' Qazi Masood Alam and others filed Suit No,154/1 of 1985 in the Court of learned Civil Judge, Mansehra seeking declaration to the effect that they were the owners of property in dispute having acquired the same by virtue of registered sale-deed No,401/1, dated 31-8-1978 registered in the Office of Sub-Registrar, Mansehra and the order of cancelhtion Mutation No,273, dated 25-2-1980 is wrong and ineffective upon their rights. Perpetual mandatory injunction and possession was also prayed for as consequential relief. The said suit was resisted by petitioners/ defendants by filing written statement. The learned trial Court after framing issues, recording pro and contra evidence of the parties decreed the suit in favour of respondents/plaintiffs vide judgment and decree dated 13-6-1995. Feeling aggrieved with the said judgment and decree, Sardar Shah and others/petitioners filed Appeal No,38/13 of 1995 whereas Mst.. Farhat Bibi and others also filed Cross-Objection No,9/13 of 1995 in the Court of learned Additional District Judge, Mansehra, who dismissed the appeal as well as cross-objection vide judgment and decree dated 13-3-1996.
Petitioners have now filed Civil. Revision No,45 of 1996, whereas Mst. Frahat Bibi etc. Have filed Civil Revision No,47 of 1996. Since both the civil revisions emanate from single judgment and decree, therefore, I shall dispose of both the Civil Revisions through this single consolidated judgment.
2. Mr. Abdul Qadoos Khan, the learned counsel representing Syed Sardar Shah/petitioners in Civil Revision No,45 of 1996 argued that the Civil Court had no jurisdiction to entertain the suit because Mutation No,273 was cancelled vide order dated 25-2-1980. The respondents/ plaintiffs challenged the said order before the Appellate forum, i,e, the Collector, who dismissed the appeal vide order, dated 9-6-1980. They then filed revision petitions before the Additional Commissioner, Mansehra.
And Senior Member, Board of Revenue which were also dismissed. Having availed the remedies available, the respondents/ plaintiffs were estopped to file the present suit and suit filed by them was not maintainable under section 172 of the Land Revenue Act.
3. It was also argued that Mst. Zaitoon Bibi under Land Reforms Act, 1977 had declared the disputed property to be surplus, which was to be transferred to the sitting tenants but before the matter was finalized by the Land Commissioner, she sold the said property which under section 6 of the Act ibid could not be sold. The transfer in favour of respondents/ plaintiffs was, therefore, illegal.
4. It was also argued that the property in dispute alongwith other property was owned by the Ex- Ruler of the State of Amb, therefore, on the death of Nawab Farid Khan it was to be distributed through a Board to be constituted by the Central Government under the President's Order No,12 of 1961 (Exceeding State Property Order, 1961), but no Board was ever constituted for distribution of the property to the L.Rs, of Nawab Farid Khan. The respondents/plaintiffs neither filed any petition before the competent authority for constitution of Board nor moved the Land Commissioner for finalization of their case, therefore, they could not invoke the jurisdiction of the Civil Court.
5. It was also argued that the entire property left by Nawab Farid Khan had been given in the charge of the Court of Guardian and Wards vide order dated 25-6-1976 Exh.P.W.5/1 (Exh.D.W.2/1), therefore, Mst. Zaitoon Bibi could not sell any part of the said property without the permission of the said Court. Sale made by her vide deed Exh.P.W.1/1 was hit by sections 6 and 7 of the Transfer of Property Act.
6. It was also argued that the sale in favour of the respondents/ plaintiffs was not proved at all. The marginal witnesses of sale-deed Exh.P.W.1/1 were not produced and Mst. Zaitoon Bibi being illiterate Pardanasheen lady having received no sale consideration, therefore, the sale if any was void.
Moreover, Shaukat Ali R.P.W.1 admitted during cross-examination that the entire sale consideration has not been paid to Mst. Zaitoon Bibi and a sum of Rs,12,000 was payable by the respondents/plaintiffs to Mst. Zaitoon Bibi.
7. On the other hand Mr. Wajid Khan, Advocate, representing respondent No,6 in Civil Revision No,45 of 1996 and Mst. Farhat Bibi and others petitioners in Civil Revision No,47 of 1996 argued that the respondents/plaintiffs failed to prove the alleged sale-deed Exh.P.W.1/1. Neither the marginal witnesses of the said sale-deed were produced to prove the deed nor any payment of sale consideration was made in presence of the Sub-Registrar at the time of attestation of the registered sale-deed. The only evidence in support of the sale-deed was produced in the shape of statement of Muhammad Saeed P.W.10 who stated that sale-deed was scribed in his presence, but he was not marginal witness of said deed.
