' This Civil Revision impugns the judgment and decree dated 28-11-1992 passed by the Syed Mushtaq Hussain, Civil Judge Ist Class, Bahawalnagar, whereby the suit filed by Lal Khan for declaration and permanent injunction was decreed against the petitioner and respondents No.2 to 9 and also the judgment and decree dated 26-4-1994 whereby petitioner's appeal against the judgment and decree of the learned trial Court was dismissed.
2. The facts briefly stated are that Lal Khan respondent No.1/plaintiff was owner of land measuring 195-Kanal situated in village Shali Gharbi Tehsil Chishtian. Lal Khan allegedly alienated 146-Kanal, 9-Marla out of above mentioned land in favour of Sikandar Khan predecessor-in-interest of respondents Nos.2 to 8 through Mutation No.556 dated 5-7-1972 (Exh. D-3) for price of Rs.7300 and Sikandar Khan deceased further alienated 95-kanal out of the said land in favour of Abdul Aziz and Ahmad petitioners through Mutation No.557 sanctioned on 20-8-1972 for a sum of Rs.5000. Lal Khan on becoming aware of these mutations filed application before Collector claiming that m,utations are result of fraud misrepresentation and in violation of Martial Law Regulation-115, The District Collector, Bahawalnagar vide order dated 27-2-1977 allowed review of the above-mentioned mutations and in consequence thereof the Revenue Officer/A.C-I, Chishtian set aside both these mutations vide order dated 18-11-1981. Against the order dated 18-11-1981 the present petitioners filed revision petition before the Additional Commissioner Revenue, Bahawalpur Division who vide order dated 2-1-1983 (Exh. P-II) accepted the same and after setting aside the order dated 18-11- 1981 restored both the mutations inter alia holding ihat same were not violative of Martial Law Regulation-115 and thus were correctly sanctioned. The order of Additional Commissioner was further challenged by Lal Khan and Sikandar Khan by way of filing second revision before the Board of Revenue but the same was also dismissed on 30-10-1985 (Exh.D-10).
3. On his failure to obtain relief on Revenue side, Lal Khan filed suit on 2-3-1984 in the Court of learned Senior Civil Judge, Bahawalnagar against the present petitioners and heirs of Sikandar Khan, seeking declaration that he was owner in possession of the land and Mutations Nos.556 and 557 detailed above being against law and facts, based on fraud, without consideration, collusive and violative of Martial Law Regulation-115 as well as section 54 of Transfer of Property Act, were liable to be set aside and order dated 2-1-1983 passed by Additional Commissioner, Bahawalpur and 30-10-1985 of Member Board of Revenue being against law, without authority were void and ineffective qua his rights and for permanent injunction restraining the petitioners and heirs of Sikandar Khan deceased from claiming themselves as owner of the suit property and also from interfering into his possession or alienating the property perpetually to any person.
4. The suit was contested by the present petitioners but heirs of Sikandar Khan opted to be proceeded against ex parte and did not contest the same, although Sikandar Khan deceased had challenged the order of Additional Commissioner before the Board of Revenue along with Lal Khan 'respondent No.
1. The learned trial Court in view of divergent pleadings of the parties framed the following issues:--
(1) Whether the oral sale Mutation No.556 dated 5-7-1972 is illegal, without jurisdiction, fraudulent, without consideration, collusive, without registration, against Martial Law Regulation and as such void, ineffective on the rights of the plaintiff and liable to be set aside? OPP.
(2) Whether the oral sale Mutation No.557 dated 20-8-1972 is illegal, without jurisdiction, fraudulent, without consideration, collusive, without registration, against Martial Law Regulation and as such void, ineffective on the rights of the plaintiffs and liable to be set aside? OPP.
(3) Whether the orders dated 2-1-1983 and 30-10-1985 passed by the Additional Commissioner and Member Board of Revenue Punjab Lahore are illegal, without jurisdiction against facts and as such void and ineffective on the rights of the plaintiff? OPP.
(4) Whether the plaintiff is owner in possession of the suit-land? OPP.
(5) Whether the suit is time-barred? OPD.
(6) Whether the suit is not maintainable in its present form? OPD.
(7) Whether the suit is wrongly valued for court fee? OPD.
