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Petitioner: Mst. KALSOOM MALIK and others VS Respondent: ASSISTANT COMMISSIONER and others
Court Name: Supreme Court of Pakistan Judge(s): Fazal Ilahi Khan, Mukhtar Ahmed Junejo, Ajmal Mian Title: Mst. KALSOOM MALIK and others vs ASSISTANT COMMISSIONER and others Case No.:Civil Appeals Nos.494 of 1989 and 495 of 1989 Petitions Nos.186/L and 193/L
JUDGMENT
Reported As: 1996 SCMR 710 Result: Petitions dismissed Judgment JUDGMENT ' FAZAL ILAHI KHAN, J.---Both the review petitions are directed against the judgment of this Court dated 19-10-1991 in Civil Appeal No,495 of 1989. 2. The dispute relates to Khasra No,2313/1 (4.Kanals), Khasra No,2328/2 (7 Kanals, 1 Marla), Khasra No,2332 (8 Kanals) and Khasra No,2313/2 (3 Kanals and 19 Marlas) total measuring 23 Canals situated in village Malian Kakan, Tehsil Shandara (now Tehsil Sheikhupura), District Sheikhupura. According to the petitioners, the land in dispute belonged to Muhammad Hussain, predecessor-in- interest of the petitioners,- per Jamabandi of the year 1939-40 and even in the special Jamabandi of the year 1946-47 and it continued as such till 1980-81. Even in the Khasra Girdawari of the year 1953-1957 and 1982-85 the land in question is shown in their possession. However, respondent No,2 was allotted these Khasra Numbers, vide RL-II No,231 somewhere in 1957/1958. This allotment in favor of Ijaz Ahmad, respondent No,2, was made at the back of the petitioners and the allotted kept quiet and neither challenged their possession nor even demanded any share of produce of the land. 3. In the year 1960, the Khatas jointly owned by Muslim and non-Muslim were partitioned and in pursuance thereof Mutation No,327 regarding .Khewat No,25 (now Khewat No,6) and Mutation No,370 in respect of Khewat No,62 (now Khewat No,6) were attested on 22-9-1991 and 15-6-1964 respectively. Through Mutation No,327, Khasra numbers 2332, 2328/2 and 2313/1 and through Mutation No,370 Khasra No,2313/2 were shown in the ownership of Muhammad Hussain, the predecessor-in-interest of the petitioners.
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3-A. Pursuant to the above partition and the mutations referred to above, the Deputy Rehabilitation Commissioner vide his order dated 11-6-1962 cancelled Khasra No,2313/1-2 and Khasra No,2332 from the allotment of Ijaz Ahmad, respondent No,2 in RL-II No,231 on the ground that these Khasra numbers belonged to Muslims. Ijaz Ahmad challenged these partition mutations in revision but his revision petition was dismissed on 7-5-1962. Respondent No,2 then challenged the order dated 7- 5-1962 in Writ Petition No,2401-R of 1962 which was dismissed by the Humble High Court on 29-9- 1966. L.P.A. No,1207 against the same was also dismissed on 25-11-1966. 4. However, Ijaz Ahmad, respondent No,2, on 29-11-1966 made an application under section-25(1) of Pakistan Administration of Evacuee Property to the Deputy Commissioner for a declaration that the land sold by one Kaisara alias Muhammad Din is evacuee property but it has been accounted for in the Revenue Record. The petitioners were neither impleaded parties nor any relief was prayed against them. The Deputy Custodian vide his order dated 29-6-1974 held that land measuring 570 Canals and 18 Marla's which Muhammad Din had sold to Harbans Singh and Janpal Singh through the two registered sale-deeds vested in Custodian and is evacuee property. Therefore, it was ordered that the land earlier allotted to different displaced persons be restored to such allotted including respondent No,2. Feeling aggrieved respondents Nos.3 to 22 the heirs of Muhammad Din, filed a revision petition which was dismissed on 24-3-1981. Still dissatisfied they filed Writ Petition No,94-R of 1982 which was dismissed by the Hon'ble High Court on 13th March, 1982. Their C.P.S.L.A. No,485 of 1982 in this Court was dismissed on 20-11-1988. In all these proceedings petitioners were not impleaded as parties. 5. In the meantime, the Assistant Commissioner/Deputy Settlement Commissioner (Lands), Sheikhupura, in compliance with the order of Deputy Custodian dated 29-6-1974 restored the allotment of respondent No,2 through Mutation No,235 attested on 29-7-1984 whereby the disputed land measuring 23 Canals earlier held as Muslim property given to Ijaz Ahmad, respondent No,2. The heirs of Muhammad Din challenged the same in appeal and it was for the first time that the petitioners were impleaded as respondents in the dispute. The appeal was accepted by the Commissioner/Collector, Sheikhupura on 17-1-1989 and for the reasons given therein the case was remanded to the Assistant Commissioner/Collector for decision afresh. Feeling aggrieved by the order of remand, Ijaz Ahmad, respondent No,2 challenged the same in Writ Petition No,32-R of 1989. The writ, petition was accepted on 16-4-1989 and the order of remand was set aside and declared of no legal effect. The petitioner aggrieved by the said order filed Civil Appeal No,495 of 1989 in this Court but the same was dismissed vide judgment dated 19-10-1991 of which review has been sought. 