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Petitioner: SHAHAB UD DIN And Others VS Respondent: Mst. MARIAM BIBI And Other
Court Name: Lahore High Court Judge(s): Mian Ghulam Ahmad Title: SHAHAB UD DIN And Others vs Mst. MARIAM BIBI And Other Case No.: Civil Revision No.369-D of 1988 Date of Judgment:1994-06-23 Reported As: 1995 MLD 45 Result: Revision accepted
JUDGMENT
JUDGMENT This civil revision is directed against the judgment and decree, dated 19-3-1988, rendered by the learned District Judge, Khanewal, Mr. Ihsan-ul-Haq Bhalli, reversing the judgment and decree dated 16-10-1984, delivered by learned Civil Judge 1Class, Multan, Mr. Ghulam Ahmad Bashir, who dismissed a suit for declaration and perpetual injunction, instituted in April 1974, by Maryam Bibi etc. Against Shahab-ud-Din etc. 2. The disputed lot of land is situate in Chak No.169/10-R, Tehsil and District Khanewal, and it measures 1050 Kanals and 16 Marlas. It is State land; and was on 23-8-1960 allotted jointly in the names of Shahab-ud-Din, his son Muhammad Jamil, and two others namely, Munawar Khan and Muhammad Anwar, under Tubewell Sinking Scheme. Subsequently on 30-10-1963, names of Shahab-ud-Din and Muhammad Jamil were deleted as allottees of the land, so that the entire lot stood allotted to Muhammad Munawar and Muhammad Anwar. Shahab-ud-Din and Muhammad Jamil, petitioners before this Court, unsuccessfully approached the Commissioner, Multan Division, Multan and Board of Revenue, Punjab, Lahore, assailing the aforesaid order dated 30-10-1963. The entire lot was then shown to have been transferred by Munawar and Anwar in the names of Abdul Ghani etc.---one-fourth to Abdul Ghani, Abdul Haq and Fateh Muhammad sons of Gul Sher, one-fourth to Muhammad Siddique and Abdul Majid sons of Noor Muhammad, one-third to Muhammad Khalil son of Qutab Din and one-sixth to Wali Muhammad son of Qutab Din. Abdul Ghani, Muhammad Siddique and Muhammad Khalil died during the proceedings and were succeeded by their legal heirs. Shahab-ud-Din and Muhammad Jamil brought a civil action for declaration and mandatory injunction against Muhammad Anwar and Munawar Khan and Province of West Pakistan, on 30-4-1968, prayer being that the ordersst
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dated 30-10-1963, 4-3-1964 and 25-3-1965, passed respectively by Collector Multan, Commissioner Multan, and the Board of Revenue be declared as ultra vires, illegal, void and ineffective against the rights of the plaintiffs and a mandatory injunction be issued to defendant No.3 (Government) to incorporate the names of the plaintiff, alongwith defendants Nos. 1 and 2, in the array of the allottees of the land, as before. Mr. Muhammad Ahmad Afghani, Civil Judge 1Class, Multan, decreed the suit, on 9-4-1973. Those claiming to be transferees of the land preferred an appeal, before the learned District Judge, Multan, but the same was dismissed in limine on 12-4-1974. The appellants were advised io bring a suit for declaration, respecting their rights, and to assail the impugned judgment and decree, dated 9-4-1973 as being collusive. Thereupon, on 15-4-1974, the suit, out of which this civil revision has arisen, was filed by those claiming to be transferees of land, from Munawar Khan and Muhammad Anwar, defendants in the suit being Shahab-ud-Din and Muhammad Jamil, Munawar Khan, Muhammad Anwar and Province of Punjab. The suit -was dismissed on 16-10-1984 by the learned trial Judge, who directed the plaintiffs to make good the deficiency in court-fee to the tune of Rs.11,235 within a month. 3. The plaintiffs in the suit prayed that the decree, dated 9-4-1973 awarded by Mr. Muhammad Ahmad Khan Afghani, Civil Judge, Multan, being collusive, ultra vires, unjust, besides being time- barred, be declared to be ineffective against their rights and the defendants be restrained perpetually from interfering with their possession of the land and from causing adverse entries incorporated in the Revenue Record. The suit was contested by defendants Nos. l and 2, Shahab- ud-Din and his son Muhammad Jamil, but not by the Province of Punjab, defendant No.5. Defendants Nos.3 and 4 did not enter appearance in spite of service and were proceeded against ex parte. The pleadings of the parties, which may not be narrated in detail, were reflected in the following issues, fixed for final determination by the trial Court:--- (1) Whether defendants Nos. l and 2 were also allottees of the suit-land alongwith defendants Nos. 3 and 4? OPD (2) Whether the order of the Collector dated 30-10-1963, cancelling the allotment ofdefendants Nos.1 and 2, was illegal and without jurisdiction? OPD (3)Whether the impugned decree is not binding upon the plaintiffs? OPP (4)Whether the suit is not properly valued? OPD (5)Whether defendants Nos. l and 2 are entitled to special costs? OPD (6)Whether plaintiffs are estopped to file this suit? OPD (7)Whether the plaintiffs are, owners of the disputed property? OPP (8)Whether the plaintiffs made improvements; if so, of what