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Petitioner: SALEH MUHAMMAD VS Respondent: BAZ MUHAMMADHonorable Justice Qazi Faez Isa and Abdul Qadir MengalMuhammad Riaz Ahmed,Abdul Aziz Khan Khilji
2012 M L D 1907
[Balochistan]
Before Qazi Faez Isa, C.J. and Abdul Qadir Mengal, J
SALEH MUHAMMAD and 4 others---Petitioners
Versus
BAZ MUHAMMAD and 2 others---Respondents
Constitutional Petition No.83 of 2009, decided on 16th August, 2012.
(a) West Pakistan Land Revenue Act (XVII of 1967)---
----S.42---Mutation, entries in---Evidentiary value---Such entries for being meant only for fiscal purposes would not be equivalent to title.
Muhammad Iqbal v. S.A.M. Khan PLD 1970 Lah. 614 ref.
(b) West Pakistan Land Revenue Act (XVII of 1967)---
----Ss.44, 53, 161, 164 & 172---Registration Act (XVI of 1908), S.60---Specific Relief Act (I of 1877), Ss. 39 & 42---Qanun-e-Shahadat (10 of 1984), Art. 100---Civil Procedure Code (V of 1908), S.9---Constitution of Pakistan, Art. 199---Constitutional jurisdiction---Scope---Mutation attested on basis of registered power of attorney---Owner seeking cancellation of suit mutation and subsequent mutations/sale deeds made on its basis alleging such power of attorney to be forged after thirty years of its execution and eighteen years of death of attorney---Powers of Executive District Officer (Revenue) and Land Commissioner to grant such relief to owner---Scope---Presumption of validity was attached to such power of attorney for being thirty years old---Suit mutation and subsequent mutations/sale-deeds made on its basis could be cancelled or declared as void only by competent civil court, whereas Land Commissioner had no jurisdiction to undo such documents---Assumption of jurisdiction by Land Commissioner and cancellation of suit mutation would be a major error---Constitutional jurisdiction of High Court could be invoked to correct such illegality---Principles.
Rehman Khan v. Asadullah Khan PLD 1983 Quetta 52; Haliman Bibi v. Muhammad Bashir 1989 CLC 1588; Muhammad Razaq v. Shamim Akhtar 2006 CLC 697; Anjum Mehmood v. Rizwan Ahmed 2006 CLC 876; Amir Bibi v. Atta Muhammad Khan 1992 SCMR 553; Abdul Qadir v. Allah Wasaya 1997 CLC 311; Atta Muhammad v. Nasir-ud-Din PLD 1993 Pesh. 127; Abdul Sattar Khan v. Rafiq Khan 2000 SCMR 1574; Muhammad Younus Khan v. Government of N.W.F.P 1993 SCMR 618; General Manager, Pearl Continental v. Farhad Iqbal PLD 2003 SC 952; Muhammad Faraz v. Abdul Rashid Khan 1984 SCMR 724; Muzamil Khan v. Consolidation Officer PLD 2005 Lah. 422; Imran Shafique v. Zulfiqar Ahmed 2007 MLD 192; Talat Jahan Burki v. Member, Board of Revenue 2005 CLC 269; Journalist Publication (Pvt.) Ltd v. Mumtaz Begum 2004 SCMR 1774; Jamil Akhtar v. Las Baba PLD 2003 SC 494; Muhammad Fazal v. Khadim Hussain 1998 MLD 1658; Abdul Ghani v. Shaheen 2007 SCMR 834; Yousaf Ali v. Muhammad Aslam Zia PLD 1958 SC 104; Atta Muhammad v. Allah Wasaya 2004 CLC 1665 and Mohd. Iqbal v. S.A.M. Khan PLD 1970 Lah. 614 ref.
