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Petitioner: NAZAR HUSSAIN SHAH VS Respondent: Mst. JINDO MAI and 8 others
Court Name: Lahore High Court Judge(s): Mian Allah Nawaz Title: NAZAR HUSSAIN SHAH vs Mst. JINDO MAI and 8 others Case No.: Regular Second Appeal No,444 of 1978 Date of Judgment:1990-02-12 Reported As: 1992 CLC 293 Result: Petition accepted
JUDGMENT
JUDGMENT This R.S.A. Under section 100, C.P.C., is by Nazar Hussain Shah, the subsequent vendee defendant No,2, and arises out of a suit for declaration, filed by Mst. Jindo Mai and 8 others legal, heirs of Saleem Khan. 2. The material facts arc: that Mst. Jindo Mai and 8 others instituted a suit for declaration to the effect that they were owners of the suit land (comprehensively described in the plaint and hereinafter referred to as 'land') by means of registered sale-deed dated 26-8-1983. It was alleged therein that Ghulam Abbas, herein respondent No,10, was the owner of the said land. By means of a registered sale-deed noted above, he transferred the land in consideration of Rs,3,000 in favour of Saleem Khan predecessor-in-interest of the plaintiffs. It was further pleaded that the sale was entered into the Revenue Record by means of Mutation No, 885 which was attested on 28-9-1964. It was in the pleadings that the aforenoted mutation was reviewed by the Revenue authorities on the ground that Ghulam Abbas Shah has made the sale of agricultural land measuring 17 Kanals 19 Marlas in favour of different vendees and so he was not competent to make the sale of the whole of his entitlement in favour of Saleem Khan. It was alleged that taking the benefit of this order, Ghulam Abbas Shah made the sale of the land in favour of Nazar Hussain Shah and Nazar Hussain Shah in order to perfect his fraud filed a suit for declaration in Civil Court, on the basis of this sale- deed against Ghulam Abbas Shah who filed a concessional statement in his favour. It was averred that in this manner the consent-decree in favour of Nazar Hussain Shah was manipulated. 3. The suit was contested. Ghulam Rasul Shah and Nazar Hussain Shah subsequent vendee took up the position; that the plaintiff was in possession of suit land and so the suit was incompetent under
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proviso to section 42 of the Specific Relief Act; that no sale was made in favour of Saleem Khan predecessor-in-interest of the plaintiffs. 4. On the pleadings of the parties, the learned trial Court framed the necessary issues. The parties led their evidence in order to prove their respective pleas. Upon the consideration of the evidence adduced by both the parties, the learned Civil Judge by judgment dated 6-1-1977 decreed the suit by holding that defendant No,1, had transferred the land in dispute in favour of Saleem Khan the predecessor-in-interest of the plaintiffs through registered sale-deed dated 26-8-1963; that defendant No,2 was not a bona fide purchaser. It was further concluded that the possession was delivered to Saleem Khan but later on defendant No,2 had taken forcibly the possession of the land and plaintiffs were entitled to the decree for possession. The trial Court directed the plaintiffs to make correct valuation for the purposes of jurisdiction and the court-fee after taking into consideration, the plea of possession and to pay court-fee within the prescribed time. Issue No,6 'on limitation' and issue No,8-A 'on description of property' were not pressed into service and so were left undecided. 5. Feeling aggrieved with this decision, Nazar Hussain Shah the subsequent vendee filed an appeal which was dismissed by the learned District Judge, Mianwali by means of judgment dated 23-1- 1978. The appellant has challenged the validity/propriety of these decisions in this regular second appeal. 6. In impeaching the decisions of the two Courts below, the learned counsel for the appellant concentrated his assault on the question of 'nature' of the suit and 'limitation' only, in the following manner;Firstly that the respondent-plaintiffs have filed a suit for declaration simpliciter without claiming the relief of possession in spite of the fact that the respondent plaintiffs were out of possession at the time of filing of the suit. An objection was raised that in the aforesaid circumstances, the suit was hit by proviso to section 42 of the Specific Relief Act and was liable to be dismissed on this ground alone. Secondly, that the valuation for the purposes of jurisdiction and court- fee was fixed to be Rs,200 and so no court-fee was affixed on the plaint. It was argued that in fact the plaint filed by the respondents was `no plaint' in the eyes of law in view of the aforesaid ground. Neither the trial Court nor the Ist appellate Court had the authority to grant any opportunity to the plaintiffs to value the suit for the purposes of court-fee and make up the deficiency after the expiry of limitation. Reliance was placed on Mst. Walayat Khatoon v. Khalil Khan and others (PLD 1979 S.C. 821). 7. On the other hand, the learned counsel appearing on behalf of the respondents supported the impugned decisions. In reply it was represented that the question regarding court-fee had been finally settled in Siddique Khan and 2 others v. Abdul Shakur Khan and another (PLD 1984 SC 289). 