1992 PLP 818 (MLD)

MUNAWAR AHMED MIRZA, C.J.‑‑‑Parties have longstanding litigation concerning shop No.1031 situated in Loralai town (hereinafter referred as "The Shop"). It would therefore be necessary to give brief back‑ground for deciding the existing dispute. 2. `The Shop' was admittedly allotted to late Muhammad Sharif, predecessor‑in‑title of plaintiffs/respondents Nos.1 and 2 who continuously paid rent to Settlement authorities upto year 1958 whereafter being refugee, exemption from paying the same was granted to him. Initially Deputy Commissioner, Loralai purporting to exercise powers under the provisions of Settlement Schemes transferred "The Shop" in favour of late Muhammad Sharif vide order, dated 17‑7‑1965. However, this order was declared to be without lawful authority vide judgment in Writ Petition No.10 of 1966 for want of jurisdiction and non‑application of Settlement Scheme No.VII in the Tribal area. It may be seen that subsequently Tehsildar Loralai exercising powers of Assistant Settlement Commissioner by means of order dated 10‑12‑1973 transferred `The Shop' in favour of late Muhammad Sharif. Appellant challenged said decision before Deputy Settlement Commissioner Loralai, who dismissed the appeal on 7th May, 1974. Eventually appellant filed Constitutional Petition No. 6 of 1974 which was decided by this Court on 26‑9‑1977 wherein though aforementioned transfer of `The Shop' was declared without lawful authority yet it was clearly held that relations between the parties as existing prior to issuance of transfer document shall continue to subsist. Para `3' mentioning details regarding transfer of `The Shop' .and operative portion of said judgment is reproduced below for ready reference:‑‑ "

3. Tehsildar Loralai exercising the powers of Assistant Settlement Commissioner reconsidered the matter and came to the conclusion that late Muhammad Sharif, being an allottee was entitled to the transfer of this shop. On the other hand it was held that the petitioner Khuda Dad was in illegal occupation of such shop. However, the learned Assistant Settlement Commissioner Loralai, finding that deceased had left a lunatic son, a daughter and a widow, transferred the shop to Riasat Ali brother of late Muhammad Sharif, for the benefit of family of the deceased. Transfer documents were issued by the Tehsildar, purportedly acting as Assistant Settlement Commissioner on 10th December, 1973. The petitioner challenged this order in appeal on 26th February, 1974. Assistant Commissioner Bori assuming the powers of Deputy Settlement Commissioner, Loralai, heard this appeal and rejected it by his order, dated 7th May, 1974. The petitioner has challenged these two orders in the present petition. 4. .................................. 5. .................................. 6...................................

7. The orders of the Tehsildar, Loralai and Assistant Commissioner Bori dated 10th December, 1973 and 7th May, 1974 purported to be acting as Assistant Settlement Commissioner and Deputy Settlement Commissioner respectively are without jurisdiction. But as allotment of the shop in favour of late Muhammad Sharif was under valid law by an authority having powers and jurisdiction to do so still subsists. In fact Balochistan Regulations I and hold the field. As respondents 1 to 3 are the successors in interest of late Muhammad Sharif they will step into shoes. This means that the relationship between the petitioner and respondents 1 to 3 existing before the impugned orders were. passed whatever be the nature of such relationship, will also subsist. The petition is therefore, allowed to that extent. The parties are left to bear their respective costs". It is alleged that during year 1965 appellant was inducted in `The Shop' as partner, but instead of sharing profits he unjustifiably had plunged the respondents into multiple litigation. However, eventually on his declining to vacate `The Shop' or furnish accounts a civil suit for possession and rendition of accounts was filed before the Deputy Commissioner Loralai on 26‑3‑1981, which was transferred to the Court of Qazi Bori for disposal in accordance with provisions of Balochistan Civil Disputes (Shariat Application) Regulation, 1976. Appellant filed written statement on 7‑3‑1984. Keeping in view pleadings of parties ten issues were framed on the same date and matter was postponed to 19‑3‑1984 for production of evidence. Record reveals that on 8‑4‑1984 ex parte decree was passed. Appellant feeling aggrieved, preferred an appeal before Majlis‑e‑Shoora, Quetta. During the pendency of said appeal as interim order was passed on 13‑12‑1984 wherein direction for payment of court‑fee was made to both the sides. Respondent feeling dissatisfied preferred Civil Revision No.107 of 1984 before this Court which was ultimately decided through a short order, dated 9‑9‑1985 reasonings whereof were pronounced on 29‑9‑1985. 