value and with what effect? OPP. (9)Relief. Issue No.7, in view of a conceding statement made by the learned counsel for the plaintiffs, to the effect that they are only allottees of the land, having not yet acquired proprietary title to it, was amended by the learned Civil Judge as follows:--- Issue No.7. Whether the plaintiffs are the allottees of the disputed property? OPP 4. Issues Nos.5 and 6 were answered against the contesting defendants Nos. l and 2, petitioners before this Court, and other issues were decided in their favour. In determining Issue No.4, the learned trial Judge came to the conclusion that the plaint was insufficiently stamped, as the valuation of the suit for the purposes of jurisdiction and court-fee had incorrectly and in- adequately been fixed. The plaintiffs were, therefore, directed to make good deficiency in the court-fee, in the amount of Rs.11,235, the plaint having been stamped with court-fee of value of Rs.15 only. In this behalf it is to be pointed out that Maryam Bibi etc.'s suit having been dismissed, they had filed an appeal in the Court of learned District Judge. The contesting defendants respondents before the learned District Judge (Nos. l and 2) had raised the preliminary objection that the value of the subject-matter of dispute being in excess of pecuniary jurisdiction of first appellate Court (then Rs.50,000) the appeal was liable to be returned, so that it could be preferredst
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in the High Court. The learned Additional District Judge, Multan, Ch. Muhammad A.I, who at the relevant time was seized of the appeal turned down the objection by an order made on 7-5-1985. He was of the view that the plaintiffs were only transferees of the tenancy rights and had not pleaded proprietorship, nor had they claimed possession of the property, the same being already with them. In fact their claim was confined to an attack against validity and enforceability of the decree dated 9-4-1973, delivered by Mr. Muhammad Ahmad Khan Afghani, they were not liable to pay court-fee under section 7, subsection iv(a) of the Court Fees Act, and the case was also not covered under section 7, subsection iv(c) ibid and valuation of the suit fixed by the plaintiffs to be Rs.200 was not incorrect and the appeal had competently been filed in the District Court. The learned Additional District Judge has strangely referred to the decree-sheet prepared by the trial Court, carrying a valuation of Rs.200 and adopted it as an argument in support of his view that the same was the correct valuation. It is a matter of common observation that Ahimads and Readers, while preparing decree-sheets, generally make mention of the same valuation, which the plaintiffs in the suit have stated not caring to take into account even the divergent finding arrived at by the trial Court. Mere the observation made by the learned Civil Judge must be taken to be more apt and correct. The plaintiffs in the suit are invading the decree, dated 9-4-1973 having been rendered in a suit, in which they were not a party, in a bid to nullify its effect, and at the same time they are endeavouring to establish their rights in respect of the land, on the basis of purported sale or transfer having been effected in their favour by Munawar and Anwar. Unless such a declaration is made, the consequential relief, in the form of permanent injunction, which the plaintiffs also prayed for, will not follow. Suit for a declaration of title to a landed property has now to be valued on the market-price thereof, and the instant suit is, therefore, also covered by provisions of section 7(iv) (a) of the Court Fees Act. The plaintiffs also pleaded to have spent a sum of RsA,50,000 on improvements of the land and on raising requisite structures there. Actually one of them, Abdul Haq, appearing as a witness, has enhanced this claim to Rs.2,50,000. On taking the claim, as incorporated in the plaint, to be the basis for the purpose, corpus of subject matter to be still vesting in the name of the Provincial Government, and Rs.75 being the quantum of court-fee for thousand rupees, at the relevant time, assessment of payable court-fee at Rs.11,250 must be taken to be correct. The plaintiffs had paid only Rs.15 as court-fee. They were, therefore, rightly directed to make up the deficiency to the tune of Rs.11,235. The plaintiffs complied with this direction and made payment of requisite amount of court-fee on their appeal before the District Judge. This amount has been ordered to be refunded to them by the learned District Judge, vide his judgment, dated 19-3-1988. Such direction being unwarranted, the same is set aside, finding of learned District Judge under Issue No.4 being untenable. Authority cited in support of his contention by the learned counsel for the petitioners is Muhammad Sharif and another v. Azra Perveen and another 1970 CLC Lahore 867). 