8. I have heard the learned counsel for the parties at considerable length and find no substance in the contentions of the learned counsel for the appellant. It is on the record that neither Ghulam Abbas Shah, the original owner filed an appeal against the decision of Ist Court nor he has come into the second appeal against the decision of the 1st Appellate Court. It is Nazar Hussain Shah who has in fact taken over the cudgels. It was Ghulam Abbas Shah who was required to controvert the sale having been made in favour of Saleem Khan by means of registered sale-deed. This has not been done. From these facts it is established that the sale-deed in favour of Saleem Khan has not been seriously challenged. In the context of aforesaid circumstances, it is quite clear to me that the findings of the two Courts below holding that the plaintiffs were vendees with consideration of suit land is not open to any exception. 9. Now remains the question as to whether the suit was barred under proviso to section 42 of the Specific Relief Act and the first Court had no authority to grant the relief of possession; that the plaintiffs had been dispossessed by the appellant. This question came up for consideration in Karamat All and another v. Muhammad Younus Haji and others (PLD 1963 S.C. 191). In this case the
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appellants-plaintiffs had filed a suit for declaration for title without claiming relief of possession. The suit was dismissed by the 1st Court, The decision of the original Court was maintained by the 1st Appellate Court as well as the High Court. The appellants-plaintiffs in that case, filed appeal before the Supreme Court; the appeal was accepted. The case was remanded to the trial Court for enabling the appellant to make necessary amendments to the plaint and thereafter for disposal of the suit in accordance with law and in the light of the observations contained therein. The question as to whether the suit was barred under section 42 ibid was dealt with by the Supreme Court in the following words. "The question as to whether the suit was barred under section 42 of the Specific Relief Act now remains to be considered. It is admitted that the tenant judgment-debtor had succeeded in getting possession restored under subsection (8) of section 37-A of the Act before the appellants instituted the suit out of which the present appeal arises. In the circumstances, the seeking of the relief by way of delivery of possession had become a necessary consequential relief which should have been claimed in their suit. Evidently this was not done to avoid the payment of ad valorem court-fee. Learned counsel appearing for the appellants, however, contends that his appeal should not fall on that ground alone if it suceeds on the other grounds, for, even this Court can permit him to amend his plaint and pay the necessary court-fees. The land consisting of some 3-1/2 acres, it is said, is a valuable piece of property and the appellant's claim thereto should not be defeated mainly on this technical ground, particularly, since both the Courts below the High Court had come to a clear finding that the appellants were not the benamidars of the decree-holders but had actually auction-purchased the property with their own money and in their own name. That this Court has the power to grant leave to amend even at the stage in which the matter is in the present case is not denied by the learned counsel appearing on behalf of the respondents, but it is contended that this power should not be exercised where its effect would be to take away a legal right which has accrued by lapse of time. It is pointed out that on the admission of the appellant Keramat All himself the respondents took possession of all but the homestead portion after the decision of the District Judge in the revision filed against the order of the Appellate Officer. This was sometime in 194445 and, as such the claim of the appellants to possession has clearly become barred by limitation.The Judicial Committee of the Privy Council consistently maintained that it had undoubtedly full power to allow such amendments even where a legal right had accrued by lapse of time if the special circumstances of the case outweighed such considerations. Vide Md. Zahoor All Khan v. Mst. Thakooranee Rutta Koer (11 MIA 468). That this Court possesses similar power to do complete justice cannot be disputed. In exercising this power, no doubt this Court would be reluctant to allow an amendment, which would have the effect of totally altering the nature of the suit or of taking away a valuable right accrued by lapse of time, but where in the circumstances. Of a particular case it would be plainly inequitable to refuse such a relief this Court will not hesitate to do what the Judicial Committee did in the case of Md. Zahoor Ali Khan v. Mst. Thakoorane Rutta Koer (AIR 1921 P.C. 50)." 10. Judged from the aforenoted enunciation of law by the Supreme Court, I have no hesitation in coming to the conclusion that the Trial Court had ample power under Order XLI, Rule 33, C.P.C. To grant the relief of possession to the plaintiffs, whose title in the property in dispute and right to recover the possession was found established. The objection raised by the learned counsel for the appellant seems to be mere fetish of technicalities and had no nexus with the principle that the Courts are required to do the substantial justice between the parties. 11. In the light of foregoing reasons, I find no reason to interfere with the decision of the two Courts below within the warrants of section 100, C.P.C. In result the appeal fails and is accordingly dismissed. The appellant shall bear the costs of the proceedings. Appeal dismissed.
