1983 CLC 1124 (PLP)

(b) Provisional Constitution Order (1 of 1981)‑ Art. 9‑Writ jurisdiction‑Substantial justice done in case‑Cons titutional jurisdiction being essentially an equitable jurisdiction, held, cannot be invoked. Muhammad Naazqr Khan for Petitioners. The petitioners have challenged in this constitution petition order dated 9th November, 1981 of the Additional Commissioner (Consolidation), Rawalpindi Division passed in appeal against the order dated 17tb March, 1981 of the Collector (Cons.), whereby, permission to review the Mutations Nos. 4794, 4795 and 4796 sanctioned in the year 1964 was given.

2. Briefly stated the facts as asserted in the petition are that Qadir Bakhsh, brother of the petitioners died issueless on 16th January, 1961. He had before his death divorced his two wives and Mst. Irshad Begum was the daughter of Mst. Baigan from her previous husband. However, on the death of Qadir Bakhsh mutation of inheritance in respect of his estate in Chak No. 289/EB was sanctioned in favour of Mst. Irshad Begum to the extent of 1 /2 and the remaining half was. allowed to the petitioners. It is asserted that the petitioners filed a suit on 9th October, 1962 for a declaration that Qadir Bakhsh had died issueless and that Mst. Irshad Begum (respondent No. 11) was not the daughter of aforesaid Qadir Bakhsh and that the mutation of his estate allowing inheritance to Mst. Irshad Begum the respondent was void and inoperative,

3. During the pendency of the said suit and after the death of Qadir Bakhsh allotment in lieu of 744 unsatisfied units of Qadir Bakhsh was obtained in favour of the petitioners as well as Mst. Irshad Begum res pondent on 19th December, 1963. The allotment was obtained jointly and was admittedly never challenged by the petitioners. The land so obtained was then sold on 24th January, 1964 to respondents Nos. 3 to 10 through registered sale‑deed through one Mian Khan who acted as a General Attorney of the petitioners as well as of Mst. Irshad Begum by virtue of a Power of Attorney registered at Pakpattaa Sharif on 5th April., 1,

963. These purchasers in the meantime have also sold the land to various other pur chasers, but the said purchasers who have also since raised construction on the land have not been impleaded as a party to this petition. The decla ratory suit was decreed vide judgment and decree dated 30th September, 1964 i.e. after obtaining the allotment and after sale of land by the peti tioners as well as Mst. Irshad Begum through one and the same General Attorney. It may be added at this stage that it was asserted by the learned counsel that Mian Khan who executed the sale‑deeds in favour of the purchasers was not appointed by the petitioners as their Attorney and as such as he had noright to sell the land to the purchasers (respondents Nos. 3 to 10). It is however admitted that the said Power of Attorney and the said sales were not challenged by the petitioners directly up till date.

4. The petitioners, however, adopted another course to set at naught the rights of the purchasers in the land in question as on 15th August, 1978 they submitted an application for implementation of the decree dated 30th September, 1964 passed by the Civil Court whereby Mst. Irshad Begum had been declared not to be the daughter of aforesaid Qadir Bakhsh in respect of the land obtained in allotment in lieu of unsatisfied urban units of Qardir Bakhsh (deceased). A report was obtained by the Collector (Consolidation) and vide order dated 17th March, 1981 he after recording a categorical finding that the Power of Attorney executed in favour of Mian Khan was wrongly written, granted permission to review the mutation of sale. This order as indicated above, was set aside by the learned Additional Commissioner vide impugned order dated 9th November, 1981 observing inter alia that the very edifice of the arguments of the learned counsel for the petitioners is built upon the facts that the allot ments of the property in Pindi Gheb in favour of Mst. Irshad Begum was based on fraud and that the pleadings of fraud made it incumbent on them to have adopted the course provided for in the law in the matter of allot ment/sale by fraud. The very allotment of the property to Mst. Irshad Begum has not been cancelled by the appropriate Authority the review of sub sequent mutation of sale by A. D. C. is ipso facto, therefore premature illegal and improper. The learned Additional Commissioner came to the conclusion that the proceedings before the A. D. C. (C) were corm non judice and the impugned order was a total nullity in law. The objection that an appeal against the order granting permission to review an order does not lie under the provisions of West Pakistan Land Revenue Act was answered by observing that it is well‑settled if a Court not having jurisdiction wrongly exercises such jurisdiction, the appeal lies from that decision in the same manner as an appeal lies from a decision, with jurisdiction.

