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Petitioner: MUHAMMAD HAROON VS Respondent: PROVINCE OF SINDH through Secretary (L.U.) Board JUDGMENT
Court Name: Sindh High Court Judge(s): Aziz-ur-Rehman, Muhammad Faisal Kamal Alam Title:MUHAMMAD HAROON vs PROVINCE OF SINDH through Secretary (L.U.) Board
JUDGMENT
Reported As: 2020 YLR 408 Result: Petition dismissed Judgment JUDGMENT AZIZ-UR-REHMAN, J.---Through this Constitutional Petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner herein viz. Muhammad Haroon son of Muhammad Ameen [Respondent No.1 in Appeals before the Revenue Forums] `inter-alia' wants this Court to declare the `impugned order' dated 16.04.2015 [Annexure 'A' to the MoP], passed by Additional Deputy Commissioner-I, BADIN besides, as being against the law of 'natural justice', illegal, without lawful authority and of no legal affect. The prayers sought by the Petitioner in the `Memo of Petition' [In short MoP], read as follows:-- "a. To declare the impugned order dated 16.04.2015 passed by respondent , No.2 which is ex parte, against the principle of natural justice, illegal, void, mala fide, coram non judice without lawful authority and have no legal effect. b. To restrain Mukhtiarkar Matli to implement the impugned order dated 16.04.2015 passed by Additional Deputy Commis sioner-I, Badin, further he may also be restrained not to issue Sale Certificate, or create third party interest with respondent No.5 by he, self, agent, servant, subordinates, assign ees, attorney etc. in any manner whatsoever till decision of petition. [Underlining is ours] c. Any other relief which this Honourable Court deem fit and proper be awarded." 2. The brief relevant facts leading to the filing of the instant Petition are that; the Petitioner herein, claims to be a `Zamindar' and 'small Khatedar' by profession having agricultural land bearing Survey Nos.117/2, 3 and 4 area 11-35 acres, Survey No.120/3 area 4-00 acres, Survey No.121/4 area 3-32 acres, 150/1 and 2 area 4- 38 acres, total area 24-25 acres [50 paisa share] which comes to 12-12-1/2 acres, situated in Deh Talli, Taluka Matli, District Badin [hereinafter called land in question]. Per Petitioner's version, Block No.94/AB and others admeasuring 60-15 acres, situated in Deh Talli, Taluka Matli, was on the Khata of Respondent No.5' s
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father namely Muhammad Younus Khan Pathan who during his life time gifted his entire aforementioned land / immovable property[ies] to his L.Rs including the Respondent No.5 lady herein, vide entry No.44 of VF VII-B. 3. As averred in the Memo of Petition, the Petitioner herein, is uncle of Respondent No.5 lady herein. Respondent No.5, who is niece of the Petitioner, according to Petitioner's version, was living/residing with the Petitioner since, her childhood [i.e. when her age was 5-6 years], and attained the age of puberty while, she was residing with family members of the Petitioner. 4. Per `assertions' made in MoP, the Petitioner, on account of his wife's death, contracted second marriage, due to which, Respondent No.5 lady herein, became un-happy thus, she, thereafter, started living in the house of Petitioner's son-in-law. As averred, in the Memo of Petition, the son-in-law of the Petitioner, has no cordial relationship with the Petitioner. The Respondent No. 5 lady herein [Appellant in Appeals before Revenue Forums], as per Petitioner's version, on the 'instigation' of Petitioner's son-in-law, opted to move an Appeal under Section 161 of Sindh Land Revenue Act, 1967, before the Assistant Commissioner, Matli, in 2015, for cancellation of Gift claimed to be made orally by Respondent No.5 lady herein, in favour of the Petitioner i.e. sometime, in the years, 1990-1991. The Assistant Commissioner / Assistant Collector Grade-I, Taluka Matli, called a report from Mukhtiarkar and also recorded the statement of Respondent No.5 lady herein namely Mst. Parveen Akhtar daughter of Muhammad Younus Khan inter alia in respect of the so-called 'confirmation' and `alienation' of gift, claimed to be made, by Respondent No.5 lady herein, in favour of Petitioner. 