Rasta Mal Khan v. Nabi Sarwar Khan 1996 SCMR 78; Hakim Khan v. Nazeer Ahmad Lughmani 1992 SCMR 1832; Administrator-General Punjab v. M. Stanley Charles William PLD 1986 Lah. 333 and Noorwar Jan v. Senior Member Board of Revenue N.-W.F.P. PLD 1991 SC 531 ref.
(c) West Pakistan Land Revenue Act (XVII of 1967)---
----S.42---Void mutation---Limitation---No limitation period would come in way of such mutation.
(d) Constitution of Pakistan---
----Art.199---Constitutional jurisdiction of High Court---Scope---High Court could not determine disputed questions of fact in Constitutional jurisdiction.
(e) Constitution of Pakistan---
----Art.199---Constitutional jurisdiction of High Court---Scope---Such jurisdiction could be invoked to correct an illegality---Illustration.
Noorwar Jan v. Senior Member, Board of Revenue N.-W.F.P. PLD 1991 SC 531 ref.
Muhammad Riaz Ahmed for Petitioners.
Abdul Aziz Khan Khilji, Additional Advocate General for official respondents, Chaudhary Arshad, Advocate for respondent No.1 and Sardar Ahmed Haleemi for Respondents Nos. 2, 3 15 and 16.
Date of hearing: 1st, August, 2012.
JUDGMENT
QAZI FAEZ ISA, C.J.---The origin of this matter lies in the application submitted by Baz Muhammad (respondent No.1) on November 10, 2007 before the Executive District Officer ("EDO") (Revenue) Quetta (respondent No.17) alleging that he had not executed the power of attorney dated March 28, 1977 ("the power of attorney") in favour of his father, namely the late Ghulam Nabi. The power of attorney was in respect of two properties respectively bearing Khewet No.85, Khatooni No.117, Survey No.4276 admeasuring 2,084 square feet ("the first property") and Khewet No.95, Khatooni No.123, Survey No.7969/4277 admeasuring 620 square feet ("the second property"). The late Ghulam Nabi died in the year 1989, leaving behind eight sons. Three of the sons were from his first wife and five sons from his second wife. The power of attorney was jointly executed by Baz Muhammad and Lal Muhammad (respondent No.2), the real brother of Baz Muhammad, both being sons from the first wife. The remaining son from the first wife is Abdul Bari (respondent No.3).
2. The said Ghulam Nabi on the basis of the power of attorney executed the following mutations in respect of the two properties:
Mutation No. Date In respect of
1080 24-1-1978 the first property
1057 23-1-1978 the second property
Baz Muhammad denied executing the power of attorney and challenged his father's power to execute mutation in respect of the first property. He however did not challenge the use of the same power of attorney in respect of effecting mutation in respect of the second property. The abovementioned application submitted to EDO (Revenue) (hereinafter "the Application") was not on the record, therefore, it was permitted to be produced by consent of all the learned counsel. The Application reads as under:--
The application called upon the EDO (Revenue) to conduct an enquiry regarding the power of attorney, whilst Baz Muhammad reserved his right to institute civil and criminal cases.
3. The EDO (Revenue) upon receipt of the application from Baz Muhammad called for report from the Sub-Registrar, District Quetta as to whether the power of attorney had been registered with him. The Sub-Registrar confirmed that the power of attorney had been registered by the Sub-Registrar Quetta on March 29, 1977. Therefore, EDO (Revenue) vide order dated November 22, 2007 dismissed the Application of Baz Muhammad, who then filed 'appeal' under section 161 of the Balochistan Land Revenue Act, 1967 (hereinafter "the Act") before the EDO (Revenue), but the same was dismissed on May 3, 2008. In view of the fact that copy of the said appeal had not been filed we permitted Mr. Muhammad Arshad Chaudhary, the learned counsel for Baz Muhammad, to place the same on record by consent. Admittedly, in the appeal the EDO's earlier order dated November 22, 2007 was neither mentioned nor assailed. Thereafter, a review application under section 163 of the Act, was filed before EDO (Revenue) seeking review of his order dated May 3, 2008, which too was dismissed vide order dated July 14, 2008.
