KHAWAJA SHAHAD AHMED, J.--- The instant application under Order XLIII, rules 4 and 5 of the Supreme Court Rules, 1978 has been filed by Raja Muhammad Akram Khan petitioner herein through his counsel, wherein he has prayed that the observations made by this Court A in respect of ownership of respondent No.7 be omitted and in the alternate the petitioner be allowed to seek the requisite relief from the High Court. The learned counsel for the parties addressed their respective arguments on 28-10-2005 and in view of the fact that the record of this Court and the lower Courts in the case titled Ch. Talib Hussain and others v. Azad Government and others (Writ Petition No.66 of 2002, decided on 4-10-2002), Mehboob Alam v. M.D.A. And others (Writ Petition No.112 of 1993, decided on 18-11-1997) and Allah Ditta v. Mehboob Alam (Civil Appeal No.11 of 1998 decided on 25-6-1998) were to be examined it was felt proper to reserve the judgment.
2. The facts of the case, as have been placed before this Court in writing by the petitioner and addressed at bar by his counsel, are that Plot No.32-H measuring 4 Marlas, 214 sq.Ft. Situated in Sector C-1, Mirpur City was allotted to one Mst. Zainab Bibi in lieu of Plot No.157-J, Sector C-4, Mirpur on 12-1-1975 by the Mirpur Development Authority. This plot was transferred to Saeed Ahmed pro forma respondent by one Fazal Karim as attorney of Mst. Zainab Bibi. Saeed Ahmad also sold this plot to pro forma respondent Riaz Qureshi who also sold it to late Allah Ditta. Since Allah Ditta has died, his legal representatives have been arrayed as pro forma respondents Nos.13 to 20. It is alleged by the petitioner that deceased Allah Ditta during his life time transferred the said Plot No.32-H to the petitioner for a consideration of Rupees three lac through an agreement to sell dated 29-12-1996 which was registered on the same day and the possession of the plot was also transferred to the petitioner who alleges to be in continuous possession of the said plot. It has been contended that Mst. Zainab Bibi, the original allottee, died on 30-7-1991. It has also been alleged in the application that Mehboob Alam who has been arrayed as respondent No.7 is claiming the ownership of this Plot No.32-H and has collected some material for construction over the said plot.
The petitioner filed a writ petition in the High Court on 30-7-2002 along with an application for grant of stay order which was allowed.
3. This Court by its judgment, dated 25-6-1998 in Civil Appeal No.11 of 1998 titled Allah Ditta and 5 others v. Mehboob Alam dismissed the appeal of Allah Ditta deceased and approved the judgment of the High Court, dated 18-11-1997. In that case respondent Mehboob Alam filed a Writ Petition No.12 of 1995 claiming therein that he was allottee of land measuring 10 Marlas comprising Survey No.1184 on the ground that the said land was in his possession which was illegally allotted to Mst. Zainab Bibi as the said land was never acquired by the Mirpur Development Authority. He also pleaded that the allotment made in favour of Mst. Zainab Bibi was ordered by the Allotment Committee in the year 1975 which allotment, along with many other allotments, was cancelled by a Government Notification and the Revising Authority did not restore the allotment of Mst. Zainab Bibi and his case was dismissed in default, therefore, the fact that the said land under Survey No.1184 which was illegally marked as Plot No.32-H is incorrect narration and Fazal Karim the attorney of Mst. Zainab Bibi could not transfer the said plot to Saeed Ahmed who further transferred the said plot in favour of Riaz Qureshi who is respondent No.12 before this Court in the instant case. The writ petition was accepted and an appeal to this Court was dismissed. The argument which mainly prevailed with this Court was that according to the record Mst. Zainab Bibi had died on 27-7-1978, therefore, transfer of plot to Saeed Ahmad by Fazal Karim attorney on 5-9-1987 was fictitious and even if the power of attorney had been validly executed by Mst. Zainab Bibi the same stood revoked after her death in the year 1978, therefore, on 5-9-1987 when the plot was transferred to Saeed Ahmad, Fazal Karim had ceased to be the attorney of Mst. Zainab Bibi deceased. It was also held by this Court that the High Court had rightly relied on a judgment of Sub-Judge, Mirpur that allotment of Mst.
