1987 PLP 925 (SCMR)

It appears that no appeal was filed against this order. It must be indicated at this stage that though Abdul Ghaffar who reappeared on the scene later had been prosecuted on this charge, he was dropped from the list of accused because he pleaded that he had no concern with the land in question being himself, it appears, a Revenue Officer at that time. The next event, relevant to the proceedings, is that in the year 1969, by two separate mutations Abdul Ghaffar respondent purchased the land in the same Khata from his brother Abdul Ahad. Both the mutations were attested on 23‑5‑1969. This prompted Syed Ibrahim Shah to institute two pre‑emption suits against the sale on the ground of his co‑sharership and contiguity. In resisting the suits, the vendee Abdul Ghaffar not only denied the ownership of Syed Ibrahim Shah but also filed an application with the Custodian under M.L.R. 49 of 1958 to the effect that the land entered in the name of Syed Ibrahim Shah vide Mutation No. 8 attested on 29‑4‑1950 in Mohal Karez Zeela Mauza Karezat Bileli, Tehsil Quetta, measuring about 29 rods 26 poles were hidden evacuee property. The Chief Settlement Commissioner, Baluchistan, as Custodian of Evacuee Property, declared the land shown as the ownership of Syed Ibrahim Shah evacuee property, and at the same time, awarded 1/4th of it to Abdul Ghaffar Khan as a reward by his order, dated 31‑3‑1973. This order was challenged by Syed Ibrahim Shah by a Constitutional Petition (No. 44‑A of 1973) which was allowed and the order of the Custodian was declared to be without lawful authority and of no legal effect. In the meantime, while the two pre‑emption suits of Syed Ibrahim Shah were pending, he also instituted a suit seeking possession of the land in respect of which criminal trespass had been committed by Abdul Ahad for which he stood convicted and sentenced. This suit was directed against both the brothers Abdul Ahad and Abdul Ghaffar Khan. They submitted a joint written statement. In reply to para. 5 of the plaint, they made it clear that they laid no proprietary claim to the land in dispute. In reply to para. 4 also, it was stated that the disputed land was only in the cultivating possession of Abdul Ghaffar over which he claimed no title or proprietary interest but claimed that a part of it belonged to Hindu owners who had become evacuee and their property had become evacuee property and the remainder belonged to Lachmi Bai. This dispute over the possession of the land was referred by the Deputy Commissioner to the same Tribunal which was already seized of the two pre‑emption suits instituted by Syed Ibrahim Shah. The history of pendency of these matters for over ten years shows that repeatedly the Tribunals were constituted and re‑constituted. Ultimately, the parties agreed to a Tribunal and thereafter great difficulty was experienced in procuring the attendance of Abdul Ghaffar. The Tribunal by a joint unanimous order finally recommended that Syed Ibrahim Shah was entitled to the possession of the land and also to succeed in the two pre‑emption suits. By an order, dated 24‑2‑1980, his claims were decreed. What happened thereafter was that separate appeals were filed in respect of each matter and these were disposed of by the appellate Authority separately. The pre‑emption suit proceedings were remanded on appeal while the appeal against the decree for possession was dismissed. Abdul Ghaffar thereupon appealed to the Member, Board of Revenue. The Member, Board of Revenue, happened to be the same Agha Nasir Ali who had, as a President of the Tribunal, recorded a dissenting opinion that the mutations in favour of Syed Ibrahim Shah were forged and fictitious and that Abdul Ahad alone was entitled to become its owner. This time he took up and recorded ad seriatim the seven objections raised by the learned counsel for Abdul Ghaffar Khan and remanded the proceedings observing as hereunder:‑‑ "After hearing the arguments of the counsels for the parties and perusal of the records of the case, I find that the case has not been processed properly and as laid down under the law inasmuch as that the points at issue should have been framed and referred to a Tribunal for adjudication as well as the point of limitation be also determined. As such the suit is remanded back for fresh trial under the law and the orders of the lower Courts are set aside." Aggrieved by this remand order, a Constitutional Petition was filed by the heirs of Syed Ibrahim Shah. The main ground taken up in the Constitutional Petition was that Agha Nasir Ali was disqualified to sit in judgment at the apex after having recorded a dissenting opinion as the President of the Tribunal which opinion was overruled by the District Magistrate. It was further urged that in view of the pleadings of the parties touching the merits of the case, the grounds on which remand was ordered were not available at all. The learned Judges while dismissing the Constitutional Petition with regard to the capacity of Agha Nasir Ali, held as follows:‑‑ "It is admitted position that Agha Nasir Ali has given a dissenting note in the recommendation, dated 19‑5‑1969 acting as President of the Tribunal whereas now in the capacity of Revisional authority said Agha Nasir Ali has passed the impugned order of remanding the case. Normally a person cannot be expected to sit on judgment against his own order. In the instant case the position is not exactly the same

