2022 PLP 2295 (YLR)

MUHAMMAD NAEEM ANWAR, J.

By invoking the writ jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioners have assailed the order dated 03.08.2006 of respondent No.16 (Senior Member Board of Revenue Khyber Pakhtunkhwa Peshawar) and order dated 21.03.1994 of respondent No.15 (Revenue Appellate Court No.3, N.W.F.P at Saidu Sharif, Swat) to be void, illegal, without jurisdiction and is of no legal effect, consequently the mutation No.988 dated 05.07.1997, sale deed No.536 dated 04.08.1993, mutation No.736 dated 24.03.1994 and mutation No.989 dated 15.07.1997 may be declared illegal, without lawful authority, unjust and ineffective upon the rights of the petitioners.

2. Facts lying in the background of the instant petition, as per the contents of petition, are that the petitioners being the legal heirs of late Miangul Abdul Wadud alias Badshah Sahib, the founder of erstwhile State of Swat, who owned and possessed extensive landed property in the State of Swat and other parts of the country; that when the state of Swat was merged into Pakistan vide West Pakistan Regulation-I of 1969 known as "Dir, Chitral and Swat (Administration) Regulation, 1969, published on 15th of August, 1969, the disputes arose amongst the possessors of the properties and Badshah Sahib. In accordance with Martial Law Regulation No.122 (MLR-122) under Para No.3, the Provincial Government, in consonance with Para No.2 (a) of MLR-122 and under provision of Martial Law Regulation No.123 (MLR-123), has appointed a commission known as "Dir-Swat Land Disputes Enquiry Commission" (hereinafter referred to as "Commission") for settlement of the disputes of ownership or interest of any person pertaining to immovable property through notification No.66 S.O. (S.P.L)/HD/70 dated 8th October, 1970; that Chanchanay Khan, the predecessor in interest of respondents Nos.1 to 9 submitted an application to the commission against Badshah Sahib, claiming therein one brakha dawtar land in the revenue estate of Saidu Sharif was illegally and forcibly possessed by Badshah Sahib, the possession of which may be handed over to him, (the land being unsettled was neither described through specific numbers nor through boundaries). The application of Chanchanay Khan was accepted by the Commission and as such the Commission recommended his claim for restoration of land to him; that the then Deputy Commissioner, Swat passed a decree on the basis of Commission's recommendation on 10.10.1972, by exercising the powers conferred in view of Para No.3 (1) of MLR-123. Against said order, the appeal and revision filed by the predecessor in interest of the petitioners i.e., Badshah Sahib were dismissed on 10.05.1973 & 31.07.1974, respectively, as such, the symbolic possession of one brakha dawtar in village Saidu Sharif and Guligram was transferred to Chanchanay Khan by Tehsildar Babozai; that the first ever settlement in Swat was started in the early eighties and Chanchanay Khan submitted an application to the Tehsildar to give effect to the decree passed in his favour by the authorities. It was alleged that Chanchanay Khan has shown his inability to particularize the land to be entered in his name. The settlement Tehsildar passed a decree on 28.09.1986 to the extent of 1 1/2 brakha dawtar in Guligram and 1 1/2 brakha in village Saidu Sharif, however, Chanchanay Khan being aggrieved from the order of Tehsildar dated 28.09.1986 filed an appeal to the Collector with a prayer that he is entitled for one brakha in his name from village Saidu Sharif and Guligram respectively, as such, his appeal was allowed. The present controversy emerged from review application submitted by the legal heirs of Chanchanay Khan (respondents Nos.1 to 9) before the Additional Deputy Commissioner/Collector, wherein they claimed specific khasra numbers, being based upon the decree earlier passed in favour of Chanchanay Khan. His application was rejected on 23.10.1993 by Additional Deputy Commissioner, however, appeal there-against filed before the Additional Commissioner-I, Malakand Division was allowed on 21.03.1994. The petitioners, feeling aggrieved from the order of the Additional Commissioner-I, Malakand Division, challenged the same before the Senior Member Board of Revenue (SMBR), however, their petition was dismissed on the sole ground that 2nd revision does not lie before the Board of Revenue. After dismissal of their revision petition, the petitioners approached to this Court through W.P. No.1395 of 1997, which was allowed by this Court on 06.02.2003 in terms of directing the SMBR to decide the civil revision in accordance with law, within a period of two months. The learned SMBR heard the arguments of respondents Nos.1 to 9 and 14, whereas the petitioners were proceeded ex-parte and their revision petition was dismissed by the learned SMBR on 03.08.2006. In the meanwhile, respondents Nos.1 to 9 transferred their property, after acceptance of their appeal by Additional Commissioner for specific khasra numbers, by selling out half of the decreed property in favour of respondent No.10 through sale deed No.534 dated 04.08.1993 and through mutation No.989 dated 15.07.1997, they transferred half of the property in favour of respondents Nos.11 and