1n pursuance of said judgment, ex parte decree, dated 8‑4‑1984 passed by learned Qazi Bori was set aside and possession of `The Shop' restored to appellant. Trial Court was however directed to proceed with the matter in accordance with law. Respondents were still aggrieved, accordingly they preferred Civil Petition for Leave to appeal before Honourable Supreme Court of Pakistan which was converted into Appeal No.1‑Q/1987 and eventually dismissed by means of order, dated 19‑9‑1989. Record indicates that considering pecuniary jurisdiction of the subject matter, Majlis‑e‑Shoora, on 30‑6‑1991 transferred the case to its file for final adjudication. The Court directed payment of court‑fee, which was deposited by plaintiff/respondents on 28‑7‑1990. 1t appears that on 1‑4‑1990 plaintiff/respondents submitted amended plaint for which notice was given to appellant. Order sheet, dated 5‑9‑1990 shows that appellant expressed his intention to rely upon earlier written statement and did not file fresh one. Majlis‑e‑Shoora on 23‑9‑1990 framed following six issues and parties were allowed opportunity of leading evidence:‑‑ Plaintiffs/respondents examined P.Ws. (i) Muhammad Amin (ii) Jalal (iii) Parvez Akhtar and (iv) attorney Riasat Ali to substantiate their claim. Whereas appellant in rebuttal apart from his own statement, adduced 4 witnesses namely (i) Khudai Nazar (ii) Muhammad Hashim (iii) Khair Muhammad and (iv) Malik Jan Muhammad. Learned Majlis‑e‑Shoora, Loralai on appraisement of material on record granted decree for rendition of accounts, as well as possession of `The Shop' in favour of plaintiffs/respondents and against appellant by means of judgment, dated 25‑9‑1991. Present appeal is directed against aforesaid decree. Mr. Basharatullah, learned counsel for appellant strenuously raised following contentions: (i) Deceased Muhammad Sharif or legal representatives (respondents) were merely an allottee. Therefore, they have no legal right to claim possession through Civil Court; (ii) Section 8(b) of Regulation‑11 of 1950 (PLD 1950 Central Statute p 376) creates a bar of jurisdiction for Civil Courts. Therefore, impugned judgment is devoid of lawful authority and of no legal effect; (iii) Right of allottee is not inheritable, therefore, suit is incompetent. (iv) Settlement Scheme‑VII as reconstituted created a valuable right in favour of appellant disentitling respondents from claiming relief of possession, however this aspect was ignored by the trial Court. (v) Relief for possession and rendition of accounts is barred by time, but this aspect has not been appropriately considered 'by the trial Court. (vi) Question of limitation was specifically agitated by means of applications, dated 20‑9‑1986 and 14‑2‑1987 but trial Court paid no heed which has materially prejudiced the appellant. (vii) Evidence on record is insufficient for granting impugned decree. Whereas Chaudhary Muhammad Arshad, learned counsel for plaintiffs/ respondents opposing the appeal, made following submissions. (i) Regulation No.1 of 1979 (PLD 1979 Balochistan Statute‑62) applicable to tribal areas has validated all transfers effected during year 1963 to 1973 by authorities purporting to exercise powers of Assistant or Deputy Settlement Commissioner. Therefore, late Muhammad Sharif and his successors art valid transferees, entitled to initiate proceedings against appellant. (ii) Judgment in constitutional Petition No.6 of 1974 decided on 26‑9 1977 had declared that relations between the parties shall subsist as existing prior to institution of the petit ion. Therefore, appellant can not now turn back to challenge factual position, determined between the parties. . (iii) The possession of respondents was permissive, therefore, bar of limitation would not operate as contended by other side. Firstly contentions (i) to (iv) of learned counsel for appellant are inter‑connected. Undisputedly late Muhammad ;3harif was allotted `The Shop' under section 7(1) of the Balochistan Rehabilitation Regulation 1950 who remained in its occupation from the very beginning. Subsequently Scheme No.VII as reconstituted was promulgated on 16‑4‑1966. It is conceded that neither Displaced Persons Compensation and Rehabilitation Act, 1958 nor Scheme No.VII or revised scheme was extended to tribal areas of Balochistan. This legal position has been elaborated in case Mir Hassan and another v. Deputy Rehabilitation Commissioner, Zhob and another (PLD 1980 Quetta 43). However, Tehsildars and Assistant Commissioners of tribal areas within their respective jurisdiction assumed authority under Settlement Scheme No .VII as reconstituted and issued permanent transfer deeds concerning various properties. The validity of such transfers was however challenged through several constitutional petitions. Eventually, by virtue of Balochistan Tribal Areas (Validation of Transfer of Properties) Regulation‑I 1979 all such transfer orders issued during year 1963 to 1973 were expressly validated. For ready reference S.2 of Regulation‑I is reproduced:‑‑‑ "I . .................................. ‑ (1) . ,. (2) . (3) .

