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Petitioner: SHAHZADI MUMTAZ JEHAN VS Respondent: Mst. AQEELA PARVEEN IJAZ and others
Court Name: Board of Revenue Judge(s): Mian Muhammad Jamil Title: SHAHZADI MUMTAZ JEHAN vs Mst. AQEELA PARVEEN IJAZ and others Case No.: SMROR No.1100 of 1991 Date of Judgment:2000-07-08 Reported As: 2001 CLC 1860 Result: Revision petition dismissed
Judgment ORDER This revision petition has been taken up in pursuance of the Honourable High Court's order, dated 21-1-2000 in Writ Petition No.812 of 1995 in which the revision petition (SMROR No.1100 of 1991), decided on 7-11-1994 was directed to be treated as still pending for decision in this Court on its merits. 2. The brief background of this case is that a complaint in the year 1987 was moved to the Board of Revenue by the petitioner alleging fraudulent transfer of property of the petitioner by the respondents through forged and fictitious power of attorney. After preliminary enquiry/ investigation, the petitioner was advised to approach the Deputy Commissioner, Muzaffargarh for redressal of her grievance vide Memorandum No.181989/3046-E(F)II, dated 5-6-1989. Instead the petitioner filed the Revision Petition No.1100 of 1991 under section 164(1) of the West Pakistan Land Revenue Act, 1967 requesting therein that the Board of Revenue may take cognizance in pursuance of suo motu jurisdiction. The respondents objected through an application to the admission of this revision petition under section 164(1). The learned Member, Board of Revenue after hearing the parties vide his order dated 25-1-1992 decided that the revision petition was maintainable and admitted the same for regular hearing which was ultimately decided vide order, dated 7-11-1994 passed by learned Member (Judicial-I) whereby direction was issued to the A.C./Collector, Alipur to treat' the application of the petitioner admitted under section 164(1) of the West Pakistan Land Revenue Act, 1967 for hearing by the Board of Revenue as an appeal against the mutations challenged by the petitioner and decided them on merits. 3. Feeling not satisfied with this order, the petitioner filed the Writ Petition No.812 of 1995 which was decided on the ground that all the vendees were not made necessary party and the petitioner was
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directed to implead all the vendees of the transactions of assailed mutations and also furnish the list of assailed mutations so that the suo motu revision can be proceeded in accordance with law. The case was remanded treating the revision petition in hand as pending. 4. Therefore, the already decided revision petition has been taken up again for fresh decision on merits. After observing all the formalities and obtaining amended information petition and making it part of the original revision petition and informing all the respondents including the latest vendees through the Mushtri Munadi on the spot, case was fixed for regular hearing and was argued in detail on 14-6-2000 and 20-6-2000. 5. The learned counsel for the petitioner right from the beginning stressed that the power of attorney, registered on 7-7-1977 with the Sub-Registrar, Lahore was never executed by the petitioner who is mother of the learned counsel for the petitioner (Mr. Javed Iqbal Jaffri) in favour of respondent Brig. Ijaz Hussain Shah. It was forged and fabricated by the respondent to swindle the property of the petitioner who is a Parda-observing lady. It was argued that the petitioner being a respectable Pardanasheen lady whatever she states on oath is to be taken as correct and since she has stated on oath that she never appointed Brig. Ijaz as General of Special Attorney on her behalf, therefore, burden of proof which is different from onus of proof rests with the respondent and will remain till the end of litigation. Relying upon PLD 1990 SC 642; 1997 SCMR 459; 1992 CLC 402 and KLR 1998 Civil Cases 344 (sic), 1988 CLC 1202, 1987 CLC 757 and 1989 CLC 418, it was contended that petitioner being a Parda-observing lady, the burden of proof is on the respondents. The learned counsel for the petitioner citing The State v. Abdul Hamid Jatoi and 3 others PLD 1973 Revenue 29 (Sindh) maintained that the present revision petition is on all fours with the cited case. The respondent No.2 Syed Ijaz Hussain Shah was a serving Brigadier at Multan during Martial Law (1977 to 1985) and was using his official position to coerce the Revenue Authorities to transfer the property of the petitioner in favour of the so-called purchasers and all the Revenue Officers were helpless before him and obliged to carry out his wishes whether lawful or otherwise. Some of the Revenue functionaries rather colluded with the respondents and transferred illegally the landed property of the petitioner. 