(8) Whether the plaintiff is estopped by his own words and conduct to bring this suit? OPD.
(9) Whether the plaintiff has not come with clean hands in the Court? If so, its effect? OPD.
(10) Whether this Court has no jurisdiction to try this suit? OPD.
(11) Whether the suit is not maintainable in view of P.O. No.7 of the written statement? OPD.
(12). Whether the defendants No.8 and 9 are entitled to special costs under section 35-A of C.P.C.? If so, to what amount? OPD.
(13) Whether the plaintiff has no cause of action and locus standi? OPD.
(14) Whether the description of the suit property is incorrect? If so, its effect? OPD.
(15) Relief. {{PAGE CUT}} 5 .On completion of the trial, the learned trial Court decreed the suit in favour of Lal Khan respondent No.1 by holding:-- ' That Mutation No.556 dated 5-7-1972 (Exh.D-3) and also Mutation No.557 dated 20-8-1972 (Exh. D- 4) were the result of , misrepresentation, without consideration, hence, ive on the plaintiff's right section 54 of the Transfer of Property Act was in force 'hen both these mutations were attested in the area in dispute was situated, hence, oral sale through 'ot be affected, resultantly neither Sikandar {{PAGE CUT}} ' Khan acquired any valid title from Lal Khan plaintiff nor. Sikandar Khan could transfer any title in favour of present petitioners;
(iii) That as both these mutations were attested in violation of Martial Law Regulation-115, hence the same were void and resultantly the orders dated 2-1-1983 and 30-10-1985 passed by Additional Commissioner Revenue and Member Board of Revenue were illegal, without jurisdiction, against facts and as such void ineffective on the rights of the plaintiffs.
(iv) That since the alleged sale by Lal Khan through Mutation No.556 was illegal and without authority, hence, Sikandar Khan was not owner in possession of the suit and suit filed by him was not barred by limitation and that, the same was maintainable in its present form and that he had cause of action and locus standi to file the suit; and lastly
(v) That since the question of title was involved; Civil Court had the jurisdiction to try the suit.
6. Against the above-mentioned judgment and decree of the learned trial Court, the present petitioners filed appeal which was also dismissed by the learned Additional District Judge, Bahawalnagar on 26-4-1994, hence this Revision Petition.
7. The learned counsel for the petitioners has challenged the above mentioned findings of the two Courts below vehemently arguing that both the Courts below were not right in holding both the mutations against law, facts, result of fraud, misrepresentation, without consideration, having been attested in violation of Martial Law Regulation 115 or section 54 of Transfer of Property Act. He has further argued that Lal Khan being close relative of Sikandar Khan deceased had sold the property to him with his free consent after obtaining sale consideration and got the mutation attested in his favour. He has further contended that sale by Lal Khan took place on 5-7-1972 in favour of Sikandar Khan but till 1977 he remained silent and never agitated the matter before any forum. {{PAGE CUT}} The learned counsel next argued that Lal Khan being alive till date did not enter the witness-box as P.W. To deny th sale in favour .Of Sikandar Khan. As he was the best person to about the factum of sale and receipt of consideration and his a not been explained, hence the Court must draw presumpti as contemplated in Explanation (E) to 'Article 129 Shahadat Order. Learned counsel argues that C jurisdiction to determine the validity of any transac of Martial Law Regulation 115 because the juris ousted in such-like matters and same {{PAGE CUT}} ' Commission. Reliance was placed on the case "Nasir Ahmad Khan versus Mst. Ismat Jehan Begum"(1968 SCM R 667). It is further argued that respondent Lal Khan was estoped by taking plea of Section 54 of Transfer of Property Act after alienating the property to Sikandar Khan by way of mutation. He has finally contended that as heirs of Sikandar Khan never challenged the sale of suit-land in favour of the petitioners, hence the two Courts below were not justified in declaring the Mutation No.556 being either against facts or without consideration nor any evidence has been led by the legal heirs of Sikandar Khan to the effect that either Sikandar Khan did not sell the suit property to the petitioners or received the consideration and in absence of any such evidence, sale in favour of petitioners through Mutation No.557 at least could not be declared as fraudulent or without consideration or violative of Martial Law Regulation-115 or section 154 of Transfer of Property Act.