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1991 CLC 298 [Lahore] Before Mian Allah Nawaz, MUHAMMAD KHAN---Petitioner versus SETTLEMENT COMMISSIONER and others---Respondents Writ Petitions Nos. 188-R, 290/R, 291/R and 292/R of 1982, heard on 28th July, 1991. (a) Displaced Persons (Land Settlement) Act (XLVII of 1958)- ----Ss. 10 & 11---Constitution of Pakistan (1973), Art.199---Resumption of allotment---Validity--- Petitioners were allotted land in question in their capacity as refugees from Jammu and Kashmir for maintenance purposes, which was sold to them subsequently and they were in possession thereof-- Authority resuming such land had passed the order without application of mind and without taking into consideration facts and circumstances of case---Orders in question, were not speaking orders by any standard---Authority resuming such land did not address itself to discover or fmd out the law under which it initiated proceedings and passed the order in question---Such order being totally without jurisdiction could not be sustained and was struck down. [p. 301] A Ghulam Muhammad and another v. Ahmad Khan and another PLD ' 1991 SC 391; Abdur Rahim and others v. Hassan Muhammad and others NLR 1984 SC J 6 and Muhammad Baran and others v. Member (Settlement and Rehabilitation) Board of Revenue, Punjab and others PLD 1991 SC 691 ref. (b) Constitution of Pakistan (1973)- ----Art. 199---Constitutional jurisdiction, exercise of---Orders passed without jurisdiction were liable to be struck down in Constitutional jurisdiction of High Court, which was intended to keep various functionaries of State within the defined orbit of their authority. [p. 301] A (c) Displaced Persons (Land Settlement) Act (XLVII of 1958)- --Ss. 10 & 11---Constitution of Pakistan (1973), Art. 199---Mixed question of law and fact could not be examined in Constitutional jurisdiction of High Court. [p. 302] B (d) Displaced Persons (Land Settlement) Act (XLVII of 1958)- ----Ss. 10 & 11---Constitution of Pakistan (1973), Art.199---Allotment of land for maintenance---Respondent's application for cancellation of such land---Authority cancelling such land had no jurisdiction in the matter---Respondent could seek his grievance redressed before appropriate forum---Any observation made by High Court in present order, would not affect such determination. [p. 302] C Dr. A. Basit for Petitioners. Ch. Muhammad Rafiq Khan for Respondent No,5. Sh. Abdul Aziz for Respondent No,6. Hamid Ali Mirza for Settlement Department. Date of hearing: 28th July, 1991. JUDGMENT ' These four constitution petitions bearing No,188/R, 290/R, 291/R and 292/R, all of 1982, are inter- connected and arise out of the orders of the Deputy Commissioner dated 10-4-1982 and 27-4-1982, whereunder, the allotments in favour of petitioners were resumed in favour of the Federal Govt. And are so being disposed of by a Single judgment. 2. The facts, in brief, common to all these petitions are that Muhammad Khan, petitioner in W.P. No,188/R-82 is the father of petitioners namely Nizam Din in W.P. No,290/R-82, Alam Din and Ahmad Din in W.P. No,291/R-82 and Siraj Din in W.P. No,292/R-82. These petitioners had come from the State of occupied Jammu and Kashmir and were allotted agricultural land in revenue estate Rasul Nagar, Tehsil Wazirabad for the purpose of maintenance grant. The orders of allotment in their favour, respectively, are detailed below:- Petitioners in W.P.No, Land measuring Date of order of allotment, W.P. No,188/R-82 129 !Canals 12 Marlas 30-7-1957