5. The main stand of the Petitioner herein [Respondent No.] in Appeals before the Revenue Forums], before the learned Additional Deputy Commissioner, Badin, was to the affect and extent that the Appellant/Respondent No.5 lady herein, about 24 years back has orally gifted her agricultural land [50 Paisas share], which comes to 12- I2-1/2 acres, situated in Deh Tali, Taluka Matli, District BADIN [land in question] in favour of the Petitioner who since then, is in cultivating possession of the land in question and paying land revenue etc. Per Petitioner's version, the gift in favour of the Petitioner is complete in all respects and no fraud etc., as alleged by Respondent No.5 lady herein, has been committed. Moreover, the land in question, has already been sold out to one Kambho Khan son of Darya Khan through a registered sale deed dated 21.01.2015. The stand of the Petitioner, as claimed, has also been supported by one Muhammad Yaseen [who as stated to be step brother of Resporident No.5 herein]. 6. The Respondent No. 5, per Petitioner's claim, was just like a daughter, when a Gift was made in her favour by her father viz. Muhammad Younus Khan Pathan and that too when she was residing in the house of the Petitioner. Per Petitioner's version, at the time of 'GIFT' by her father viz. Muhammad Younus Khan Pathan, Respondent No.5 lady herein, then was major. The Respondent No.5 viz. Mst. Parveen Akhtar, as claimed by the Petitioner, on account of 'love' and `affection' through a 'gift statement' allegedly, recorded in presence of witnesses had gifted her share in favour of the Petitioner, where-upon, an Entry No.48 dated 27.10.1991, was made in VF VII-B. According to the Petitioner's claim, such 'alienation of gift' is not only valid but also in accordance with Mohammadan Law, as such, the same is an 'irrevocable Gift'. 7. In contra, the case of Respondent No.5 lady herein, as pleaded/narrated in both the Appeals filed under Section 161 of Sindh, Land Revenue Act, 1967, before the forums i.e. [i] Assistant Commissioner/Assistant Collector GRADE-I, Taluka Matli and [ii] Additional Deputy Commissioner-I, BADIN, was that an agricultural land bearing S.No.117 and others, admeasuring 24-25 acres, situated in Deli Tali, Taluka, Matli, District Badin [00-50 paisa share] of which comes to 12-12-1/2 [land in question] belonging to Respondent No.5 herein, was originally, owned by the father of the Respondent No.5 namely Muhammad Younus. Upon his death the lotikhata' was changed/ mutated in favour of his legal heirs vide Entry No.44 DF VII-B. The Respondent No.5 herein [Appellant before Revenue forums], sometime in the year, 2015, came to know that the `khata' of the land in question has been changed to the name of Petitioner herein, on the basis of alleged 'gift statement'. Per Respondent No.5's version, the Petitioner herein, ex-facie, in collusion with Revenue staff has fraudulently changed the Khata vide Entry No.48 dated 27.10.1991, in his name. The change of
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Khata per Respondent No.5's stand besides, bogus is liable to be cancelled. The Respondent No.5 lady, thus constrained to file an Appeal under Section 161 of Sindh Land Revenue Act, 1967, before the Respondent No. 3 herein [Assistant Commissioner/Assistant Collector Grade-1]. The Respondent No.3 herein, nevertheless, dismissed the aforesaid appeal filed by Respondent No.5 lady, on 10.03.2015. The 'relevant portion' of Order dated 10.03.2015, reads as follows:- "The Mukhtiarkar (Revenue) Matti under his letter No.AM/1 10 dated 03.03.2015 has reported that he has verified the relevant record and visited the site, which reveals that applicant Mst. Parveen Akhtar gifted the land in question to Muhammad Haroon and same land is in cultivating possession with Muhammad Haroon since the gift. He is paying land revenue etc. At present Muhammad Haroon sold out the same land to other person. He further reported that the statement book of Deh Tali (old) is missing. [Underlining is ours] From perusal of relevant revenue record, objections filed by respondent, statement of witness namely Muhammad Yameen and report of Mukhtiarkar (Revenue) Matli, it appears that appellant gifted the land