Learned Member Board of Revenue in the impugned order reproduced in para. (3) above, has not dealt with merits of the case at all. It has merely restricted himself to the apparent violation of law indicated to have been committed by the trial Court, in recording the proceedings and has consequently directed to rectify the same and to carry out proceedings by complying with law." Not following and distinguishing the decision in Mir Rehman Khan v. Sardar Asadullah Khan and others P L D 1983 Quetta 52 the learned Judges held as follows:‑‑-- "This, therefore, pre‑supposes that evidence must be recorded allowing cross‑examination and thereby excluding possibility of taking into consideration any oral discussion on information of any of the parties or members of the tribunal not subjected to cross‑examination. Therefore, taking in view specified provisions of law, regulating the procedure for adjudication of civil disputes under Ordinance I of 1968 the evidence to be recorded should be in writing and must be in the manner, provided for under section 8 of the said Ordinance. Oral discussion or statement without opportunity of cross‑examination has not been visualised by law. In the instant case, it is admitted in the recommendation, dated 22‑1‑1980, that on the date when respondents attended the Tribunal, there was oral discussion and examination of record including copy of judgments etc. but no evidence was recorded. Later these recommendations were approved by the authority exercising powers of Deputy Commissioner vide order dated 2‑2‑1980 without bothering about inherent defects of the proceedings. In view of facts discussed above we are inclined to hold that since admittedly no opportunity was afforded to the parties to lead evidence was recorded by the Tribunal and no material was at all available before Tribunal to make recommendations, therefore, order dated 2‑2‑1980 passed by the Additional Deputy Commissioner exercising powers of Deputy Commissioner under the Ordinance is defective and deserves to be set aside." The High Court finally declined to interfere with the impugned order of the Member, Board of Revenue observing as follows:‑‑ "In case impugned order is knocked down on any technical ground, the same in turn would restore the orders which as already discussed are totally devoid of lawful authority. Thus, on consideration of peculiar circumstances of this case and the effect of the impugned order, which tends to merely rectify illegalities we are inclined to hold that in spite of technical infirmities in the impugned order, it would not be appropriate to grant discretionary relief to the petitioner, consequently writ is refused." Mr. Yahya Bakhtiar, the learned counsel for the appellants, contended that once the High Court came to the conclusion that on the principle applicable to the proceedings Agha Nasir Ali was not qualified to sit at the apex under the Ordinance to decide the case the decision could not have been protected for the simple reason that the questions decided were of law and not of fact or on merits. The learned counsel has drawn our attention to the pleadings in the proceedings before the Tribunal and pointed out that there was no controversy or question raised either on the legal plane or on the factual plane except that of the ownership of the property by the appellants. No limitation was pleaded, no proprietary right or property interest in the disputed property was claimed by any of the two brothers sued as defendants. The Tribunal was constituted with the approval of both the parties. They had accepted the members of the Tribunal. It is true that the evidence was not recorded but it does not mean that no evidence was produced. The copies of the judgment effectively covering the dispute between the parties and holding the field were exhibited before the Tribunal. The respondent had received more than enough opportunities for these ten long years for appearance and for production of evidence and for contesting the claim. They had declined to do so. According to the learned counsel, it is true that the issues were not specifically framed but there is no requirement of law either under the Ordinance or even under the Civil Procedure Code that