2017 C L C 1452

2017 C L C 1452

[Lahore]

Before Shujaat Ali Khan, J

MUHAMMAD SHARIF and 8 others----Petitioners

Versus

MEMBER, BOARD OF REVENUE, PUNJAB and 14 others----Respondents

W.P. No.22153 of 2012, heard on 20th January, 2016.

(a) Punjab Land Revenue Act (XVII of 1967)---

----S. 163---Review---Scope---Court could rectify any clerical or arithmetic mistake going to the
roots of the case while exercising its power of review but said power could not be used for re-
hearing of a matter when a remedy of appeal/revision was available to the aggrieved party.

Abdul Majeed Khan through L.Rs and others v. Ms. Maheen Begum and others 2014 SCMR
1524; Nazar and others v. Member (J-II), BOR 2010 SCMR 1429; Muhammad Nawaz and
others v. Fateh Sher and others 2008 SCMR 1658; Allah Ditta v. Ghulam Muhammad and 3
others 2008 SCMR 1021; Shahra and others v. Member, Board of Revenue, Punjab and others
2004 SCMR 117; Maulvi Aziz-ur-Rehman v. Ahmad Khan and others 2004 SCMR 1622; All
Pakistan Newspapers Society and others v. Federation of Pakistan and others PLD 2004 SC
600; Abdul Majid and another v. Qazi Abbas Hussain Shah 1995 SCMR 429; Mian Abdul
Quddous v. Mst. Surrya Mir and 3 others PLD 2015 Lah. 687 and M/s Modern Continental
Business (Pvt.) Ltd. through Chief Executive v. Government of Pakistan through Secretary,
Ministry of Finance, Revenue and Economic Affairs, Pak Secretariat, Islamabad and another
2002 CLC 233 ref.

Muhammad Sadiq v. Muhammad Ramzan and 8 others 2002 SCMR 1821; Ittehad Chemicals
Ltd. v. VIIth Additional District and Sessions Judge and others 2010 CLC 599; Mughla and
others v. Jafar and others 2001 CLC 1410; Mst. Sharifan Bibi and others v. Member,

Board of Revenue, Lahore and others 1996 CLC 644 and Javed Manzoor and others v. Member,
Board of Revenue 1980 CLC 1196 distinguished.

(b) Transfer of Property Act (IV of 1882)---

----S. 54---Sale---Scope---Second sale deed could not be registered in presence of a sale deed
qua a property and if it was done then the junior vendee had to suffer when he was aware with
regard to pendency of proceedings before a court of law qua the same property.

(c) Constitution of Pakistan---

----Art. 189---Judgment of Supreme Court---Binding effect---Judgment of Supreme Court had

(d) Transfer of Property Act (IV of 1882)---

Farzand Ali and another v. Khuda Bakhsh and others PLD 2015 SC 187; Muhammad Iqbal and
others v. Khair Din through LRs and others 2014 SCMR 33; Basit Sibtain through LRs v.
Muhammad Sharif through LRs 2004 SCMR 578; Ikram Elahi v. The Settlement and
Rehabilitation Commissioner (Lands) Lahore and 2 others 1976 SCMR 143; Col. (R) Sadiq
Hasan Sheikh v. Abdul Rashid and another 1993 MLD 486; Malik Jahangir Khan v. Syed Sibtul
Hassan and others 1990 CLC 1659; Muhammad Sharif and others v. Lahore Development
Authority and others 1989 MLD 95 and Falak Sher v. Muhammad Rashid and another PLD
1982 Lah. 426 rel.

Ghulam Farid Sanotra for Petitioners.

Rana Shamshad Khan, Additional Advocate General for Respondents Nos.1, 14 and 15.

Muhammad Sharif Chohan for Respondents Nos.2 to 13.

Date of hearing: 20th January, 2016.

JUDGMENT

SHUJAAT ALI KHAN, J.---- Through this petition under Article 199 of the Constitution of
Islamic Republic of Pakistan, 1973, the petitioners have challenged vires of orders dated
25.08.2012 and 06.09.2010 passed by the Member, Board of Revenue, Punjab, Lahore
(respondent No.1) and the Executive District Officer (Revenue) Narowal (respondent No.15),
respectively.

