Full Judgment Text & Judicial Ruling

2016 C L C Note 22 [Sindh (Hyderabad Bench)] Before Salahuddin Panhwar, J SHAMSHAIR ALI----Applicant Versus MUKHTIARKAR (REVENUE) AND CITY SURVEY OFFICER and 2 others--- Respondents Civil Revision A. No.15 of 2011, decided on 22nd October, 2014. (a) Specific Relief Act (I of 1877)--- ----S. 27---Transfer of Property Act (IV of 1882), S. 41---Suit for declaration---Fraudulent transaction---Defective title---Effect---Sale of government property by an unauthorized person---Bona fide purchaser---Audi alteram partem, principle of---Applicability---Contention of plaintiff (claiming to be a bona fide purchaser) was that he had purchased the suit property through registered sale deed and mutation had been effected in his favour which could not be cancelled by the revenue authority---Suit was dismissed concurrently---Validity---One could competently transfer a title but he could not transfer what he did not have---Transferee could not claim to have acquired a better title than the one transferor was capable of---What one could not get directly, he could not get the same indirectly---Plaintiff had not sought any declaration with regard to the title of vendor under whom he was claiming and which was the basic/route---Foundation/route of the subject matter was not being sought to be protected by the plaintiff---Where foundation was found defective, the whole superstructure raised thereon should collapse---Benefit of S.41 of Transfer of Property Act, 1882 would be available to a bona fide owner but such benefit/protection was not available to one who had acquired a title from an unauthorized and incompetent person or from the person who had acquired the title through fraudulent mean---Even a bona fide claim could not save fraud from the action of process of law as and when it had come to light---Suit property was a Government property and vendor (under whom the plaintiff was claiming) had got the entry in record of rights fraudulently without any allotment or reference to earlier seller---Vendor, in the present case, was never a legal and lawful owner of the subject matter capable to enter into any lawful transaction of suit property with the plaintiff---Protection of S.41 of Transfer of Property Act, 1882 would not be available against a fraudulently obtained title or with regard to which fraud had been committed---Object of said Act was not to provide a legal protection to an ill-gotten or fraud---Principle of audi alteram partem could not be applied to defeat the ends of justice or to make the law lifeless, absurd, stultifying, self-defeating or plainly contrary to the common sense of situation---Concerned quarter on coming to the know the fraudulent entry in the name of vendor exercised jurisdiction to cancel the same---Cancellation of such fraudulent entry had not caused any harm to the plaintiff as same was of root entry which had not been challenged---Plaintiff being transferee was to sail and sink with the vendor and his claim if any would lie against the said vendor---Plaintiff had accepted the title of vendor to be fraudulent---Principle of audi alteram partem was not of universal application but would be excluded if importing the right to be heard had the effect of paralyzing the administrative process or the need for promptitude or the urgency of the situation had so demanded---Impugned judgments passed by both the courts below appeared to be well reasoned---Only civil court was competent to cancel the registered deed but one could not be entitled to derive his legal character from a fraudulent transaction---No illegality or irregularity had been pointed out in the impugned judgments---Revision was dismissed in circumstances. Mir Muhammad Ali Rind v. Zahoor Ahmed and another PLD 2008 SC 412; Moulana Atta-ur-Rehman v. Al-Hajj Sardar Umar Farooq and others PLD 2008 SC 663; Dr. Manoj Kumar Malani v. Returning Officer and 2 others 2006 MLD 205; Muhammad Asghar v. Member Board of Revenue and others 2009 MLD 1023; Amir Jamal and others v. Malik Zahoor-ul-Haq and others 2011 SCMR 1023 and Messrs Ahmed Clinic v. Government of Sindh and others 2003 CLC 1196 ref. Bank of Punjab and another v. Haris Steel Industries (Pvt.) Ltd. and others PLD 2010 SC 1109; Nawab Khan v. Raisa Begum and others 2003 SCMR 1498; Talib Hussain and others v. Member Board of Revenue and other 2003 SCMR 549; Abdul Hameed through L.Rs. and others v. Shamsuddin and others PLD 2008 SC 140 and Re: Justice Khurshid Anwar Bhinder and others v. Federation of Pakistan and another PLD 2010 SC 483 rel. (b) Civil Procedure Code (V of 1908)--- ----S. 115---Revisional jurisdiction of High Court---Scope---Scope of revisional jurisdiction of High Court was limited and confined to correction of jurisdictional defects, patent illegality/irregularity effecting merits of the case and not merely for substituting its own findings with that of Appellate Court---High Court could not disturb factual controversy resolved by the courts below while exercising revisional jurisdiction unless it was surfaced that impugned judgment was the result of non-reading, misreading and violation of legal principles. 2012 SCMR 508 rel. Pirbhulal U. Goklani for Applicant. Ashfaque Nabi Kazi, Asstt. A.G. Date of hearing: 22nd October, 2014.