8. On the other hand, Mr. A.R. Tayyab, Advocate on behalf of respondent No.1 has vehemently opposed the above contentions of the learned counsel for the petitioner and by supporting the judgments and decrees of two Courts below, has prayed for dismissal of the present Civil Revision.
9. After hearing the above mentioned arguments of both the learned counsel for the parties and going through the record of this case, I proceed to record my findings as follows:--
(A) So far as the findings of two Courts below that both the above mentioned mutations were attested in violation of Martial Law Regulation 115 are concerned, . I am constrained to hold that both the Courts below were not right in recording such findings. Firstly, the Additional Commissioner and then the Board of Revenue being exclusive authorities under Martial Law Regulation, 115 had validly determined the validity of both these mutations by declaring them as validly and correctly sanctioned. In any case if there was any defect or want of jurisdiction in their authority, Lai. Khan respondent could challenge the same in this Court by way of Writ Petition and not through civil suit, because the jurisdiction of Civil Court in such matters is expressly ousted.
Secondly, as held by the. Hon'ble Supreme Court of Pakistan in the above-mentioned authority, it is exclusive function of the authorities constituted under Martial Law Regulation 115 to see the validity or legality of the mutations, hence, if the two Courts below were of the view that the two mutations were attested in violation of Martial Law Regulation, 115, they could refer the same to the Land Commissioner but under no provision of Law Civil Court could exercise such powers and declare both the mutations being violative of Martial Law Regulation, 115, hence the findings of two, Courts below on issue No.3 are not maintainable and are set aside. However, the findings of two Courts below on Issue No.10 to the extent that Civil Court has got jurisdiction to 'determine the question of title and determine otherwise the legality of both the mutations, are maintained.
(B) Before touching the findings of the Courts below on Issues Nos.1 and 2, an important point requiring determination is whether at ,the relevant time when both the mutations were attested i.e. On 5-7-1972 and 20-8-1972 respectively, the provisions of section 54 Transfer of Property Act were in vogue in the area where the land in dispute is situate and if such provisions were in fact applicable to the said area, whether oral sale by way of mutation could be legally effected through mutation. Admittedly the suit-land is situated within the territorial jurisdiction of Tehsil Chishtian which formed part of erstwhile State of Bahawalpur and the Government of Bahawalpur vide Notification No.20 issued on 28-5-1931 extended the provisions of section 54 of the Transfer of Property Act throughout the Bahawalpur State, which Notification remained effective till 23-8-1979 when it was cancelled by the order of Governor of Punjab/Revenue Department, Government of Punjab Notification No.666-79/1/70-L.R.I, meaning thereby that at the relevant time when both these mutations were sanctioned sale of immovable property within the area where the property is situate, could only be effected through registered document in terms of section 17 of the Registration Act and in the manner provided by section 54 of the Transfer of Property Act. It, in this background in view, has been held by the superior Courts that since provisions of section 54 of the Transfer of Property Act per force of the above-mentioned Notification have been extended in the territorial area of Bahawalpur State, hence, any sale of immovable property worth more than Rs.100 not effected by registered deed, neither confers any title or interest to claim ownership on a person claiming such right except defending possession. Reliance is Placed on the case of "Jandi v.
Jhanda and others (PLD 1961 (W.P.) Baghdad-ul-Jadid 34), Sohna v. Allah Dad and anoiher (PLD 1962 Baghdad-ul-Jadid 17), Muhammad Amin and others v. Mian Muhammad (PLD 1976 B.J. 5), Muhammad Bakhsh v. Zia Ullah and others (PLD 1971 Baghdad-ul-Jadid 42), Pir Bakhsh v. Budhoo (PLD 1978 Baghdad-ul-Jadid 86) and Muhammad Masood Khan Bhatti v. Mst. Ghulam Fatima (1987 SCM R 1206). All these judgments relates to ownership disputes of property situated within the area of erstwhile Bahawalpur State where the provisions of section 54 of the Transfer of Property Act remained in force from 28-5-1931 to 23-8-1979. Admittedly both the sales, one in favour of Sikandar Khan and other in favour of petitioners took place through mutations and not by way of registered sale-deeds in terms of section 17 of the Registration Act read with section 54 of the Transfer of Property Act, hence, without commenting whether the same were made with authority, with consideration or by the competent person, suffice it to hold that same were no sales in the eye of law and no further appraisal of evidence or recording of evidence on both these issues was required. The Issues Nos.1 and 2 are therefore, answered in simple words that both the sales having been made in violation of section 54 of the Transfer of Property Act as well as section 17 of the Registration Act, hence were illegal, void and the findings of two Courts below on these issues are maintained.