in question to respondent in the year 1991. The respondent Muhammad Haroon remained in possession of that land. Now after 24 years period appellant challenged the gift entry to which one mandatory ingredient is completed. However , as for statement/ declaration and acceptance Mukhtiarkar has reported that the old record is missing. Since the gift challenged is old, one time barred and not maintainable. Henc e the appeal is hereby dismissed." [Underlining is ours] 8. The Respondent No.5 herein, thus again feeling 'aggrieved' and `dis satisfied' with order dated 10.03.2015, passed by the Assistant Commissioner/ Assistant Collector Grade-I, Matli [Annexure 'B' to the MoP], filed 2nd Appeal under Section 161 of Sindh, Land Revenue Act, 1967, before the Additional Deputy Commissioner-I, Badin, with a prayer for setting aside the 'impugned order' of 10.03.2015. The learned Additional Deputy Commissioner, nonetheless, 'allowed' the aforesaid Appeal filed by Respondent No.5 herein, under Section 161 of Sindh Land Revenue Act, 1967, vide 'Impugned Order' dated 16.04.2015 herein [Annexure 'A' to the MoP], whereby , not only Entry No.48 dated 27.10.1991, made in favour of the Petitioner herein, on the basis of some alleged GIFT , but also other subsequent entry[ies] was/were cancelled. Besides, the share of lady Respondent No.5 herein [Appellant before the Revenue Forums], was ordered to be maintained vide Entry No.44 of VF VII-B of Deh Tali, Taluka Matli. 9. The `Impugned Order' dated 16.04.2015 [Annexure 'A' to the MoP], per Petitioner's stand is illegal, void and mala fide, as the petitioner herein, besides, being a `lawful owner' of the land in question, has already obtained a `SALE CERTIFICATE' from the concerned Mukhtiarkar and, as stated, on the strength of such 'SALE CERTIFICATE', the Petitioner herein, has sold out the 'land in question' to one Kambho Khan son of Darya Khan Mari through a Registered Sale Deed dated 21.01.2015. Further, the Petitioner herein, as claimed, has also handed over the physical possession of the land in question to the said purchaser of land. The alleged sale out of the 'land in question' it appears was also disclosed before the Assistant Commissioner/ Assistant Collector Grade-I Taluka Matli, as well as, the Additional Deputy Commissioner-I, BADIN, in the two [2] Appeals filed by RESPONDENT No.5 herein, under Section 161 of Sindh Land Revenue Act, 1967. 10. Despite disclosure of the alleged `SALE' to one Kambho Khan son of Darya Khan Mari on 21.01.2015, Respondent No.5 herein, however, did not take any step to join the, said purchaser in the Appeals filed under Section 161 of Sindh Land Revenue Act, 1967, before Revenue Forums though the said person was a 'necessary' and 'proper party'. Even both the learned Assistant Commissioner/Assistant Collector Grade-I, Taluka Matli and learned Additional Deputy Commissioner-I Badin, have failed to take any pain and/or otherwise, consider this aspect of the matter for an `effective determination' of the dispute over the 'title' of the land in question. Moreover, while, passing the impugned order dated 16.04.2015, by the Additional Deputy Commissioner-I Badin, no any opportunity of hearing was provided to the Petitioner herein [Respondent No.1 in Appeal before learned Additional Deputy Commissioner-I], BADIN. 11. Per assertions made in MoP, 'no notice' was served upon the Petitioner herein, in Appeal under Section 161 of Sindh Land Revenue Act, 1967, filed by Respondent No.5 herein, before learned Additional Deputy
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Commissioner-I, Badin, as such, the 'impugned order' dated 16.04.2015, according to Petitioner's stand has been passed against the settled 'principle of natural justice' thus the same is liable to be set-aside. Moreover, the Appeal filed by the Respondent No.5 herein, before the Assistant Commissioner Grade-I, Matli, under Section 161 of Sindh Land Revenue Act, 1967, as urged, by the Petitioner, was also hopelessly time-barred. Per Petitioner's stand, even the 2nd Appeal filed by Respondent No.5 herein under Section 161 of Sindh Land Revenue Act, 1967, was not only in-competent in law but also not