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Petitioner: Muhammad Afzal and others VS Respondent: Shahid Iqbal and 8 others
Court Name: Lahore High Court Judge(s): Ch. Muhammad Iqbal Title: Muhammad Afzal and others vs Shahid Iqbal and 8 others Case No.: Writ Petition No.33270 of 2016 Date of Judgment:2021-04-20 Reported As: 2023 CLC 471 Result: Order accordingly
JUDGMENT
JUDGMENT CH. MUHAMMAD IQBAL, J. Through this writ petition, the petitioners have challenged the order dated 11.05.2016, passed by the Additional Commissioner (Revenue), Lahore Division, Lahore whereby the revision filed by respondent No.1 was accepted and Mutation No.3232 dated 18.04.1989 in respect of land measuring 17 Kanal 10 Marla situated in Kohar Tehsil Cantt. District Lahore was set aside/cancelled and the order dated 19.09.2016, passed by the Member, Board of Revenue who dismissed the revision petition of the petitioner. 2. Brief facts of the case as contained in this petition are that one Syed Mateen Ahmad Razzaqi son of Muhammad Ahmad resident of Pir Elahi Bukhsh Colony, Karachi was recorded in Revenue Record as Tayyandar of total land measuring 17 Kanal 10 Marla comprising Khasra No.12 (03 Kanal), Khasra No.597 / 10 (04 Kanal), Khasra No.598/10 (08 Kanal 06 Marla), Khasra No.599/11 (01 Kanal 09 Marla) and Khasra No.588/297 (08 Kanal 06 Marla) situated in village Kohar Tehsil Cantt District, Lahore. He allegedly executed a general power of attorney in favour of Abdul Aziz son of Muhammad Boota vide document No.145 Bahi No.4 Jild No.646 dated 02.07.1975. The said attorney transferred the land in question to his brother Muhammad Bashir through registered sale deed No.2418 Book No.1 Volume No.319 dated 15.02.1978 registered with the Sub Registrar Lahore Cantt and Mutation No.3232 dated 18.04.1989 was sanctioned in favour of the petitioner. The other limb of the facts is that out of aforementioned land measuring 17 Kanals 10 Marlas, one Rasheed Ahmad son of Nizam Din allegedly purchased land measuring 5 Kanals 10 Marlas from the original Tayyandar namely Syed Mateen Ahmad son of Syed M. Ahmad through sale deed No.1993 dated 28.01.1988. The said Rasheed Ahmad entered into an agreement to sell of the land in question with Shahid lqbal, Respondent No.1 vide an agreement to sell 25.01.1981. Shahid Iqbal,
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Respondent No.1 filed a suit for specific performance on 05.02.2005 against Abdul Rasheed, respondent No.2 before the learned Senior Civil Judge, Lahore claiming to be owner of land measuring 05 Kanal 10 Marla. Initially the suit was dismissed vide judgment and decree dated 06.07.2009. He challenged above decision in appeal and the learned Additional District Judge vide judgment and decree dated 10.10.2009, remanded the matter to the trial court. Finally, in post- remand proceedings, the suit of the respondent No.1 was decreed on 09.07.2011 on the conceding statements of respondent No.2, Abdul Rasheed and accordingly a sale deed No.1888 dated 11.06.2014 was executed. The respondent No.1 filed an application for sanction of mutation which was turned down by the Tehsildar concerned on the ground that a mutation No.3232 dated 18.04.1989 had already been sanctioned in favor of Bashir Ahmad and name of respondent No.2 does not figure in revenue record. Respondent No.1 filed an application before the Additional District Collector (Revenue), Lahore for review of Mutation No.3232 dated 18.04.1989, which was dismissed on 01.10 2015. Against the aforesaid order, the respondent No.1 filed an appeal before the Additional Commissioner (Revenue), Lahore Division, Lahore which was accepted on 11.05.2016 and mutation No.3232 dated 18.04.1989 was cancelled. [The petitioner filed an application under Section 12(2), C.P.C. for setting aside the judgment and decree dated 09.07.2011 and also filed a suit for declaration which are still pending before the learned Civil Judge, Lahore.] The petitioner also challenged the aforesaid orders in Revision petition (ROR) which was dismissed by the Member, Board of Revenue vide order dated 19.09.2016. Hence, this writ petition. 3. I have heard the arguments of learned counsel for the parties and have gone through the record with their able assistance. 4. As per record, and entry of the mutation No.3232 dated 18.04.1989 (available at Page 91 of this petition as Annexure-U) show that property in question situated in village Kohar, Tehsil Cantt. District Lahore [detail described above] is an evacuee land owned by the Central Government (now Provincial Government) and Syed Mateen Ahmad is recorded in the column of cultivation as Tayyandar. Neither any alleged allotment order in favour of Syed Mateen Ahmad is available in the record nor any mutation/record has been provided by the parties of the lis. The petitioner claims to be the purchaser of the property in question through sale deed No.2418 dated 15.02.1978 registered with the Sub-Registrar, Cantt. Lahore executed by Abdul Aziz, the alleged general power of attorney Syed Mateen Ahmad. The respondent No.1 made a request vide letter dated 16.04.2015 to the Registrar, Central Record Room