Zainab Bibi was not restored by the Revising Authority and that the disputed land or plot was not acquitted by the Mirpur Development Authority. The allotment and transfers effected subsequently were of no legal consequence. A further contention of Allah Ditta that he purchased this land from Riaz Qureshi for a consideration of Rupees three lac was also repelled by relying on the argument of Ch. Muhammad Reaz Alam, who represented Mehboob Alam respondent No.1 in the previous round of litigation in this Court, on the ground that the suit-land which was initially gifted to Saeed Ahmad by Fazal Karim was executed by the said Fazal Karim as attorney of Mst. Zainab Bibi deceased who had died on 27-7-1978. In this respect reliance was also placed on the evidence which was produced in a civil suit filed by Fazal Karim in the year 1990 long after the death of Mst.
Zainab Bibi. The judgment of this Court reveals that a decree was also passed in favour of Mehboob Alam respondent No.7. Precisely the finding recorded by this Court in the last para. Of the judgment, dated 25-8-1998 is that Mst. Zainab Bibi died in the year 1978 whereas the land/plot was gifted away to Saeed Ahmad by Fazal Karim as attorney of Mst. Zainab Bibi in the year 1990 which was declared as illegal in the eye of law. The decree of the Civil Court that the suit-land was never acquired by the Government and remained in possession of Mehboob Alain respondent No.7 was not rebutted. The judgment of this Court referred to above and assailed through the instant petition is clear on all points of (sic).
4. The finding recorded by this Court has been challenged by the petitioner herein on the ground that he was never arrayed as a party in the High Court or in this Court in previous round of proceedings. He also submitted, as has earlier been mentioned, that he purchased this land from late Allah Ditta through an agreement to sell and has arrayed Mehboob Alam as a party in the writ petition filed In the High Court. The said Mehboob Alam was fully aware of the fact that the plot in dispute was sold out to the petitioner but in his writ petition he deliberately did not array the present petitioner as a party. He has contended that there is sufficient documentary record which proves that the land measuring 10 Marlas under Survey No.1184-min was acquired by the Mirpur Development Authority and converted into a plot. In the estimation of the petitioner and his counsel respondent No.7 by keeping aw4y the petitioner has manoeuvred the judgment in his favour. In his estimation the judgment of the Supreme Court is against the record and documentary evidence.
He seeks relief under inherent powers of this Court as he being bona fide purchaser of the disputed plot, has a palpable right to invoke the inherent powers of this Court.
5. On the other hand, the learned counsel appearing for the respondents have repeated almost the same arguments which were addressed by them in the previous round of litigation. The written objections which have been filed by them in this Court contain legal objections as well which precisely are that the instant application is not maintainable and that the judgment of this Court, dated 25-6-1998 cannot be amended or altered under inherent powers of this Court. On facts they have referred to certain parts of the judgment of the High Court and this Court wherein it has been held that the land under Plot No.32-H was never acquired by the Government/Mirpur Development Authority and whole story of transfer through power of attorney is based on no evidence. They have also disputed the execution of power of attorney by Mst. Zainab Bibi and more particularly her right to transfer the land. An important objection which directly relates to the present controversy has also been taken whereby it has. Been contended that the present petitioner also filed a writ petition about the same plot before the High Court which was dismissed in limine and the learned Judge in the High Court while dismissing the writ petition ordered for the initiation of the contempt proceedings against the present petitioner which are still pending in the High Court and no appeal has been filed by the petitioner against the dismissal order of his writ petition.
6. We have heard the learned counsel for the parties and have gone through the record of the case. The learned counsel for the petitioner has referred to the cases reported as Fateh Khan and others v. Sultan Khan 2005 SCM R 134; Mirza Muhammad Aslam Beg v. Dr. Saghir Iqbal 1992 SCR 94; Muhammad Sultan v. Sardar Begum and 6 others 1995 SCR 216 and Sardar Muhammad Ibrahim Khan v. Azad Jammu and Kashmir Government PLD 1990 SC (AJ&K) 23 to substantiate the argument that this Court under its inherent powers could recall any judgment or order which is patently illegal. We need not discuss the facts and findings recorded in the precedent cases as we have no doubt in our mind above powers and inherent powers of this Court to do complete justice because the superior Courts are Judges of their own jurisdiction. This right has consistently been claimed and exercised by he Superior Courts of the sub-continent. We fully own the finding of this Court recorded in a case reported as Mirza Muhammad Aslam Beg v. Dr. Saghir Iqbal 1992 SCR 94 that this Court for doing complete justice can exercise its powers under section 42-A of the Azad Jammu and Kashmir Interim Constitution Act, 1974 read with Order XLIII, Rule 5 of the Supreme Court Rules if a proper case is made out the Supreme Court can recall an order or to rehear a cause or can even treat a judgment as, nullity.
