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Petitioner: SULTAN MUHAMMAD and another VS Respondent: MUHAMMAD QASIM and others
Court Name: Supreme Court of Pakistan Judge(s): Rehmat Hussain Jaffery, Anwar Zaheer Jamali, Shakirullah Jan Title: SULTAN MUHAMMAD and another vs MUHAMMAD QASIM and others Case No.: Civil Appeals Nos. 1668 and 1669 of 2002 Date of Judgment:2010-07-21 Reported As: 2010 SCMR 1630 Result: Appeals accepted
JUDGMENT
JUDGMENT ' ANWAR ZAHEER JAMALI, J.---These two appeals with the leave of this Court, vide order dated 22- 10-2002, have somewhat complexed facts, and chequered history of litigation, which may be summarized as under:-- 2. Evacuee property katcha superstructure of shop over Survey No,513, (Original No,275) situated over khewat No,1, khatooni No,489, having area of 394 sq. Ft., Trench Road, Chaman City; hereinafter referred to as "disputed property", according to the case of the appellants, was originally owned by Evacuee "Kishan Dass" and since pre-partition days, it remained in occupation of Chargul (father)/ predecessor-in-interest of appellant Abdul Haleem, as tenant uptil his death in the year 1955. Rent of disputed property, which was later on assigned new No,601, was paid by Chargul to the Custodian Department, and thereafter by his legal heirs. Since the land underneath the disputed property was owned by Municipal Committee, Chaman, therefore, later on legal heirs of Chargul continued making payment of its rent to the Municipal Committee, Chaman. 3. Under the Settlement Scheme No,VII of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (in short "Act of 1958"), (as reconstituted on 16-4-1966), the evacuee properties valuing less than Rs,10,000 in occupation of a claimant/non-claimant or a local before 1- 1-1961 were to be transferred to its occupants, subject to fulfilment of certain other conditions, free of charge, on application submitted to the Tehsildar of the area, who at the relevant time, was acting as assistant Rehabilitation Commissioner. As per further case of appellants, the disputed property, being one of such properties, therefore, respondent No,1 Muhammad Qasim, who was actually inducted in the disputed property by one of the legal heirs of Chargul as tenant, in the first instance, by misrepresentation of facts, managed issuance of transfer order dated 1-3-1972, in
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respect of residential portion of disputed property bearing khasra No,513, under the said scheme in his favour. However, when this fact came to the knowledge of the legal heirs of Chargul, having recourse to rule 6 of Permanent Transfer rules framed under section 35 of the Act 1958, they made application/ complaint against such transfer order before the Tehsildar/Assistant Rehabilitation Commissioner, who, in its response, cancelled the earlier transfer order dated 1-3-1972 in favour of Muhammad Qasim, vide order dated 19-5-1972, and issued fresh transfer order of the whole disputed property as shop in favour of Sultan Muhammad son of Haqdad on 27-5-1972, who was one of the grandsons of Chargul. Subsequently, through family arrangement, Sultan Muhammad surrendered this shop in favour of his uncle Abdul Haleem son of Chargul, who also submitted an application before the Municipal Committee for transfer of underneath land of the disputed property to him. This matter was accordingly processed and on 27-8-1973, thirty years lease/patta of land was also granted in his name. 4. After a period of more than twelve years, on 6-2-1986, Respondent No,1 Muhammad Qasim filed Civil Suit No,95 of 1986 (Original No,30 of 1986) before the Court of Civil Judge, Quetta, to challenge the title of the appellant Sultan Muhammad in the disputed property, transferred to him by the Settlement Department on 27-5-1972 as well as subsequent lease of the land underneath the disputed property for a period of thirty years, vide lease deed dated 27-8-1973. His case before the Civil Court was that the transfer of disputed property in his favour, vide transfer order dated 1-3- 1972, was a valid transfer, which was cancelled without any notice or opportunity of hearing to him, thus, ab initio void. His further case was that he had been pursuing the matter before the Municipal Committee for grant of lease of the land underneath the disputed property, but he was kept under false hopes, and it transpired to him only in the month of October 1985 that grant of lease for a period of thirty years was managed by Abdul Haleem in his favour as back as in the year 1973. Based on such assertions, relief claimed by respondent No,1 (Muhammad Qasim) in his suit was to declare that the permanent transfer deed of disputed property No,513, dated 27-5-1972, and patta/lease dated 13-11-1972 (correct dated 27-8-1973) of the land underneath the disputed property issued in favour of Abdul Haleem by other defendants in the suit, were without lawful authority. Further relief sought in the suit were directions against the Municipal Committee and Deputy Commissioner, Pashin to grant patta of the land underneath the disputed property in favour of the plaintiff. 