issues must necessarily be framed before adjudicating upon a dispute. It was a straightforward claim made by the appellants and no counter‑claim was made by the respondents. The appellants could and had in fact proved their case by production of the relevant record to dispel the defence set up by the respondents that the property in dispute happened to be evacuee property and not that of the appellants themselves. Mr. A.R. Shaikh, Advocate, the learned counsel for the contesting respondents, on the other hand submitted that there was no order of reference at all to the Tribunal and no issues had been framed and questions of limitation and the nature and extent of right in the property-possessed by the appellants necessarily arose in the case. It was further contended that the view taken by the High Court with regard to the recording of evidence and distinguishing the other decisions of the same Court is not exceptionable. The remand order of the learned Member, Board of Revenue is according to the learned counsel, with jurisdiction and justified on account of the facts on record. The mere fact that Agha Nasir Ali dealt with the case as President of the Tribunal and recorded a dissenting opinion which did not ultimately prevail was not, according to the learned counsel, sufficient to disqualify him from adjudicating in the case as Member, Board of Revenue, when ultimately only a remand order was passed. It appears from the observations reproduced from the judgment of the High Court that the learned Judges came to the conclusion that on account of his previous involvement in the dispute between the parties Agha Nasir Ali as a Member, Board of Revenue was disqualified to sit on judgment. An exception was, however, made only on account of the fact that the learned Member, Board of Revenue, had dealt with the case on law and not on facts. An examination of the pleadings and earlier criminal trial disclose that the dispute was not the same. The civil dispute was with regard to title and relief of possession following title. The criminal litigation was with regard to possession and wrongful dispossession. The question of title need not have been in criminal trial examined at all as in that case it did not appear necessary for deciding the guilt or otherwise of one of the respondents. The earlier litigation was substantially between the same parties, for Abdul Ghaffar had been made a party and criminally prosecuted by the appellant but he was able to get out of the proceedings by making a statement that he had nothing to do with the land. It was his brother who was proceeded against and the same property was ultimately purchased, at least a share in it, by Abdul Ghaffar as well. The nature of findings recorded by Agha Nasir Ali as President of the Tribunal shows that not only he decided the question of title but he decided it both affirmatively and negatively. He held that the appellant had failed to prove his title to the land and that Abdul Ahad respondent was alone entitled to be its owner. No finding was recorded by him on the point in issue in criminal trial, namely, whether the appellant was in possession of the property in assertion of a claim and had been wrongfully dispossessed by Abdul Ahad. Another significant feature of the case is that afterwards Abdul Ahad and Abdul Ghaffar both never claimed title to that land, they only claimed permissive possession denying the title of the appellant. In this background, the controversy which came to the notice of the Board of Revenue was substantially between the same parties and related to the same matter on which Agha Nasir Ali had decided in a different and subordinate capacity the same matter. Such a participation or involvement clearly, as held by the High Court, disqualified him from acting as a Judge in the same matter which he, had already decided. The fact that he dealt with the question of law alone and not of fact does not appear to sufficiently excuse him and to protect his adjudication. The High Court has not examined at all the correctness of the decisions of Agha Nasir Ali on questions of law. The two legal points on which remand was ordered by the learned Member, Board of Revenue were with regard to non‑framing of issues and for examining the question of limitation. Non‑framing of issues had been made a ground without recording the finding that in fact any prejudice had been caused by such a failure to any of the parties the litigation. Unless such be the finding, a remand could not be) ordered simply because of omission to frame issues. One of the earliest decisions is in the case of Mst. Mitna v. Syed Fuzul Rub (Vol. 13 Moores Indian Appeals 573) wherein no issues were settled or recorded by the Principal Sudder Ameen and no objections taken on that ground by either party and after hearing evidence a decree was made. On