maintainable. Nevertheless, it was entertained and decided on 'merits' and that too without any notice to the Petitioner herein. The 'Impugned Order' passed on 16.04.2015, per Petitioner's stand is/was not only `coram non-judice' but seemingly, has also been passed without any lawful authority. Moreover, Respondent No.5 lady herein, has taken self-contradictory and self-conflictory pleas before two Revenue Forums i.e. [i] Assistant Commissioner Grade-I, Matli and [ii] Additional Deputy Commissioner Grade-I, Badin which, as urged by the Petitioner, under the law of Land Revenue Act, 1967, are not permissible. The learned Additional Deputy Commissioner-I, Badin, nevertheless, allowed/decided the 2nd Appeal under Section 161 of Sindh Land Revenue Act, 1967, in favour of Respondent No.5 herein on merits and consequently, cancelled the long standing, entries of 1990-1991, in favour of the Petitioner which, as alleged, by the Petitioner were based on irrevocable alienation of gift. 12. The powers, thus exercised by the Additional Deputy Commissioner-I, Badin, in the appeal under Section 161 of Sindh Land Revenue Act, 1967, are nothing but an abuse of authority, as the "disputed questions of fact 'regarding title' and long standing entries made in the record of rights could not be determined/altered on the ground of `fraud' etc. in Proceedings of 'Summary nature' by a Revenue Officer/Revenue Court, except through a decree of a Civil Court. The powers assumed by the Additional Deputy Commissioner-I, in the case in hand, are not vested in him, as such, the 'impugned order' dated 16.04.2015 [Annexure 'A' to the MoP], besides, being not sustainable under the law, is liable to be set aside. For convenient purpose, the 'relevant part' of Order dated 16.04.2015, is reproduced h erein:- "Perusal of record viz. entry No.44 of VF-VII B shows that Mohammad Younis has gifted his holding to his family including applicant 0-50 paisa share in B.Nos.117/2,3,4, 120/3, 121/4, 150/1,2 of Deh Tali Taluka Math. Further entry No.48 of VF VII of deh Taluka Matti appears that same land entered in revenue record in the name of Mohammad Haroon son of Muhammad Ameen on the basis of alleged gift statement in the year 1991. Perusal of order of learned Assistant Commissioner shows/reveals that he has not made proper enquiry in the matter without fact knowing, passed impugned order. In view of the statement of lady appellant in which lady appellant clearly stated that she never gifted his alienated gift land to her maternal Uncle Mohammad Haroon son of Muhammad Ameen on the alleged gift statement and never appear before any Revenue forum, it appears that respondent has committed fraud and changed land in his favour through crook method. Therefore, I cancel the entry No.48 dated 27.10.1991 of VF VII B of deh Tali Taluka Matti in respect of alleged gift and subsequent entries if any with further order to maintain share of lady appellant vide entry No.44 of VF VII B of deli Tali Taluka Math." [Underlining is ours] 13. The Petitioner herein, [Respondent No. 1 before Revenue Forums] in two [2] Appeals filed by Respondent No.5 lady, under Section 161 of Sindh Land Revenue Act, 1967, before the Revenue forums i.e. [i] Assistant Commissioner/Assistant Collector Grade-I, Taluka Matli and [ii] Additional Deputy Commissioner-I, Badin thus, feeling `aggrieved' and `dis-satisfied' with impugned Order dated 16.04.2015, has approached this Court through the instant Petition inter alia with a 'prayer' that not only the 'impugned order' dated 16.04.2015 [Annexure 'A' to the MoP], whereby , Entry No.48 dated 27.10.1991, in favour of the Petitioner herein, was cancelled, be set-aside but the subsequent entries which were also cancelled through the 'Impugned Order' be declared as `illegal', 'void', `mala fide' and `corum non-judice'. Besides, a restraining order against the concerned Mukhtiarkar , regarding issuance of any 'SALE CER TIFICA TE' and/or creating any 3rd party's interest by/or at the behest of Respondent No.5 lady, her agents, servants, subordinates, attorney etc. in any manner whatsoever , was also sought in the Memo of Petition i.e. till the decision of the instant Petition in hand.