5. As against the above claim of respondent No,1, case of two appellants, inter alia, was that: (a) transfer order dated 1-3-1972, was a managed and forged document, which was rightly cancelled by the competent authority, vide order dated 19-5-1972; (b) after issuance of final transfer document in favour of Appellant Abdul Haleem, on 27-5-1972, which remained unchallenged, even after the repeal of settlement laws, jurisdiction of the civil Court was barred under sections 22 and 25 of the Act of 1958; (c) due to non-challenging of cancellation order dated 19-5-1972, passed by Assistant Rehabilitation Commissioner & Tehsildar, Chaman, and non-seeking of relief of restoration of transfer order dated 1-3-1972, the suit was barred by section 42 of the Specific Relief Act, 1877; (d) the suit was hopelessly time barred; and (e) Muhammad Qasim was in possession of the disputed property as tenant of predecessor-in-interest of the appellants under a written tenancy agreement, thus, he was estopped from challenging the title of the appellant Abdul Haleem over the disputed property. 6. In the first round of litigation, suit filed by respondent No,1 Muhammad Qasim, being suit No,95 of 1986, was dismissed by the Civil Judge, Quetta on 31-3-1992, holding in the judgment that, inter alia, the suit was barred by time. However, appeal against such judgment filed by him before the Court of Additional District Judge-III, Quetta, being Appeal No,34 of 1992, was allowed, vide judgment dated 23-9-1992. Against such judgment of the appellate Court in favour of respondent No,1 (Muhammad Qasim) appellants preferred Civil Revision No,278 of 1992, before the High Court of
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Balochistan at Quetta. At the time of hearing of this civil revision, it was brought to the notice of the High Court that another Civil Suit No,66 of 1991 for declaration and permanent injunction in respect of the disputed property, instituted by appellant No,2 Abdul Haleem, was also pending before the Civil Court at Quetta. Therefore, keeping in view this aspect of the case, the two earlier judgments of the Civil Judge dated 31-3-1992 and the appellate Court dated 23-9-1992 were set aside by the High Court, vide its order dated 16-5-1993 and the case was remanded to the Civil Judge at Quetta to proceed with both the suits simultaneously. 7. It will be pertinent to mention here that on 6-2-1986, at the time of institution of suit No,30 of 1986 (new No,95 of 1986) before the Court of Civil Judge, Quetta, respondent No,1 Muhammad Qasim, as plaintiff in the said suit, had only impleaded Sultan Muhammad son of Haqdad and three official respondents as defendants in the suit, to the exclusion of main contesting party to this litigation i,e, Abdul Haleem son of Chargul, who, held the transfer documents of the disputed property issued from the Settlement Department in his name, so also the patta/thirty years lease of land from respondent No,2, Municipal Committee, Chaman. Careful perusal of case record reveals that said Abdul Haleem was joined as defendant in the suit through an application to this effect moved by appellant No,1 Sultan Muhammad on 13-2-1990, which was allowed on the same day, and accordingly such amended plaint was filed in the suit on 21-3-1990, but without claiming any relief against him. To this plaint, however, corresponding written statement on behalf of appellant No,2 Abdul Haleem was filed on 7-4-1990. Case record further reveals that on 29-8-1994 with the leave of the Court another amended plaint, for the first time containing any relief against appellant Abdul Haleem was filed by respondent No,1 Muhammad Qasim, to which detailed written statement was filed by appellant Abdul Haleem on 19-9-1994, on the same lines, also disputing the maintainability of the suit on various legal grounds. 8. Before proceeding further, it would not be out of place to mention here that before the institution of Suit No,66 of 1991, for declaration and permanent injunction, appellant Abdul Haleem had also filed ejectment application No,50 of 1986, under the Balochistan Urban Rent Restriction Ordinance 1959 (Act VI of 1959), against respondent No,1, which was contested by respondent No,1 on the plea of non-existence of relationship of landlord and tenant between the parties. This ejectment application was dismissed by the Rent Controller, vide order dated 18-4-1990, which was challenged by appellant Abdul Haleem in appeal. However, that appeal was also later on withdrawn by him, with the permission to file a civil suit. It was in this background that Civil Suit No,66 of 1991, was instituted by appellant Abdul Haleem on 12-9-1990 with the following prayers:-- "(a) Declaring that plaintiff is owner and landlord of the premises shop No,601 (Now Number) old No,513 situated on Tranch Road, Chaman. (b) Declaring that the document dated 1-3-1972 is a fraudulent document having been obtained illegally and unlawfully, having no force of law. (c) Directing the defendant to hand over vacant possession of the shop. (d) Restraining the defendant No,1 permanently from claiming right, title over the suit property. (e) Directing cancellation of the document dated 1-3-1972. (0 Any other relief which may be deemed appropriate. (g) Costs of the proceedings may also be awarded." 