appeal to the High Court, an objection was made on the ground of omission of issues but the Court being satisfied with the evidence decided the appeal on merits. The Privy Council held that as there had been no failure of justice in consequence of the omission to settle or record the issues, a remand for settlement of issues and retrial was unnecessary. A more recent decision is in The Province of East Pakistan v . Hasan Askary P L D 1971 S C 82, wherein the same law was reiterated in the following words:‑‑ "If issues are not framed but allegations are made in the plaint and they are challenged in the written statement, it is open to the Court to allow the parries to lead evidence on such point and to give decision on it without framing any issue." Section 4 of the Civil Procedure Code (Special Provisions Ordinance) 1968 (herein referred to as the Ordinance) empowers a Deputy Commissioner to "constitute a Tribunal in accordance with section 5, and by order in writing, refer the dispute to the Tribunal for a finding on such matters or issues as may be specified in the order". The omission to frame an issue where the dispute relates only to title and nothing else would not, unless any prejudice has been caused to the parties and it is shown to be so, lead to a retrial. The other ground of law relates to limitation. This ground was not raised in the written statement nor was it raised in the revision filed before the learned Member, Board of Revenue. It was raised during the course of the arguments and listed ad seriatim while taking down the points on which the revision petition was sought to be sustained before the learned Member, Board of Revenue. In the absence of the question of limitation having been raised in pleadings itself or before the trial Court or in the memo. of revision petition before the learned Member, Board of Revenue, the revisional authority was not justified in making it a ground for remanding the case taking it to be failure of justice to adjudicate on that point. The decision of this Court in Muhammad Ishaque v. Shah Muhammad and others 1985 S C M R 799 extensively deals with this question. The learned Judges in the High Court were, it appears, guided by the fact that by upsetting the order of remand, they will be blessing an illegality and as such perpetuating injustice or irregularity. This conclusion of inherent vice or infirmity in the proceedings was drawn on the ground, and it was done distinguishing and not following a decision of the same Court in the case of Mir Behman Khan P L D 1983 Quetta 52, that the evidence was not recorded. In the matter of recording of evidence, section 8 of the Ordinance enjoins the Tribunal that "for the purpose of coming to a finding on a matter or issue referred to it, the Tribunal shall give opportunity to the parties to appear before it and take or hear, in such manner as it may think fit, such evidence as may be adduced on behalf of the parties or as may be called for by the Tribunal". In this case the respondent Abdul Ghaffar cannot make a grievance that he was not given opportunity to appear before the Tribunal. It was indulgently and repeatedly done and he failed to appear. In his absence from the proceedings the question of denial of the right of cross‑examination would not arise. The language of the law "take" or "hear" in such manner as it may think fit, cannot by any reasoning be whittled down or curtailed to make recording of evidence verbatim necessary. Besides, in this case the only question in dispute on the pleadings of the parties was one of title and it could be proved from the documents alone, i.e. the record of sales and the decisions of Courts which were available to the Tribunal. The illegality detected by the High Court was not there and there could be no perpetuation or illegality if a not so biased Member of Board of Revenue had been directed to re‑hear the revision petition with a view to resolve the questions of fact arising out of the pleadings of the parties and the dispute referred to the Tribunal. In the circumstances and for the foregoing reasons, we allow the appeal, set aside the judgment of the High Court, remand the proceedings to the Member, Board of Revenue, and we are told that Agha Nasir Ali is no longer the Member of Board of Revenue, for re‑hearing of the revision petition in accordance with law. In view o the long time that it has taken for the parties to get the question of title adjudicated, we expect that the learned Member, Board of Revenue, will be able to dispose of the revision petition within two months of the receipt of our decision and the records of the case. No order as to costs. The respondent Abdul Ghaffar was ordered to deposit a sum of Rs.15,000 as security for costs. It shall be refunded to him as no costs have been awarded against him. S.Q. /A‑27/S Appeal allowed.