12. Then respondent No.10 filed a suit before the civil Court on the basis of sale deed No.534 dated 04.08.1993 against respondents Nos.1 to 9 and a decree was granted in favour of respondent No.10. The petitioners on getting the knowledge of the decree passed by the civil Court and the order of SMBR dated 03.08.2006, filed an application under section 12(2), C.P.C. before Civil Judge, Swat and submitted the instant petition challenging the orders of respondents Nos.15 and 16 dated 21.03.1994 and 03.08.2006. The instant petition was contested by respondents Nos.1 to 6 and 10 through their written statement on preliminary and factual objections by contending therein that the decree in respect of particular Khasra numbers has not only been passed in favour of respondents Nos.1 to 10 but, in fact, there were 51 decrees of specified/ particular property, the petitioners have never challenged the decrees of rest of the decree holders rather they have purchased the properties from them. It was also averred that after the order of the learned Additional Commissioner dated 24.03.1994, a number of mutations were attested and reference to the extent of ninety-two mutations were given in their written reply. Respondent No.1 also filed a separate written statement on various legal and factual objections. Both the set of contesting respondents opposed the issuance of writ in favour of the petitioners.

3. Learned counsel for the petitioners contended that when no Khasra number was mentioned and the property was unsettled then the decree was rightly executed in terms of handing over the symbolic possession of the decreed property to the extent of one brakha from Guligram and Saidu Sharif, Swat. He further contended that Chanchanay Khan could not particularize Khasra numbers as per his own whims, wishes and desires to the authorities concerned and if any such application was submitted that could not be allowed in favour of Chanchanay Khan. He contended that after the acceptance of their writ petition, the learned SMBR was under a legal obligation to decide the revision petition in accordance with law but, in fact, SMBR endorsed its earlier order. He also added that their application under section 12(2), C.P.C. is only in respect of the transfer of property by respondents Nos.1 to 9, and respondent No.10 who had alienated it to respondent No.11, whereas to the extent of rest of the matters, the instant petition was filed in accordance with law. He contended that a similar controversy came up before this Court in the case of "Miangul Akbar Zeb and others v. Muhammad Khalid Khan and others" (2019 YLR 2432) and the Writ Petition bearing No.357-M/2012 was allowed by this Court on 13.11.2015. He, while referring to the judgment of this Court in W.P. No.356-M/2012 dated 07.02.2013, argued that through consolidated judgment in referred to above writ petition, this Court has decided the controversy regarding the powers of the Commission appointed by the Provincial Government through notification dated 08th of October, 1970 and the Commission dated 12.04.1972. He contended that this Court allowed the writ petitions, set aside the order of Federal Land Commission and remanded the matter to the Chief Land Commissioner Khyber Pakhtunkhwa with certain directions to probe into the claim of those persons, who hold the property under decree of Land Dispute Inquiry Commission and thereafter to decide the matter. He also contended that the judgment of this Court in W.P. No. 356 was assailed before the apex Court in Civil Petitions Nos.310 to 323 of 2013, where the apek Court, while maintaining the judgment of this Court, directed the Chief Land Commission Khyber Pakhtunkhwa to decide the matter within a period of four months.