2. Unnecessary details apart, the facts, as spelt out in the instant petition, are that one Allah
Ditta mortgaged his land measuring 73-Kanals and 16-Marlas, situated within the revenue
estate of Mouza Bohungul Najar, Tehsil and District Narowal (hereinafter to be referred as the
suit property) with Muhammad Shafi, predecessor-in-interest of the respondents Nos.2 to 9,
for a period of 10 years, against consideration of Rs.45,000/-, through Mortgage Deed, dated
24.02.1981. Beside other conditions, it was stipulated in the said Mortgage Deed that during
the currency of the mortgage the mortgagor shall not alienate the suit property in any manner.
The mortgagee apprehending that the mortgagor was going to sell the suit property, filed a suit
for permanent injunction which was dismissed on 30.09.1987 pursuant to a statement made by
the mortgagor that he was not going to part away with the suit property. The mortgagee filed
another suit for permanent injunction which was dismissed on 19.01.1988 on the ground that
after dismissal of his earlier suit the subsequent suit was not maintainable. During the
interregnum period the mortgagor alienated the suit property in favour of the petitioners
through registered sale deed dated 20.01.1988. The mortgagee challenged sale deed dated
20.01.1988 by filing an application under Order XXI, rule 32 read with section 151, C.P.C.
which was accepted through order dated 05.10.1989 and the sale deed executed in favour of the
petitioners was cancelled. After having succeeded to get annulled the sale deed in favour of the
petitioners, the predecessor-in-interest of respondents Nos.2 to 9 filed a suit for specific
performance of an agreement to sell which was decreed vide judgment and decree dated
20.01.1990. As a result Sale Certificate was issued in favour of the predecessor-in-interest of
respondents Nos.2 to 9 on the basis whereof mutation No.115 was also sanctioned on
12.02.1994. The petitioners challenged sale certificate issued in favour of predecessor-in-
interest of respondents Nos.2 to 9 and others by filing an application under section 12(2),
C.P.C. which was adjourned sine die vide order dated 01.02.1993. However, subsequently the
petitioners withdrew the same on 15.04.2009 after getting it resurrected. On the other hand
against order dated 05.10.1989 the petitioners filed a revision petition before the Additional
District Judge which they subsequently withdrew due to change in law and filed the same
before this Court bearing C.R. No.1751/1994 which later on was transferred back to the District
Court due to further change in law and was accepted through judgment and decree dated
20.02.1997. The judgment and decree passed by the learned revisional Court was challenged by
predecessor-in-interest of respondents Nos.2 to 9 and others before this Court through a
Constitutional Petition (W.P. No.5602-1997) but without success as the same was dismissed
vide judgment dated 09.10.2002 against which the respondents filed C.P.L.A. No.3772-L-2002
before the august Supreme Court of Pakistan which too met with the same fate as the same was
dismissed through order dated 06.01.2005. Consequent upon decision of the matter upto the
apex Court of the country the petitioners filed an application before the Deputy District Officer
(Revenue) Narowal for restoration of land in their favour which was accepted through order
dated 11.05.2005 against which the respondents filed an appeal before respondent No.15 which
was dismissed through order dated 08.07.2006. However, in review filed by the respondents,
respondent No.15 recalled his earlier order dated 08.07.2006 and accepted the appeal filed by
the respondents through order dated 26.12.2006 followed by another order dated 30.12.2006.
The petitioners assailed orders, dated 30.12.2006, in ROR No.747-2007, before respondent
No.1, who decided the same on 24.09.2007 and the order passed by respondent No.15 was set
aside and respondent No.14 was directed to implement the decision rendered by this Court
which was further upheld by the august Supreme Court of Pakistan. Pursuant to the direction
issued by respondent No.1, respondent No.14 ordered for sanction of mutation in favour of the
petitioners which was accordingly done while attesting mutation Nos.307 and 308 against
which the respondents filed an application 'before respondent No.14 which was dismissed on
30.12.2009 which order was assailed by the respondents through an appeal before respondent
No.15 which was accepted vide order dated 06.09.2010. Aggrieved of the said order the
petitioners filed ROR No.1900/2010 which was dismissed by respondent No.1 through order
dated 25.08.2012; hence the instant petition.

