Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Official Citation: 2023 LHC 5726
Court / Jurisdiction: Lahore High Court
Year of Decision: 2023
Decision Date: 2023-11-01
Parties: Province of Punjab through Collector, District Sialkot etc vs Mst. Sughran Bibi (deceased) etc
Ruling Summary: This decision was rendered by the Lahore High Court on 2023-11-01, officially reported as 2023 LHC 5726. In this matter between Province of Punjab through Collector, District Sialkot etc and Mst. Sughran Bibi (deceased) etc, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
Case cited as 2023LHC5726
Court Name: Lahore High Court Judge(s): Ch. Muhammad Iqbal Title:Province of Punjab through Collector, District Sialkot etc vs Mst. Sughran
Bibi (deceased) etc Case No.: C.R.No.115655/2017 Date of Judgment:2023-11-01 Reported As: 2023 LHC 5726, 2024 YLR 2722 Result: Revision Allowed Judgment Judgment: Ch. Muhammad Iqbal, J:- Through this civil revision the petitioners have challenged the validity of the judgment & decree dated 23.02.2016 passed by the learned Civil Judge, Sialkot who decreed the suit for declaration with possession and mandatory injunction filed by the respondents and also assailed the judgment & decree dated 11.07.2017 passed by the learned Additional District Judge, Sialkot who dismissed the appeal of the petitioners. 2. Brief facts of the case are that the respondents/plaintiffs filed a suit for declaration with possession and mandatory injunction against the petitioners/defendants on 03.09.2008 and contended that suit land measuring 166 Kanal 03 Marla bearing Khewat No.1 Khasra Nos.44, 45, 46, 79, 80, 81, 83, 82, 85, 86, 89, 90, 94, 93, 97, 98, 99, 220 situated at village Baila Be-Charagh, Tehsil Sialkot had been mortgaged to the predecessor-in-interest of the respondents/plaintiffs by non- Muslim prior to 1947 and at the time of partition of the subcontinent in 1947, said non-Muslim (mortgagors/owners) migrated to India and the rights of mortgagors were transferred in favour of Settlement Department. That the respondents/plaintiffs No.1 & 2 filed a suit in 1979 against the Settlement Department which was ex-parte decreed on 08.06.1982 by declaring the respondents/plaintiffs as owners-in-possession of the suit property due to expiry of period of 60 years. The Forest Department filed an application before the Deputy Commissioner, Sialkot for mutation of the land measuring 684 Acre of Baila Be-Charagh which was allowed and subsequently mutation No.131 dated 03.05.2001 was entered in favour of Forest Department on the basis of a notification dated 26.12.1951. The respondents/plaintiffs were not made party in the aforesaid application of Forest Department upon which the respondents/plaintiffs filed an
---
## Page 2
application for review of the mutation. The Deputy Commissioner Sialkot vide order dated 21.08.2007 again declared that the suit land belonged to Forest Department. The respondents/plaintiffs filed an appeal which was dismissed by the Executive District Officer (Revenue), Sialkot vide order dated 18.06.2008. The respondents/plaintiffs challenged the notification dated 26.12.1951 as well as orders dated 03.05.2001, 21.08.2007 and 18.06.2008 through the suit. The petitioners/defendants filed contested written statement and contended that the land measuring 684 Acre was allocated to the Forest Department by the Custodian of the Evacuee Property vide order dated 10.02.1948 and possession was also handed over. The notification dated 20.12.1951, which was duly issued, whereby the land is owned by the Forest Department. That on 27.02.1965 Chief Settlement Commissioner, West Pakistan issued notification that from that date, no land allotted/un-allotted which is in possession of Forest Department will be allotted against any claim. Subsequently, Chief Settlement Commissioner vide meeting dated 29.06.1965 sold the suit land as well as other similar lands to the Forest Department at the rate of Rs.14/- PIU. The Forest Department paid the consideration and in this way, the Forest Department became the exclusive owner of the suit land. That the Senior Member, Board of Revenue issued order 04.10.1979 for transfer of the suit property from Settlement Department to the Forest Department and subsequently, vide order dated 04.12.1979, direction was passed in this regard to mutate the suit land in favour of Forest Department. The respondents/defendants further contended that a group of fraudulent persons including the respondents/plaintiffs trying to illegally got allotment of the suit land. That one Muhammad Siddique filed Mukhbari application upon which Deputy Commissioner Sialkot vide order 07.03.1982 passed order for review/rectification