PLJ 2012 Lahore 351
Present: Ch.
Shahid Saeed, J.
MUHAMMAD RAFIQUE
etc.--Petitioners
versus
BOARD OF REVENUE
PUNJAB, etc.--Respondents
W.P. 16673 of
1999, heard on 16.12.2011.
Constitution of Pakistan,
1973--
----Art.
199--Constitutional petitional--Remedies of Civil Court as well as revenue side
had been availed--Transferee of another adjacent independent portion, belonging
to evacuee owners, applied for review of mutations on ground that only one shop
property measuring 11 x 11 was transferred and area of 13 marlas 11 Sq. pt.
shown in mutation was wrong--Review application and on basis of the mutations
were reviewed and area of property was shown as 11 x 11 instead of 13 marlas 11
sq. pt--No notice was issued before reviewing previous
order--Validity--Petitioners availed two remedies to get property in civil
Court as well as in revenue side--Petitioners had not produced any solid and
confidence inspiring evidence in civil suit as well as in proceedings which
were carried out in revenue department that from which area of shop as 13
marlas 11 sq. ft was ascertained and same was incorporated in mutation which
was sanctioned--Neither any person nor any department was laying claim on
ownership disputed property--Disputed property was in possession of the
petitioners for more than three decades--Petitioners were illegal occupant over
the property except 110 sq. ft which was purchased--If the property could not
claim by any person or department it did not mean that the property be given to
illegal occupants--No decree can be passed in favor of petitioners qua the
disputed property--Distt. Judge while deciding appeal of the petitioners had
relied upon order of M.B.R. but the order had been reviewed by successor of
M.B.R.--Held: Area of disputed shop of petitioners was only 110 sq. ft instead
of 13 marlas 11 sq. ft--Petitioners had no title deed qua the property--Settlement
department was directed to resume the excess property from the petitioners in
accordance with law--Petition was dismissed. [P. ] A, B, C, D & E
Mian Zafar Iqbal
Kalanauri, Advocate for Petitioners.
Mr. Iftikhar
Ahmed Mian, Advocate on behalf of Petitioner in Civil Revision No. 531 of 2001.
Rana Naeem
Sarwar, Advocate on behalf of Respondents Nos. 4 to 12.
Mr.
Muhammad Azeem Malik, Addl. A.G. on behalf of Respondents No. 1 to 3 and 13.
Date of hearing:
16.12.2011.
Judgment
Through this
single judgment Writ Petition No. 16673-1999 and Civil Revision No. 531-2001
are being decided together as identical questions of law and facts are involved
therein.
2. Brief facts of the case are that Property No.
53.R.4 Mission Road, Lahore owned by Sundar Bal,
Kishan Bal evacuees, in possession of Ghulam Mustafa and Muhammad Rafique, was
put in auction list by the Settlement Department as mentioned at Sr. No. 7 of
the Auction List. It was transferred in favour of Riaz-ul-Haque son of Abdul
Ghafoor for Rs.10,000/- on 06.02.1960. After obtaining
PTD he sold the said property to Muhammad Rafique son of Mehr
Jhandoo vide sale-deed registered on 22.05.1963. That Muhammad Rafique
sold the same to late Zainab Bibi (mother of the petitioners in the tilted writ
petition) vide sale-deed registered on 30.01.1976. On the application of Zainab
Bibi Mutation No. 5988 in favour of Riazul Haque, Mutation No. 5989 in favour
of Muhammad Rafique and Mutation No. 5990 in favour of Zainab Bibi were
sanctioned on 14.10.1980, which were incorporated in the Revenue Record. The
area of the said property was shown as 13 marlas 11
sq. ft.
3. On 19.12.1981, Muhammad Akram a transferee of
another adjacent independent portion, belonging to the same evacuee owners,
applied for review of the above mutations on the ground that only one shop of
the above mentioned property measuring 11x11 was transferred to Riaz-ul-Haque
and the area of 13 marlas 11 sq. Ft. shown in the mutations is wrong and as
such may be corrected as 11 x 11. A.C.II recorded the statement of
Riaz-ul-Haque who supported the review application and on the basis of the same
the mutations were reviewed and the area of the property was shown as 11 x 11
instead of 13 marlas 11 sq. ft. vide order dated 15.03.1983. No notice was
issued to Zainab Bibi before reviewing the previous order. The petitioners
filed appeal which was dismissed by the Collector, Lahore on 13.04.1985. Zainab Bibi then filed
Revision which was also dismissed by the Additional Commissioner, Lahore on 18.09.1986.
Thereafter petitioners filed R.O.R before the Member Board of Revenue which was
accepted and the impugned orders of Assistant Collector, Collector and
Additional Commissioner were set aside. Muhammad Akram filed a review petition
against the order dated 16.12.1990 which was accepted and the earlier order of
Member Board of Revenue in favour of the petitioners was set aside. Feeling aggrieved by the order passed in review petition
petitioners have filed the titled writ petition.