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14. On 22.04.2015, when the above Petition came-up before the Court then while, granting the urgent application, the following order was passed:- "3. Petitioner has challenged the ex parte order dated 16.4.2015 passed by respondent No.2. Learned counsel for petitioner argued that without notice the order has been passed and respondent No.3 cancelled the entries of gift. It is further contended that property in question was gifted by respondent No.5 to petitioner. Lateron after passing 23-years, she has denied the oral declaration of gift. Issue notice to respondent as well as A.A.G. for 28.05.2015. In the meanwhile parties are directed to maintain status quo." [Underlining is ours] 15. Later on, Respondent No.5 lady, upon service, filed her 'Objections' in response to the 'Memo of Petition' [In short MoP], as well as, 'Counter Affidavit' in answer to the Application, under Article 199 [4-A], of the Constitution of Islamic Republic of Pakistan, 1973, wherein, the alleged claim and stand taken by the Petitioner herein [Respondent No.1 before Revenue Forums], regarding the alleged 'Oral Gift', was specifically and vehemently denied. In the 'Parawise Comments/ Objections' duly supported with an `affidavit' of Respondent No.5 lady, the Petitioner herein, was called to be a greedy person. Per Respondent No.5's version, the Petitioner herein, continuously kept hi. evil eyes over the `land in question' owned and belonging to Respondent No.5 lady. The Petitioner by way of playing 'fraud' and cheating with Respondent No.5 lady herein, in collusion with Revenue staff managed to change the `khata' of Respondent No.5 lady, in his favour on the basis of a bogus claimed Oral Gift. Per Respondent No.5's stand, the 'land in question' was never gifted orally or otherwise, to the Petitioner herein or anyone else. The pleas/stand taken by Respondent No.5, in her 'Para-wise Reply'/'Objection', nevertheless, was/were denied/controvered by the Petitioner herein, by means of filing an `Affidavit-in-Rejoinder'. 16. In the Petition in hand, official Respo ndent No.3, has also filed 'para wise comments' for self and on behalf of Respondent No.1 vide A.A.G's statement dated 18.06.2015. From the 'para-wise comments' of Respondents Nos.1 and 2, Paras 4, 10 and 1 1, being relevant are reproduced here-in-below respectively:-- "Para-4: That the contents of para No.4 regarding relationship of petitioner and respondent No.5 are denied due to lack of knowledge. However, respondent No.5 appeared in the Court of answering respondent and recorded her statement that she never appeared before the Mukhtiarkar nor recorded such statement of gift in favour of petitioner. She further contended that the petitioner was managing and looking after the disputed land on behalf of her. Apart from this the book statement of gift on the basis khata made in favour of petitioner is not available in the office of Mukhtiarkar Revenue which appears that respondent No.5 has not gifted land and entry of gift land maintained in the revenue record by fouls means and is void and null. [Underlining is ours]" "Para-10: The contents of para-10 is replied in the scene that the notice were repeatedly issued upon the petitioner but he did not turn out to attend the Court. Meanwhile, the respondent No.5, recorded her statement denying the alienation of gift made by him to the petitioner which was managed fraudulently in collaboration and joining hand with the lower revenue forum. [Underlining is ours]" "Para-11: That the contents of the petition as stated are not correct hence denied in as much as when the petitioner saw that respondent No.5 came in action for cancellation of gift he, therefore, managed sale against the suit land and exhorted money. It is further submitted that petitioner has knowledge of appeal filed by respondent No.5 in this Court as the tapedar of the beat had gone for service of notice regarding date of hearing there petitioner was not found but the son of petitioner Muhammad Haroon refused to get it and the Mukhtiarkar (Revenue) Matti sent the said notice un-served for this office record. This practice of issuance of notice done thrice time but in spite of knowledge filing appeal against the order of AC Matti and the hearing, the petitioner remained intentionally absent. [Underlining is ours]" 17. Likewise, Paras-3, 5 and 11 from the `para-wise comments' filed by official Respondent No.4 vide statement of learned A.A.G dated 19.06.2015, are also very much relevant, as such, the same are also reproduced here-in-