8. The learned counsel also adopted the arguments advanced by the learned counsel for the petitioners.
9. It was also argued that Mst. Zaitoon Bibi had filed declaration before the Land Reforms Authorities somewhere in 1977. She had surrendered other property vide Exh.P.W.8/1 and Exh.P.W.8/2 and had retained the property in dispute with her, therefore, transfer in favour of the respondents/plaintiffs was not hit by section 6(1) of the Land Reforms Act, 1977.
10. It was also argued that the entire property was given in the charge of Court of Wards vide Notification No,11677/Revenue/IV/ C.W.18 dated 25-6-1975 Exh.P.W.5/1 but ,a proviso was also attached with the said Notification according to which there was no bar imposed on the sale of the property of any shareholder. Therefore Mst. Zaitoon Bibi could sell the property in question without the permission of Court of Wards and the sale in favour of respondents/plaintiffs is legal. The Law Department of Government of N.-W.F.P. Had also opined that there was no bar in section 8 of the Court of Wards Act prohibiting the sale of share by a co-sharer of the joint property. The said opinion was exhibited on record as Exh.P.W.5/2.
11. So far as the argument of the learned counsel for the petitioners that the property in dispute was private property of the Ex-Ruler of State of Amb, hence was to be distributed through a duly constituted Board by the Central Government, this plea was not taken by the petitioners/ defendants in their written statement or memo. Of appeal and even in the memo. Of revision petition in hand, therefore, the same cannot be taken for the first time at revisional stage.
12. It was further argued that the sale-deed Exh.P.W.1/1 has been duly proved and is still intact. The Courts below have concurrently returned their findings in favour of the respondents/ plaintiffs, the same cannot be disturbed while exercising revisional jurisdiction as neither any material irregularity has been committed by the Courts below nor is there any misreading/non-reading of evidence or any jurisdictional error or defect, therefore, the revision petition be dismissed with costs.
13. I have heard the learned counsel for the parties and perused the record.
14. The argument of the learned counsel for the petitioners that the Civil Court under section 172 of the Land Revenue Act has no jurisdiction to entertain the suit has no force at all. The scope of section 172 of the West Pakistan Land Revenue Act, 1967 is entirely different. It only excludes the jurisdiction of Civil Court from taking in hand the functions assigned to the Revenue Courts as also the question of their methodology adopted for the discharge of such functions. The functions of Revenue. Courts is to prepare the Revenue Record in the light of evidence with regard to one's title or interest, but the finality is attached to the orders passed by Civil Court which ultimately determines civil rights. Section 42 of Specific Relief Act, 1877 confers right upon aggrieved person to seek declaration from Civil Court with regard to his rights or title to a character both in rem and in personam.
15. In the case in hand the respondents/plaintiffs were claiming to be owners of the property in dispute on the basis of registered sale-deed Exh.P.W.1/1. Mutation No,273 had been entered into the Revenue Record on the basis of the said sale-deed but was not attested. The said mutation was, however, cancelled vide order dated 25-2-1980, which order was challenged before the Collector but the appeal of the respondents/plaintiffs was dismissed vide order dated 9-6-1980. Revision petitions filed before Additional Commissioner, Mansehra and S.M.B.R. Were also dismissed, therefore, they were constrained to file a suit for declaration regarding their rights in the land which they had purchased through a valid registered sale-deed. The question as to whether the jurisdiction of Civil Court related to correction of entries was barred under section 172 of the Land Revenue Act, 1967 came up before the august Supreme Court of Pakistan in Rastamal Khan and others v. Nabi Sarwar Khan and others 1996 SCMR 78 it was held:-- "Regarding the bar of jurisdiction of the Civil Court under section 172, subsection (2), clause (vi) of the West Pakistan Land Revenue Act, 1967 it may be pointed out that exclusion of jurisdiction of Civil Court relates to the correction of the entries made by the Revenue Officer in performance of his duty without touching the right of the persons in the land, but whenever such entries' interfere with the rights of a person in the land record in the Record of Rights, and such person feels aggrieved, for correction of such entries he has to approach Civil Court for declaration under section 53 of the Act or in other words under section 42 of the Specific Relief Act both the relief available being of the same nature and identical."