6. In Review Petition No,193-L of 1991, it is alleged that Kaisara alias Muhammad Din, predecessor- in-interest of the petitioners and respondents Nos.19 and 20 embraced Islam in 1925. He was co- owner with non-Muslims in Khewat Nos.12, 14, 15 to 20, 24, 25, 35, 36, 38, 60, 62, 63 village Mallian Kalan, District Sheikupura. His share in the joint Khata area wise came to 3175 Canals. Out of the joint Khata, he made two sales, one on 9-7-1947 in favor of Harbans Singh of an area measuring 396 Canals, 3 Marla's and the second on 5-6-1946 in favor of Jai Pal Singh of an area 185 Canals, 16 Marla's. The sales made related to a total area of 579 Canals 16 Marla's. Subsequently, the land subject-matter of sales referred to above, was allotted to displaced persons, therefore, the petitioners took steps to have the joint Khata with the non-Muslims partitioned. On the application of the petitioners, the Deputy Custodian held that the petitioners were entitled to get the joint holding partitioned. Accordingly, the Rehabilitation Authorities proceeded to partition the joint Khatas. Only 9 Khatas (Khewats) i,e, 12, 15, 18, 19, 20, 24, 25, 32 and 63 were partitioned, and the petitioners' share in these was worked out as 1954 Canals. The remaining Khewats i,e, 13, 14, 16, 17, 32, 33, 35, 36 and 63 were yet to be partitioned when respondent No,2 and others challenged the partition of the aforementioned 9 Khewats. Respondent No,2 failed before the Rehabilitation
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Authorities and their Writ Petition No, 2401/R of 1962 was also dismissed. His L.P.A. No,1207 of 1966 was dismissed with the observation that the petitioners could approach the Deputy Custodian for giving effect to the sales made by Muhammad Din. The Deputy Custodian found that the land measuring 579 Canals, 18 Marla's on account of the sales made by Muhammad Din out of his share, was evacuee property which order was upheld by this Court in Civil Petition for Leave to Appeal No, 485 of 1982. Resultantly, the land measuring 579 Canals, 18 Marla's out of the petitioners' share in the joint holding was adjudged as evacuee property. 7. Respondent No,2 after getting the declaration approached Assistant Commissioner for giving effect to such decision by the Deputy Custodian. By order dated 29-7-1982, the Assistant Commissioner ordered restoration of the area allotted to the respondents without considering that the allotted land also included the land of Muhammad Hussain adjudicated upon between the parties. In spite of that the petitioners' application to restore the evacuee land to the allotted without any notice it was referred to the Tehsildar who sanctioned a fresh Mutation No,235 restoring even Muslim property referred to above to respondent No,2. The above mutation was, however, set aside by the Collector on 17-1-1989 with the direction to the Tehsildar to enter separate mutations giving effect to each of the two sale made by Muhammad Din. The respondents without filing an appeal and revision provided under the law and .Exhausting those remedies before the Revenue Authorities filed a Constitutional petition (Writ Petition No,32-R of 1989) in the Lahore High Court which was allowed on 16-4-1989, whereby Mutation No,235 was restored. Against the judgment of Lahore High Court dated 16-4-1989, leave was granted to examine the question whether the High Court should have interfered with the remand order. 8. The judgment of the learned High Court was challenged in appeal and the moot question raised before this august Court was as to how much area out of the joint Khatas of the petitioners' predecessor was held to be evacuee and secondly; as to how much allotted area was involved in Mutation No,235. And lastly whether the remedy before the Revenue Authorities having not been availed, the learned High Court was justified under the law to have interfered with the remand order. This Court while disposing of the appeal observed:-- "There is hardly any controversy over the identity of the land allotted to the respondents. It is particularized in R.L.II Registers. The land allotted to other displaced persons is also identifiable. Under the orders of the Deputy Custodian only the land earlier allotted to the respondent and allotment was confined to the evacuee land measuring 579 Canals, 18 Marla's, sold by Kaisara alias Muhammad Din to the non-Muslims and became evacuee property." ' It was further obsdifreed that the RL-II Register could be equated with a mutation and incorporated in the Revenue Record and if any land beyond 579 Canals, 18 Marla's was allotted to the respondents, the petitioners should have taken steps to, have the same set aside. With regard to the competency of the writ petition, it was observed that the remedy under Article 199 is discretionary and the High Court can refuse the writ if it is satisfied that an adequate remedy is available to the aggrieved party, unless there are exceptionable circumstances. But, the rule that before invoking the High Court, the other remedy provided by the Statute must be exhausted, is a rule of convenience and discretion by which the Court regulates its proceedings rather than a rule of law, and instances are not lacking that relief was granted despite the availability of adequate alternate remedy. 