3. Learned counsel for the petitioners, while opening his arguments, submits that sale in favour
of the petitioners was validated upto apex Court of the country, thus, respondent No.15 had no
power to order for cancellation of mutations sanctioned in favour of the petitioners; that
though initially the suit filed by the respondents was decreed on the ground that Allah Ditta
alienated suit land in favour of the petitioners in violation of the condition postulated in the
mortgage deed, however, later on findings of the trial Court were reversed by the revisional
Court whose order remained intact upto the apex Court of the country; that fate of decree in
favour of the respondents and the subsequent sale deed on the basis thereof has also been
adjudged by this Court as well as apex Court of the country, therefore, the order passed by
respondents Nos.1 and 15 are nullity in the eye of law; that under Article 189 of the
Constitution of Islamic Republic of Pakistan, 1973, the judgment rendered by apex Court of the
country has binding force upon respondents Nos.1 and 15, thus, while passing the impugned
orders the fora below have committed gross contempt of this Court as well that of apex Court of
the country; that in the earlier round the appeal filed by the respondents against the decision of
respondent No.14 was dismissed by respondent No.15, however, in review he reversed his own
findings in an illegal manner and that while passing the impugned order respondent No.1 has
relied upon the report submitted by Patwari Halqa coupled with the fact that decree passed in
favour of the respondents in a suit for specific performance and the subsequent sale deed were
intact but he has not uttered even a word about judgments passed by this Court as well as apex
Court of the country which speaks volumes about mala fide on his part. In support of his oral
submissions, learned counsel has relied upon the cases reported as Abdul Majeed Khan
through L.Rs and others v. Ms. Maheen Begum and others (2014 SCMR 1524), Nazar and
others v. Member (J-II), BOR (2010 SCMR 1429), Muhammad Nawaz and others v. Fateh Sher
and others (2008 SCMR 1658), Allah Ditta v. Ghulam Muhammad and 3 others (2008 SCMR
1021), Shahra and others v. Member, Board of Revenue, Punjab and others (2004 SCMR 117),
Maulvi Aziz-ur-Rehman v. Ahmad Khan and others (2004 SCMR 1622), All Pakistan
Newspapers Society and others v. Federation of Pakistan and others (PLD 2004 SC 600),
Abdul Majid and another v. Qazi Abbas Hussain Shah (1995 SCMR 429), Mian Abdul Quddous
v. Mst. Surrya Mir and 3 others (PLD 2015 LHR 687) and M/s Modern Continental Business
(Pvt.) Ltd. through Chief Executive v. Government of Pakistan through Secretary, Ministry of
Finance, Revenue and Economic Affairs, Pak Secretariat, Islamabad and another (2002 CLC
233).

4. Conversely, learned counsel representing the respondents, while defending the impugned
orders, submits that after passing of decree in favour of the respondents and registration of
sale deed, the condition mentioned in the Mortgage Deed regarding restriction on the power of
the mortgagor to alienate the suit property during currency of mortgage became irrelevant;
that there is nothing on record to show that either decree passed in favour of the respondents
as well as the subsequent sale deed have ever been challenged before any forum or the same
were declared illegal; that appellate authority always enjoys powers of review under the
provisions of General Clauses Act, 1897, inasmuch as the authority who has power to do
something also enjoys power to undo the same; that without cancellation of sale deed
registered in favour of the respondents, mutation Nos.307 and 308 could not be attested in
favour of the petitioners; that there is no question of applicability of principle of lis-pendens to
the decree passed in favour of the respondents for the reason that after withdrawal of
application filed by the petitioners under section 12(2), C.P.C. the respondents filed suit for
specific performance; that after making statement in the suit filed by predecessor-in-interest of
respondents Nos.2 to 9, Allah Ditta was debarred to alienate land in favour of the petitioners,
thus, any act done by the mortgagor in violation of commitment made before the Court was
nothing but nullity in the eye of law; that fate of the decree passed in favour of the respondents
as well as the mutation No.115 was not specifically discussed by any forum rather observations
of this Court as well as that of the apex Court of the country were confined only to the condition
regarding restriction on the power of the mortgagor to alienate the property during subsistence
of the mortgage; that Constitutional jurisdiction of this Court is not attracted in every case
rather same is confined only to adjudge the jurisdictional errors committed by the fora below
whereas according to contents of the petition no such ground has been mentioned. In support
of his oral submissions, learned counsel has relied upon the cases reported as Muhammad
Sadiq v. Muhammad Ramzan and 8 others (2002 SCMR 1821), Ittehad Chemicals Ltd. v. VIIth
Additional District and Sessions Judge and others (2010 CLC 599), Mughla and others v. Jafar
and others (2001 CLC 1410), Mst. Sharifan Bibi and others v. Member, Board of Revenue,
Lahore and others (1996 CLC 644) and Javed Manzoor and v. Member, Board of Revenue
(1980 CLC 1196).

5. Learned Additional Advocate General has supported the stance adopted by learned counsel
for the petitioners with the additional submission that perhaps both the forums below escaped
to mention about judgments passed by this Court as well as Supreme Court of Pakistan.

6. I have heard learned counsel for the parties at considerable length and have also scanned the
documents annexed with this petition as well as the case-law cited at he bar.