16. Likewise in Sardar and 5 others v. Rashid Ahmad and 12 others 1994 SCMR 1454 their Lordships held:-- "It is established law that mutation entries do not establish title which had to be independently proved. In this case, the mistake is obvious in giving effect to registered deed. The Revenue Authorities had gone beyond it. The steps taken to correct the mistake cannot be agitated in Constitutional jurisdiction. If the petitioners consider that their title in the land has come under cloud, they have a remedy to resort to Courts of pleanary jurisdiction for enforcement of their rights."
17. Similarly in Mst. Gul Pari alias Gulbaro v. Zarin Khan and others PLD 1994 Pesh. 249 it was held:-- "The contention of the learned counsel that the order of the learned Civil Judge to the effect that section 172 of the West Pakistan Land Revenue Act, 1967, created no bar to the filing of suits to challenge the action of the Revenue Authorities was hardly maintainable is untenable. Section 53 of the West Pakistan Land Revenue Act, 1967, itself creates a right in favour of an aggrieved person to approach the Civil Court for declaration of his right under section 42 of the Specific Relief Act, 1877."
18. The dicta laid down by the august Supreme Court of Pakistan and this Court clarify that the jurisdiction of the Civil Court tinder section 172(2) of the West Pakistan Land Revenue Act was ousted only to the extent of correction of the entries made by the Revenue Officer in performance of his duty without touching the rights of the persons in the land record or in the Record of Rights, therefore, it can be safely held that the jurisdiction of the Civil Court has not been fully ousted by section 172 of the Land Revenue Act, 1967.
19. The argument of the learned counsel for the petitioners that Mst. Zaitoon. Bibi had under Land Reforms Act, 1977 declared the disputed property to be surplus which was to be transferred to the sitting tenants, but before finalization of the matter by the Land Commissioner she sold the suit property which transaction was hit by section 6 of the Land Reforms Act, 1977, hence the same was illegal has no force at all. It is on record that Mst. Zaitoon Bibi had filed her declaration before the Land Commissioner vide Exhs.P.W.8/1 and 8/2 but the property in dispute had been retained by her i,e, the same had not been declared as surplus by her. She had surrendered the surplus property to the Land Commission also. Section 6 of the Land Reforms Act is reproduced hereunder for convenience:-- "6(1). The transfer of any land, and the creation of any right or interest in, or encumbrance on any land, made in any manner whatsoever in respect of any area, on or after the commencement of this Act by any person holding immediately before that date an area exceeding his entitlement under section 3 and shall be deemed always to have been void, and the land so transferred or encumbered shall be deemed to have been owned or possessed as the case may be, by the person by whom it was owned or possessed immediately before that date.
(2) Nothing in subsection (1) shall apply to any transfer of land or the creation of any right or interest in or encumbrance on any land left with a person after he has surrendered the land in excess to his entitlement under this Act."
20. The perusal of the above mentioned provision of law shows that the sale in favour of respondents/plaintiffs was not hit by the above mentioned section because she had not only declared the surplus area vide Exh.P.W.8/1 and 8/2 but had also surrendered the said area to the Land Commission, therefore, as per subsection (2) of section 6 (quoted above) the embargo placed under subsection (1) of section 6 was not applicable to the land which had been retained/left with her after surrendering the excess area, as such Mst. Zaitoon Bibi could rightly sell any portion of the property which had been retained by her after surrendering the excess area and the sale transaction vide Exh.P.W.1/1 was not hit by the above-I quoted section of law.
21. The argument of the learned counsel for the petitioners that the property in dispute was owned by Ex-Ruler of State of Amb and on his death the same was to be distributed by a Board to be constituted by Central Government under President's Order No,12 of 1961 also has no force firstly, because the petitioners/defendants had not taken up this plea either in their written statement or in the memo. Of appeal before the F Courts below, therefore, they cannot be allowed to take up this plea for the first time before the revisional Court. Secondly, if the property left by the Ex-Ruler of State of Amb was to be distributed under President's Order No,12 of 1961, then in that case, the surplus property under Land Reforms Act, 1977 should also have been declared by the Board and surrendered by it to the Land Commissioner, which in the case in hand was not done. The petitioners on the one hand have argued that the property in dispute formed piece and parcel of excess area declared by Mst. Zaitoon Bibi and after having declared the same to be excess area, she could not sell the same, on the other hand, they have taken up the plea that the property left by Nawab Muhammad Farid Khan was to be distributed through a Board to be constituted by Central Government. Both arguments of the petitioners are self-contradictory and they cannot be allowed to blow hot and cold in the same breath.