5. The land in suit had jointly been allotted to the petitioners, Shahab-ud--Din and Muhammad Jamil, alongwith respondents Nos.8 and 9, Munawar Khan and Muhammad Anwar, vide allotment order, dated 23-8-1960 being Exh.D-14 (page 4 of the file of the revision petition). There is no dispute about it and both the Courts below have recorded a concurrent finding in that regard. What has given rise to the dispute between the original allottees is the order of cancellation made by the District Collector, Multan, on 30-10-1963 (EXh.PI at page 192). It is said to have been affirmed by the Commissioner, Multan, on 4-3-1964, and by the Board of Revenue, on 25-3-1965 (Exh. P8, at page 262). The District Collector held Shahab-ud-Din and Muhammad Jamil to be the defaulting partners, having taken no part in the development of the ianct and installation of the tubewell. According to the Collector, they were living elsewhere and not at side or in the Chak. Entire development having keen made by Munawar Khan and Muhammad Anwar, they were held entitled to hold the whole lot, to the exclusion-of Shahab-ud-din and Muhammad Jamil.
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6. Learned counsel for the petitioners has drawn the attention of the Court to the wangling indulged in by Munawar and Anwar, as regards this lot right from the beginning. About a couple of months after the initial allotment, having been made on 23-8-1960, Munawar and Anwar had on 2- 11-1960 made a move to the Collector for cancellation of allotment in the names of Shahao-ud-Din and Muhammad Jamil. The Sub-Divisional Officer (AC), Khanewal passed an order on 25/30-1-1961 (Exh.D-3 at page 374), to the effect that it was an internal dispute between the co-allottees and they should settle it themselves, or they should approach the competent forum for settlement of the dispute. This order was not challenged. On 28-3-1961, a similar application was made afresh to the secretary (Colonies), Board of Revenue, who sent it down to the District Collector for necessary action. The Deputy Commissioner, on 17-11-1961, addressed a letter to the Commissioner on the subject, rejecting the request of Munawar and Anwar. It was observed that the dispute about the expenses incurred on the installation of a tubewell was private matter and was of purely civil nature and the contestants could have recourse to a Civil Court. Exclusion ;f names of Shahab-ud- Din and Muhammad Jamil from the allottees of the lot was found- not to be feasible Letter exists at page 378 (Exh.D-5). A similar letter was again on 27-3-1962 addressed by the Deputy Commissioner, Multan, to then Commissioner, Multan (Exh.D-4, at page 376). Shahab-ud-Din and Muhammad Jamil were served with notices and heard on 12-1-1962 and they took up the stand that they had spent half of the amount incurred on the installation of the tubewell, the total expenditure being Rs.12,000. It was observed that the lessees were jointly and individually responsible for fulfilment of the conditions of the grant, and the dispute between the allottees being of civil nature, the aggrieved party could seek remedy in the Civil Court This was in response to the letter, dated 17-1-1962, addressed to the Commissioner. Multan, by the Secretary (Colonies), Board of Revenue (Exhs.P-45 and 46 at page 338). This order too was not challenged anywhere and must be taken to have attained finality. In an order announced on 23-7-1979 by Mr. Jiwan Khan, District Collector, Multan (P-15 at page 404), it was observed that the matter would be processed further after pronouncement of judgment by a Civil Court, in which the case between the contestants was pending. There should thus be no confusion about the nature of the controversy being of civil nature, determinable by a Civil Court. 7. There has actually occurred in the instant case good deal of manoeuvring or manipulation on the part of Muhammad Anwar and Munawar Khan, the latter being maternal uncle of the former. Anwar's father (Munawar's brother-in-law) was said to be Naib-Tehsildar, working as a Reader with some Member of the Board of Revenue. He obtained another application on 27-3-1962 from these persons and managed to get a favourable report, on the basis whereof, the Collector passed the impugned order dated 30-10-1963, cancelling the allotment in the names of Shahab-ud-Din and Muhammad Jamil (Exh.Pl at page 192). The aforesaid order was passed against Shahab-ud-Din and Muhammad Jamil for alleged breach of conditions of grant. It is to be pointed out in this regard that infringement of terms of allotment, if any, was to be taken collectively, and one or two persons, out of the 'panel', could not be picked up B for the purpose, for it was a joint grant and before obtaining it, the grantees should have cared to know whether all of them would abide by their obligations. There is another important aspect. Tubewell had to be sunk within a period of two years, but Munawar and Anwar were so impatient, ostensibly because of their influence, at the apex in the revenue hierarchy, that they, as already said, had made a move for deletion o-- the names of their co-partners, Shahab-ud-Din and Jamil, within less than 2-1/2 months after the allotment, and they had been repeating such request in quick succession. Although Munawar and Anwar's assertion has been belied by Shahab-ud-Din and Muhammad Jamil, even if it had some substance in so far as sharing of expenditure to be borne on installation of tubewell was concerned, it did not constitute a breach of any term of the grant, severally on the part of the two grantees, Shahab-ud-Din and Muhammad Jamil, as has been the view of the Revenue Authorities