4. Likewise petitioners also filed a suit for
declaration and permanent injunction regarding the same property on the ground
that Mst. Zainab Bibi mother of the petitioners purchased the disputed property
from its owner Muhammad Rafique through a registered sale-deed dated 31.01.1976
for a consideration of Rs.50,000/-. She urged that total area of the disputed
property was 12 marlas 211 sq.ft. She also pleaded
that she was running the business of Lathe Machine Manufacturing in the
disputed property in the name and Style "Lahore Machine Tools
Industries" Mission Road,
Lahore. She further alleged that
an open plot measuring 4 marlas was attached to the
disputed property which was used for loading and unloading machines in the said
workshop. That Metropolitan Corporation of Lahore (defendant in the suit) illegally and
without lawful authority had served her with a notice requiring her to demolish
the structure of the disputed property as her site-plan earlier sanctioned had
been cancelled. She prayed a declaration to the effect that she was
lawful owner of the property in dispute and the notice issued by the LMC is
illegal and without lawful authority. Defendant (petitioner in civil revision
mentioned above) appeared before the learned trial Court and contested the suit
by tooth and nail while submitting his written statement. Out of the divergent
pleadings of the parties necessary issues were framed. Both the parties got
recorded their oral as well as documentary evidence. Ultimately learned trial
Court vide order dated 23.01.1993 dismissed the suit of the petitioners. They
filed an appeal which was accepted by the learned appellate Court on
26.09.2000. Against the said order LMC has filed the civil revision as stated
above.
5. Learned counsel for the petitioners of the
titled writ petition argued that the order passed by the Member Board of
Revenue in review petition is against law and facts and also without lawful
authority; that Muhammad Akram was not the transferee of the property in
dispute, therefore, he was not competent to file the petition for review of
mutations to which he was not a party; Further argued that the learned A.C.II
was not competent to review the mutations and reduce the area without issuing
show-cause notice to the petitioners or their predecessor Zainab Bibi. That the property in question being urban property, the Revenue
Department was functus officio to pass any order regarding the cancellation of
mutations. Further maintained that all officials from A.C.II to
Additional Commissioner acted under a wrong assumption that a shop cannot be of
a an area of 13-M 11 Sq.ft. They were further of the
opinion that such huge shop on Mcleod road could not be transferred for a
paltry amount of Rs.10,000/- They were shown from
Excise and Taxation record that Shop No. 7-A Measuring 1-K 17 Marla and shop
No. 5C Measuring 13 had been transferred to Hayat Muhammad and Abdul Hakim
respectively in the same area of Mission road, the definition of shop given in
the displaced persons (C & R) Act has altogether been ignored by the Revenue
Officials. That on flimsy grounds a well reasoned judgment of Member Board of
Revenue has been reviewed and reversed. No error or omission on the face of the
record has been shown. No independent mind has been applied by the learned
Member while reviewing the order of his predecessor. The impugned order is
based on conjectures and suppositions not warranted by law because the learned
Member could not decide a review petition like an appeal. The learned
Additional Commissioner himself inspected the spot and confirmed the area in
possession of the petitioners but side tracked the issue by observing that the
area in question has perhaps escaped the notice of the Settlement Department.
Learned counsel further maintained that a decree regarding the same land has
been passed in their favour by the learned Additional District Judge Lahore and
in the presence of said decree the review order passed by the Learned Member
Board of Revenue has no value in the eye of law.
6. Learned counsel for the Respondents No. 4 to
12 argued that they are in possession of the property in dispute since long and
the petitioners have no concern with the same. Further argued that only one
shop 11 X 11 was transferred to Riaz-ul-Haque and the area of 13 marlas 11 Sq.ft. shown in the mutations is wrong. Further
argued that statement of Riaz-ul-Haque in this regard is on the record on the
basis of which the mutations were reviewed.
7. Learned Additional Advocate General states
that as per record only a shop measuring 11x11 was transferred in favour of
Zainab Bibi deceased and the rest of the claim of the petitioners regarding the
property in dispute is illegal and unwarranted. He further argued that
Respondents No. 4 to 12 have also no concern with the said property because the
same belongs to Settlement Department.
8. Learned counsel for the petitioner in C.R.No.
531-2001 argued that the impugned judgment & decree passed by the learned
Addl: District Judge Lahore is against law and without lawful authority.
Petitioners in the writ petition have not produced any solid and confidence
inspiring evidence to the effect that they were the owners of 13 marlas 11
Sq.ft because according to PTD which was issued in favour of Riaz-ul-Haque no
area was mentioned, only the boundaries have been mentioned therein which do
not show that how much property was transferred in favour of the petitioners.
Further argued that the order of learned Member, Board of Revenue dated
16.12.1990 whereby he accepted the revision of respondents and restored the
Mutation No. 5990 in favour of respondents and set aside the order of Assistant
Collector of 1983, which was relied upon by the Additional District Judge, has
been set aside in Review Petition No. 40-1991, but the learned ADJ did not take
this aspect of the case into consideration. Further
maintained that the judgment of the Additional District Judge is out-come of
non-reading and mis-reading of evidence.