5. Learned counsel for the petitioners has argued that the impugned order is illegal as the appeal filed before him was incompetent. Reliance was placed on Raja Zoge Akhtar v. Jehanzeb Khan and another ((1) P L D 1981 Rev. 15). Relying on Ali Ahmad and another v. Muhammad Fazal and another ((2) P L D 1973 Lah. 207) it was contended that it is obligatory for the Revenue Officers to give effect to the decree of a civil Court and change the entries in the Revenue record accor dingly and that such change can be effected at any time without any limi tation. He referred in this connection to Sultan and others v. Said and others ((3) P L D 1963 W. P. (Rev.) 11). In this case on the application of persons in possession of the land the entries in accordance with the compromise decree after expiry of 12 years ordered to be made. Reliance was also placed on Ali Ahmed And another v. Muhammad Fazal and another (1). In this case it was observed that simply because it has become barred would not lose its utility and the view of the High Court that the Revenue Authorities were under obligation to sanction mutation on the basis of the decree, was upheld in the circumstances of the case. 6, The view taken in the judgments cited, cannot be applied to the facts) of the instant case, as mutations of sale cannot be allowed to be reviewed after expiry of more than 12 years on the basis of the decree as the sales made remained unchallenged for all these years. The vested rights of the purchasers cannot be defeated by altering entries of the Revenue record. It will be seen that the land in dispute was not mutated in the name of Mst. Irshad Begum by the Revenue Authorities and as such no question of implementing the judgment of the Civil Court in the Revenue record arises. The allotment made and obtained from Rehabilitation Authorities,' was never challenged and the allotment so made cannot be set aside by Revenue Authorities by changing entries in Revenue record. The exclusion of Irshad Begum from allotment even on the basis of the decree was to be obtained from Rehabilitation Authorities and in this view of the matter the Revenue Authorities have no jurisdiction to exclude Mst. Irsbad Begum. Moreover, the allotment of the land in dispute was obtained by the peti tioners jointly with Mst. Irshad Begum on 19th December, 1963 i.e. at a time when the suit filed by them challenging the status of Mst. Irshad Begum was pending. Thereafter the land so obtained was sold by the petitioners as well as Mst. Irshad Begum through one and the same General Attorney on 24th January, 1964 and thereafter when no rights were left with the petitioners and Mst. , Irshad Begum in the land in dispute that a decree was obtained in respect of the land in Pakpattan Sharif on 30th September, 1964. The sales made in .January, 1964 remained unchallenged even indirectly uptil 15th August, 1978 and in the meantime the land in dispute had challenged hands and the purchasers have admittedly raised construction on the said land. The challenge so made by invoking the provisions of Land Revenue Act amounts to abuse of the process of Revenue Laws and as such" the learned Additional Commissioner has passed in the circumstances a very right and just order as the rights of the purchasers cannot be allowed to be' defeated by the ingenious method adopted by the petitioners. Assuming that the petitioners had not appointed the aforesaid Mian Khan as their Attorney, even then they have to seek their remedy in the Civil Courts. C The learned Additional Commissioner has done substantial justice vide impugned order and in the circumstances indicated above the petitioners are not entitled to seek constitutional jurisdiction of this Court which is essentially an equitable jurisdiction. This petition, is therefore, dismissed in limine. M. Y. H. Petition dismissed.