7. Firstly taking up the question as to whether fate of the decree and the subsequent sale deed
in favour of the respondents was determined by this Court or the apex Court of the country or
not, I am of the view that to resolve the controversy a perusal of judgment passed by this Court
in W.P. No.5602/1997 is of paramount consideration, operative part whereof is reproduced
herein below:-

"As regard the question that the petitioners during the pendency of the petition had entered
into an agreement to sell with the respondent Allah Ditta and had obtained a decree and also
procured a sale deed, suffice it to say that such transaction had been made during the pendency
of the litigation of the case between the parties and thus decree for specific performance and
sale made in favour of the petitioners, in pursuance thereof is hit by the principle of lis
pendens. Therefore, on account of above, it cannot be held that the petitioners have become
lawful owner of the suit property."

The afore-quoted portion of judgment rendered by this Court, which was further affirmed by
the apex Court of the country, makes it crystal clear that not only plea regarding passing of
decree in favour of the respondents and registration of sale deed in pursuance whereof was
agitated by the respondents during hearing of said petition but also the same was exhaustively
responded to by this Court. The transaction entered during pendency of proceedings before a
court of competent jurisdiction is inconsequential irrespective of the fact that as to whether any
subsequent court decree has been passed on the basis thereof or not. If any case law is
required, reference can safely be made to the cases reported as Farzand Ali and another v.
Khuda Bakhsh and others (PLD 2015 SC 187), Muhammad Iqbal and others v. Khair Din
through LRs and others (2014 SCMR 33), Basit Sibtain through LRs v. Muhammad Sharif
through LRs (2004 SCMR 578), Ikram Elahi v. The Settlement and Rehabilitation
Commissioner (Lands) Lahore and 2 others (1976 SCMR 143), Col. (R) Sadiq Hasan Sheikh v.
Abdul Rashid and another (1993 MLD 486), Malik Jahangir Khan v. Syed Sibtul Hassan and
others (1990 CLC 1659), Muhammad Sharif and others v. Lahore Development Authority and
others (1989 MLD 95) and Falak Sher v. Muhammad Rashid and another (PLD 1982 LHR
426). Learned counsel representing the respondents has not denied the fact that at the time of
filing of suit for specific performance proceedings were pending before the revisional forum. In
this scenario, there leaves no ambiguity that the decree passed in favour of the respondents
was inconsequential, thus, the same cannot be allowed to remain in field merely for the reason
that the same was not challenged by any party or any proceedings challenging the same were
withdrawn subsequently.
8. Considering from another angle, presumably proceedings in the application filed by the
petitioners under section 12(2), C.P.C. were adjourned sine-die due to the reason that
proceedings against order dated 05.10.1989 were pending adjudication before the higher
forum and the outcome of the said application was subject to the final outcome of the matter
pending before the revisional Court. There is no cavil with the proposition that the petitioners
after getting resurrected application under section 12(2), C.P.C. opted to withdraw the same
seemingly for the reason that the same had become infructuous after determination of fate of
order dated 05.10.1989. In this backdrop, the respondents cannot take any premium on the
ground that the application filed by the petitioners challenging decree passed in favour of the
respondents in a suit for specific performance was withdrawn.

9. At the cost of repetition, it is observed that initially sale deed executed in favour of the
petitioners was declared illegal by the civil court while accepting the application filed by the
respondents, however, the said findings were reversed by the revisional Court whose order
remained intact upto the apex Court of the country. Learned counsel for the respondents has
argued with full force that during subsistence of court decree as well as registered sale deed in
their favour mutations Nos.307 and 308 could not be attested. Perhaps, the learned counsel
has raised such plea in oblivion of the fact that after restoration of sale deed in favour of the
petitioners how a decree in favour of the respondents and subsequent sale deed could remain
in field. It is established principle that in presence of a sale deed qua a property second sale
deed cannot be registered and if it is done the junior vendee has to suffer especially when he is
well aware about pendency of proceedings before a court of law qua the same property.

10. A cursory glance over the impugned orders renders it clear that the same were passed
without considering the earlier findings of the Board of Revenue as well as that of this Court
and apex Court of the country. As per Article 189 of the Constitution of Islamic Republic of
Pakistan, 1973, judgment of apex Court of the country has binding force upon all the organs of
the State and the revenue authorities whose orders have been impugned in this petition are no
exception. Further, respondent No.1 while dismissing the revision petition filed by the
petitioners observed that they should approach the civil court for determination of their rights.
It is beyond the comprehension of a man of prudent mind that after determination of fate of
rights between the parties how they could be asked to again approach the Civil Court in
violation of the orders of the superior courts.