Karachi to verify the authenticity of General Power of Attorney dated 02.07.1975 allegedly executed by Syed Mateen Ahmad in favour of Abdul Aziz son of Muhammad Boota. In response to the, said letter, the Sub-Registrar, Central Record City Court, Karachi, replied vide letter dated 22.04.2015 and 02.10.2015 with the remarks that the particulars of power of attorney in question did not tally with the official record. Besides above the Anti- corruption Establishment Department on a complaint of respondent No.1, also sought verification of the aforementioned general power of attorney from concerned Sub-Registrar, Central Record City Karachi who vide letter, dated 29.01.2020 again reported that the particulars of the said alleged general power of attorney are dissimilar to the official record. For ready reference, letter dated 29.01.2020 is reproduced as under: OFFICE OF THE SUB REGISTRAR CENTRAL RECORD CITY COURT KARACHI: No. 69/SR/CR/2020 DATED 29.01.2020 The Director (Vigilance) Anti Corruption Head Quarter Punjab, Lahore. Subject: VERIFICATION OF LETTER NO. 435/SR/CR/2015 DATED 02-10-2015 Reference Your office Letter No.DAC.2529 Dated 23-01-2020. It is submitted that with reference to your office Letter quoted above, along with the Photo Copy of Search Certificate under Letter No.435/SR/CR/2015 dated 02-10-2015, on verification of the record it
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is found that the said Letter was issued by this office on the request of Iqbal Ahmed Dhudhi Advocate High Court. It is further inform you that the mentioned particulars of General Power of attorney i.e. Volume/Jild No.646 Mukhtar nama Aam No.145 Bai No.4 dated 02-07-1975, verified from the record of Sub Registrar T. Div. I, II, III, IV and V, it is found that the said particulars does not tally with the said Offices/Record/Volume. SUB REGISTRAR CENTRAL RECORD CITY COURT KARACHI (emphasis supplied) 5. Furthermore, one Samina Younas daughter of Younas Khalid filed an application on 17.09.2013 for taking legal action against fraudulent person. On above application, an inquiry was initiated by the District Registrar / District Coordination Officer, Lahore, who after completion of the inquiry, declared the alleged sale deed in favour of the petitioner as forged and fabricated document. The relevant portion of the order dated 14.09.2013, passed by the District Registrar / District Coordination Officer, Lahore is reproduced as under: C. Sale Deed No. 2419 (Sub Registrar's copy) In order to verify the genuineness of sale deed provided by Mr. Amir Shah and his Council, original record of said document was requisitioned from the Registration Branch, Aziz Bhatti Town. Mr. Peer Bukhsh, Record Keeper, appeared along with the original Jild/Volume No.319 which was examined thoroughly. Detailed report is as under: a. Volume No.319 of Book No.1 for the year 1978 contains 1 to 329 pages upon which documents bearing No.2289 dated 11.02.1978 to 2522 dated 16.02.1978 have been written by the Registration Moharrar manually as there was no system of photo copies. Hence original copy was given to the vendee after writing its entire matter manually in the official record book. b. No signatures were made on the official record copy. Hence, there are neither signatures of the parties nor Sub Registrar on the record copy of the said sale deed. c. It has been observed that handwriting style and writing ink of the documents bearing No. 2340 (P-79) to 2430 (P-180) is absolutely different from the writing style and ink of documents bearing No.2289 (P-1) to 2340 (P-78) and documents No.2432 (P-181) to 2522 (P-329) of the said volume No.319. d. Document No.2340 dated 13.02.1978 has been written on page Nos.76 to 79. The hand writing style of said document is entirely different on 1st three pages i.e. 76 to 78 as compared to the last page e. Documents No.2340 (P-79) to 2430 (P-180) have been written on the page Nos.79 to 180 by using paper duly printed for "Bahi No.1 Jild" whereas rest of the documents have been written on the papers duly printed for "Bahi No.4 Jild". f. Quality and colour of the papers of documents bearing Nos. 2340 (P-79) to 430 (P-180) are also different from rest of the papers binded in Jild/Volume No.319. g. Double punching holes in the papers of volume No.319 also verifies that the same has been re- binded after inserting above mentioned dubious papers. h. Four loose pages have also been found in the said bahi / volume No.319 which relate to the issuance of certified copy of document No.2418 dated 15.02.1978). Mr. Kashif Butt, the then Record Keeper, has clearly reported on 16-08-2004, 16-12-2004 16-04-2005 and 18-04-2005 that status of Jild / Volume No.319 is doubtful on the following grounds i) Index, Fee and Receipt books relating to volume No.319 are not available in the record room due to which authenticity of documents in volume No.319 cannot be verified. ii) The applicant Mr. Muhammad Ijaz was directed to produce the original sale deed which he could not provide. i. The above mentioned reports furnished by former Record Keeper also verify, that the status of sild / Volume No. 319 is dubious.