4. That against orders dated May 3, 2008 and July 14, 2008 Baz Muhammad submitted an appeal before the Land Commissioner (respondent No.18) under section 161 of the Act, which was allowed vide order dated November 26, 2008 and the power of attorney was declared void and the aforesaid mutation entries and all other subsequent mutation entries were set aside. The petitioners being aggrieved by the order of the Land Commissioner filed revision under section 164 of the Act before the Member-II, Board of Revenue (respondent No.18), who dismissed the same vide order dated January 23, 2009. The petitioners have impugned the orders of the Land Commissioner dated November 26, 2008 and the order of Member-II, Board of Revenue dated January 23, 2009 in this petition.
5. It is the case of petitioners that the power of attorney was executed by two brothers, namely Baz Muhammad and Lal Muhammad, in favour of their father the late Ghulam Nabi. Mr. Muhammad Riaz Ahmed and Sardar Ahmed Haleemi Advocates, respectively representing the petitioners and respondent No.2 contended that:
(1) Lal Muhammad, who is the real elder brother of Baz Muhammad, admits the execution of the power of attorney;
(2) Lal Muhammad was not arrayed before the EDO (Revenue) by Baz Muhammad;
(3) The power of attorney was a registered document and as such presumption of authenticity attached thereto;
(4) The land revenue authorities did not have jurisdiction to order cancellation of a registered power of attorney under section 172 of the Act;
(5) The jurisdiction with regard to cancellation of a registered power of attorney exclusively vested in the civil court under section 39 of the Specific Relief Act, 1877;
(6) The application was submitted by Baz Muhammad after a period of thirty years from the date of execution and registration of power of attorney, and about eighteen years after Mr. Ghulam Nabi's death;
(7) The order dated November 22, 2007 of the EDO (Revenue) whereby he dismissed Baz Muhammad's Application has not been assailed till date and the same has attained finality;
(8) The Sub-Registrar Quetta submitted his report dated November 10, 2007 regarding the power of attorney, which confirmed that the power of attorney had been registered, and relying on the said report the EDO (Revenue) had dismissed the application of Baz Muhammad, which fact was overlooked by the Land Commissioner and Member-II, Board of Revenue;
(9) Baz Muhammad accepted the mutation made in respect of the second property as he benefited there from, despite the fact that the same power of attorney was used to effect it; and
(10) That Baz Muhammad by his conduct was estopped under section 114 of the Qanun-e-Shahadat Order 1984 from challenging the registered power of attorney, other registered documents and mutations.
6. The learned counsel for the petitioners and respondent No.2 further stated that even if the above mentioned mutation No.1080, effected pursuant to the power of attorney, is disregarded it would not make a difference because of the subsequent family settlements (khangi taqseem) entered into between the father and the brothers vide mutation Nos.22 and 23. In this regard in respect of the first property mutation No.22 was made on January 29, 1983. At the time the mutation was effected in respect of the first property measurement of the land was taken and it transpired that it was 2,135 square feet, and not 2,084 square feet as earlier recorded. In respect of the second property mutation No.23 was also made on January 29, 1983. At the time the mutation was effected in respect of the second property measurement of the land was taken and it transpired that it was 610 square feet, and not 620 square feet as earlier recorded. Subsequently, on March 6, 1986 the oral family settlement as noted in the said mutations was confirmed through a written document, which was registered on August 8, 1986 by the Sub-Registrar Quetta. Reference was also made to the 'Declaration of Oral Gift' dated January 30, 1986, registered on March 6, 1986 by the Sub-Registrar Quetta, which confirmed the gift referred to in the mutations. Learned counsel stated that none of these documents, to which Baz Muhammad himself was a signatory, were challenged and their effect would not be undone merely by assailing the earlier mutation.