9. After the remand of earlier Suit No,95 of 1986, instituted by respondent No,1 Muhammad Qasim on 6-2-1986, both the suits were consolidated and proceeded with together before the same Court and after recording of parties evidence, and production of certain documents by them in respect of their respective claims, through common judgment dated 31-7-1995, Civil Suit No,95 of 1986, filed by respondent No,1 Muhammad Qasim against the appellants and respondents Nos.2 to 4 was decreed, whereas suit No,66 of 1991, instituted by appellant Abdul Haleem against respondent Na.1 and respondent No,4 Assistant Rehabilitation Commissioner, Chaman, was dismissed. The appellants, therefore, preferred two separate appeals bearing Nos.68 of 1995 and 69 of 1995
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against such consolidated judgment of Civil Judge-I Quetta, before the Court of District Judge, Pashin, where they remained unsuccessful, as both these appeals were dismissed vide judgment dated 30-3-1996. Appellants being dissatisfied by the concurrent findings of the two Courts against them, preferred two civil revision applications under section 115, CPC, being Civil Revisions Nos.160 of 1986 and 161 of 1996, before the High Court of Balochistan, which were heard together and dismissed by the learned single Judge in the Chambers of Balochistan High Court by common judgment dated 17-7-1998. It is against such judgment of the Balochistan High Court that after grant of leave by this Court, in both the petitions, vide order dated 22-10-2002, these two appeals have come up before us for arguments. 10. Mr. Basharatullah, learned Senior Advocate Supreme Court representing appellants in these two appeals made an elaborate discussion on the facts and the relevant provisions of Settlement laws, in particular, Scheme No, VII of the Act of 1958, to explain, as to how in a lawful manner the disputed property was transferred to the appellant Abdul Haleem, under such Scheme, vide transfer order dated 27-5-1972, in favour of Sultan Ahmad, from whom it was later on legally transferred in the name of appellant Abdul Haleem son of Chargul. He vehemently contended that under a written tenancy agreement, respondent No,1 Muhammad Qasim was put in possession of the disputed property as tenant, whereafter in a fraudulent manner, through fraud, misrepresentation and in connivance with the Settlement and Rehabilitation staff, he succeeded to manage a forged transfer order dated 1-3-1972 in his favour to acquire ownership of the disputed property. However, on timely application/complaint made by the legal heirs of Chargul, who were in occupation of the disputed property through their father since pre-partition days and were making its regular payment of rent to Municipal Committee, Chaman, such illegality was detected, rectified, transfer order in favour of Muhammad Qasim was cancelled, vide order dated 19-5-1972, and proper transfer order was issued in their favour on 27-5-1972. Further submission of Mr. Basharatullah was that transfer of disputed property from the Settlement department under Scheme No,VII to Sultan Muhammad and thereafter to appellant Abdul Haleem is a separate and distinct part of this litigation, which has nothing to do with the second limb of dispute, through which the lease/patta of such land for a period of thirty years was lawfully granted by Municipal Committee, Chaman in favour of Abdul Haleem on 27-8-1973. In this regard, further submission of the learned counsel was that, mere "ipse dixit" of Muhammad Qasim, that he was pursuing the matter for grant of such lease/patta of shop with the Municipal Committee since the year 1973, was of no legal significance, as this fact was also belied from the bunch of documents brought on record by appellants (Ex.D/1 to D/9), in Suit No,95 of 1986 and Ex.P/1 to P/25 in Suit No,66 of 1991, showing, amongst others, regular payment of rent to the Custodian Department and thereafter lease money "Bhom Bhara" by appellant Abdul Haleem in respect of the disputed property from time to time. Learned counsel further submitted that a presumption of correctness in the performance of official functions is attached by virtue of Article 129 of the Qanun-e-Shahadat Act of 1984, therefore, mere words of respondent No,1 about alleged transfer of disputed property in his favour through transfer order dated 1-3-1972, qua its cancellation without any notice and behind his back were not sufficient, unless firstly, he could show that any such transfer order in respect of disputed property, if passed, was ever implemented in his favour by issuance of PTD; secondly, whether the cancellation order dated 19-5-1972, was passed without any notice or opportunity of hearing to him; and thirdly, whether for a long period of almost 13 years he had no knowledge as to who owned the disputed property in his possession. He continued with his submissions that in such circumstances, proper course available to respondent No,1 was that he should have summoned, the original record from the Settlement and Rehabilitation Department to show that (a) transfer order dated 1-3-1972 in his favour was actually subsisting and it was a lawful transfer order; and (b) it was cancelled on 19-5- 1972, without any notice or opportunity of hearing to him, but all this was not done. He also