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D. In view of the recorded observations, it can safely be said that papers bearing page Nos.79 to 180 have been replaced from Jild / Volume No.319, relating to book No.1 of the year 1978 for entering fake and fabricated documents causing loss to the public. E. FIR No.1410/11 was discharged wrongly as document No.2419 is a fabricated and fake which has been managed by getting inserted pages in the relevant Jild / record of Registration Branch Cantt (now Aziz Bhatti Town), AND WHEREAS, the undersigned, after careful examination of the above mentioned record of Registration Branch Aziz Bhatti Town and perusal of detailed Inquiry reply and documents produced by the complainant as well as respondent, has become fully inclined that the observations furnished by the probing officer, are based upon facts. 5. NOW THEREFORE, I, Naseem Sadiq, District Registrar, Lahore agreeing with the findings and recommendation of the probing officer and after careful examination of the record at length, do hereby order and direct the Sub-Registrar Aziz Bhatti Town, as under: a. Jild / Volume No. 319 relating to book No.1 of 1978 of Registration Branch Aziz Bhatti Town (containing pages from 1 to 329 and documents bearing Nos.2289 dated 11-02-1978 to 2522 dated 16-02-1978 including 2418 and 2419) be sealed and kept in Double Lock immediately, to avoid issuance of further certified copies of fake / fabricated documents. b. To fix responsibility upon the officials by conducting detailed inquiry about involvement of staff of Registration Branch Aziz Bhatti Town, in the above mentioned forgery / fabrication in the official record. c. To enquire into the matter that why fabricated Jild / volume No.319 was kept open and the same was not sealed despite Keeper posted in the year 2004 had reported the Sub-Registrar stating therein that the said Jild is dubious due to non-availability of relevant index, fee and receipt books. Name of delinquent officials be intimated with apportionment of responsibility, after detailed enquiry. d. To further enquire that why certified copy of document No.2419 dated 13-02-1978 was issued on 21-03-2013 by the Record Keeper of Registration Branch, Aziz Bhatti Town, Lahore. District Registrar / District Coordination Officer, Lahore. (emphasis supplied) The aforementioned facts clearly establish that fraud has been committed with the State/evacuee land which is ultimately the property of public at large. It is well, settled law that fraud vitiates the most solemn proceedings and any edifice so raised on the basis of such fraudulent transaction stood automatically dismantled and any ill-gotten gain achieved by committing fraud cannot be validated under any law. Reliance in this regard is placed on Muhammad Attique v. Jami Limited and others (PLD, 2010 SC 993), Khursheed Begun and others v. Inam-ur-Rehman Khan and others (PLD 2009 Lahore 552), Nawab Syed Raunaq Ali and others v. Chief Settlement Commissioner and others (PLD 1973 SC 236), The Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others (PLD 1975 SC 331) and Lahore Development Authority v. Firdous Steel Mills (Pvt.) Limited (2010 SCMR 1097). 6. Admittedly Abdul Aziz son of Muhammad Boota the so-called general power of attorney of Syed Mateen Ahmad Tayyandar was real brother of the purchaser Muhammad Bashir. But nothing has been brought on the record to demonstrate that above said attorney had ever obtained special permission from the principal to alienate the land in favour of his real brother which material legal flaw alone is sufficient to nullify the said sale deed. Reliance is placed on a case cited as Jamil Akhtar and others v. Las Baba and others (PLD 2003 SC 494) has held that general attorney must take special permission from principal while transferring property in his own name or in the name of his close relatives. Relevant portion of the judgment (supra) is reproduced as under:
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"8. It is a settled principle of law that whenever a general attorney transfers the property of his principal in his own name or in the name of his close fiduciary relations, he has to take special permission from the principal..." Reliance is also placed on Muhammad Ashraf and 2 others v. Muhammad Malik and 2 others (PLD 2008 SC 389), relevant portion whereof is reproduced as under: "4. We have heard the learned counsel for the petitioners and examined the available record of the case. The learned single fudge in Chamber after examining the evidence on record rightly concluded that execution of power of attorney was not proved. These findings are not open to exceptions and we are not persuaded to reverse those findings. Furthermore, the learned counsel could not demonstrate from the available record that at the time of execution of power of attorney, the contents of the said document were read over and explained to the plaintiffs, who are illiterate persons. Even if it