(C) As held by the two Courts below that property in dispute was recorded as Banjar Qadeem, therefore, the same shall be considered to be in possession of its true owner. Since I have already confirmed the findings of two Courts below on Issues Nos.1 and 2 holding Lal Khan as owner of the suit property, hence, the findings of two Courts below on Issue No.4 declaring him as owner in possession, are also maintained.
(D) Further as alleged sale by Lal Khan in favour of Sikandar Khan has been declared as illegal and void, hence, he could not be held to be estopped from filing the suit. As such no exception can be taken to the findings of two Courts below on Issue No.8. Similarly, Lal Khan being owner of the suit property did have the cause of action and locus standi to file the suit.
(E) Resultantly, the civil revision fails and is dismissed and the judgment and decrees of two Courts below are upheld and maintained.
10. However, a very important aspect of the case still remains to be decided. The legal heirs of Sikandar Khan deceased neither entered appearance to contest the suit before the trial Court nor they filed their written statement or any appeal/revision against the judgments and decrees of the two Courts below, meaning thereby they have admitted the sale of property in dispute by Sikandar Khan in favor of the petitioner. I am also not satisfied by the findings of the two Courts below on issue No.2 to the effect that sale by Sikandar in petitioner's favour was without consideration, especially when none on behalf of Sikandar Khan has denied payment of sale price to Sikandar Khan. In absence of such evidence, the two Courts below were not justified by declaring such sale as without consideration. The fact that said sale was void being violative of provisions of section 54 of the Transfer of Property Act and section 17 of the Registration Act does not necessarily mean that Sikandar Khan never gold the suit property or received the consideration from the petitioner. It is an established principles of law that any person receiving consideration or deriving any benefit even under a void contract, is liable to return the same or to indemnify the promisee in terms of sections 124 and 125 of the Contract Act. In some what similar circumstances, the Hon'ble.Supreme Court of Pakistan in the case 'Haji Muhammad Shah v. Sher Khan and others" (PLD 1994 SC 294) held that the party sustaining loss in a transaction of exchange (sale in the present case) of land could claim other land of his choice from the other party or ask for compensation in cash equivalent to the market value of deficient land. The above-mentioned dictum of the Hon'ble Supreme Court is not only in consonance with the principle of equity but also of Muslim Law which ordains that person suffering any loss due to act of some other person is entitled to be compensated. That is why, while following the judgment of learned Shariat Appellate Bench of the Hon'ble Supreme Court of Pakistan rendered in "Federation of Pakistan v. Public At Large" (1998 SCMR 2041), specific provisions by way of section 16-A has been incorporated in the Sales of Goods to compensate a person suffering any loss in the context of principle of caveat-emptor. I therefore, feel that in the instant case sale by Sikandar Khan in favour of the petitioner, though invalid due to non-fulfilment of section 17 of the Registration Act read with section 54 of the Transfer of Property Act, yet its factual effect cannot be invalidated and the same remains intact and the heirs of Sikandar deceased are bound to indemnify the petitioner out of the estate, if any left by Sikandar Khan by.
Way of alienating other land or making payment of the price to the petitioners, received by Sikandar Khan along with profit/mark-up till date in terms of sections 124 and 125 of the Contract Act, mentioned above and also the dictum laid down by the Shariat Appellate Bench of the Hon'ble Supreme Court of Pakistan. The petitioners may therefore, if so advised, tile a suit for obtaining other land of the deceased of the same value or return of price with all legal ancillary consequences, against heirs of Sikandar Khan respondent, provided they have inherited the estate of Sikandar Khan, if any.
12. The upshot of above discussion is that the revision petition in hand is dismissed, subject to the above mentioned observations. However, there is no order as to costs.