1995 PLP 1075 (CLC)

H. Muhammad Iqbal Khan Kundi for Petitioner. S. Allah Nawaz Khan for Respondents. Date of hearing: 8th December, 1994. Abdul Sattar etc. brought a petition before Collector regarding restitution of mortgaged land detailed in Suit 269 which land situated at Aba Khel, Lakki Marwat was restituted on 12‑6‑1978 without payment of mortgage amount. The appeal of mortgagees before the Additional Commissioner also failed on 26‑9‑1978 whereupon Ghulam Muhammad etc. the heirs of Habat Khan brought a civil suit wherein the orders dated 12‑6‑1978 of the Collector and 26‑9‑1978 of the Additional Commissioner were challenged as being without jurisdiction. The suit was based on the ground that the mortgagees had already prescribed title to the suit land. The suit decreed by the learned Additional Civil Judge, Lakki Marwat on 28‑3‑1990 and upheld by the learned Additional District Judge, Lakki Marwat on 16‑2‑1994, is challenged through this revision petition.

2. The short background would reveal, duly supported by documentary record that the mortgagees had once brought a Suit 251/1 before Civil Judge, Bannu claiming prescription of title qua property at `Madd' 1 and

3. Tits mortgagees succeeded before the trial Court on 18‑6‑1969, before the first appellate Court on 7‑10‑1969 and before the High Court in RSA 31/70 on 16‑3‑1980. The case of Abdul Sattar petitioner is that Suit 251/1 pertained to `Madd' 1 and 2 and that thus the restitution proceedings were rightly conducted qua `Madd' 3 which could never be challenged before the civil Court through the proceedings in hand and hence the decrees of the lower Courts were void.

3. A perusal of documentary record on file would suggest that Suit 251/1 was in fact with regard to `Madd' 1 and

3. It was in the decree sheet of the trial Court that inadvertently `Madd' 2 got written instead of `Madd' 3 and the mistake continued through the two Courts of appeal but ultimately through C.M 4 filed under section 152, C.P.C. the clerical error was rectified through order dated 4‑10‑1992 of the High Court and `Madd' 2 was corrected as `Madd' 3.

4. It appears that during the intervening period of misrepresentation of `Madd' as 2 and the deletion/omission of `Maddi' 3, the mortgagor resorted to the Collector and got the property restituted as aforesaid. A perusal of record would further reveal that this one, according to `Patwari', was 5/13th share of Moulvi Mastan subsequently transferred to Abdul Sattar and this very share was already included in Suit 251/1 as `Madd'

3. As a matter of fact the same got wrongly restituted by the Collector.

5. With regard to the judgment of the Collector, the petitioner's objection is that the said decision could not be challenged in the civil Court under section 17 of the Restitution and Restriction of Mortgaged Lands Act, 1964. Sardar Allah Nawaz Sadozai, counsel for the respondents controverted the arguments by saying that the argument would prevail only when the Collector deals with a mortgaged land or the subsisting mortgage. That the decree in Suit 251/1 subsequently corrected through CM 4 dated 4‑10‑1992 by the High Court would lead to an undeniable conclusion that the mortgagees had obtained a decree of prescription of title qua the same share of Moulvi Mastan included in `Madd' 3 and hence when the Collector adjudicated thereupon, it was not the subsisting mortgage. That to the circumstances, the order of the Collector could be simply ignored and the matter becomes subject to the decision by the Civil Court (1985 CLC 787) was relied upon in this behalf and rightly so. When an authority does not act under the provisions of the relevant Act or Ordinance, the civil Court can interfere with such order even if the jurisdiction thereof is expressly barred. This principle laid down in (1974 SCMR 356) is squarely applicable to the facts of the present case where the Collector has dealt with a property and has restituted the same despite the fact that it was never a subsisting mortgage.

6. Both the learned lower Courts have, therefore, arrived at a correct and concurrent conclusion which should not .be interfered with. The revision petition is hereby dismissed with no order as to costs. AA./1721/P???????????????????????????????????????????????????????????????? ??????????? Revision dismissed.