of mutation Nos.4 to 16, 20 to 24, 37, 38 to 43. The said order dated was assailed in an appeal before the Commissioner, Gujranwala Division which was accepted on 27.03.1985 and the case was remanded to the Deputy Commissioner Sialkot. Haji Abdul Karim filed Writ Petition No.189-R/1987 wherein vide order dated 09.021992, the matter was also remanded to the Deputy Commissioner, Sialkot for fresh decision. In these post-remand proceedings, the Deputy Commissioner, Sialkot vide order dated 28.02.2001 declared that the suit land is owned by the Forest Department and in the light of said order, Mutation Nos.131 and 132 dated 03.05.2001 were entered and sanctioned. The order dated 28.02.2001 as well as mutations No.131 & 132 were challenged by the respondents/plaintiffs and others before the Executive District Officer (Revenue) Sialkot and review only to the extent of Muslim owners was accepted but to the extent of ownership of the suit land by the Forest Department, the same was dismissed. Out of the divergent pleadings of the parties, the trial Court framed issues, recorded pro and contra evidence of the parties and finally decreed the suit vide judgment & decree dated 23.02.2016. Being dejected, the petitioners filed an appeal which was dismissed by the appellate Court vide judgment & decree dated 11.07.2017. Hence, this civil revision. 3. I have heard learned counsels for the parties and have gone through the record. 4. The core controversy involved in this case revolves around Issues No.1 & 2 which are reproduced as under: "1. Whether the plaintiffs are owners of suit property and orders dated 28.02.2001, 21.08.2007 & 18.06.2008 are illegal, void, against the facts, based on malafide and liable to be cancelled? OPP 2. If above issue is proved in affirmative, whether the plaintiffs are entitled to get the possession of the suit property and get incorporate their names in the revenue record as owners? OPP" To dislodge the onus, Sh. Allah Ditta (P.W.1) deposed that they are in possession of land measuring 166 Kanal 03 Marla situated in Moza Baila Be-Charagh Tehsil & District Sialkot for more than 100 years from their predecessors as the non-Muslim had mortgaged the same; that the suit land was in the name of non-Muslims who migrated to India; that they filed suit in 1979 which was decreed in
---
## Page 3
their favour on 08.06.1982; that on the application of the Forest Department, the Deputy Commissioner transferred the land measuring 684 Acre of Moza Baila Be-Charagh to Forest Department but the plaintiffs were not impleaded in the said proceedings; that the Deputy Commissioner Sialkot vide order dated 28.02.2001 declared that the suit land is owned by the Forest Department and mutation No.131 was sanctioned in favour of Forest Department; that the District Officer (Revenue) while deciding the review application declared that the suit land is owned by the Forest Department; that they filed appeal which was dismissed by the Executive District Officer (Revenue); that the order of Deputy Commissioner, Sialkot, District Officer (Revenue) Sialkot and Executive District Officer (Revenue) Sialkot are liable to be set aside; that a decree was passed by Civil Court in their favour. During cross examination, he deposed that:
Ghulam Nabi (P.W.2) repeated the same facts in his statement-inchief as stated by P.W.1. During cross examination, he deposed that:
(emphasis supplied) Rehmat Ali (P.W.3) during cross examination deposed that:
Sialkot; that the Forest Department is owner of land measuring 684 Acre which land was given to it by Settlement Department on 10.02.1948; that the Settlement Department issued notification dated 20.12.1958 and thereafter Chief Settlement Commissioner also issued notification 27.02.1965 declaring the Forest Department as owner of any allotted/unallotted land which is under its possession and also declared that such land could not adjusted against any claim; that the Forest Department paid consideration of the entire suit land at the rate of Rs.14/- PIU through cheques and on 04.10.1979 the Board of Revenue, Lahore acknowledged the receipt of payment of entire consideration amount of the suit land thus proprietary rights were granted in favour of the Forest Department and accordingly order dated 04.12.1979 was issued; that later on a few fraudulent persons got alienated some portions of land in their favour; that Muhammad Siddique filed application before Deputy Commissioner, Sialkot upon which Deputy Commissioner cancelled the said allotment orders; that appeal was filed before Commissioner which was allowed and the case was remanded to the Deputy Commissioner, Sialkot; that thereafter Deputy Commissioner , Sialkot vide