22. The argument of the learned counsel for the petitioners that the entire property left by Nawab Farid Khan had been given in the charge to Court of Wards, therefore, Mst. Zaitoon Bibi could not sell any part of the property without the permission of the Court also has no force. The perusal of the record shows that after the death of Nawabzada Muhammad Saeed Khan son of Nawab Muhammad Farid Khan his share had devolved upon his minor children who were incapable of managing the affairs in regard to the property which had devolved upon them, therefore, in exercise of the powers conferred by section 6. Of the Punjab Court of Wards Act, 1903 read with section 4(4), 8 and 9 thereof as made applicable to N.-W.F.P. Court of Wards Regulation No,V of 1904 the Governor of N.-W.F.P. Ordered that the entire property of the said minor sons and daughters of late Nawabzada Muhammad Saeed Khan alongwith the property of other shareholders jointly owned with the said minors was placed under the superintendence of the Court of Wards, Peshawar Division and the Deputy Commissioner of Hazara was made incharge of entire property on behalf of Court of Wards. No doubt the property which had fallen in the share of Mst. Zaitoon Bibi after the death of her father namely Nawab Muhammad Farid Khan had also been put under the superintendence of the Court of Wards, but the perusal of Notification No, 11677/Revenue/IV/C.W.18, dated 25-6-1975 Exh.P.W.5/1 shows that a proviso had been provided in the said Notification, whereby no embargo was placed for sale of the properties jointly owned by a co-sharer. In order to get the clear picture as to whether such property which was in the superintendence of Court of. Wards could be sold by one of the co-sharer without the permission of the Court, matter was referred to Law Department Government of N.-W.F.P. Which opined:-- "There is no bar in section 8 of the Court of Wards Act prohibiting the sale of share by a co-sharer of the joint property, assumed by the Court of Wards, to any person."
23. this opinion was placed on record as Exh.P.W.5/2. Not only the above mentioned opinion made it clear that a co-sharer who was major could sell his/her property but the law on the subject is very clear to the extent that the property left by Nawabzada Muhammad Saeed Khan had devolved upon his minor sons and children, who were incapable of managing the affairs with regard to their properties, therefore,in order to secure their property, the same was given under the superintendence of Court of Wards. To this extent the order of giving the property of minors to the superintendence of the Court of Wards was valid, but so far as giving property of a major shareholder who was under no infirmity or incapacity to manage the affairs of his/her property was not proper, but it appears that the property of major shareholders was also given in the superintendence because their property was joint with that of minors. By no stretch of imagination the major co-sharers could be stopped to alienate/transfer their share and if Mst. Zaitoon Bibi had transferred any portion of her share, the sale/transfer/alienation to the extent of her share would be legal and she was not required to obtain any permission from the Court of Wards for alienating her share.
24. The argument of the learned counsel for the petitioners that Mst. Zaitoon Bibi being illiterate and Pardanasheen lady had received no sale consideration, therefore, the sale in favour of respondents/plaintiffs was void also has no force. The august Supreme Court of Pakistan in irzada Khan and others v. Itbar Khan and others 2001 SCMR 609 had held that the burden to prove the genuineness of the transaction with Pardanasheen lady and a document allegedly executed by such lady lay on the person who claimed benefit from the transaction or under the document.