ORDER SALAHUDDIN PANHWAR, J.---Through instant Civil Revision, applicant has assailed the judgment dated 25th October, 2010 passed by 1st Additional District and Sessions Judge, Mirpurkhas in Civil Appeal No. 69/2010, whereby judgment and decree dated 31.05.2010 and 05.06.2010 in F.C. Suit No.64/2003 (Re-Shamshair Ali v. Mukhtiarkar and others) recorded by IInd Senior Civil Judge, Mirpurkhas was maintained. Consequently, civil suit filed by plaintiff/applicant was dismissed. 2. Succinctly, facts are that applicant/plaintiff filed F.C. Suit for Declaration and Mandatory Injunction, stating therein that Muhammad Hashim son of Abdul Hakeem was owner of plot bearing C.S. No.1206 area 2560 sq. feet situated in Ward No.5 Kot Ghulam Muhammad Town; his name was entered as owner in the Extract Form of Property Register, maintained by the respondent/defendant No.l. Plaintiff/ applicant purchased an area of 40 X 32=1280 Sq feet out of the said plot under registered sale deed bearing No.336 dated 02.09.1997, thereby came into physical possession of it which still lies with him, without any disturbance; such mutation was effected in City Survey Record. Rest of area of above plot was purchased by Akhtar Ali through registered sale deed. The respondent/defendant No.1 at his own motion without hearing the applicant/plaintiff cancelled such mutation entry entered. Thus. applicant/plaintiff approached to respondent/defendant No.1 for recalling and setting aside such order but he was refused sternly. Even he was refused to have its certified true copy, in similar fashion mutation effected in favour of Akhtar Ali was cancelled hence applicant/plaintiff and Akhtar Ali moved joint application dated 02.01.2002 to respondent/defendant No.2 pursuant to that Rubkari No.704 dated 27.06.2002 was issued contending therein that the suit area and the area purchased by Akhtar Ali was a property, reserved for "Tapedari Dera" and the same stands shown in the Map. On the site it is lying unoccupied and further that the applicant/plaintiff and said Akhtar Ali have had no concern with it; however for restoration of such mutation entry they may approach to Civil Court. It is further averred in the plaint that the respondent/defendants Nos.1 and 2 who are subordinate of the respondent/defendant No.3 have transgressed their powers vested in them in unlawful and illegal manner and as such their acts are without jurisdiction and mala fide. 3. The defendant No.1 (respondent) in his written statement contended that entry in the name of Muhammad Hashim son of Abdul Hakeem in the property Card Register of City Survey Record of Kot Ghulam Muhammad was wrong, illegal and mala fide; at the time of preparing such record by the survey Team, the suit property never belonged to any private person including Muhammad Hashim; since the original entry in the record was illegal and mala fide hence the authority who passed such order had power to withdraw the same under the provision of General Clauses Act, accordingly the matter is sub-judice before the competent authority for cancellation of entry as such suit is not competent; the suit property is Government property reserved for Tapedar Dera and was not property of any private person and its sale mere on the basis of Extract Form of City Survey Record is illegal, unlawful as the original owner Muhammad Hashim had no title over the suit property. It is further contended that the purchase of suit property from one Muhammad Hashim is in violation of Transfer of Property Act and sale deed does not create title in favour of applicant/plaintiff; plaintiff is not in possession of suit property as in the year 1990 building of Tapedari Dera has been constructed and the remaining area of suit property is to be covered by erecting boundary wall and the plaintiff as well as outgoing alleged owner Muhammad Hashim never remained in possession of suit property; that entry in the name of Muhammad Hashim in the City Survey Record was illegal, unlawful, void ab initio and mala fide. Since Muhammad Hashim had no title hence mere entry in the city survey record does not create title in favour of Muhammad Hashim; since the name of Muhammad Hashim wrongly, illegally and fraudulently entered in the City Survey Record thus the then Mukhtiarkar by his letter No.825 dated 28.8.1998 submitted his report to the then Assistant Commissioner for cancellation of entry made in the extract in the name of Muhammad Hashim and such matter was pending adjudication and it seems that plaintiff has managed with the City Surveyor and succeeded in entering his name in the city survey record on the basis of sale deed. When the entire facts came to the knowledge of defendant No.1 the defendant No.1 withdrawn the attestation order as provided under section 166 of L.R Act as the entry was attested erroneously and the entry in favour of applicant/plaintiff was illegal and mala fide; that such property was never available for allotment to any private person. 