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themselves. One permissible course was that the entire lot could have been cancelled, and one component of group of grantees should not have been singled out. Lot could be re-allotted to an eligible person or group of persons afresh. 8. The orders passed by the Collector, the Commissioner and the Board of Revenue were held by the Civil Court to be invalid, void and ineffective. Judgment was rendered on 9-4-1973 by Mr. Muhammad Ahmad Khan Afghan, Civil Judge Ist Class, Multan (Exh. F-2/14, page 196/274). It was a matter of monetary nature, as between Munawar and Anwar, on one hand, and Shahab-ud---Din and Muhammad Jamil, on the other, and if there was any lapse, on the part of one of the two components, the same did not necessarily entail exclusion of their names from the array of allottees. The order, dated 30-10-1963 has been described as an order of cancellation of the lot, although in fact it was not like that, as the grant continued to subsist in the names of the same people, of course, to the exclusion of two out of them. The decree, dated 9-4-1973 delivered by the Civil Court was not interfered with by the learned appellate Court (District Judge), although the appellants were advised to go in for a civil action to get the decree set aside, which according to them had been passed behind their back and to their ignorance. Learned counsel for the petitioner maintains that the Civil Court's decree had become final and had clinched the issue, so far as it related to the validity or otherwise of the orders made by the Revenue Authorities cancelling the lot in the name of Shahab-ud-Din and his son Muhammad Jamil. This argument, however, is not available indeed, the reason being that on merits the learned District Judge did not affirm the decree, dated 9-4-1973 of the learned trial Court, which was being described as ex-parte decree, although the Province of West Pakistan, through Collector Multan, had put in contest. Muhammad Anwar and Munawar Khan had been served in the proceedings of the said suit, but they had absented themselves and had, therefore, been proceeded against ex parte, as probably they had no longer remained interested in the result of the civil suit. 9. It is to be borne in mind that at that juncture the learned District Judge did not discuss the matter and determine it on merits and did not advert to conscious consideration of the issues involved; and it could, therefore, not be inferred that the appellants before him had been heard in regard to the merits of the case. They had, as already said, just been counselled to adopt the other course, namely, institution of a civil suit for getting the questioned decree, dated 9-4-1973 rescinded. The present suit had been filed in pursuance of such a direction or advice, and the controversy between the parties will have to be examined and decided on its own merits. 10. There is a pronounced anomaly inherent in the claim of the plaintiffs. By an order-dated 11-2- 1966, the tenancy rights available to Munawar and Anwar had been transferred in their names. Abdul Haq, one of them, appeared as a witness as P. W.1 (copy of the statement at pages 187 to 189) and claimed to have purchased the lot from Munawar and Anwar. He, however, did not distinctly remember as to when did this development take place The learned Additional District Judge, Multan, Ch. Muhammad A.I, in his judgment dated 7-5-1985, has held otherwise. It has been observed that the appellants before him, Maryam Bibi etc. Did not press their claim to the property on the basis of any sale, gift, exchange or mortgage. He has referred to the Collector's order dated 28-1-1966, Exh.P-4 (at page 204), in that behalf. A proposal had been put up by the Sub-Divisional Officer (A.C.), Khanewal, for permission to transfer the tenancy rights in the names of these persons, as desired by Munawar Khan and Muhammad Anwar, by making an application under section 19, Colonization of Government Lands Act, 1912 and the Collector, Multan had endorsed it, by writing a brief note "allowed as proposed". It appears that, as directed by the Secretary (Colonies), BOR (as per Exh.P-45, at page 338), the matter had to be referred for final orders to the Board of Revenue. As such, the order aforesaid dated 28-1-1966 made by the Collector, seemed to be still in the nature of a proposal for permission, not having assumed the character of a final order, passed by the competent authority.
