2-1987 while the remaining land measuring 1 Kanal 4 Marlas approximately is still with the petitioners out of the land which was purchased by them vide Mutation No.8163 dated 17-8-1972.

4. We have given serious consideration to the pleas urged before us in the light of the material available on record. The Mukhbari application was filed admittedly before the repeal of the Evacuee Laws and the person whose name appeared as allottee in the record had to be cited as a respondent whether he was alive or not at the relevant time. In fact, the case of Muhammad Ashraf and others (respondents Nos.4 to 15) who had filed the Mukhbari application was that the allotment was obtained in the name of a fictitious person on the basis of a fictitious Mukhtar Nama and the persons who were real beneficiaries of the allotment so obtained were brought on record. These persons were statedly Abdul Jabbar, Khizar Hayat and Ahmad Sher Khan. They were impleaded on record and were heard by the Notified Officer. The Notified Officer recorded the finding that the claim form was never transferred to the village in question and as such the question of allotment against that claim did not arise. This finding was not even challenged before us.

5. This being the position, learned Judge in the High Court was right in refusing to intervene in exercise of extra-ordinary constitutional jurisdiction. The plea of bona fide purchaser for value was also rightly repelled by the learned Judge in the High Court as the purchase of most of the land now in dispute was admittedly made on 16-2-1987 during the pendency of Mukhbari application and at a stage when the Additional Commissioner Revenue, Sargodha Division had already held, vide order dated 30-12-1985, that Muhammad Rafique was not the landowner in Mauza Salwa or Mauza Alaywali of Tehsil Nakodar of District Jalandar against claim No.4692. Thus, the bogus nature of the claim had been found and held much before the purchase made by the petitioners. Refusal made by the learned Judge in the High Court to intervene in exercise of constitutional jurisdiction is well justified as the constitutional jurisdiction cannot be invoked for retention of the illegal or ill-gotten gains or in aid of injustice. It was held in Muhammad Baran and others v. Member (Sett & Reh.). Board of Revenue, Punjab and 5 others (PLD 1991 SC 691) that if allotments relied upon were illegal and without jurisdiction and based on forgery and fraud, the High Court would not, in exercise of its discretionary jurisdiction, annul order of Board of Revenue which exposed fraud and forgery, even if it is clearly without jurisdiction. The order granting leave to appeal in that case was withdrawn by this Court on noticing these features of the case.

6. In the circumstances, leave to appeal is refused and the petition is dismissed. A.A./A-2/S Leave refused.