4. The defendant No.2 in his written statement contended the same contention as contended by the defendant No.1. He further contended that the name of Muhammad Hashim was entered in City Survey Record without any title and grant in his favour thus entry in the name of Muhammad Hashim was illegal, unlawful, void, ab initio, without jurisdiction and mala fide, and said Muhammad Hashim or his forefathers the predecessor in interest of plaintiff were never granted the suit plot any time by the competent authority; plaintiff is not entitled for the relief claimed and thus the suit of the plaintiff is liable to be dismissed. 5. Learned counsel for applicant has argued that revenue authorities cancelled the mutation affected in favour of applicant without issuing show cause notice hence the applicant has been condemned unheard, applicant purchased suit property by registered sale deed thus such mutation was effected in his favour; registered deed cannot be cancelled on revenue forum; learned Courts below failed to appreciate the evidence produced by applicant hence impugned judgments passed by both Courts are against the settled norms of Civil Administration of Justice. In support of his contentions, learned counsel has relied upon the cases reported as Mir Muhammad Ali Rind v. Zahoor Ahmed and another (PLD 2008 Supreme Court 412), Moulana Atta-ur-Rehman v. Al-Hajj Sardar Umar Farooq and others (PLD 2008 Supreme Court 663), Dr. Manoj Kumar Malani v. Returning Officer and 2 others (2006 MLD 205), Muhammad Asghar v. Member Board of Revenue and others (2009 MLD 1023), Amir Jamal and others v. Malik Zahoor-ul-Haq and others (2011 SCMR 1023) and Messrs Ahmed Clinic v. Government of Sindh and others (2003 CLC 1196). 6. Learned A.A.G. while refuting the above contentions has argued that suit property was government property and one Muhammad Hashim who was Peon in revenue office fraudulently entered such property in his name, thereby he sold out same to plaintiff/applicant; revenue authorities on getting knowledge cancelled such mutation thus aggrieved person was Muhammad Hashim but he has not challenged such cancellation; purchased suit property was not relating to Muhammad Hashim thus he was not competent to sell out the same to applicant; under any law applicant/plaintiff is not entitled to agitate his legal character over the suit property; however if he has been cheated by seller Muhammad Hashim, he has right to sue him with regard to such forgery. 7. Before headfirst into the merits of the case, suffice to say that it is settled principle of law that while exercising revisional jurisdictional, this Court cannot disturb the factual controversy resolved by subordinate courts unless it is surfaced that impugned judgments are the result of non-reading, misreading and violation of legal principles. Scope of revisional jurisdiction is very limited and is confined for correction of jurisdictional defects, patent illegality / irregularity effecting merits of the case and not merely for substituting its own finding with that of appellate Court. Reference, if any, can well be made to the case law, reported as 2012 SCMR 508. 8. In view of above, touch stone and perusal of judgments passed by both Courts, it appears that the applicant/plaintiff nowhere challenged the stand of the revenue authorities (defendants/respondents) with regard to route of the subject matter i.e. title of Muhammad Hashim to be result of fraud but the applicant/plaintiff has challenged the concurrent findings on two counts only i.e.: i) he remained condemned unheard as revenue authorities served no notice upon him before canceling mutation entry; ii) he is the bona fide owner under a register sale deed; Therefore, his acquired status was required to be protected. 9. At this juncture it would be pertinent to mention that it is well established principle of law to the effect that 'what one cannot get directly he cannot get the same indirectly . This principle of law is not only to give due weight to what law insists for doing a particular thing but it is also to put ill doer on a notice that things obtained through any other mode, except as provided by law, shall always remain open for action of the law. Significant to refer the case of Bank of Punjab and another v. Haris Steel Industries (Pvt.) Ltd. and others reported as PLD 2010 SC 1109 wherein it was held by honourable Supreme Court that: ............In the recorded judicial history such a situation attracted judicial notice in the year 1889 in case of Madden v. Nelson (1889 AC 626) and it was Lord Helsbury who declared for the first time that what was not permitted by law to be achieved directly could not be allowed to be achieved indirectly. And the said principle has been repeatedly acknowledged and followed by the Courts ever since then and the Courts in Pakistan are no exception in the said connection. The case of Mian Muhammad Nawaz Sharif and Haji Muhammad Boota (supra) are evidence to the said effect . 