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below respectively:- "Para-3: It is correct to say that entry No.44 of V.F VII-B, Deh Tali, Taluka Matti shows gift by Muhammad Younis son of Muhammad Azeem, in favour of his family members. [Underlining is ours] Para-5: As per record the gift entry No.48 dated 27.10.1991 is exist in V.F. VII-B of Deh Tali Taluka Matli. [Underlining is ours] Para-1 1: As per note put at entry No.48 Khatedar Muhammad Haroon (the petitioner) sold out the said land to one Kambho Khan son of Darya Khan Matti. The Khata was also kept in the record vide entry No.62 dated 19.03.2015 of V .F VII-B Deh T ali Taluka Matti. [Underlining is ours]" 18. Lastly , on 29.10.2018, when the instant Petition came-up before us then, we heard Mr. Jagdish R. Mullani, learned counsel for the Petitioner , Haji Khan Muhammad Kashmeri, learned counsel for Respondent No.5 lady and Mr. Allah Bachayo Soomro, learned Additional Advocate General Sindh and also gone through the available record with their valuable assistance. 19. Mr. Jagdish R. Mullani, learned counsel for the Petitioner while, advancing his arguments referred to the GIFT Entry No.48 dated 27.10.1991, existing in V.F VII-B of Deh Tali, Taluka Matli, allegedly made by Mukhtiarkar Matli/Assistant Collector, Matli in favour of the Petitioner herein, submitted that, no doubt, such Gift Entry No.48 dated 27.10.1991 has later on, been challenged by Respondent. No.5 lady herein, before Assistant Commissioner, Matli/Assistant Collector Grade-I, Matli, but as urged, after a lapse of 24 years. The 'Oral Gift' on the basis whereof, such Entry No.48 has been made in the record of rights, nevertheless, was declared as false and bogus through the Impugned Order dated 16.04.2015. The 1st Appeal filed by Respondent No.5 lady herein, against the Gift Entry No.48 dated 27.10.1991, before the Assistant Commissioner/ Assistant Collector Grade-I, Taluka Matli, it is needless to say, was dismissed vide order dated 10.03.2015 [Annexure 'B' to the MoP]. The 2nd Appeal under Section 161 of Sindh Land Revenue, Act, 1967, filed by Respondent No.5 lady herein, however, was allowed by learned Additional Deputy Commissioner-I, Badin on 16.04.2015. [Annexure 'A' to the MoP] i.e. the Impugned Order. 20. According to Mr. Jagdish R. Mullani, in terms of 1st proviso to Section 161 of Sindh Land Revenue Act, 1967, when an Original order is `CONFIRMED' in 1st appeal then, a further Appeal shall not lie. Thus, 2nd Appeal under Section 161 of Sindh, Land Revenue Act, 1967, before the learned Additional Deputy Commissioner-I, Badin, as urged by Mr. Jagidsh R. Mullani, was in-competent in law. The `impugned order' of 16.04.2015, as such, is not only coram non-judice, without jurisdiction/lawful authority but also is of no legal affect. In support of his contentions, reliance was placed on the cases of Khyber Tractors (Pvt.) Ltd. through Manager v. Pakistan through Ministry of Finance, Revenue and Economic Affairs, Islamabad [PLD 2005 SC 842] and S.M. Waseem Ashraf v. Federation of Pakistan through Secretary, Ministry of Housing and Works, Islamabad and others [2013 SCMR 338]. The relevant portions therefrom, respectively, read as follows:- [a] PLD 2005 SC 842 "19 because the question of jurisdiction of a forum is always considered to be very important and any order passed by a Court or a forum, having no jurisdiction, even if is found to be correct on merits, is not sustainable. The jurisdiction of a Court lays down a foundation stone for a judicial or quasi-judicial functionary to exercise its powers/authority and no sooner the question of jurisdiction is determined in negative, the whole edifice, built on such defective proceedings, is bound to crumble down as held in the case of Pearey Lal v. Nanak Chand (AIR 1948 PC 108), Pervez Iqbal v.…
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