7. Keeping in view this legal position we have minutely gone through the facts pleaded by the parties and relied upon by the High Court and the Supreme Court. The judgment of the Supreme Court which has been assailed through the instant petition for exercise of inherent powers has been passed mainly on the following grounds:--
(a) That the suit-land was never acquired by the competent authority to be converted into plot;
(b) that even if the suit-land allotted to Mst. Zainab Bibi as a plot the same along with many other plots were cancelled by the Government and the Revising Authority did not restore the same in favour of Mst. Zainab Bibi; and
(c) that Mst. Zainab Bibi died in the year 1978, therefore, if she had executed any power of attorney to transfer the said plot, the disputed power of attorney stood revoked by fiction of law on her death.
The learned counsel for the petitioner disputes these findings of the Supreme Court.
8. As against it, the respondents pleaded that the petitioner filed a writ petition in the High Court which has been dismissed and no further appeal has been filed against the said judgment and in that case petitioner Raja Muhammad Akram Khan was respondent No.2. When Raja Muhammad Akram Khan disputed this fact and categorically denied that he did not file Writ Petition No.66 of 2002, this Court on application of the respondents, ordered the summoning of Mr. Liaquat Ali Khan, Advocate who in his statement before the Court has categorically stated that he was engaged as a counsel by Raja Muhammad Akram Khan in the appeal which was filed by Allah Ditta and others against Mehboob Alam in the year 1997. He also admitted that he was engaged as a counsel by Raja Muhammad Akram Khan in the second writ petition filed in the year 2002. Again he has admitted that he was engaged as a counsel in a contempt case by Raja Muhammad Akram Khan, petitioner. Nothing has been brought on record to rebut the statement of this officer of the Court and we are of the considered opinion that the present petitioner was very much aware of the appeal filed by Allah Ditta and others. If he had any right or interest in the property, he could put his case before the Supreme Court. It' is a settled principle of law that law lulls a person who sleeps over his right and the Courts must not exercise their inherent power in favour of such a person. The impugned judgment was passed on 25-6-1998 and the application under inherent powers of this Court has c been filed on 22-8-2002 after about four years.
9. Examined from another angle, we find that the instant petition can only be allowed if we differ with the finding of the facts recorded by this Court in the impugned judgment. The fact that Mst.
Zainab Bibi died in 1990 and not in 1978 cannot be considered on the basis of the documents which have been attached with the instant application as the said documents could be produced in the Supreme Court when the matter was pending before it but the same were not produced. We cannot alter the judgment of the Supreme Court on the ground that certain new documents have been placed with the instant application to dispute the date of death of Mst. Zainab Bibi. Same is the case of other facts. The petitioner in fact desires us to consider the fresh evidence about certain points of facts which cannot be allowed. The precedent case-law on the subject in hand reveals that the inherent powers can be exercised where judgment or order of the Court is patently illegal, for instance the judgment is against a dead person or a patent illegality apparent on the face of the record which is not the case before us.
10. There is another aspect of the case which needs consideration. Raja Muhammad Akram Khan, petitioner, pleads his right on the basis of an agreement to sell which does not create complete ownership for the purchaser and remains subject to some further performance under the Transfer of Property Act read with the Specific Relief Act. He has a D remedy to sue the person and get back the consideration amount which he alleges to have paid to Allah Ditta deceased. While dismissing the petition, we hold that the judgment of this Court recorded on 25-6-1998 is based on facts and there is no legal justification to allow the application filed by Raja Muhammad Akram Khan, petitioner. We must, however, record our appreciation for the assistance rendered by the learned counsel for therefore. The petition is, therefore, dismissed.