10. Thus, germane to endorse that one can competently transfer a title but he cannot transfer what he does not have. One cannot claim to have acquired a better title than the one transferor was capable of. In the instant matter the applicant/plaintiff has not sought any declaration about the title of Muhammad Hashim under whom he is claiming and which is the basic/route. This goes to mean that the foundation/route of the subject matter is not being sought to be protected by applicant/plaintiff. Even for a moment the plea of the applicant/plaintiff is allowed with regard to his own title yet his title shall fail for the well-established principle of law that where foundation is found defective the whole superstructure, raised thereon, shall collapse'. Noteworthy to add here that the benefit of law (Section 41 of Transfer of Property Act) would be available to a bona fide owner but this benefit/protection is not available to one who acquires a title from an unauthorized and incompetent person or from the person who acquired title through fraudulent mean. The position so, for simple and very logical reason that even a bona fide claim cannot save 'fraud' from action of process of law as and when it comes to light. Reference can be taken by the case Nawab Khan v. Raisa Begum and others (2003 SCMR 1498), wherein it is contended that:- 7. So far as the question of benefit under sections 41 and 53-A of Transfer of Property Act is concerned, we have given our considered thought to the legal proposition involved and have come to the conclusion that such benefit cannot be extended to a party whose entire claim is based on fraud, intrigue and misrepresentation.......... 11. In the case of Talib Hussain and others v. Member Board of Revenue and others 2003 SCMR 549, it is held that: .............It goes without saying that as far as fraudulent transaction is concerned it has no foundation to stand and whenever such transaction is declared null and void then the whole series of such order along with superstructure built upon it is bound to collapse. Reference in this behalf may be made to the case of Yousuf Ali v. Muhammad Aslam Zia (PLD 1958 SC (Pak.) 104). "c" It would also not be out of context to note that fraudulent transaction is considered to vitiate even most solemn proceedings as it has been held in the judgments (1) Ghias-ud-Din v. Iqbal Ahmed and 5 others (PLD 1975 Lahore 780), (2) Lal and another v. Muhammad Ibrahim (1993 SCMR 710) (3) Government of Sindh through Chief Secretary and others v. Khalil Ahmed and others (1994 SCMR 782), John Paul v. Irshad Ali and others (PLD 1997 Karachi 267), (5) Mst. Sarwari Begum v. Atta-ur -Rehman (1997 CLC 1500) and (6) Muhammad Yaqoob v. The State (1997 PCr.LJ 1979). E" It is important to emphasis that petitioner's entitlement is based upon the entitlement of Syed Nizamuddin, therefore, petitioner either to have survive or sink depending upon determination of legal status of the property which was transferred to him and as now he has failed to keep his entitlement alive, therefore, petitioner's claim is bound to be rejected. 12. In the case of Abdul Hameed through L.Rs and others v. Shamsuddin and others PLD 2008 SC 140; it is held that:- C ....... We are afraid, Mst. Feroza Khanum having stepped into the shoes of Abdul Hameed, who was not a lawful owner of the property, would not get a better title and we having examined the record with the assistance of learned counsel for the parties, have not been able to take any exception to the legal position and also have not been able to find out any substance in the grounds raised by the learned counsel in support of the present petition for interference. 13. It is germane to mention here that from the record it stood established the subject matter property, happened to be government property, and Muhammad Hashim (under whom the applicant/plaintiff is claiming) got the entry in record of the rights fraudulently without any allotment or reference to earlier outgoing seller hence in absence thereof the Muhammad Hashim was never a legal and lawful owner of the subject matter, capable to enter into any lawful transaction of transfer of property. Thus, protection of section 41 of the Transfer of Property Act would not be available against a fraudulently obtained title or in respect of fraud committed with reference to Government property else it would be very easy for ill-doer to first arrange an entry and then to seek protection thereof by arranging a subsequent 'transfer'. To provide a legal protection to an ill-gotten or fraud is not the object of the law. 14. With regard to the stance that plaintiff has been condemned un-heard this legal plea is governed by the known principle of `audi alteram partem' which, no doubt is followed by the Courts but it cannot be applied