4. Contrarily, the gist of the arguments of learned counsel for private respondents is that the properties were not settled in the erstwhile state of Swat, however, when Chanchanay Khan has submitted an application, he has described the properties with boundaries thereof, for which, he referred to page No.12 of the main writ petition by referring to the terms" He also referred to pages Nos.15 and 17 of the petition and contended that there were total 51 persons, in whose favour, the decrees were passed and all of them were given specific Khasra numbers, which were given effect in the revenue papers at the time of settlement on the basis of which, the decree holders are not only in possession of their respective properties but have also transferred the portion therefrom, being the sole owners. He also contended that as the present petitioners have purchased some shares from decree holders of the specific Khasra numbers, therefore, they from their conduct are estopped to challenge the order of the SMBR and transfer of property in favour of respondents Nos.10 and

11. Learned counsel for respondent No.1 also produced the copy of order dated 08.02.2021 of the apex Court in Civil Petitions Nos.74 and 75 of 2016 titled "Muhammad Khalid Khan v. Miangul Akbar Zeb and others" and contended that against the judgment of this Court, relied upon by the learned counsel for the petitioners reported as 2019 YLR 2432, the Hon'ble Supreme Court has granted leave to appeal. Learned counsel for respondent No.1 further contended that the petitioners' application filed under section 12(2) C.P.C. has already been dismissed by the learned Civil Court and an appeal there-against is still pending adjudication before the learned Appellate Court. It was also submitted that the application of the petitioners was properly considered by the Inquiry Commission headed by the Presiding Officer of the Revenue Appellate Court/Land Commissioner Malakand Division and the matter was scrutinized with specification to the decree of the Khasra numbers, as mentioned by the legal heirs of Chanchanay Khan; that the inquiry Commission has found the entries in the revenue record in consonance with the possession of respondents as correct and the findings of the Inquiry Commission were never challenged by the petitioners. It was also submitted that this Court cannot go into the factual controversy pertaining to the matter in issue which has properly been thrashed out by the learned fora below.

5. Arguments heard and record perused.

6. It is an admitted fact that the application of Chanchanay Khan dated 18.01.1971 annexed with the petition was in respect of "Yawa brakha dawtar sarasari of the property of Saidu Sharif". The mentioning of yawa brakha dawtar sarasari from entire area of Saidu Sharif, with addition of "sarasari" hinting towards a specific property in the shape of compact block, though not settled. It is also not in dispute that .the case of Chanchanay Khan was considered by the Swat Land Commission under case file No.45/Swat, by recommending that "there is no direct evidence on either side. Witnesses on both sides are interested persons. Possession has been with the defendant for 36 years. The defendant's Agent has failed to prove that the land was properly purchased by the defendant. The land may be treated as property of the plaintiff and may be restored to him". The recommendations of the Commission were resulted into the decree by Deputy Commissioner Swat on 10.10.1972 in favour of Chanchanay Khan. The appeal of Badshah Sahib against the decision of the Deputy Commissioner was dismissed on 10.05.1973. The perusal of record reveals that almost 51 decrees were passed in favour of different persons, as such, 51 revision petitions were filed before the Federal Land Commission Islamabad in accordance with Paragraph No.5 MLR-123 i.e., Settlement of Immovable Property Disputes (Dir and Swat) Regulation, 1972 and through common judgment dated 31.07.1974, all the revision petitions including against Chanchanay Khan were dismissed on 31.07.1974. Undeniably, Chanchanay Khan, the decree holder, was handed over symbolic possession on 18.03.1976, when it was reported by the official that he proceeded to the spot in connection with execution of the decree, where though Chanchanay Khan, the decree holder, had passed away, however, his legal heirs were present, while judgment debtor was absent and symbolic possession of the property was handed over to the legal heirs of Chanchanay Khan. Though, the predecessor in interest of the petitioners had challenged the decree in favour of Chanchanay Khan and opposed his claim since its inception i.e., from the Deputy Commissioner to Federal Land Commission, however, this matter ended when symbolic possession was transferred to the legal heirs of Chanchanay Khan on 18.03.1976. The second episode started when an application was submitted by the legal heirs of Chanchanay Khan on 17.12.1985 by contending therein that Yawa brakha in Saidu Sharif, yawa brakha in Guligram and two brakha in qambar is their entitlement, which at the spot situates in a compact block sarasari, in front of hill, . The then settlement Tehsildar, to whom the application was submitted, has gone through from the entire record especially case No.45/Swat pertaining to the revenue estate of Saidu Sharif, Batora, Guligram and kokrai, chatoarki as well as case No.280/Swat, as such, to the extent of Yawa brakha entries were made in the revenue estate of Saidu Sharif and Guligram. It is pertinent to mention here that this was the period when the settlement was in progress. A review application was filed by the legal heirs of Chanchanay Khan, which was dismissed by the Additional Deputy Commissioner on 23.10.1993, however, the revision petition there-against was filed by respondents Nos. 1 to 9, wherein a reference was given in respect of 'Dakhl Malikana' as reflected in the order dated 21.03.1994 of the learned Additional Commissioner-I Malakand Division, which is impugned through instant petition. The significant aspect of the impugned order was that the revenue staff was directed for making the entries in the revenue papers but after proper scrutiny.