order dated 08.02.2001 resumed land and mutation No.132 was sanctioned in favour of Forest Department. Imtiaz-ul-Hassan, Incharge Litigation Branch, Forest Department Sialkot (D.W.2) deposed in line with the statement made by the D.W.1. Despite lengthy cross examination the stance of the witnesses could not be shattered by the other side. 6. The respondents/plaintiffs challenged the orders dated 28.02.2001, 21.08.2007 and 18.06.2008 passed by the Deputy Commissioner, District Officer (Revenue) and Executive District Officer (Revenue) Sialkot respectively but the said orders were not produced in evidence by them, whereas, the said orders were upheld by this Court while dismissing Writ Petition No.95975/2017 vide order dated 06.04.2021. 7. The Deputy Commissioner, Sialkot after considering all the submission of the respondents/plaintiffs, declared that the suit land was transferred in favour of Forest Department by the Settlement Department and on the basis of notification 10.02.1948, Forest Department is in possession of the same. The Deputy Commissioner, Sialkot observed in order dated 28.02.2001 that the land of Moza Baila Be-Charagh Tehsil Sialkot, including the suit land, is owned by the Forest Department. For reference, relevant portion of the order dated 28.02.2001 is reproduced as under: "9. In view of above discussion advanced by both the parties I hold that the Forest Department was in possession of the land after having paid the price to the Central Govt. and inadvertently, during Consolidation/Settlement operations in the District, the mutation was not incorporated in the
---
## Page 4
revenue record, and the land was wrongly and illegally allotted to the other persons who transferred the same through registered sale deeds and mutations. The application for Q.P.R allotment was filed on 05.07.1974 whereas the Settlement act was repealed on 30.06.1974, which was time barred, and no RL.II. for BelaBe-Chiragh was made. Under these circumstances, the bogus mutations are hereby ordered to be annulled and mutations in respect of the land measuring 684 Acres, as per notification, is ordered to be attested and sanctioned in favour of the Forest Department." 8. The respondents/plaintiffs challenged the said order through an appeal before the Executive District Officer (Revenue) which was dismissed vide order dated 18.06.2008. The respondents/plaintiffs did not assail the said order before the Board of Revenue, Punjab as such to the extent of respondents/ plaintiffs the said orders have attained the status of finality and have become past and closed transaction. Reliance is placed on Pakistan International Airlines Corporation Vs. Aziz ur Rehman Chaudhary and another (2016 SCMR 14). 9. However, one Muhammad Siddique assailed the orders dated 28.02.2001 and 18.06.2008 through a revision before the Board of Revenue wherein the respondents/plaintiffs were a party. The Member, Board of Revenue vide order dated 26.12.2016 upheld the orders of Deputy Commissioner, Sialkot as well as of Executive District Officer (Revenue). Muhammad Siddique assailed the aforesaid orders through Writ Petition [No.95975/2017] which was dismissed by this Court vide order dated 06.04.2021. For ready reference, relevant portion of order dated 06.04.2021 is reproduced as under: "4. Admittedly, vide notification/letter No.CEP-1829 dated 10.02.1948 land measuring 684-acres, 05- Kanals & 08-Marlas situated in Mouza Bela Bay Chiragh, Tehsil & District Sialkot was granted to the Forest Department. For ready reference, gist of notification whereof is as under:- "Copy of letter No. CEP/1824, dated 10-02-1948 from S.A. Rehman ICS of Evacuee Property West Pakistan, Lahore, addressed to Chief Conservation of Forest West Punjab, Lahore Sir, With reference to your O.M.No. 2554 dated 06-02-1948, forwarding in original letter No. 381/C, dated 27-02-1948, from the Conservator of Forests, Rawalpindi Circle, on the subject of closure of Waste Lands, I, enclose herewith copy of an order passed by me on the subject for your information and necessary action. If considered necessary I will send copy of this order to the Deputy Commissioner concerned provided you intimate to me the names of the Districts in which the lands in question are situated. Sd/ xxxxx Custodian. I.S.A Rehman I.C.S. Custodian of the Evacuee Property, West Punjab, Lahore., hereby authorize the Deputy Commissioner of the District of the West Pakistan. Which are fetched by Soil Erosion agree to the closure of Waste Lands on behalf of the Non- Muslim Evacuee by the Forest Department under the Provisions of the Punjab, Reclamation Act. 11-02-1948 Sd/ x x x x x x x x x x x x Custodian of Evacuee Property West Punjab, Lahore.