6. Therefore, the Board of Revenue should interfere to correct the wrong done to the petitioner exercising its suo motu powers. This is not an ordinary revision but a suo motu revision to be decided on merits and suo motu revision gives powers of a Qazi to do justice with sympathy regardless of the technicalities like limitation, pending proceedings before other forums etc. All the mutations sanctioned on the basis of a fictitious power of attorney should be set aside and land should be reverted to the original owner as was done in Jatoi's case by the Board of Revenue, Sindh. Reliance was also placed on Ghulam Ali v. Ghulam Sarwar Naqvi PLD 1990 SC 1. 7. It was further argued that the proceedings on the criminal and civil side have no bearing on the proceedings of the revenue authorities. The petitioner approached the police for criminal action but police did riot take any action and dismissed the F.I.R. without hearing the petitioner. Similarly a civil suit was filed in 1991 by the petitioner only seeking that relief which Board of Revenue cannot grant. The main pray before the Civil Court was to stop him (attorney of Mst. Shahzadi Mumtaz Jehan) from using the forged power of attorney. Under suo motu powers, Board of Revenue can order for the correction of the Revenue Record regardless of what is happening in the Civil Court. 8. It was pointed out that consolidation proceedings are going on for the last 25 years in Tehsil Alipur where the land of the petitioner is situated. The petitioner's husband (Syed Iqbal Hussain Shah) died in 1972. After his death, there was no one to look after the property. Respondent No.2 Syed Ijaz Hussain Shah was asked to look after the consolidation work of the petitioner's property. The respondent deceived the petitioner and obtained signatures of the petitioner on various blank papers by telling her that these signatures/papers were required in connection with the consolidation operations. Her signatures were then misused for ulterior motives and most probably
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power of attorney was also executed under those very signatures. Under the concept of non est factum, it was argued, since the signatures have been used for other than the purpose for which they were obtained, therefore, all other purposes should be treated as illegal. Respondents being in a position of trust, instead of acting in a bonnum sonnum manner, acted in a disgraceful manner and swindled away the property of the petitioner. Since the petitioner neither gave any power of attorney nor sold her property nor received any money/consideration her property should be restored in her name which will ultimately go to a charitable trust: If the subsequent vendees are going to suffer any loss as a result of reversal of the property to the original owner that loss will have to be made good by the respondents Nos.1 to 5 because they cannot resile from the loss being the actual beneficiaries. 9. Relying upon the dictum that law will accept the impossible but not unreasonable, it was argued that it looks unreasonable that the petitioner would give a power of attorney to the son-in-law by ignoring the elder son (Mr. Jaffri) who was very much present in Lahore in the year 1977 when power of attorney was registered and who himself is a Lawyer and who was already having one power of attorney from all the legal heirs of his deceased father Mr. Iqbal Hussain Shah. It was further contended that even if the power of attorney is assumed as genuine but the sales/Tamleeks made through this power of attorney of the petitioner could only be made for a demonstrated necessity and burden of proof is on the respondents. The petitioner being a well off lady living in Gulberg, Lahore and being looked after by two sons, there was hardly any necessity for her to sell her property because her needs were very limited. Since all the sales/Tamleeks were based on fraud, it is axiomatic that fraud vitiates the solemness. The respondents have not come with clean hands in the Court. Any sale/purchase that has been accomplished through fraud will be treated as null and void ab initio and for ever because fraud annuls the most solemn proceedings. 10.While preparing the so-called power of attorney, as the respondents were in a hurry to commit the frauds even the name of the petitioner has not correctly been incorporated in the contents of power of attorney. Petitioner's correct name is Shahzadi Mumtaz Jehan but in the forged power of attorney, she had been shown as Saeeda Mumtaz Jehan. If the real son had accompanied for execution of the power of attorney, he would have at least corrected the, name of the petitioner. Since everything was done in a fraudulent manner none of the vendees bothered to check from the original owner about the authenticity of the transaction. Normally the vendees would trace not only the history of the property but also of the owner and the seller. Since so many sales occurred through various mutations, it was duty of the so-called vendees to confirm the bona fide of these sales/Tamleeks. It was incumbent upon them to ensure that the property was being sold for necessity or some dire need. If the respondents say that they had been paying the money to the petitioner then the question is, was