7. It was next contended that third party rights have been created in persons (petitioner No.6, respondents Nos. 13, 14, 15 and 16) who purchased different portions from the property in the years 1994, 1996 and 2007. In this regard our attention was drawn to (1) Sale Deed dated January 17, 1996 registered on February 13, 1996, (2) Sale Deed dated March 11, 1996 registered on March 20, 1996, (3) Sale Deed dated November 1, 2007 registered on November 1, 2007, (4) Sale Deed dated November 1, 2007 registered on November 3, 2007, (5) Sale Deed dated November 1, 2007 registered on November 3, 2007 and (6) Sale Deed dated November 1, 2007 registered on November 3, 2007.
8. Learned counsel said that the Land Commissioner brushed aside the above mentioned mutations and registered documents cursorily in the following terms:--
"During the arguments, the counsel of respondents produced Khangi Taqseem agreement and Declaration Gift Deed 1986, both documents challenged by the petitioner (respondent No.1 herein) and contended that both are forge one. A copy of N.I.C. of petitioner is also intact along with record and examined, the signature of the petitioner on both documents are varying from the signature of National Identity Card. I also examined the signature on the appeal, Vakalat Nama and other applications, the signature on the above said documents are the similar one of N.I.C. but signature on Khangi Taqseem and Declaration Gift Deed are the different, the same has rather have been manipulated and seems as forged one."
Learned counsel stated that the above findings were given in respect of official records (mutations) and registered documents and without giving notice to the parties who would be effected by such a decision.
9. That Mr. Riaz Ahmed and Sardar Ahmed Haleemi, Advocates cited the following precedents in respect of the propositions, that, the revenue authorities acted beyond the prescribed limitation period, the revenue authorities had no jurisdiction, the Land Commissioner could not cancel a registered power of attorney and other registered documents and if anyone wanted to challenge a registered document he should have done so by filing a suit in a civil court having jurisdiction:
Rehman Khan v. Asadullah Khan, PLD 1983 Quetta 52
Haliman Bibi v. Muhammad Bashir, 1989 CLC 1588
Muhammad Razaq v. Shamim Akhtar, 2006 CLC 697
Anjum Mehmood v. Rizwan Ahmed, 2006 CLC 876
Amir Bibi v. Atta Muhammad Khan, 1992 SCMR 553
Abdul Qadir v. Allah Wasaya, 1997 CLC 311
Atta Muhammad v. Nasir-ud-Din, PLD 1993 Peshawar 127
Abdul Sattar Khan v. Rafiq Khan, 2000 SCMR 1574
10. That Mr. Muhammad Arshad Chaudhry, Advocate opposed the petition on behalf of Baz Muhammad. He sought to explain that Baz Muhammad did not assail the order of the EDO (Revenue) dated November 22, 2007 as he was not aggrieved thereby, because the power of attorney holder (the late Ghulam Nabi) was dead and that upon his death the power of attorney came to an end. He next contended that the attorney had exceeded the powers given to him in the power of attorney and had made a false statement before the revenue authorities, that his sons Khair Muhammad and Dost Muhammad had died and thereby usurped their shares. Learned counsel stated a wrong mutation (made pursuant to the power of attorney) gave a separate cause of action to Baz Muhammad, who availed of his remedy by filing an appeal under section 161 of the Act (which was treated as a revision under section 164) before the Land Commissioner, who allowed the same. And that the revision filed by the petitioners before the Member-II, Board of Revenue was not maintainable being a second revision, and that in any event the same was dismissed.