In suppression of any order dated the 10-02-1948. I.S.A. Rehman I.C.S. Custodian of Evacuee Property West Punjab, Lahore, do hereby authorize the Deputy Commissioner of the District of Sialkot, Gujrat, Jhelum, Rawalpindi, Attock, Mianwali, and Shahpur to agree to the closure of Waste Lands on behalf of Non-Muslim Evacuee by the Forest Department under the provision of Section
---
## Page 5
38 of India Forest Act, and section 3,4,5 and 5 of the Punjab Prevention ( Chose) Act, 1900, By Custodian of Evacuee Property Punjab, Lahore." Vide Memorandum No.1518/IVS dated 30th June, 1965, the Forest Department paid all the dues. For ready reference, letter dated 30.06.1965 is reproduced as under:- "Memorandum No.1518/NS From Ch. Asghar Hussain, W. P. F. S., Divisional Forest Officer, Gujrat East Forest Division, Gujrat. To The Collector Sialkot, District Sialkot. Dated Gujrat, the 25th June, 1965 Subject:- PAYMENT OF LAND REVENUE TO THE REVENUE AUTHORITY FOR THE LAND IN POSSESSION OF FOREST DEPARTMENT. A Cheque No. 016064 dated 28-06-1965 for Rs. 1,21,567/00 on National Bank of Pakistan, Sialkot is sent herewith. Kindly adjust the same against the land revenue of the areas as per list attached. The consolidated receipt for Rs.1,21,567/00 may kindly be supplied to this office for necessary adjustment into the departmental accounts on the enclosed F. A. voucher. Enc 1: / Cheque Divisional Forest Officer, Gujrat East Forest Divn:"
Vide Notification [No.4403-D(F)] dated 20.12.1951 possession of the said land was taken over by Forest Department which remained paying the land revenue of the said land since 1951-52 to 1962- 63. With regard to the Land of Forest Department, the Chief Settlement Commissioner vide Notification No.65/795 R(L) dated 27.02.1965 directed all the Deputy Commissioners etc. to restrain themselves from making allotment of land notified or otherwise which was under the possession of the Forest Department to any evacuee claimant and its character could not be changed. For ready reference, gist of notification dated 27.02.1965 is as under:- "Subject: Disposal of evacuee land in possession of the Forest Department. On the representation of the Forest Department, it has been decided by the Chief Settlement Commissioner that evacuee land in possession of the Forest Department whether notified or unnotified should not be allotted against claim under the provision of the West Pakistan Rehabilitation Settlement Scheme till further orders. 2. The Forest Department is collecting details of forest plantations on evacuee land. The Tehsildars and the Patwaris concerned should be directed to fully co-operate with the Forest Department to preparing complete details of the evacuee lands and make available the requisite records has been required." The vires of above notification dated 27.02.1965 was validated by the Hon'ble Supreme Court of Pakistan in its judgment titled as Province of Punjab Vs Muhammad Mahmood Shah (1991 SCMR 1426). Further in a judgment titled as Masooda Begum through Legal Heirs Vs Govt. of Punjab through Secretary Forest, Lahore & 9 Others (PLD 2003 SC 90), the Hon'ble Apex Court has observed as under:- "The learned counsel for the Forest Department when confronted with the above legal position, he candidly conceded that the allotments which were made prior to 27.02.1965, would be protected by the law laid down by this Court in the judgments referred above and that the judgment of the High Court by virtue of which the order of cancellation of allotment of the vendor of present appellants,
---
## Page 6
was declared illegal was upheld in Civil Petitions Nos.1982 and 1983 of 1996 on the basis of law laid down by this Court in (1991 SCMR 1426), according to which the rights of the allottees of the land prior to 27.02.1965 were protected and conclusively determined". In the aforesaid pronouncements, it has been declared that any order passed regarding the allotment of land belonging to Forest Department after 27.02.1965 would not hold field and such order would be considered as violative to the notification dated 27.02.1965, issued by the Chief Settlement Commissioner whereby a complete embargo was placed on allotment of land in possession of forest department against any claims under the provision of the West Pakistan Rehabilitation Settlement Scheme. In another judgment cited as Province of the Punjab through Collector, Sheikhupura and others Vs. Syed Ghazanfar Ali Shah and others (2017 SCMR 172), the Hon'ble Supreme Court of Pakistan while dealing with similar situation observed as under:- "13. Let us pause here for a while to see where did the memorandum dated 27.02.1965 come from and what did it stand for? This memorandum was issued by the Chief Settlement Commissioner under paragraph 4-A of the Rehabilitation Settlement Scheme, who had the power to exclude land from allotment where it was required for public purpose. The memorandum provided as under:- "On the representation of Forest Department it has been decided by the Chief Settlement Commissioner that evacuee lands in possession of the Forest Department whether notified or unnotified should not be allotted against claims under the provision of the West Pakistan Rehabilitation Settlement Scheme till further orders." The memorandum reproduced above provides that evacuee land in possession of the Forest Department whether notified or un-notified could not be allotted against claims under the provisions of the West Pakistan Rehabilitation Settlement Scheme, till further orders. Additional Settlement Commissioner or any other Officer in the hierarchy being subordinate to the Chief Settlement Commissioner could not nullify or neutralize its effect