7. Accordingly, through scrutiny the respondents Nos. 1 to 9 were found in possession of the property corresponding to the order of the Deputy Commissioner in their favour, when the decree was granted in favour of Chanchanay Khan and possession was handed over to him, as such, the entries were made, Dakhl Malikana was handed over in order to execute the decree in letter and spirit, however, on the application of respondents Nos. 1 to 9 it was ordered by the Additional Commissioner that the property with specific Khasra number mentioned in the annexure to the revision petition be entered in their names after proper scrutiny by the revenue staff vide order dated 21.03.1994. The prsent petitioners approached to the SMBR through their revision petition, where their revision was dismissed vide, order dated 04.07.1997 on the ground that second revision was not maintainable, however, their W.P. No.1395 of 1997 filed before this Court succeeded on 06.02.2003, hence, the matter was remitted to the SMBR for decision afresh in accordance with law. It is not disputed that W.P. No.1395 of 1997 was decided in favour of the petitioners on 06.02.2003, however, the intriguing aspect of the instant matter is that just after the decision in their favour by this Court on 06.02.2003, they absented themselves and their such absence is properly reflected in the impugned order dated 03.08.2006, wherein to the extent of their absence, it was observed by the learned SMBR that: "On receipt of the case back from the Hon'ble High Court, Peshawar parties were duly informed, who attended the Court personally or through their respective attorneys. During the proceedings the respondents Nos.15, 16 were proceeded as ex-parte on 02.02.2005. However, the case was fixed for arguments on 15.09.2005 and several opportunities were given to the parties to produce their counsel for arguments but the petitioners as well as their counsel remained absent while the respondents Nos.1 to 9 and 14 with their counsel present. Ex-parte arguments heard and record of the case perused. (Bold and underlined for emphasis)

8. The learned SMBR has gone through from the entire facts of the case since the application of Chanchanay Khan till the decree in his favour and thereafter the acceptance of his review application, the respondents before the SMBR have also pointed out the sale of property through sale deed No.534 dated 04.08.1993 in favour of respondent No.14 and rest of the properties in favour of respondents Nos.15 and

16. It is also reflected from the order that a decree has also been passed on the basis of sale deed No.534 dated 04.08.1993. Accordingly, the MLR-122 i.e., Devolution and Distribution of the Property (Dir and Swat) Regulation notified on 12.04.1972, in explicit terms refers to the Commission known as Dir-Swat Land Dispute Inquiry Commission appointed by the Provincial Government vide notification No.66 S.O. (SPL)/HD/70 dated 8th October, 1970. The recommendations of the commission shall be in the following terms: a) What property is State property of the former States of Dir and Swat, respectively; b) What property is private or personal property of the late Nawab of Dir Sir Shah Jahan Khan, ex-ruler of the former State of Dir, and the late Sir Abdul Wadud Mian Gul Sahibzada, K.B.E, Badshah Sahib of the former State of Swat respectively; and c) (c) the respective shares of the various heirs of the aforesaid two ex-Rulers in their personal or private property. Likewise, MLR-123 refers to a Commission for determination of the questions manifested in Para No.3, which reads as under: a) The tenants and ex-Rulers of the said former States or their respective heirs; or b) Claimant landlords and the ex-Ruler of the said former States of their respective heirs; or c) the landlords and tenants.