11. Reliance was placed by Mr. Chaudhry on the following precedents with regard to the propositions, that, there were concurrent findings of two authorities therefore the petition before the High Court was not maintainable and that, factual controversies could not be determined by the High Court:--
Muhammad Younus Khan v. Government of N.W.F.P, 1993 SCMR 618
General Manager, Pearl Continental v. Farhad Iqbal, PLD 2003 SC 952
Muhammad Faraz v. Abdul Rashid Khan, 1984 SCMR 724
Muzamil Khan v. Consolidation Officer, PLD 2005 Lahore 422
Imran Shafique v. Zulfiqar Ahmed, 2007 MLD 192
Learned counsel also urged that a power of attorney must be strictly construed and in this regard cited the following cases:
Talat Jahan Burki v. Member Board of Revenue, 2005 CLC 269
Journalist Publication (Pvt.) Ltd v. Mumtaz Begum, 2004 SCMR 1774
Jamil Akhtar v. Las Baba, PLD 2003 SC 494
Muhammad Fazal v. Khadim Hussain, 1998 MLD 1658
To meet the objection with regard to the point of limitation Mr. Chaudhry stated that if the basic order is void limitation does not come in the way, and relied upon the case of Abdul Ghani v. Shaheen, 2007 SCMR 834, and Yousaf Ali v. Muhammad Aslam Zia, PLD 1958 SC 104. He further stated that mutation entries are not equivalent to title documents and are meant for fiscal purposes only and cited the cases of Atta Muhammad v. Allah Wasaya, 2004 CLC 1665 and Mohd. Iqbal v. S.A.M. Khan, PLD 1970 Lah. 614.
12. Mr. Abdul Aziz Khilji, learned Additional Advocate General appearing for the official respondents did not support the impugned orders and stated that the power of attorney was a thirty years old registered document and its cancellation could only be done by a civil court and after recording of evidence.
13. That with the assistance of learned counsel we examined the referred to documents and the precedents cited by them. Admittedly the dispute arose when Baz Muhammad submitted the Application before the EDO (Revenue) assailing the power of attorney. The Sub-Registrar confirmed in his report that the power of attorney had been registered and the EDO (Revenue), relying upon the report of the Sub-Registrar, vide order dated November 22, 2007 dismissed the Application of Baz Muhammad. He then filed appeal which was dismissed by the EDO (Revenue) vide order dated May 3, 2008. The review application seeking review of order dated May 3, 2008 was also dismissed vide order dated July 14, 2008. Admittedly, Baz Muhammad did not assail the order dated November 22, 2007 passed by EDO (Revenue), but only his two subsequent orders, respectively dated May 3, 2008 and July 14, 2008.
14. The powers exercised by civil courts under the Specific Relief Act, 1877 and those exercised by the revenue authorities under the Balochistan Land Revenue Act, 1967 need examination to determine the respective jurisdiction of the courts and revenue authorities.
Specific Relief Act, 1877:
Section 39. When cancellation may be ordered. Any person against whom a written instrument is void or voidable, who has reasonable apprehension that such instrument, if left outstanding, may cause him serious injury, may sue to have it adjudged void or voidable; and the Court may, in its discretion, so adjudge it to be delivered up and cancelled.
If the instrument has been registered under the Registration Act, the Court shall also send a copy of its decree to the officer in whose office the instrument has been so registered; and such officer shall note on the copy of the instrument contained in his books the fact of its cancellation.
Section 42. Discretion of Court as to declaration of status or right. Any person entitled to any legal character or to right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief:
Bar to such declaration. Provided that no Court shall make any such declaration where the plaintiff being able to seek further relief than mere declaration of title omits to do so.
Balochistan Land Revenue Act, 1967:
Section 44 . Determination of disputes (1) If during the making, revision or preparation of any record, or in the course of any inquiry under this Chapter a dispute arise as to any matter of which an entry is to be made in a record or in a register of mutations, a Revenue Officer may of his own motion, or on the application of any party interested, but subject to the provisions of section 45, and after such inquiry as he thinks fit, determine the entry to be made as to that matter and record his reasons thereof.