Such person was legally obliged to prove and satisfy the Court that the document had been e,ecuted by Pardanasheen lady, that the lady had" complete knowledge and full understanding about the contents of the document and that she had independent and disinterested advice in the matter before entering into any transaction and executing the document. When the sale-deed Exh.P.W.1/1 was examined in the light of the above mentioned aictum laid down by the august Supreme Court of Pakistan and in the light of the evidence produced by the parties, I am of the firm view that Mst. Zaitoon Bibi had complete knowledge and full understanding about the contents of sale-deed Exh.P.W.1/1. She had not only executed the same before the Sub-Registrar in the year 1978, but did not challenge it till her death which took place in the year 1982. The second critarion laid down by the august Supreme Court of Pakistan as to whether she had independent and disinterested advice in the matter before entering into the transaction and executing the document, answer to this question is in the affirmative. The perusal of the deed Exh.P.W.1/1 shows that Syed Sardar Shah husband of Mst. Zaitoon Bibi was not only present at the time of execution of deed Exh.P.W.1/1 with her but was also one of the marginal witnesses of the said deed. In fact the said deed was registered on the identification of Syed Sardar Shah. Another factor which proved the knowledge of Mst. Zaitoon Bibi was that she had through publication in the Daily Nawa-i-Waqt, Rawalpindi in its issue dated 24-11-1976 (Exh.D.W.3/1) had warned the public in general that any deed allegedly executed by her shall not be .Acceptable to her unless the same had been verified by Mr. Shaukat Ali Khan, Advocate or her attorney Shah Hussain Shah. Mr. Shaukat Ali Khan, appeared as R.P.W.1 He stated that he knew Qazi Abdur Razzaq, who had purchased the property in dispute from Mst. Zaitoon Bibi in the names of his sons and out of the sale consideration Qazi Abdur Razzaq had also paid Rs,3,000 to him which amount was due to Mst. Zaitoon Bibi and she had through registered sale-deed transferred the property in favour of sons of Abdur Razzaq. He further stated that:-- {{URDU TEXT}} ' The aforequoted statement also shows that she alongwith her husband Syed Sardar Shah had told the above witnesses about the sale transaction. If she had no knowledge of said transaction how could she inform this witness about the sale transaction and how could he confirm/verify the sale transaction which had taken place through registered sale-deed, therefore, Mst. Zaitoon Bibi had the independent and disinterested advice of not only her husband but of Shaukat Ali Khan, Advocate also.
25. Now another question which was agitated by Mr. Wajid .Khan learned counsel for Mst. Farhat Bibi petitioner in Civil Revision No,47 of 1996 was that as per statement of Shaukat Ali Khan R.P.W.1 a sum of Rs,12,000 was payable by the respondents/plaintiffs, therefore, the sale was not complete.
This argument of the learned counsel also has no force. It is by now settled proposition that non- payment or short payment of the sale consideration would not render the sale void. A similar proposition came up for hearing in Sarfraz Ahmad and others v. Mst. Sakina Bibi and others PLD 1985 Jour. 121 and it was held:-- "The question as to whether the non-payment of sale consideration would render the transaction of sale void, came up for consideration before the Supreme Court in Muhammad Hayat's case cited by the learned counsel for the petitioners. Their Lordships observed:--- ' The onus in this respect, therefore, lay very heavily indeed on the plaintiff-respondent to prove that the consideration had not been paid. This onus, in our opinion has not been discharged.
Furthermore; on the analogy of the decision reported in ILR 42 Mad. 20, when the matter has passed from the stage of contract to that of an executed conveyance and possession of the property has been given thereunder, even non-payment of consideration will not render the transaction void. The price if not paid, is a charge on the property sold and it can be recovered under the law. Title to the property nevertheless passed on the registration of the sale-deed.'
' It is, therefore, clear that in the instant case even if it is conceded that full consideration of the transaction had not passed the title to the property did pass on the registration of the sale-deed.
The unpaid portion of the price remained only a charge on the property."
26. Keeping in view the above mentioned dictum. It can be safely held that if the sum of Rs,12,000 was payable by respondents/plaintiffs, the said amount can be recovered through the process of law and the unpaid portion of the price remained only a charge on the property but it would not 'eater the sale void.
27. another aspect of the case is that the sale-deed Exh.P.W.1/1 is still valid and subsisting. As mentioned above, the same had not been challenged by Mst. Zaitoon Bibi in her lifetime and the lis started between the parties not with regard to the genuineness of the sale-deed but over an order of the Revenue Officer, whereby mutation which had been entered on the basis of the said sale- deed was cancelled. It is also established principle of law that mutation does not create any title, the ownership of the property in dispute, in the case in hand, was claimed on the basis of registered sale-deed Exh.P.W.1/1 and not on the basis of 0 mutation, therefore, its cancellation will not alter the position because the sale-deed as mentioned above, is intact.
28. The Courts below have concurrently passed judgments/decrees in favour of respondents/plaintiffs and I have not been able to find out any misreading or non-reading of evidence or any material irregularity or any p jurisdictional error or defect warranting interference in the impugned judgments and decrees. I, therefore, dismiss both the revision petitions with no orders as to costs.