9. In view of MLR-122 and MLR-123 when the application of Chanchanay Khan was submitted, an inquiry was conducted, wherein the predecessor of the petitioners remained associated. Regarding the claim of Chanchanay Khan, the Commission recommended his case against the present petitioners, as such, it was decreed in his favour. The contention of the learned counsel for the petitioners, being based upon the findings with reference to W.P. No.356-M/2012 dated 07.02.2013, has got no force because the dispute pertains to entitlement of Chanchanay Khan has been settled once for all. There is nothing to be inquired by the Commission and for that matter by the Provincial Land Commission. Transfer of land in terms of execution through symbolic possession was also acted upon. The dispute revolves regarding mentioning of Khasra numbers i.e., description of the property of Chanchanay Khan and thereafter by his legal heirs. Suffice it to say, that in the earlier application submitted by Chanchanay Khan, he has mentioned his entitlement over the property situated in the shape of compact block from sarasari and by considering the descrip-tion of the property in a compact block in juxtaposition with the settlement record qua the spot inspection, the revenue officials found it in conformity with the contention of respondents Nos.1 to 9, as such, when an application for specification of Khasra numbers was submitted that was allowed in terms of directing the inquiry commission with respect to possession of respondents Nos.1 to 9 and the entries were made accordingly.

10. Moreover, the record also depicts that after final order by the Additional Commissioner, certain alienations were made through deeds and mutations and one of them was the subject matter of a civil suit and the same was culminated into a decree, though challenged under section 12(2), C.P.C. on the ground of fraud, misrepresentation of facts and want of jurisdiction but even then, the said application was turned down and the matter is pending adjudication before the learned Appellate Court. The learned SMBR, after remand of the matter by this Court, has properly gone through from the record, adverted to the submissions of the parties, even the plea of the petitioners though they remained absent, has passed an appropriate order, as per directions of this Court in the W.P. No. 1395 of 1997 decided on 06.02.2003 when the Board of Revenue was directed to decide the matter in accordance with law. Neither explanation/plausible reasons were mentioned in the application for their absence from proceedings before the SMBR in the memorandum of the petition nor addressed at the bar.

11. Apart from the above, when learned counsel for the petitioners was confronted with the transfer of land in favour of 51 decree holders through specification of Khasra numbers after settlement and thereafter purchase from some of them by the petitioners, he contended that the petitioners have got no other option but to purchase the property at a particular rate from the decree holders, but he submitted that even purchase of property has no bearing regarding dispute in hand. Be that as it may, when on one hand, the petitioners took the plea that in first ever application of Chanchanay Khan, the property was not described, therefore, no specific possession could be handed over or described in the revenue papers but on the other hand, the petitioners themselves accepted the specification of the Khasra numbers in favour of the decree holders who were respondents before the Federal Land Commission where the revision petitions were pending along with revision petition against respondents Nos. 1 to

9. The principle of approbate and reprobate would come into play as the petitioners would not be allowed to blow hot and cold in the same breath. The admission on the part of the petitioners regarding purchase of the property from some of the decree holders would also amount to an estoppel against the present petitioners as it precludes a person from denying the truth of a narration earlier made by him. Keeping in view the peculiar facts and circumstances of the instant matter qua the decision impugned, coupled with a decree in favour of 51 persons, the principle enunciated in the case of Miangul Akhbar Zeb (Supra) cannot be made applicable to this case.

12. Viewing it from all angles in juxtaposition with the facts and law on the subject especially MLR-115, MLR-122 and MLR-123 with recommendation of Land Dispute Inquiry Commission, the petitioners have not been able to make out a case for interference through instant petition. There are some factual aspects, which cannot be considered by this Court while sitting in constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, as those facts are requiring recording of evidence. Ref: Fida Hussain v. Mst Saiqa (2011 SCMR 1990) and Government of Punjab v. Ghulam Nabi (PLD 2001 SC 415). Even otherwise, a matter to the extent of transfer of land through registered deed No.534 in favour of respondent No.10 and transfer of land in favour of respondents Nos.11 and 12, being based upon a registered deed is pending adjudication before the Court of competent jurisdiction in appeal.

13. Learned counsel for the petitioners could not point out any illegality, irregularity or jurisdictional defect in the impugned orders, as such, the instant petition, being without any substance, is hereby dismissed, leaving the parties to bear their own cost. MH/163/P Petition dismissed.