to defeat the ends of justice, or to make the law lifeless, absurd, stultifying; self-defeating or plainly contrary to the common sense of the situation. In the instant matter, the record shows that the concerned quarter on coming into notice about fraudulent entry in name of Muhammad Hashim exercised jurisdiction to cancel the same. In my view cancellation of such fraudulent entry was, in no way, caused any harm to the applicant/plaintiff because cancellation was of route entry i.e. in name of Muhammad Hashim who never challenged the same. The applicant/plaintiff, being transferee was/is to sail and sink with Muhammad Hashim. His claim, if any, lies against Muhammad Hashim particularly when title in name of Muhammad Hashim is no more disputed to neither be fraudulent nor even the present applicant/plaintiff sought any declaration about title of Muhammad Hashim which also means that he accepts the title of Muhammad Hashim to be fraudulent. Even otherwise, the principle of audi alteram partem' is not of universal application but would be excluded, if importing the right to be heard has the effect of paralyzing the administrative process or the need for promptitude or the urgency of the situation so demands. I would like to take full advantage to make application of said principle of law clear by referring the judgment of Honourable Supreme Court of Pakistan, passed in the case of "Re-Justice Khurshid Anwar Bhinder and others v. Federation of Pakistan and another (PLD 2010 SC 483). The operative and relevant portions thereof are reproduced hereunder:- .............'In Seneca's Medea, It is said: "a judge is unjust who hears but one side of a case, even though he decides it justly'. Based on this, has been developed 'Audi alteram partem' as a facet of natural justice'. (Seneca Medea r BC-AD 65). 'Audi alteram partem' means hear the other side; hear both sides. Under the rule, a person who is to decide must give the parties an opportunity of being heard before him and fair opportunity to those who are parties in the controversy for contradicting or correcting anything: prejudicial to their view' (emphasis provided). (Union of India v. Tulsiram Patel AIR 1985 SC 1416 at p. 1460). The petitioners were admittedly not a party in the main controversy. ' Since the audi alteram partem rule is intended to inject justice into the law, it cannot be applied to defeat the ends of justice, or to make the law lifeless, absurd, stultifying, self- defeating or plainly contrary to the common sense of the situation. ' Audi alteram partem' rule as such is not cast in a rigid mould and judicial decisions established that it may suffer situational modifications' (Emphasis provided). (Maneka Gandhi v. Union of India AIR 1978 SC 597). It may to be out of place to mention here that by now it is well established that where a right to a prior notice and an opportunity to be heard before an order is passed would obstruct the taking of prompt action, such a right can be excluded. Thus the rule may be discarded in an emergent situation where immediate action brooks no delay to prevent some imminent danger or injury or hazard to paramount public interests'.... The audi alteram partem' rule would be excluded, if importing the right to be heard has the effect of paralyzing the administrative process or the need for promptitude or the urgency of the situation so demands............ Further is held:- ..........A prima facie right to opportunity to be heard may be excluded by implication in the following cases:- (a) When an authority is vested with wide discretion. (b) When the maxim expressio unius est exclusio alterius is involved (c) Where absence of expectation of hearing exists (d) When compulsive necessity so demands (e) When nothing unfair can be inferred (f) When advantage by protracting a proceeding is tried to be reaped (g) When an order does not deprive a person of his right or liberty (h) In case of arrest, search and seizure in criminal case (i) In case of maintaining academic discipline (j) In case of provisional selection to an academic course (k) In case of enormous malpractices in selection process (42) It must not be lost sight of that in the above mentioned `exclusionary cases, the 'audi alteram partem' rule is held inapplicable not by way of an exception to fair play in action but because nothing unfair can be inferred by not affording an opportunity to present or meet a case............... Therefore, where a person does not appear at appropriate stage before the forum concerned or is found to be otherwise defiant the doctrine would have no application. It is also to be kept in view that application of said principle has its limitations. Where the person against whom an adverse is made has acted illegally and in violation of law for obtaining illegal gains and benefits through an order obtained with mala fide intention,…

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