9. The learned counsel for the petitioners pointed out to us that there is an apparent mistake on the record as the petitioners were not parties to the subsequent proceedings and that in the earlier proceeding the orders declaring certain property, as pointed out earlier, as non-evacuee and it was excluded from allotment of the respondent but it escaped the notice of the Court. It was further pointeu out that Muhammad Din had sold some land through the aforementioned two
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sale-deeds from joint Khatas. Partition in respect of some of these Khatas took place at his instance which gave rise to the dispute in the earlier round of litigation. 10. After perusal of the record it need not be reiterated that the Custodian Evacuee Property per judgment in Revision Petition No,20 of 1974, dated 24-3-1981 came to the conclusion that the dispute pertains to land measuring 183 Kanals, 3 Marlas Khewat Nos.24, 25 and 36, subject-matter of registered sale-deed dated 4-2-1946 and land measuring 396 Kanals, 3 Marlas Khewat No,10 to 18, 27, 28, 32, 48, 49, 53 and 54 subject-matter of the sale-deed dated 9-7-1947 situated in village Malian Kalan, Tehsil Shandara, District Sheikhupura. The first sale by Kaisara alias Muhammad Din son of Lakhu was in favour of Harbans Singh son of Takkar Singh and the second was by the same person in favour of Sardar Jappal Singh son of Sardar Kapur Singh. Though these sale-deeds were to given effect in the Revenue Record through mutations, as required, but possession was delivered to the non-Muslims vendees..Under such sales the land was accordingly treated as evacuee property and allotted to the displaced persons the contesting respondents. The land was sold from Khewats jointly owned by Muslims and non-Muslims of which no partition had taken place till the disputed allotment was made. It is pertinent to note that Muhammad Din in addition to the land sold owned considerable land in these Khewats as well as other Khewats and had also inherited certain land from his relations which had further enhanced his entitlement in the said joint Khewats. Needless to say that Muhammad Din was the owner of an area much more than 579 Kanals, 18 Marlas at the time of the aforementioned sales. The argument addressed before the Custodian that Muhammad Din had no land other than that which he had disposed of through the aforementioned saltilleeds was not accepted by the Custodian. Such being the case Muhammad Din rightly approached the competent forum for partition of the land and for separation of his share in the joint Khewats from that of the evacuee shareholders. 10-A.Admittedly in the partition proceedings to which the respondents were parties Khasra Nos.2332, 2328/2 and 2313/1 were declared to be in the ownership and possession of Muhammad Hussain predecessor-ininterest of the petitioners and similar was the nature of the land bearing Khasra No,2312/2. These Khasra numbers were,- accordingly, deleted from the allotment made in favor of the respondents. Respondents/allotted did not object to it and challenged the same in appeal and revision but they were unsuccessful. Their writ petition against the partition proceedings referred to above and deletion of the aforementioned Khasra numbers from their allotment were dismissed and their L.P.A. Was also dismissed. The aforementioned Khasra Nos. Were, therefore, confirmed to be the Muslim property and in their possession as owners. Such land, therefore, could not have been allotted to the E respondents. On the respondents/allotted' failure up to the High Court, as referred to above the order attained finality. 11. The respondents, however, subsequently moved an application before the Assistant Commissioner for giving effect to the decision of the Custodian, whereby the land sold by Muhammad Din was treated and declared evacuee property which had nothing to do with nature of the property already declared Muslim property. The A.C., however, vide order dated 29-7-1982 restored the land allotted to the respondents irrespective of the fact that the land allotted included the land which had been declared non-evacuee and excluded from such allotment. Mutation No,235 whereby the original allotment was restored was attested on 19-8-1982. The Collector, therefore, vide his order dated 17-1-1989 set aside the mutation. With the direction to enter separate mutations giving effect to each of the two sale-deeds in Revenue Record which had been executed by Muhammad Din, declared the land comprised therein as evacuee property. It may be pointed out that the Custodian, Evacuee Property per judgment in Revision Petition No,20 of 1974 dated 25- 3-1981 had held that the dispute pertains to land measuring 183 Kanals 3 Marlas bearing' Khewat Nos,24, 25 and 36 subject-matter of registered sale-deed dated 4-2-1946 and land measuring 396 Canals, 3 Marla's bearing Khewat Nos.10 to 18, 27, 28, 32, 48 49, 53 and 54 subject-matter of the