be taken that power of attorney was validly executed, petitioner No.1 had no authority and he was not competent in law to gift or sell the suit land to his son-in-law namely, Muhammad Amin. There is no evidence on record to show that the attorney before making the gift in favour of his son-in-law ever obtained the consent and permission of the plaintiffs and sought any approval from the real owner of the property, who even according to the stance of the petitioners are his principals. It is a settled law by now that if an attorney intends to exercise right of sale/gift in his favour or in favour of next of his kin, he/she had to consult the principal before exercising that right. The consistent view of this Court is that if an attorney on the basis of power of attorney, even if "general" purchases the property for himself or for his own benefit, he should firstly obtain the consent and approval of principal after acquainting him with all the material circumstances." Reliance can also be placed on Amna Rani and others v. Ashfaq Ahmad and others (2008 SCMR 805), wherein it is held as under: "3........... Moreover, there was nothing on record to show that the petitioner No.2 being general attorney had obtained any permission from the principal, later Mst. Sakina Bibi for the purpose of sale of the suit-land in favour of his wife, the petitioner No.1." Reliance can also be placed on Muhammad Taj v. Arshad Mehmood and 3 others (2009 SCMR 114). Relevant portion of the judgment (supra) is reproduced as under: "6...........It is settled principle of law that whenever a general attorney transfers the property of his principal in his own name or in the name of his close fiduciary relations, lie has to take special permission from the principal." In case of Mst. Naila Kausar and another v. Sardar Muhammad Bakhsh and others (2016 SCMR 1781), it is observed by the Hon'ble apex Court as under: "7.........It is settled law that an attorney cannot utilize the powers conferred upon him to transfer the property to himself or to his kith and kin without special and specific consent and permission of the principal. It is an equally settled law that the power of attorney cannot be utilized for effecting a gift by the attorney without intentions and directions of the principal to gift the property, with intentions and directions must be proved on record." 7. Keeping in view the aforesaid legal as well as factual aspects of the case, the Member, Board of Revenue, vide impugned order dated 19.09.2016 has rightly held that the Mutation No.3232 was got sanctioned on the basis of bogus/fictitious documents. The revenue hierarchy has passed concurrent findings against the petitioner which are based on cogent reasons and therefore impugned orders do not require any interference by this Court as such the instant petitioner shall be considered to have been rejected. 8. Now adverting to the case of respondents No.1 who claims to be the purchaser of property measuring 05 Kanal 10 Marla (bearing Khasra No.597/10 (04 Kanal), Khasra No.598/10 05 Marla and Khasra No.598/11 01 Kanal 05 Marla), out of the land in question in this writ petition from Rasheed
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Ahmad, respondent No.2, through an agreement to sell dated 20.05.1981, whereas record shows that at the time of execution of sale deed in favour of Abdul Rasheed respondent No.2, Syed Mateen Ahmad was not the owner/allottee of the suit land and he was denuded of any authority or title to transfer the same any further. Respondent No.1 filed a suit for specific performance against the respondent No.2 which was decreed through a consent decree on 09.07.2011 against which the petitioner filed an application under Section 12(2), C.P.C. which is still pending before the learned Civil Judge, Lahore. So far as alleged sale deed No.1993 dated 27.01.1981 (available at page 44 of this petition) is concerned, it was allegedly registered with Sub-Registrar Saddar whereas the land is situated in jurisdiction of Sub-Registrar Cantt. Lahore which offend the provisions of Section 28 of the Registration Act, 1908, whereby Sub-Registrar, Saddar was not competent to register the said sale deed of the property B beyond his territorial jurisdiction, as such the said-sale deed is devoid of any legality. Reliance In this regard is placed on the cased titled as Abdul Majeed and 6 others v. Muhammad Subhan and 2 others (1999 SCMR 1245) wherein the Hon'ble Supreme Court of Pakistan has held as under: 5. The learned counsel for the appellant when began his arguments and attempted to critize the finding of the High Court to the effect that the disputed sale-deed could not be registered in the office of the Registrar at Lahore as it related to the land located in a village of District Bahawalnagar and on this count the sale-deed was invalid and void, then at that time Mr. Gulzarin Kiani, Advocate appearing for the respondent stood up and conceded that the sale-deed could be