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contended that the only document to show possession of respondent No,1 over the disputed property was a photostat copy of receipt regarding payment of rent to the Custodian Department, which, according to the appellants, was a bogus document and was not proved in accordance with law as nobody was summoned from the Custodian/ Settlement departments to prove its authenticity. In the same context, he further submitted that question of payment of rent to the Custodian Department by respondent No,1 does not arise, as except Chargul no one ever remained recorded tenant of the disputed property with the Custodian Department, which is an undisputed position on record. He also argued that to overcome the question of limitation, which, by virtue of section 3 of the Limitation Act, was statutory duty of the Civil Court to examine, respondent No,1 has made a bald statement before the Civil Court about his lack of knowledge of all these material events, which have occurred in the years 1972, and 1973. He emphasized that such bald assertion by respondent No,1 was not sufficient to overlook all other material facts and salient features of the case and to condone in this way such inordinate delay in the filing of civil suit, after lapse of more than twelve years. Further dilating upon the question of limitation, learned counsel pointed out that period of limitation against the main contesting defendant Abdul Haleem was to be computed from the date when at the instance of appellant No,1, as per Court order dated 13-2-1996, for the first time on 21-3-1990, he was arrayed/joined by respondent No,1 in his Suit No,95 of 1986, as defendant No,2. Thus on this count too suit instituted by the respondent No,1 was hopelessly time- barred against him, but this aspect of the case was not even adverted to by any of the three Courts below. Advancing his argument, Mr. Basharatullah, candidly concluded that in exercise of revisional jurisdiction under section 115, C.P.C., concurrent findings of fact recorded by two Courts below are not open to question, even if on facts another view of the matter was possible on the same set of evidence. However, he further argued that if such concurrent findings are based on patent misreading or non-reading of evidence or are against the statutory provisions or settled legal principles, as in the instant case, then the same are not immune from interference by the revisional Court in exercise of its jurisdiction under section 115, C.P.C. Or by this Court in exercise of its jurisdiction under Article 185 (3) of the Constitution. Further arguing the point of limitation, learned counsel contended that respondent No, 1, at the time of filing his declaratory suit on 6-2- 1986, was required to be specific in his pleadings in terms of Order VII rule 6, CPC, about the narration of relevant facts of acquiring knowledge, to avoid the bar of limitation in following up his remedy after lapse of over twelve years, explaining the happening of relevant events of transfer of disputed property by Settlement Department in favour of Sultan Muhammad and thereafter its transfer to appellant Abdul Haleem and grant of patta/lease of thirty years in his favour, but plaint in the suit was absolutely silent on these material aspects, regarding which burden of proof squarely lay upon respondent No,1, and during evidence also it remained undischarged. He further made reference to rule 6 of the Permanent Transfer Rules to give legal justification of the order dated 19-5-1972, whereby transfer order in favour of Muhammad Qasim was cancelled. 11. Lastly, he made reference to the provisions of sections 22 and 25 of the Act of 1958 to show that after issuance of permanent transfer document of disputed property in favour of appellant No,2 through his predecessor on 27-5-1972; cancellation of transfer order dated 1-3-1972, in favour of respondent No,1, vide order dated 19-5-1972, and non-challenging of all these proceedings and orders before Settlement authorities, having lawful jurisdiction in respect of disputed property, being evacuee, such actions/ orders of the Settlement authorities in particular, after he repeal of Settlement laws, attained finality, and thus, the same were not open to question through proceedings before the Civil Court due to the bar of jurisdiction under these sections of the Act of 1958. Similarly, grant of lease of land a period of thirty years by Municipal Committee, Chaman in favour of appellant No,2 on 27-8-1973, was an independent, past and closed transaction between the appellant No,1 and respondent No,2 (Municipal Committee Chaman), for which respondent No,1