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11. The learned District Judge has himself observed that transfer of the land in favour of the appellants before him, plaintiffs in the suit, had not actually been perfected, for want of any registered instrument of sale or mutation of sale. He is, however, of the view that this being a tract of agricultural land, its transfer could be made without a formal document and even sanction of mutation of sale was not necessary, as a mutation does not create any title or extinguish any right, but is only an evidence of a transaction. Transfer of the land, in this case, according to him, was made through an oral transaction. The verdict is, however, based on no evidence available on record and no valid legal plane; and it appears to have rightly been pointed out by the learned counsel for the petitioners before this Court that the same is the out-come of surmises or conjectures having as its basis no solid foundation in the form of evidence. Even according to the plaintiffs, they had acquired interest in the land by virtue of an order made in their favour by the Collector under section 19, Colonization of Government Lands Act, 1912, on a move made by the allottees or grantees of the lot, Muhammad Munawar and Muhammad Anwar, such an order having been made on 28-1-1966 (Exh.P4). The plaintiffs might have stepped into the shoes of the original allottees, but they could not be deemed to have acquired a proprietary title, better than that of the transferors, and except through a registered instrument of alienation, as sale, gift, exchange, mortgage, or any other kind of private contract, as permissible under the conditions of the grant or the relevant legal provisions. A leave granted under section 19 of the Colonization of Government Lands Act, 1912 would certainly confer no proprietary title on the transferees. The plaintiffs themselves were indeed conscious of this fact. They had on 13-4-1983 applied to the trial Court for amendment of Issue No.7, so as to be described allottees instead of owners of the land (page 593 of the said file). 12. It was pronounced in Waryam Khan v. Ghulam Muhammad PLD 1959 WP (Revenue) 87, Dula etc. v. Shahab Din PLD 1959 WP (Revenue) 103 and Muhammad Ishaq v. Muhammad Siddique PLD 1975 Lah. 909, that transfer of rights of tenant would be ineffective, when there is no deed of sale or mutation of sale. Mere statement of the vendor made about a purported sale before a Revenue Officer would not amount to an irrevocable transfer of property. If sanction for transfer under provisions of Colonization of Government Lands Act is obtained, but no transfer deed is executed, there would be room for the transferor making denial of such transfer, and in that event it will not be proper to sanction the mutation, although it will be open to the transferee to seek remedy in Civil Court. Even if a decree for specific performance of a contract is awarded, title of the property remains vested in the alienor, till such time regular sale-deed is executed and registered in favour of the alienee. 13. The learned District Judge says that names of those who substituted Muhammad Munawar and Muhammad Anwar, as grantees of the lease of the land, had duly been incorporated in the revenue record and that amounted to giving effect to the transaction arrived at between the parties to the transfer of the tenancy rights: He goes on to say that although this development was in full knowledge of Shahab-ud-Din and Muhammad Jamil, they did not implead the transferees of the land, as defendants in their civil suit, Exh.D-1, instituted on 30-4-1968, wherein the defendants were Muhammad Anwar, Munawar Khan and the Province of Punjab. This suit, according to the learned District Judge, was decreed ex parte on 9-4-1973 by Mr. Muhammad Ahmad Afghani, Civil Judge Ist Class, Multan (judgment being Exh.P-14 and decree sheet being Exh.P-15), names of the transferees were deliberately left out and all the facts were not brought to the notice of the Court. It is, however, to be pointed out that the transferees had filed an appeal against the said decree before the District Judge, Multan, who had dismissed the same in limine on 12-4-1974 (Exh.DW-4/B). It was observed by the learned District Judge that the appeal had been filed on 25-3-1974, long after expiry of period of limitation. This observation continues to be intact. Anyhow, as according to the appellants before the learned District Judge, the decree had been obtained by Shahab-ud--
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Din and Muhammad Jamil collusively in their favour by keeping them in complete dark and the same was not binding on them, the learned District Judge had made a pronouncement that the proper remedy for the appellants in the circumstances was to assail the impugned decree dated 9-4-1973 by bringing a civil suit. 14. It is to be pointed out that when that civil suit was instituted by Shahab---ud-Din and Muhammad Jamil, on 30-4-1968, they were not necessarily in the know of the development of Munawar and Anwar having transferred their tenancy…
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