9. Arguments heard. Record perused.
10. Undeniably, petitioners have availed two
remedies to get the property measuring 13 marlas 11
sq.ft in Civil Court
as well as in revenue side simultaneously. The claim of Mst. Zainab Bibi
predecessor of the petitioners was that she purchased the property in dispute
from Muhammad Rafique. Initially the said property was transferred to one
Riaz-ul-Haq through auction. PTD was also issued in his favour. In the said PTD
no area is mentioned, only the boundaries are mentioned therein. On the basis
of said PTD firstly the land in dispute was transferred in the name of Muhammad
Rafique and thereafter in the name of Mst. Zainab Bibi. Mutations were also
sanctioned in their favour. The moot point in this case is whether Mst. Zainab
Bibi was purchaser/owner of the whole of the disputed property as has claimed
by the petitioners. Ex.P.8 which is a copy of PTD annexed with the civil
revision reflects that shop No.
7/2 Mission Road, Lahore
being an evacuee property was allotted to one Riaz-ul-Haq by the Settlement
authorities. There was no mentioned of area of description of the shop in Ex.P.8.
Thereafter said Riaz-ul-Haq through registered sale-deed sold the said shop to
Muhammad Rafiq. Again there was no mention of area of the said shop in the said
sale-deed. On 30.06.1976 the aforesaid Muhammad Rafiq sold the said shop to
Mst. Zainab Bibi through Ex.P.9. In Ex.P.9 also there was no mention of area of
the said shop. But when the said shop was mutated in the name of late Zainab
Bibi the area of said shop was mentioned as 13 marlas
11 sq.ft.
11. It is stark reality that the disputed
property derives its title from Ex.P.8 which is a copy of PTD. According to it
a shop was transferred to Riaz-ul-Haq. There was no mention of area or
description of the said shop in the PTD Ex.P.8. Thus the mutations Ex.P.13 and
14 too derive their title from the aforesaid PTD Ex.P.8. As such the
incorporation of area of the said shop as 13 marlas 11
sq.ft. in these mutations is astonishing interrogative
and without any basis. Admittedly it has to be seen whether at any time the
area of the said shop was found to be 13 marlas 11
sq.ft. It is also an admitted fact that the Assistant Commissioner, the
Collector and the Additional Commissioner have unanimously hold
that area of the aforesaid shop is 110 sq. ft instead of 13 marlas 11 sq.ft.
13. Moreover petitioners have not produced any
solid and confidence inspiring evidence in civil suit as well as in the
proceedings which were carried out in Revenue department that from which the
area of shop as 13 marlas 11 sq.ft was ascertained and
the same was incorporated in the mutation which was sanctioned in favour of
Mst. Zainab Bibi. It is also an admitted fact that the site-plan which earlier
was sanctioned in favour of the petitioners has been cancelled by the concerned
department.
14. Another important aspect of the case is that
Riaz-ul-Haq was the original transferee of the said shop. So he was the best
person to depose about the area of the shop. He has made a statement before the
revenue hierarchy that area of the said shop was 110 sq.ft.
Revenue Officers after inspecting the site have also come to the conclusion
that the property in dispute is only 110 sq.ft.
Neither any person nor any department is laying claim on the ownership of the
disputed property. The disputed property is in possession of the petitioners
for more than three decades. It means that petitioners are illegal occupant
over the property in dispute except 110 sq.ft which was
originally purchased by Mst. Zainab Bibi. But if the said property
cannot claim by any person or department it does not mean that the said
property be given to the illegal occupants. No decree
can be passed in favour of the petitioners regarding the said property in
dispute.
15. This aspect of the case also cannot be
ignored that in the civil suit Mst. Zainab Bibi claimed the area of shop
measuring 12 marlas 211 sq.ft. whereas
in revenue proceedings she has claimed the area of said shop as 13 marlas 11
sq.ft. There is material contradiction in the version of the petitioners. They
are not definite with the fact that which property was purchased by Mst. Zainab
Bibi. It is also admitted that the learned Additional District Judge Lahore
while deciding the appeal of the petitioners has mainly relied upon the order
of the Member Board of Revenue dated 16.12.1990 but the said order has been reviewed
vide order dated 24.07.1999 by the successor of said Member Board of Revenue.
Learned appellate Court has not applied its independent mind while deciding the
case. After going through whole the record I am of the considered view that the
area of the disputed shop of the petitioners is only 110 sq.ft instead of 13 marlas 11 sq.ft. Respondents No. 4 to 12 have also no
concern with the said property because they have no title deed regarding the
said property in their favour. Hence, the Settlement Department is directed to
resume the excess property from the petitioners in accordance with law.
16. For the foregoing reasons, there is no force
in the writ petition filed by the petitioners and the same is dismissed. So far as the C.R.No. 531-2001 is concerned the learned
Additional District Judge Lahore has committed illegality and material
irregularity while passing the impugned judgment & decree which is set
aside. Consequently civil revision filed by LMC is allowed with no order as to
costs.
(R.A.) Petition
dismissed