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sale-deed dated 9-7-1947 situated in village Millian Kalan, Tehsil Shandara, District Sheikhupura. The first sale-deed was effected by Kaisara alias Muhammad Din son of Lakhu in favor of Harbans Singh son of Takkar Singh and the second was effected by the same vendor in favour of Sardar Jappal Sindgh son of Sardar Kapur. These sale-deeds were not given effect in the revenue record through mutations though possession under the sale-deeds passed to the non-Muslims vendees. The property sold was accordingly treated as evacuee property and allotted to displaced persons. As the land was sold from a joint Khata, partition of the land belonging to evacuee and non- evacuee had to talce place. Muhammad Din as already stated owned other considerable land in these Khewats and several other Khewats and had also inherited certain property of his relations which had further enhanced his entitlement in the said joint Khasras. Muhammad Din was admittedly the owner of land beyond 579 Canals 18 Marla's at the time when he executed the aforementioned sale-deeds and the learned Custodian did not admit the arguments of the respondents that Muhammad Din had no land over and above the land which he sold to the non- Muslims in the Khewats mentioned above. Muhammad Din, therefore, applied to the Deputy Custodian for partition of his land from the evacuee shareholders which was granted. Repelling the Contention of the respondents that no partition shall take place after the allotment was made in their favor, the Deputy Custodian observed as under:-- "I am afraid this contention had no force. Perusal of the order passed by the learned Deputy Custodian clearly shows that he relied upon the entry as made in the Jamabandi for the year 1946 and since the sale of the land in dispute vide Exh.PW-6/12 and Exh.PW-6/13 had not been mutated in favour of non-Muslim vendees, therefore, the Revenue Authorities concerned showed the said land to be owned by Kaisara alias Muhammad Din in the petition proceedings. As a consequence of that order the allotment of the land in dispute in favour of Ejaz Ahmad was adversely affected and subsequently cancelled as the land being non-evacuee could not be allotted. Ejaz Ahmad preferred appeal and revision petition before the Rehabilitation Authorities against cancellation of his allotment but did not succeed. He also challenged that order in Writ Petition as well as in L.P.A. He was directed to approach the Custodian on the basis of the aforesaid two registered sale- deeds in order to redresss his grievance. As a consequence of that he filed his present application under section 25(1) of Act XX of 1957 praying that the property in question covered by the aforesaid two sale-deeds be declared to be evacuee property, having been sold in favor of Harbans Singh and Sardar Jappal Singh. The said application was accepted by the learned Dy. Custodian by his order dated 29th June, 1974." ' The learned Collector after such observation affirmed that the property sold through the aforementioned two registered deeds was evacuee property and rightly allotted as such. Subsequently giving away of the land in dispute to Kaisara alias Muhammad Din on account of the partition of his joint holdings under the order of the learned Deputy Custodian had no bearing on the character of the land being evacuee. These observations of the learned Custodian are not disputed. But these pertain to the character of area sold in the joint Khatas and it does not mean, by any stretch of imagination, that the petitioners were not entitled to have their joint holdings partitioned and retain the possession as co-owner on their own respect per Revenue Record maintained at the relevant time when the sale rook place. Sale of land by a co-sharer in a joint Khewat is always subject to partition. The authorities below, it appears, did not properly F appreciate the import of such observations and misconceived that the allotment made per.Se had the effect of partition of the joint Khewats and that it was not open to disturbance in regular partition proceedings to be carried out in accordance with law. Mutation No,235 attested on 19-7- 19$4 was, therefore, challenged in appeal by Ghulam Muhammad and others the Muslim shareholders in the Khewats. It was their case that first of all it should have been ascertained which specific land was disposed of by Kaisara alias Muhammad Din vide the aforementioned two sale-