she so destitute to sell her property. She has already submitted on oath that she did not sell and did not receive any money from the respondents. None of the sale/Tamleeks was made in good faith for necessity and there was no bona fide purchaser for value in open market. The property was transferred just on nominal prices by the respondent No.2 using his official position and by coercing and in collusion with the Revenue Authorities. Quoting an extract from Chapter 9, page 296 of the book "good faith in sale", it was requested that all the transactions are to be treated as unconscionable bargains making market of other's weakness. Such bargains are to be probed and investigated in depth. Even if finalized on the basis of registered documents and as a result of in-depth probe if element of fraud comes out the consequences of fraud including even decrees of the Civil Courts are always null and void. The petitioner trusted the respondents Nos.1 to 5 and all the Revenue Authorities but all betrayed her trust. Their conduct does not amount to fair dealings because the so-called sales were neither fair nor transparent. Though, Ijaz Hussain Shah was not a genuine attorney but even if he was posing
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himself as attorney, it was his duty to get maximum price of the property for the original owner, but he sold for nominal prices. 11.On the basis of forged power of attorney, Tamleeks were initially made in favour of the four daughters and subsequently the property of the three daughters was also got transferred in favour of the fourth daughter Mst. Aqeela Parveen Ijaz who is wife of respondent No.2 Syed Ijaz Hussain Shah. A trustee cannot approbate and reprobate and cannot enjoy the forbidden fruits of poisonous tree. If Ijaz was genuine attorney, he would not have indulged in self-serving. 12.Winding up his arguments, the learned counsel for the petitioner stressed that the power of attorney was forged which was never executed in favour of Ijaz Hussain Shah. Petitioner never sold her property neither there was any necessity nor received any money. Ijaz alongwith other respondents and in collusion with the Revenue Authorities and so-called vendees none of whom is a bona fide purchaser for value, swindled away the valuable property of the petitioner and caused a big wrong to the petitioner which should be rectified. If some vendees are to be compensated, compensation should be paid by the respondents Nos.1 to 5 and entire burden of proof is on the respondents. 13.On the other hand, the learned counsel for respondents Nos.1, 2, 4 and 5 Mr. Najaf Abbas Shah started his arguments with the background position stating that when the husband of the petitioner died in 1972, family was in very poor financial position. The power of attorney was given in favour of the eldest son (presently learned counsel for the petitioner) by all legal heirs of husband Syed Iqbal Hussain Shah. But when Mr. Jaffri started abusing the power of attorney, it was revoked one by one by all the legal heirs through registered cancellation deed in December, 1986 and including his brother. Since all the legal heirs had lost trust on Mr. Jaffri, therefore, Mr. Ijaz Hussain Shah, respondent No.2 was genuinely appointed as attorney of the petitioner in the year 1977. She herself appeared before the Sub-Registrar for execution of the power of attorney which was registered in the year 1977 and it was witnessed by her second son Dr. Saeed Ahsan Mukhtar, who is brother of the learned counsel for the petitioner. He has himself admitted in the Civil Court the revocation of earlier power of attorney given in 1972 in favour of the learned counsel for the petitioner and genuineness of his own signatures on the power of attorney in favour of Ijaz Hussain Shah. The petitioner has also repeatedly admitted before various revenue, civil and criminal authorities that she herself appointed Ijaz Hussain Shah as her attorney. She has given affidavit to this effect to the police also in the F.I.Rs. lodged by the learned counsel for the petitioner. She has admitted that she has revoked the power of attorney in favour of Mr. Jaffri and appointed Ijaz Hussain Shah as her attorney. Not only the petitioner's but affidavits of brothers, sisters and other whole family members are on record showing that everything was done with full consent and will of the petitioner. These affidavits were obtained for showing to authorities in F.I.Rs. complaints and civil suits. Power of attorney is genuine duly registered with the competent authority and witnessed by petitioner's son Dr. Ahsan Mukhtar. The respondent No.2 had always held prized posting in Army and he resigned in the year 1982 which was accepted in the year 1983 because he refused to do Martial Law duties. Therefore, the contention that he misused his position during the Martial Law and coerced the Revenue Authorities for sanctioning illegal transactions is sheer allegation. All the mutations were sanctioned after observing due process of law and there was no compulsion on Revenue Authorities for doing anything illegal. Even otherwise, they were fully competent to disobey the illegal orders. Civil suit was filed by the petitioner on 25-3-1991 prior in time to the filing of the present revision petition on 31-3-1991. In the civil suit not only the power of attorney but all the sales made thereunder through registered sale-deeds have been challenged and the matter is still sub judice . 14.The learned counsel for the petitioner did not stop at dragging the respondents in Revenue and Civil Courts but he also lodged three F.I.Rs. and one private complaint on criminal side on