unless, of course, ordered otherwise by the Chief Settlement Commissioner himself. It does not give any power or authority even to the Forest Department to nullify or neutralize its effect, or read something in it what is not there. Allottee, too, could not ask for allotment of land on the condition of managing its retrieval from the Forest Department on his own when he does not figure anywhere in the scheme of the memorandum. We do not understand what prevailed on the Additional Commissioner to confirm allotment on the undertaking of the respondents or on the basis of NOC of the Forest Department, if at all it is assumed to have any existence, outside the record, when the memorandum does not provide for either of them. We thus hold that the allotment confirmed in derogation of memorandum dated 27.02.1965 cannot hold good. In the case of Muhammad Ayub and other V. The Province of Punjab (supra) this Court while dealing with an identical issue held as under:- "The suit was dismissed by the learned trial Court observing "that the plaintiffs never got possession and that many trees have been grown up there in the supervision of the Forest Department" and, therefore, the claim of the petitioners that they were in possession which was allegedly interfered with by the Forest Department, was not well founded. It was also held on account of Memorandum No.65/775-RL dated 27.2.1965 from the Chief Settlement Commissioner Lahore to the Deputy Commissioners, Sialkot, Gujranwala, Sheikhupura, Gujrat Rawalpindi, Jhelum and Attock on the subject of "disposal of evacuee land in possession of Forest Department" which was to the effect that evacuee lands in possession of the Forest Department whether notified or unnoticed were not to be allotted against any claim under the provisions of the West Pakistan Rehabilitation Settlement Scheme, the allotment of this land in favour of Muhammad Din on 1.3.1966 against his verified claim was itself not valid and the subsequent sale of this land in favour of the petitioners did not confer any title on them. The aforesaid judgment and decree was upheld by the ,learned District Judge on appeal and again by the High Court on revision. Hence this petition for leave."
---
## Page 7
14. In the case of Province of Punjab V. Muhammad Mahmood Shah (supra) the same view was restated with much greater clarity and emphasis in the paragraph which reads as under:- "9. Under paragraph 4-A of the Rehabilitation Settlement Scheme, the Chief Settlement Commissioner had the power to direct the exclusion of land from allotment where it was required for a public purpose. While so excluding by his directive dated 27.2.1965, the Chief Settlement Commissioner was acting within his lawful authority. The High Court, however, did not approve of it in a case (Civil Appeal No.155 of 1983) where the allotment had been made for the first time on 18.4.1968, by observing as hereunder--
"The main ground on which the Settlement Commissioner set aside the allotment of the petitioners was the order of the Chief Settlement Commissioner dated 27.2.1965 mentioned above restraining the district authorities from allotting such lands as were in possession of the Forest Department. The copy of the Jamabandi for the year 1905-66, however, shows that the possession over some of the land in question at that time was that of the petitioners but he did not go into the same. In any case it has recently been held by a Division Bench of this Court in Inayat Bibi etc. v. Assistant Settlement Commissioner and Chief Settlement Commissioner PLD 1978 Lah. 252 that the Chief Settlement Commissioner could not issue such instructions restraining statutory functionaries to allot land agains the claims. The letter dated 27th February, 1965 is thus without lawful authority and of no legal effect:" Another paragraph which is extremely relevant in this behalf also merits a look and thus reads as under:- 10. The decision referred to and relied upon for recording the above findings related to absolute prohibition against making the allotments and not qualified prohibition as is contained in paragraph 4-A of the Rehabilitation Settlement Scheme. Hence the very basis for the decision is incorrect. In a decision of this Court in Muhammad Auyb and others v. The Province of Punjab (1989 SCMR 1033), the allotments made on 1.3.1966 were held to be violative of the directive of the Chief Settlement Commissioner dated 27.2.1965. The law point involved in all these cases has received an authoritative pronouncement in Mian Rafi ud Din and 3 others V. The Chief Settlement and Rehabilitation Commissioner and 2 others (PLD 1971 SC 252) in the following words:- "It is necessary in my view to keep in mind that there is a distinction between the right to claim a transfer and the right to the transfer and the right to the transference of the property itself. The provisions of the Schedule indicated the persons or the category of persons who can claim the transfer of a particular property but the right to the transfer of the property accrues or becomes vested only after a final order for such transfer has been made in accordance with the provisions of the Act itself, the Schemes, the rules framed under the Act and the instructions from time to time issued. Until a final order of transfer has been made it cannot be said that the property has been disposed of and is no longer available for transfer. It is only when a property is no longer available for transfer that an order of the Central Government laying down a different mode of disposal will not affect it, on the principle that change in the mode of transfer cannot reopen a…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.