Full Judgment Text & Judicial Ruling

1988 C L C 917

1988 C L C 917

[Karachi]

Before Ajmal Mian and Haider Ali Pirzada, JJ

FATEH ALI KHAN‑‑Petitioner

versus

FEDERAL LAND COMMISSION and others‑‑Respondents

Constitutional Petition No. D‑363 of 1981, decided on 2nd September, 1987.

Constitution of Pakistan (1973)‑‑

‑‑Art. 199‑‑Constitutional jurisdiction, exercise of‑‑Point involving disputed questions of facts not urged and pleaded before first forum, held could not be allowed to be raised in constitutional jurisdiction.

Syed Nasiruddin for Petitioner. G.H. Abbasi for Respondents Nos.5 and 6.

Date of hearing: 2nd September, 1987.

JUDGMENT

AJMAL MIAN, J.‑‑This petition is directed against an order dated 16th February 1981 passed by respondent No.l.

2. The brief facts leading to the filing of the above petition are that the present petitioner filed a declaration under M.L.R. 115 showing the following gifts:‑

80.(1) Mst. Mehr Bibi 159.35/5915 gift wife 9‑4‑1973 (2) Banik Bibi Daughter 80.(1) Mst. Mithan 46‑00/1573 gift d/o Allah Dino Khan 3‑3‑1976 88.(1) Kadir Bux s/o 64‑18/2385 gift Allah Dino 3‑3‑1976 Grand Son 270‑13/9873 ---------------

It appears that the above declaration was scrutinized by the Deputy Land Commissioner, Tharparkar on 15‑8‑1979 and by his order of even date he did not accept the gifts in favour of Mst. Meherbi, respondent No.5 and Mst. Banik Bibi respondent No.6. As a result of the above order land measuring 56‑11 acres was ordered to be resumed. Against the above order the petitioner filed a revision which was dismissed by the learned Chief Land Commissioner Sind, Hyderabad by his order dated 14‑9‑1980. The petitioner went in revision before the Federal Land Commissioner against the above two orders and his revision was upheld and the above two gifts were held to be valid. It was ordered that the above land measuring 56‑11 acres which was ordered to be resumed on the assumption that the above two gifts were invalid was to be restored to the petitioner. Against the above order the petitioner has come in this writ petition.

3. In support of the above writ petition Mr. Syed Nasiruddin learned counsel for the petitioner has made the following submissions:‑

(1) That all the functionaries under the M.L.R.155 referred to hereinabove have failed to take into consideration that the land which was the subject matter of the declaration was Banjar Qadeem and therefore the petitioner was entitled to concession on that account;

(2) That the petitioner's son Muhammad Hayat was already given land in gift about 16 acres against which he had obtained a loan from the bank which fact also was not taken into consideration by the authorities below;

(3) That the gifts in favour of the wife and the daughter referred to hereinabove were invalid as the possession of the land was not given as was required under Muslim Law, and

(4) That the petitioner is entitled to compensation in respect of the land resumed for digging a canal.

4. On the other hand Mr. G.H. Abbasi learned counsel for the respondents Nos. 5 and 6 has submitted that the petition is not maintainable as the impugned order in fact is in favour of the petitioner in terms of his prayer contained in the revision. He has further submitted that the points now urged before this Court do not find any place in the declaration filed by the petitioner and which was the subject matter of the three orders referred to hereinabove.

5. It appears to be an admitted position that the only issue in the three orders referred to hereinabove was the validity of the gifts in favour of the petitioner's wife and daughter mentioned hereinabove. The points now urged before us were not the subject matter before the three forums which have passed the orders. However, it was submitted by Mr. Syed Nasiruddin that since these points involve are the points of law and can be raised first time in this petition. We are unable to subscribe to the above submission. All these points involve disputed questions of facts which should have,, been urged and pleaded before the first forum. In our view the petitioner has no locus standi to file the above petition as admittedly upon his revision filed by him before the Federal Land Commissioner the gifts in favour of his wife and daughter were validated. It is not open to him to impugn the above order which is in fact in his own favour. The petition has no merits. It is dismissed‑ with no order as to costs.

H .B . T . /F‑41/ K Petition dismissed.

Related Legal Research & Directories

• Browse all judgments from Sindh High Court
• Search Pakistani statutes: Constitution of Pakistan 1973, PPC, CrPC, CPC & Family Laws
• Analyze this case with Al Wakeelo AI Legal Assistant