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W.P. No,290/R-82 106 " 5 " 2-6-1957 W.P. No,291/R-82 113 " 7 " 5-3-1962 W.P. No,292/R-82 30 " Through decrees dated 18-3-1980 of Civil Court in suits of pre-emptions. 3. These petitioners submitted applications in 1975 to the Ministry of Kashmir Affairs for the purchase of land allotted to them. It was on 31-10-1977 when the applications were accepted and the petitioners were directed to deposit the price of land determined by the Ministry of Kashmir Affairs. Accordingly they paid the price and so became owners of the land. 4. The dispute erupted on 10-5-1980 when one Mian Fatal Hussain, herein respondent in all the petitions, submitted a joint application alleged therein that neither the petitioners were refugees from occupied Jammu and Kashmir State, nor they had verified claims and so the allotments secured by them were fraudulent in nature; that the land allotted to the petitioners was situated in urban area and so could not be granted to them for maintenance purposes. This application was addressed to the Settlement Commissioner (Land), and was withdrawn by the applicants on 14-1- 1981 and so was dismissed as having been withdrawn. This was not the end of the matter. The cudgel was now taken by one Manzoor Hussain, herein respondent No,6 in W.P. No,188/R-82, who submitted an application to the same effect to the Deputy Commissioner, who on 5-8-1980 sent a confidential memorandum to the Settlement Commissioner (Land) Lahore to the effect that the allotments in favour of the petitioners were with respect to land which was urban in nature and so the orders of allotments in their favour were null and void. He recommended that the cases be registered against the present petitioners. The learned Settlement Commissioner in reply to this memorandum also sent a secret message permitting the Deputy Commissioner to take appropriate action. Equipped with this guidance, the Deputy Commissioner proceeded to pass order dated 10-4-1982 by which he cancelled the allotment of the petitioners and Rabokar was issued to the same effect on 27-4-1982. These are subject-matter of challenge in these four writ petitions. 5. The learned counsel appearing on behalf of the petitioners impeached the validity/propriety of the impugned order on the following grounds:- Firstly,that the Deputy Commissioner passed these orders absolutely in a clandestine and surreptitious manner. Neither the petitioners were summoned nor any opportunity of hearing was provided to them. As such these orders were in defiance of the principle of natural justice "Nobody shall be condemned unheard." Secondly,that after the promulgation of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975, the Settlement Authorities became functus officio from 1-7-1974 and so the matters concerning allotments became past and closed transactions. These transaction could not be reopened by the Settlement Authorities after the target date noted above; Thirdly,that the allotments were made to the petitioners as refugees from Jammu and Kashmir State as maintenance grants that the sale transactions were made by the Ministry of Kashmir Affairs; that the applications were given under the provisions of Sections 10 and 11 of Displaced Persons (Land Settlement) Act, 1958. It was contended that these allotments were excluded from compensation pool under para. 4-A of the West Pakistan Rehabilitation Settlement Scheme, 1956 and so provisions of Displaced Persons (Land Settlement) Act, 1958 including Sections 10 and 11 thereof were not applicable to the facts of these cases. Reliance was placed on Ghulam Muhammad and another v. Ahmad Khan and another (PLD 1991 SC 391). Fourthly, that the order passed by the Deputy Commissioner was stereotype in nature and passed without application of mind. As such, according to the learned counsel these orders were devoid of any legal efficacy. 6. The learned counsel (Mr. Muhammad Rafique Khan) appearing on behalf of Mian Fazal Hussain, respondent, supported the stand taken by the petitioners and stated that he had withdrawn the application and so there was no warrant for continuing the proceedings.