2. Validation of transfers.‑‑‑All properties transferred in the Tribal Areas of the Province of Balochistan during the years 1963 to 1973 under Scheme No.V1I and Revised Scheme No.VII prepared under subsection (3) of section 10 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (XXVII of 1958) shall be deemed to have been validly transferred as if the said Act and Schemes were in force in those areas at the time when the properties were sc transferred". In the instant case Tehsildar Loralai on 10‑12‑1973 had passed an order transferring `The Shop' in favour of late Muhammad Sharif. Learned counsel for appellant attempted to argue that validation would not apply to the case of plaintiffs/respondents because aforementioned order has been declared to be without lawful authority in Constitutional Petition No.6/74. There is no doubt that order, dated 10‑12‑1973 passed by Tehsildar in purported exercise of powers as Assistant Settlement Commissioner Loralai was totally devoid of lawful authority as declared by the High Court. With due respect it is observed that judgment had clarified the position by explaining that concerned Tehsildar at the relevant time was not competent to pass such orders. It is quite evident that Balochistan Regulation No.1 of 1979 was promulgated merely to cure and rectify inherent infirmities of such transfers. We are conscious that legislative authority for ratifying the acts, omissions and orders which are corum non- judice, has no limitations/restrictions. Therefore, by virtue of aforesaid validation clause, transfer of `The Shop' in favour of late Muhammad Sharif automatically stood ratified. Objections concerning defect in title, incapacity of respondents to inherit the right and bar of jurisdiction are therefore, misconceived. In this view we are also supported by the observations in cases mentioned below:‑‑‑ (i) Mst. Aisha and others v. Chairman Federal Land Commission (1982 SCMR 1084); (ii) Haji Dossa Limited Karachi v. Province of Punjab through Collector Sahiwal and others (1973 SCMR 2); (iii) Messrs Mamukanjan Cotton Factory v. The Punjab Province and others (PLD t~ 1975 Supreme Court 50). "The argument, in my opinion is without substance and which if accepted would indeed lead to startling results. It would strike at the very root of the power of Legislature, otherwise competent to legislate on a particular subject, to undertake any remedial or curative legislation after discovery of defect in an existing law as a result of the judgment of a superior Court in exercise of its Constitutional jurisdiction. The argument overlooks the fact, that the remedial or curative legislation is also "the end product" of Constitutional jurisdiction in the cognate field. The argument, if accepted would also seek to throw into serious disarray the pivotal arrangement in the Constitution regarding the division of sovereign power of the State among its principal organs, namely, the executive, the legislature and the judiciary each being the master in its own assigned field under the Constitution. The argument of learned counsel also conveniently overlooks string of cases, in which the vires of the remedial legislation, competently made, was upheld by this Court, notwithstanding the earlier judgments of the superior Courts in exercise of their Constitutional jurisdiction, to the contrary effect". It is pertinent to mention here that Division Bench of this Court has also authoritatively discussed effect of Balochistan Regulation‑I of 1979 in Shalay and others v. The Member Board of Revenue, Balochistan and another (PLD 1985 Quetta 94). The relevant portion is reproduced here:‑‑‑ Respectfully following the law enunciated by the Supreme Court we have no hesitation in holding that the avowed object of the curative act now under consideration (Regulation I of 1979) was to rectify the illegality that had crept in and had been taken note of in the decisions of the High Court which have been relied upon by Mr. Moquim Ansari, and there being no impediment or fetters on the legislative person to achieve such curative effect. The Legislature has the power to nullify the effect of the judgments of the Courts. For the above reasons it is our considered opinion that by the promulgation of curative legislation in the shape of Regulation I of 1979, all the transfers made in the tribal area during the year 1963 to 1973 stood validated and the transfers became past and closed on 25‑2‑1979 (the date of enforcement of the Regulation I of 1979). And the learned Member Board of Revenue being not a Court of general jurisdiction but a creation of a law meant to deal with the pending cases or the properties un-disposed of could not challenge the vires of this Regulation or its effect on the transfers made between 1963 to 1973. The property having been transferred to Wali Muhammad was not available for transfer. The learned Member, Board of Revenue therefore had no jurisdiction to entertain' the application made on 26‑11‑1979 by the respondent No.1 (Sultan Muhammad). The contentions of Mr. Moquim Ansari are therefore repelled." For the above reasons I have no hesitation in holding that by virtue of Regulation‑I of 1979 the order dated 10‑12‑1973 passed by Assistant Settlement Commissioner, Loralai transferring the proprietary rights of `The Shop' in favour of late Muhammad Sharif is now deemed to be valid. It is otherwise settled principle of law that any right or interest attached to property is heritable, therefore, plaintiffs/respondents