registered at Lahore and that the finding of the High Court on this point is not correct. He, however, stressed that the copy of the sale-deed should have been sent to the Registrar of the District where the property was situated as in absence of that it could not satisfy the requirement of a valid notice which is basic purpose of registration of document. We have noted that the learned Judge in the High Court made sufficient efforts to resolve this controversy as they have referred extensively to the case-law on this point, and have elaborately discussed it at sufficient length. This labour could have been avoided if they had been properly assisted and this point had been conceded before them, if it could not be legally disputed. In any case, we are not required to go into the validity of this argument as it was not disputed before us from the respondent's side. However, we agreed with Mr. Kiani, that it could not form valid notice to the public as it had not been sent to the office of the Registrar/Sub-Registrar of the District where the property covered by the sale deed, was situated. Reliance in this case is placed on Muhammad Mushtaq and another v. Bashir Ahmad Chaudhary and another (PLD 1991 Lahore 400), the relevant portion whereof is reproduced as under: 23. That the provisions of this section are mandatory in character is made manifest by the use of the expression "shall be presented for registration" in subsection (1) read with rules 116 and 119 of the Registration Rules. Rule 116 requires the registering officer to examine the document to see "whether he has authority to register it". That rule divides documents into four classes 'for the purposes of jurisdiction.' Rule 119 ordains that the registering officer 'shall return it to the presenter.... and inform the presenter at what office he can obtain registration, if he finds 'he has no jurisdiction to register a document presented to him'. Thus, both section 28 and rule 119 use the word 'shall' prima facie the expression "shall" when it appears in a Statute "is used as a term of art to impose a duty to do what is prescribed, not a discretion to do it or not according to whether it is reasonably practicable to do it or to do something like it instead". (Lord Diplock in Grunwick Processing v. ACAS (1978) I All ER 338, 360, 361). Also, by providing that the 'validity' of a document by a party thereto shall not be questioned, subsection (2), clause (a), obviously proceeds on the basis that but for this provision, even a document mentioned in clause (a) would have been invalid. Therefore, by necessary implication also, registration of a document affecting immovable property not situate within the limits of a sub-district where it is registered is invalid.
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24. On general principles also; the same result follows. The section provides for the territorial jurisdiction for the Sub-Registrar. In the administrative law, jurisdiction means legal authority or power. And territorial jurisdiction is the power of a tribunal or authority considered with reference to the territory within which it is to be exercised. It means the geographical limits within which that authority must act. (Jurisdiction of Courts by Horace Hawes, section 52). The general principle is that a Court created within and for a particular territory is confined in the exercise of its powers to the limits of such territory. To quote from John D. Works' "Courts and their jurisdiction", "the authority of every judicial tribunal and the obligation to obey it are circumscribed by the limits of the territory in which it is established". That is equally true of the power of an executive or administrative officer like a Sub-Registrar. It must necessarily follow, therefore, that a statutory authority created within and for a particular territory acts without jurisdiction if it exercises jurisdiction beyond the geographical limits set for it. In this behalf, Sindh Employees Social Security Inst. v. Mumtaz Ali Taj (PLD 1975 SC 450 at 456) may be referred to. There a Labour Court's territorial jurisdiction was confined to industrial disputes of Hyderabad and Khairpur Division but an application relating to an industrial dispute of the territory of Karachi Division was made to that Court, it was held that the decision of that Court was wholly without jurisdiction and therefore a nullity. 25. Indeed a Statute may provide exceptions as does section 21 of the C.P.C. 1908 which section says that "no objection as to the place of suing shall be allowed by any appellate or revisional Court unless such objection was taken in the Court of first instance". But the Registration Act makes no such exception in regard to a document like the one we are here concerned with." 9. Respondent No.2 claims to be purchaser of the property from Syed Mateen Ahmad but the record shows that he had not been granted any proprietary right…
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