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7. The learned counsel Sh. Abdul Aziz, appearing on behalf of respondent Manzoor Hussain, stated that he had also given application to the same effect alleging therein that the land allotted to petitioners was situated in Rasul Nagar, which was an urban area. According to him this land could not be granted to the petitioners and so the initial orders of allotment in favour of the petitioners were totally illegal and bereft of legal authority. He placed reliance on the rule laid down in Abdur Rahim etc. v. Hassan Muhammad etc. (NLR 1984 SC J 6) and Muhammad Baran and others v. Member (Settlement & Rehabilitation) Board of Revenue, Punjab and others (PLD 1991 SC 691). 8. The learned counsel appearing on behalf of official respondents stated with fairness that he was not in a position to support the impugned order as it was passed without jurisdiction. 9. I have heard the learned counsel for the parties at considerable length. From the examination of impugned orders it is crystal clear that the Deputy Commissioner has passed the order without applying his mind to the facts and the circumstances of the case by relying upon the report of the Addl. Deputy Commissioner (G). The orders are not speaking orders by any standard. The facts are not disputed that the petitioners were allotted the land in the capacity of refugees from Jammu and Kashmir for maintenance purposes; that this land was sold by the Ministry of Kashmir Affairs to them; that they had been in possession of the land allotted to them. In such circumstances these allotments could not have been undone by stroke of pen without undertaking any inquiry in respect of factual allegations. Even the Deputy Commissioner did not address himself to discover or find out the law under which he initiated proceedings and passed the impugned orders. Such order in my considered view is totally without jurisdiction and cannot be sustained. It is a well- settled principle of law that the orders passed without jurisdiction are liable to be struck down in constitutional jurisdiction of this Court, which is intended to keep various functionaries of the State within the defined orbit of their authority. 10. In the light of foregoing reasons I have no difficulty in reaching the conclusion that the orders passed by the Deputy Commissioner in all the four cases were wholly without jurisdiction. These are declared as such and are thus quashed. 11. Before closing this judgment I feel it necessary to examine the contention of the learned counsel for Manzoor Hussain, respondent, that the land allotted to petitioners was situated in urban area and could not be allotted to them. This is a mixed question of law and facts and cannot be examined in constitutional jurisdiction of this Court at this stage. However, this does not foreclose this question as in Shamrooz Khan v. Muhabbat Khan (1989 SCMR 819), it was held:- "The jurisdiction of the Tribunal or the Deputy Settlement Commissioner in this case to examine the question of forgery and fabrication in his own record has been upheld by the learned Judge in the High Court and it follows from our decision in the Chief Settlement Commissioner, Lahore v. Raja Muhammad Fa7al Khan and others (PLD 1975 SC 331). On no principle, known to the constitutional jurisdiction, the power of the Tribunal to adjudicate any matter within its jurisdiction could be pre- empted by the High Court in the words in which it has been done. The custodian of the record is the best Judge in the first place to determine the veracity, the correctness and the genuineness of its own record. It should have been given an opportunity to discharge its duty in that respect. It is only then that a review of the adjudication could have taken place in the High Court." This judgment was followed in S.K. Masood and 3 others v. Special Committee through Member, Board of Revenue (Settlement and Rehabilitation and Secretary to Punjab Govt). And others (1990 CLC 1174) and was further reiterated in Muhammad Baran and others v. Member (Sett. & Reh.) Board of Revenue, Punjab and others (PLD 1991 SC 691). 12. In the light of rule laid down in the above noted authorities, it is quite clear to me that respondent, Manzoor Hussain, in W.P. No, 188/R-82, can seek his grievance redressed before the appropriate forum under the law. Any observation made in this order shall not affect such
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determination. With the above observations these writ petitions are accepted. There shall be no order as to costs. Petitions accepted. 1991 CLC 303 [Lahore] Before Munir A. Sheikh, J MUHAMMAD HUSSAIN and others---Petitioners versus MUHAMMAD SHAFT-Respondent Writ Petition No,6197 of 1991, heard on 28th July, 1991. (a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)- ----S. 13---Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), Ss.10 & 11--- Ejectment application---Transfer orders passed by Settlement Authorities--Legality and validity of transfer orders passed by Settlement Authorities could not be questioned and gone into during ejectment proceedings. [p. 305] A (b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)- ----S.13---Civil Procedure Code (V of 1908), 0.1, R.3---Landlord being owner of building, instead of filing separate ejectment petition against each of the occupant, filing one ejectment petition by joining all the occupants of property---Such course was not prohibited altogether---Rent Controller, however, could order separate trials---Where no order for separate trial had been passed by Rent Controller, in his discretion, no objection could be raised by tenants when no prejudice was shown to have been caused to them on that account. [p. 305] B (c) Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958)-- ----S. 30---Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975), Preamble-- West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S.13---Non-serving of notice under S.30, Displaced Persons (Compensation and Rehabilitation) Act 1958-Effect-After repeal of Settlement laws in 1975 by Act XIV of 1975, no notice was necessary before filing ejectment application---Ejectment application itself could be construed to be a notice to tenant. [p. 305] C (d) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)- ----S. 13--Civil Procedure Code (V of 1908), 0.1,…
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