had legitimate cause of action for initiating proceedings against appellant. Now examining objection concerning limitation, it may be seen that appellant had launched litigation with plaintiffs/respondents by challenging their title to `The Shop' and matter remained pending upto 26‑9‑1977. However, Regulation‑I of 1979 validating transfer order issued by Tehsildar cum‑Assistant Settlement Commissioner unambiguously confirms proprietary rights/title on plaintiffs/respondents over `The Shop'. Evidently claim for possession for `The Shop' constitutes continuing cause of action, which finally accrued on the promulgation of Balochistan Regulation I of 1979, therefore, suit instituted by plaintiffs/respondents was well within time. Accordingly objection raised by appellant is repelled. Now reverting to merits, it may be seen that P.W. Muhammad Amin indicating existence of dispute concerning 'The Shop' belonging to plaintiffs/respondents. Testimony of P.W. Jalal suggests that late Muhammad Sharif had given 'The Shop' to appellant for running hotel business and supplied him furniture and utensils for said purpose. According to this witness. 'The Shop' was given to appellant for doing business in partnership. Whereas attorney Riasat Ali had given detailed facts mentioning that appellant came in possession of 'The Shop' as partner but illegally continued to occupy the same despite demands for restoration of its possession and rendition of accounts. Whereas D.W. Malik Jan Muhammad deposed that appellant had purchased the property from late Muhammad Sharif by paying the sale consideration to Jalal at the instance of late Muhammad Sharif (predecessor of respondents). During cross‑examination it was explained that information about purchase of 'The Shop' was given to him by Khudai Nazar. Version of this witness, constitutes admission in one's own favour, rendering it inadmissible. D.W.2 Khudai Nazar stated that a document was drawn between Khudai Nazar and Jalal concerning sale of 'The Shop'. He asserts to have signed said document. No such document has been produced in the evidence. Even otherwise Jalal does not have proprietary right or interest in 'The Shop' therefore alleged purchase by appellant has no consequence. Besides, version of this witness relates to contents of document, whereas oral evidence in that behalf is.' inadmissible. Similarly statement of R.W.3 does not help either party as major portion thereof is heresay. Testimony of D.W.4 Khair Muhammad also relates to purchase of land from Jalal. The evidence has no relevancy, concerning real controversy between the parties. The appellant in his statement recorded by Majlis‑e‑Shoora on 27‑4‑1991 has given a brief back‑ground showing that 'The Shop' was purchased on payment of sale consideration. It was explained that, as required by late Muhammad Sharif the amount was paid to Jalal but transfer documents were not executed. He also gave details of litigation, between the parties and claimed proprietary rights in said property. Therefore scrutiny of evidence clearly discloses that late Muhammad Sharif was lawful allottee of the shop which was later transferred to him by Deputy Settlement Commissioner Loralai towards 17‑7‑1965 and subsequently by Tehsildar purporting to be Assistant Settlement Commissioner, Loralai on 10‑12‑1973. No doubt these orders were without lawful authority because respective Schemes were not extended to Tribal areas at the relevant time, accordingly High Court in the petitions filed by appellant had declared said orders to be devoid of lawful authority. However, on the promulgation of Balochistan Regulation No.I of 1979, the order of transfer as passed by Tehsildar concerning 'The Shop' dated 10‑12‑1973 stood automatically validated whereupon late Muhammad Sharif and his successors became lawful transferees of 'The Shop'. Accordingly plaintiffs/respondents who are successors‑in‑interest of late Muhammad Sharif, have valid cause of action as to claim possession of 'The Shop' and demand any other interest due from appellant. It may be seen that factum of ownership of 'The Shop' having been legitimately established, onus shifts on appellant to justify retention of its possession by him. Proper analysis shows that evidence led by appellant is totally discrepant, self contradictory and inadmissible. Appellant could not prove his stand about ownership or purchase of 'The Shop'. No reliable, convincing or confidence inspiring evidence in this behalf has at all been brought on record. Therefore on proper and thorough re‑evaluation of whole record we are satisfied that appellant has no justification to further occupy the premises and set up any adverse title against plaintiffs/respondents. Thus conclusions of trial Court as regards decree for possession are quite proper and justified. It is undisputed on record that late Muhammad Sharif had inducted appellant in 'The Shop' towards year 1965/66 but evidence produced by appellant does not effectively prove that appellant worked in partnership with late Muhammad Sharif. The circumstances therefore lead to an inference that appellant was merely a licensee, accordingly decree to the extent of rendition of accounts is untenable. For the foregoing reasons, the judgment and decree regarding rendition of accounts is set aside, but that of possession is upheld. The decree is modified in the above terms, and appeal disposed of accordingly. Parties are left to bear their own costs. AA./404/0 Order accordingly.