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various occasions. The private complaint was lodged on 19-4-1988 and it was ultimately cancelled on merits. F.I.R. No.54 of 1989 was lodged in Police Station, Alipur City on 29-3-1989 which was finally cancelled under order of the Ilaqa Magistrate. Another F.I.R. No.83 of 1993 with the same allegations was again cancelled after thorough probe and investigation. Similarly, F.I.R. No.580 of 1992 after detailed investigation was ultimately cancelle because police could not find anything wrong or any fraud. The police even obtained the register of Sub-Registrar and after thorough examination of the Sub-Registrar's office record came to the conclusion that power of attorney was registered in accordance with the law. Even in the parawise comments submitted by D.I.-G. Dera Ghazi Khan, in Writ Petition No.2545 of 1991, he himself admitted that Investigating Officer personally went twice to the petitioner who confirmed to him that power of attorney was genuinely given and all other relatives also confirmed the genuineness of the power of attorney. 15.It was further argued that even prior to the disputed power of attorney, the petitioner had given a duly registered power of attorney on 6-2-1975 in favour of respondent No.2 i.e. Ijaz Hussain Shah, when there was no Martial Law. Second power of attorney was given in the year 1977 and both powers of attorney were witnessed by Dr. Ahsan Mukthar brother of the learned counsel for the petitioner, who has admitted his signatures on both the powers of attorney in the Civil Court. 16.So far as the name of the petitioner in the disputed power of attorney is concerned, the name Saeeda Mumtaz Jehan has correctly been written because her name in the entire Revenue Record is being shown exactly in the same manner. The respondents have come to the Court with Clean hands. Rather the learned counsel for the petitioner has not come with clean hands before the Court because respondents Nos.3, 4 and 5 were even minor in the year 1975. Power of attorney was first executed in favour of respondent No.2 and these respondents have got no connection with the property or anything connected therewith. That is why they were not even included in the F.I.R. Equity demands that the petitioner should have come with the clean hands. Just to defame and pressurise the family, all other family members have been included in the list of respondents. Both powers of attorney duly registered are still intact with the Registration Authorities. They have neither been got revoked or cancelled nor there is any stay order by any Court. They being still in operation in itself is a big proof of their genuineness. 17.Before putting forward his arguments on the law points, the learned counsel for the respondents submitted photo copies of the opinion given by the Supreme Court of Illinois. U.S.A. upheld by the United States Court of Appeals of Philadelphia, whereby Mr. Jaffri was disbarred from the practice of law and his name was struck from the role of attorneys on the ground of making frivolous law suits and being incapable of conforming his conduct to an acceptable standard. His unprofessionalism was declared as an abuse of the privilege to practise the law and tended to bring the judicial system and legal profession into disrepute. Similarly a photo copy of the judgment in Suit No.1727 titled Cheng Jaffri v. lqbal Jaffri of . Honourable Judge Saleeman of High Court of Justice Family Division, London was placed on record by the learned counsel to show the conduct of the learned counsel for the petitioner who consistently abuses every indulgence in spite of repeated warnings and consistently refuses to address his mind to the relevant issues in the case. 18. It was argued that when the power of attorney duly authorized/executed and registered is still intact and when almost all the transactions took place on the basis of registered sale-deeds and when the civil suit is still pending in this regard this revision petition is not maintainable which should be dismissed. None of the three conditions for the admissibility/maintainability of the revision petitions as laid down in section 11 of C.P.C. i.e. (i)Wrong exercise of jurisdiction; (ii)Exercise of jurisdiction not vested; and (iii)Jurisdiction exercised in illegal/irregular manner;