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deeds. Secondly that according to the relevant Revenue Record Kaisara alias Muhammad Din was owner of 3175 Canals, 9 Marlas of land and if 579 Kanals, 18 Marlas had been sold through the aforementioned sale-deeds, therefore, even such area is deducted from his entitlement he would be left with land measuring 2595 Kanals 11 Marlas but according to the record his successors have been given 2323 Kanals, 3 Marlas. It was also contended before the Collector that no notice and opportunity of hearing was provided to Muhammad Hussain and others petitioners, the shareholder, at the time of allotment as well as at the time of attestation of Mutation No,235, though earlier the land had been declared non-evacuee. They also objected to the attestation of the said mutation on several legal and factual pleas with special reference to their entitlement in the Khewat jointly owned. Their Hissadari possession and their right to partition their joint holding in proper legal proceedings have been ignored. Reference was made to Khata No,62, which did not form part of the land measuring 579 Canals, 18 Marla's sold to the non-Muslims and declared evacuee property but even then Khasra No,2312/2 measuring 4 Kanals out of Khata No,62 was given to respondent No, 1. The learned Collector after hearing the learned counsel for the parties has correctly observed as under:-- "I agree with the arguments of the learned counsel for respondent No,1 that the order of the Deputy Custodian has been upheld by the superior Courts of this country but the ratio of the decision is that the land measuring 579 Canals, 18 Marla's was sold by Kaisara alias Muhammad Din through different sale-deeds and the said land is evacuee property, but the learned counsel for respondent No,1 has miserably failed to prove that the land mentioned in Mutation No,235 is the same land which was sold by Kaisara alias Muhammad Din vide the abovementioned two sale-deeds and for the proper and just decision of the case it was proper that first of all the land measuring 579 Canals, 18 Marla's should have been ascertained and the said sale-deed should have been incorporated in the record of right through ex parte mutations.". ' It was further observed:-- "Learned counsel for the respondent No,1 has not controverted the arguments in this respect. The question of reduction of entitlement also needs an elaborate enquiry and the same cannot be decided in this appellate forum. The appellants as well as Malik Masood Akhtar and other respondents were not heard by A.C-II before sanctioning the mutation as such the order of the A.C-II has been passed violating the mandatory requirements of section 42 of the West Pakistan Land Revenue Act." 13. While setting aside the order of the A.C. Sanctioning Mutation No,235, the learned Collector, on the grounds mentioned above, remanded the case with observations that first of all the two sale- deeds registered on 9-7-1947 and 5-2-1946 may be incorporated in the mutation register and then keeping in view the entitlement of the parties as well as the previous partition proceedings and reduction of the entitlement should also be kept in view. The learned High Court, however., failed to appreciate rather misconceived the salient feature of the case and the operative part of the order of the learned Collector. Determination of entitlement of non-Muslims in the joint Khewats and its treatment as evacuee property is subject to the rights of the Muslims in the joint Khewats. Any allotment made in the evacuee interest in the jointly owned Khewats would, therefore, be subject to partition by metes and bounds to be carried out by the competent authority after giving full opportunity of hearing to all the joint owners for safeguarding their interest. We, therefore, are of the view that there was no infirmity in the order of the learned Collector which was based on sound reasoning and proper appraisal of the facts of the case and in accordance with the principle of natural justice. Even otherwise the order was subject to further appeal and revision before the competent forums which was not availed by the respondent. We are in full agreement with the arguments of the learned counsel-for the petitioners that the property in dispute is part and parcel of a joint Khata per Jamabandi for the year 1946-47 copy of which is available on the file of Civil
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Appeal No,495 of 1989 wherein the column of ownership apart from. Kaisara alias Muhammad Din several others Muslims and non-Muslims are recorded as co-owners. The learned Collector was, therefore, justified that if effect has not been given to the aforementioned two registered sale- deeds in the Revenue Record of the relevant period then first of all these registered sale-deeds shall be given effect in their relevant record through mutations in this regard and then the evacuee land be separated from the land owned by Muslim owners in he joint Khata in accordance with law after notice to all the shareholders and hearing them. Such partition in no manner is going to effect the declaration given by the competent authorities about the extent of evacuee interest in the joint holdings. The order of remand, therefore, was not open to interference in Constitutional jurisdiction on facts of the present case…
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