11. There is no cavil with the preposition that a forum or Court can rectify any clerical or
arithmetic mistake going to roots of the case while exercising its power of review but the said
power cannot be used for re-hearing of a matter especially when a remedy of appeal/revision is
available to the aggrieved party. Admittedly, mutations Nos.307 and 308 were attested
pursuant to a direction issued by the Board of Revenue in order dated 24.09.2007, operative
part whereof reads as follows:

"7. . For this reason, these orders dated 26.12.2006, 30.12.2006 and 17.02.2007 of the
Executive District Officer (Revenue), Narowal are set aside. A copy of this order, may be sent to
the District Officer (Revenue), Narowal. He may ensure that the orders of the Hon'ble High
Court and august Supreme Court are complied with in letter and spirit. The parties may pursue
their cases in the civil court in the manner they deem appropriate."

Had the afore-quoted order been considered by respondent No.14 as well as respondent No.1,
the decision would have been entirely different. It seems that the fora below instead of
scrutinizing the checkered history of the case in detail opted to decide the same in a slipshod
manner. It is very strange to observe that mutations Nos.307 and 308 despite having been
attested on the direction of Board of Revenue respondent No.15 dared to review the same
through order dated 06.09.2010 whose order was further upheld by respondent No.1 in a
wholly unlawful manner. Moreover, there is nothing on record to show that the respondents
ever challenged the direction issued by respondent No.1, contained in order dated 24.09.2007,
which means that the same attained finality, thus, the same could not be reviewed by the
subordinate forum.

12. Now coming to plea of learned counsel for the respondents that the jurisdiction of this
Court is only confined to see as to whether any jurisdictional flaw exists in the orders of the
subordinate fora or not. In this regard, I am of the view that generally said rule is applicable to
the Constitutional Petitions before this Court, however, in the peculiar facts and circumstances
of the instant case said plea cannot be used as a shield to validate the orders passed by
respondents Nos.1 and 15 in violation of the judgment passed by this Court which was further
affirmed by the apex Court of the country. Further, the Constitutional jurisdiction of this Court
to adjudge the validity of an order passed by the executive/administrative authorities cannot be
abridged on the ground that the said authority had the jurisdiction to deal with the matter as if
such approach is allowed to take place perhaps there would be no case of interference even
where gross illegality on the part of executive is apparent on the face of the record. Insofar as
the case in hand is concerned, in my humble opinion, respondent No.15 as well as respondent
MO have no jurisdiction to reopen the matter after decision by this Court as well as by the apex
Court of the country.

13. Insofar as the case law cited by learned counsel for the respondents is concerned, I am of
the view that the same is not applicable to the facts and circumstances of the case inasmuch as
in the case of Muhammad Sadiq (Supra) the apex Court of the country while highlighting the
ingredients of a sale has held that delivery of possession is one of the important condition to
complete the sale but in the instant case just after registration of sale deed in favour of the
petitioners, the respondents challenged the same by filing an application under Order XXI,
rule 32, C.P.C. thus the petitioners did not find an occasion to get possession of the suit
property. In the case of Ittehad Chemicals Ltd., it was decided that concurrent findings arising
out of civil proceedings cannot be adjudicated upon in Constitutional jurisdiction whereas the
illegality in the impugned orders is floating on the surface justifying

interference by this Court in exercise of its Constitutional jurisdiction. Now coming to the case
of Mughla and others I have noted that the proposition decided by this Court was that after
dismissal of revision petition in a civil matter the Constitutional jurisdiction of this Court is
rarely exercised whereas in the instant case the petitioners have impugned decision of
respondent No.1 and not that of any Court in the civil hierarchy. So far as the case of Mst.
Sharifan Bibi (Supra) is concerned, the findings of Board of Revenue were upheld on the
ground that substantial justice was done while dealing with the matter whereas in the case in
hand the findings of fora below being in clear cut violation of the judgment passed by this
Court as well as that of august Supreme Court of Pakistan cannot be allowed to hold the field.
Likewise, in the case of Javed Manzoor (Supra), the controversy involved was as to whether the
Tribunal had the jurisdiction to pass the order whereas in the instant case the exercise of
jurisdiction by respondents Nos.1 and 15, after decision of the matter, by this Court and august
Supreme Court of Pakistan, justifies interference by this Court.

14. For what has been discussed above, instant petition is accepted and impugned orders dated
25.08.2012 and 06.09.2010 passed by the respondents Nos.1 and 15 respectively are set aside.
As a result, order dated 30.12.2009 passed by respondent No.14 shall hold the field. No order
as to cost.

ZC/M-74/L Petition allowed.