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never agitated before any forum, nor has locus standi to question the validity of such transaction as admittedly he never applied to the respondent No,2 for this purpose. In support of his arguments, learned counsel placed reliance on the following cases:-- (1) Muhammad Jamil Asghar v. Improvement Trust (PLD 1965 SC 698) (2) Anwar Hussain v. Sarfraz Ahmad (PLD 1971 SC 669) (3) Zafarul Hassan v. Muhammad Kalim (1993 SCM R 2028) (4) Muhammad Ramzan v. Bashir Ahmad (PLD 1981 SC 340) (5) Sher Afzal Khan v. Razi Abdullah (1984 SCM R 228) (6) Ghulam Rasul v. Jannat Bibi (1990 SCM R 744) A review of these cases reveals that:-- (a) In the case of Muhammad Jameel Asghar (supra), dilating upon the jurisdiction of Settlement Authorities qua bar of jurisdiction under sections 22 and 25 of the Act of 1958, it was held by this Court that the Settlement Authorities could only exercise jurisdiction in respect of the properties, which are evacuee in nature, thus order of Settlement Authorities relating to the determination of status of a property was open to challenge before the Civil Court only on the ground that the property was non-evacuee and thus Settlement Authorities lacked jurisdiction in respect thereof. (b) In the case of Anwar Hussain (supra), the principle laid down by this Court was that after issuance of PTD, the Settlement Authorities become functus officio to deal with that property. However, Permanent Transfer Rules, 1961, framed by the Central Government, in exercise of powers conferred on it by section 35 of the Act of 1958, were an exception to it, as two types of cases are envisaged in the rules in which Settlement Authorities may interfere even after issuance of PTD. Firstly, the cases which suffer from an error of type, which can be corrected without embarking upon a formal inquiry or holding adverse proceedings. Cases of clerical mistakes or errors of like nature will fall within this category of cases. Second type of cases dealt with under rules 6 and 7 are those in which transfer or allotment of an evacuee property was obtained by means of misrepresentation or fraud. The Settlement Authorities may under the second part of rule 6 or 7 vary, modify or cancel the Permanent Transfer Deed issued to such a transferee if on holding a proper inquiry and giving the transferee an opportunity to be heard, it is found that he has been guilty of misrepresentation and fraud. (c) In the case of Zafar-ul-Hassan (supra), taking into account the provisions of sections 22 and 25 of the Act of 1958, it was held that jurisdiction of Civil Court was barred in the matters wherein it vested with the Settlement Authorities under the Act of 1958. (d) In the case of Muhammad Ramzan (supra), while dealing with the question of service of notice under section 30 of the Act of 1958, qua the effect of section 6 of the General Clauses Act, 1897, it was held that after the repeal of Act of 1958 by Act XIV of 1975, service of such notice to the tenants of evacuee property was no more a requirement of law. (e) In the case of Sher Afzal Khan (supra) it was held that after the issuance of PTD, the Settlement Authorities become functus officio, therefore, even after coming into force of repealing Act XIV of 1975, no powers could be exercised to review or reopen such past and closed transaction. (f) In the case of Ghulam Rasul (supra), while refusing leave to appeal against the judgment of the High Court, it was observed by this Court that after the issuance of PTD by the Settlement Authorities, the proceedings shall be deemed to have become final, therefore, by virtue of section 25 of the Act of 1958 Civil Court will have no jurisdiction to correct the orders of the Settlement Authorities, which have attained finality. 12. Conversely, Mr. S. A. M. Quadri, learned ASC for respondent No,1, who has also submitted concise statement of his submissions, contended that after issuance of permanent transfer deed (PTD) in favour of respondent No,1 by the Assistant Rehabilitation Commissioner, Chaman, on 1-3-1972, the disputed property was no more available for transfer to any other person, thus, its cancellation by the same officer, vide subsequent order dated 19-5-1972, and its transfer in favour of appellant
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Abdul Haleem was ab initio void, hence no period of limitation would run against such illegal action. He further contended that respondent No,1 was recorded tenant of Custodian Department in respect of the disputed property, which is evident from the receipt of payment of rent to them, dated 23-9-1957, therefore, any factual plea raised by the appellants about the possession of the disputed…
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