(2) If in any such dispute, the Revenue Officer is unable to satisfy himself as to which of the parties thereto is in possession of any property to which the dispute relates, he shall---
(a) If he be not below the rank of Assistant Collector of the first grade, ascertain, after an inquiry in which an opportunity shall be given to all the parties to the dispute of being heard and adducing evidence in support of their claims, who is the person best entitled to the property, and shall by written order direct that the person be put in possession thereof and that entry in accordance with that order be made in the record or register; and
(b) If he be below the rank of Assistant Collector of the first grade, report the matter to the Assistant Collector of the first grade, who shall thereupon proceed in the manner provided in clause (a).
(3) A direction under subsection (2) shall be subject to any decree or order which may be subsequently passed by any Court of competent jurisdiction.
Section 53. Suit for declaratory decrees by persons aggrieved by an entry in a record. If any person considers himself aggrieved by an entry in a record-of-rights or in a periodical record as to any right of which he is in possession, he may institute a suit for a declaration of his right under Chapter VI of the Specific Relief Act, 1877 (Act 1 of 1877).
Section 172. Exclusion of jurisdiction of Civil Courts in matters within the jurisdiction of Revenue Officers. (1) Except as otherwise provided by this Act, no civil Court shall have jurisdiction in any matter which Government, the Board of Revenue, or any Revenue Officer, is empowered by this Act to dispose of or take cognizance of the manner in which Government, the Board of Revenue, or any Revenue Officer exercises any powers vested in it or him by or under this Act.
(2) Without prejudice to the generality of the provisions of subsection (1), a Civil Court shall not exercise jurisdiction over any of the following matters namely:
(i) any question as to the limits of any land which has been defined by a Revenue Officer as land to which this Act does or does not apply;
(ii) any claim to compel the discharge of any duties imposed by this Act or any other enactment for the time being in force on any Revenue Officer as such;
(iii) any claim to the office of a Village Officer, or in respect of any injury caused by exclusion front such office, or to compel the discharge of the duties or a division of the emoluments thereof;
(iv) any notification directing the making or revision of a record-of-rights;
(v) the framing of a record-of-rights or periodical record, or the preparation, signing or attestation of any of the documents included in such a record;
(vi) the correction of any entry in a record-of-rights, periodical record or register of mutations;
(vii) any notification of the undertaking of the general reassessment of a District or Tehsil having been sanctioned by Governments;
(viii) any objection to the amount or rate of any assessment of land-revenue or the period thereof authorized by Government;
(ix) the claim of any person to be liable for an assessment of land revenue or of any other revenue as assessed under this Act;
(x) the amount of land revenue to be assessed on any estate or to be paid in respect of any holding under this Act;
(xi) the amount of/or the liability of any person to pay, any other revenue to be assessed under this Act, or any cess, charge or rate to be assessed on an estate or holding under this Act or any other enactment for the time being in force;
(xii) any claim relating to the allowance to be received by a land-owner who has given notice of his refusal to be liable for an assessment, or any claim connected with, or arising out of any proceedings taken in consequence of the refusal of any person to be liable for an assessment under this Act;
(xiii) the formation of an estate or determination of its boundaries;
(xiv) any claim to hold free of revenue any land, mills fisheries or natural products of land or water;
(xv) any claim connected with, or arising out of the collection by Government, or the enforcement by Government of any process for the recovery of land-revenue or any sum recoverable as an arrear of land revenue;
(xvi) any claim to set aside, on any ground other than fraud, a sale for the recovery of an arrear of land revenue or any sum recoverable as an arrear of land revenue;
(xvii) the amount of or the liability of any person to pay, any cess, fees, fines, costs or other charge imposed under this Act;
(xviii) any claim for partition of an estate or holding, or any question connected with or arising out of proceedings for partition, not being a question as to title in any of the property of which partition is sought;
(xix) any question as to the allotment of land on the partition of an estate or holding, or as to the distribution of land subject by established custom to periodical re-distribution or as to the distribution of land-revenue on the partition of an estate or holding or on a periodical re distribution of land;
(xx) any question connected with or arising out of or relating to any proceedings for the determination of boundaries of estates…
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