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is/was fulfilled. One of these three conditions has to be proved even before admission of the revision petition for regular hearing. But in this case, none of the conditions is attracted. Revenue Officer had the legal powers and jurisdiction to sanction the mutations on the basis of registered sale-deeds and registered power of attorney. Mutations are only for record and fiscal purposes as held so many times by the superior Courts in chain of authorities. Mutations do not create any title or rights which are created by the registered sale-deeds. So by sanctioning the mutations on the basis of registered power of attorney and registered sale-deeds no illegality/ irregularity has been committed PLD 1966 (W.P.) Revenue 106. Attestation of mutations are summary proceedings which do not decide about the rights of the people as in these proceedings a detailed factual enquiry cannot take place. Questions of title are to be decided by the Civil Courts 1984 CLC 3279, PLD 1988 Revenue 57 and PLD 1981 Revenue 1. 19. It was further argued that complicated questions of fact and law are always to be determined by the Civil Courts and Revenue Authorities are restrained to determine such questions. Reliance was made on 1986 SCMR 598, PLD 1960 (W.P.) Lah. 300, PLD 1986 Revenue (Sindh) 131, PLD 1966 (W.P.) Revenue 106 etc. etc. Revenue Authorities are bound to incorporate registered documents in the Revenue Record. Even if they have doubt about any registered document, they are supposed to first comply with the registered documents and then let the parties go to the Civil Court to determine the authenticity of those documents. It was further contended that whenever there is an allegation of fraud and misrepresentation which had led to attestation of mutation, the Revenue Authorities have no jurisdiction to adjudicate as held in:-- (i) PLD 1988 Revenue 57; (ii) PLD 1964 (W.P.) Revenue 1; (iii) PLD 1964 (W.P.) Revenue 65; and (iv) PLD 1964 (W.P.) Revenue 101. 20.When the registered sale-deeds are intact, mutations cannot be set aside. Even if mutations are cancelled, it would not affect the title and rights of the parties unless the sale-deeds. are cancelled. Correction, rectification and even cancellation of a registered document can be done only by the Civil Court, as held in 1971 SCMR 414(c), 1984 CLC 3130, PLD 1986 Revenue (Sindh) 43 and NLR 1978 Revenue 125. It was averred that long-standing entries in the Revenue Record cannot be set aside even by the Board of Revenue. If there is a delay in challenging the mutations such a challenge should not be entertained by the Revenue Authorities and parties should be directed to go to the Civil Court as held in PLD 1990 Revenue 79 and PLD 1987 Revenue 25. 21.Referring to the decision of the Board of. Revenue in case Muhammad Ismail and others v. Mst. Bashir Bibi reported at 1997 CLC 1204 the circumstances of which are exactly the same as of the case in hand, it was argued that if mutation is sanctioned on the basis of a registered power of attorney, the same cannot be set aside. It was held that it was the function of the Civil Courts and not of Revenue Courts to sit in judgment over genuineness of power of attorney which was a registered document. Revenue Courts could not go beyond registered power of attorney and registered sale-deeds to establish alleged fraud concerning a registered document, the same could be examined only by the Civil Court. The Revenue Authorities are not supposed to know the purpose for which the property is being sold, as contended by the learned counsel for the petitioner. How and why the Revenue Authorities should know whether the petitioner was in a need to sell her property. They are simply to go by the registered documents PLD 1965 (W.P.) Revenue 42. 22.Relying on PLD 1961 (W.P.) Revenue 14, it was urged that when issue is pending in the Civil Court as well'as before the Revenue Authorities, as in this case, Revenue Courts need not decide the case to avoid possible conflict of decision. It was stressed that the petitioner is solely relying upon Jatoi's case which is no longer relevant in this case because in that case the forged signatures were admitted by the parties whereas there is no such admission in this case. Rather petitioner admits and owns her signatures. Similarly this is not a case of fraud as alleged by the petitioner. It has been probed not once but thrice by the Police Authorities also but they did not detect any fraud
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and if still they allege it as a fraud then the petitioner should first prove and establish the fraud for which she has already gone to the Civil Court. Moreover, after Jatui's case, .which was announced in the year 1973, so many authorities of the superior Courts have come in the field in the light of which this case is no longer at all applicable to the case in hand and all the authorities of the superior Courts as quoted earlier clearly say that the petitioner should go to the Civil Court. 23.So far as allegation of selling the land on…
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