On 15.6.1971 an application was Made by the petitioners before the Assistant Commissioner/Deputy Settlement Commissioner, Bhalwal, Sargodha for redemption of land measuring 163 kanals, 10 marlas situated in Mauza Kot Kala, Tehsil, Bhalwal, District Sargodha., which had been mortgaged by their predecessorin-interests in favour of non-Muslim evacuees. They claimed the mortgage to have been redeemed in the year 1922-23 but that the same had not been given effect to in the revenue record. Since the land had continued to remain mortgaged with the non-Muslim evacuees and entries in favour of the Central Government had been made in the year 1970 some of it was allotted to Fazal Muhammad (deceased) predecessor-in-interest of the contesting respondents on 3.6.1971 considering it an evacuee property. The Assistant Commissioner/D.S.C. (Land), Bhalwal observed in his order dated 11.2.1972 that the land was redeemed in the year 1922-23 and incorrect entries in the revenue record could be rectified through "Fard Badar". He was of the view that application for redemption had erroneously been filed. Writ Petition No. 2874/1978 was filed by the petitioners seeking implementation of the said order and for entry of the names of the petitioner as owners in possession in the revenue record The said writ petition was disposed of on 30.10.2000, noting the factum of allotment of the same in favour of Fazal Muhammad (deceased) and that the allotment order had been passed without hearing the petitioners. It was observed that "there are two orders in field, one in favour of the petitioners which was passed by Assistant Commissioner/Deputy Settlement Commissioner (Land) wherein theyowere held to be the owners after redemption of C.L.R. mortgage of the property while the second order is by the Additional Settlement Commission who allotted and confirmed the property in favour of the respondents. None of the two officers had the occasion of hearing the opposite party." The learned Judge thus thought it "appropriate to remand the matter to the Notified Officer who will after haring both the parties decide the same in accordance with law." It is thus that order dated 29.1.2001 was passed by the Assistant Commissioner/D.S.C. (Land), Bhalwal, who this time came to the conclusion that the land had never been got redeemed by the petitioners or their predecessor-ininterest during the period of 60-years and that long standing entries in the revenue record could not be altered through "Fard Badar" and dismissed their application by observing that they could approach the Civil Court on the matter. This order has been assailed now through the present petition.
2. The learned counsels-for the parties have been heard in the matter.
3. It is contended by the learned counsel that by order dated 11.12.1972 it was rightly found that the land had been redeemed in the year 1922-23 and that in any case the petitioners could not be non-suited merely for the reason that the application was time barred, which according to him' was well in time. Reliance for this purpose is placed upon Sameer Gull v. Central Government and others (PLD 1986 SC 35). The learned counsel for the contesting respondents has endeavoured to support the order impugned. According to him the plea of the petitioners was inconsistent inasmuch as they were claiming the land to have been redeemed in the year 1922-23 and also seeking redemption through, application dated 15.6.1971. According to him with the passage of period of 60-years and expiry of limitation their right in the property stood extinguished, which was lawfully allotted to Fazal Muhammad (deceased). He has referred to Ismail v. S.A.M. Khan and 35 others (PLD 1972 Lahore 682) and Mst. Inayat Bibi v. Faqir Muhammad and others (2001 SCMR 742).
C.L.R.
4. As mentioned above while disposing of petition (WP No. 2874/1978) the matter was remanded by the High Court for decision after hearing all concerned in the matter. In the past remand proceedings the official respondent has taken the view different from the one taken in the order dated 11.12.1972. In such view of the controversial/factual intricacies involved and existence of long standing entries in the revenue record, respondent No. 18 had rightly observed that the petitiorners could approach the Civil Court.
Instead of following the said course they have approached this Court. It may be observed that jurisdiction under Article .199 of the Constitution of Islamic Republic' of Pakistan, 1973 is circumscribed by lot many conditional ties and cannot be a substitute for a normal civil suit. In Quetta Club Ltd., Quetta Cantt. Through its Administrator v. Muslim Khan and 2 others (PLD 1983, Quetta 46) a learned. Division Bench opined that however, extensive jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 may be, it was not so were or large as to enable the High Court to convert itself into a Court of appeal and examine for itself the correctness of the decisions and decide about the property of the order 'and that the disputed questions involving inquiry into facts could not be decided by "short hand method of writ". The latest position of this context laid down by the Hon'ble Supreme Court, of Pakistan' in Secretary to the Government of the Punjab, Forest Department, Punjab, Lahore through Divisional Forest Officer v. Ghulam Nabi and 3 others (PLD 2001 SC 415) is also to the same effect wherein after considering large number of precedents on the subject it was ,observed that "Constitutional jurisdiction of High Court, cannot be converted into that of an Appellate Court. Disputed Question of fact cannot be entered or allowed to be re-agitated in writ jurisdiction. (1982 CLC 1972). When the relevant law provides other forums for the purpose. (1987 P.Cr.L.J. 1413 (DB). It follows that finding of fact recorded by Appellate Court below on appraisal of evidence cannot be disturbed in writ jurisdiction. (PLD 1981 Lah. 511). In Constitutional jurisdiction Court does not go into a question involving minute details nor can it decide facts of which no foundation is laid, (1990 MLD 563 (DB), unless it is shown that such controversy is devoid of supporting record, or perverse," (1990 MLD 344). It hardly needs any elaboration that "the superior Courts should not involve themselves into investigations of disputed question of fact which necessitate taking of evidence. This can more appropriately be done in the ordinary DOI Procedure for litigation by a suit. This extraordinary jurisdiction is intended primarily, for providing an expeditious remedy in a case where the illegality of the impugned action of an executive or other authority can be established without any elaborate enquiry into complicated or disputed facts." These are parameters laid down by the Hon'ble Supreme Court of Pakistan to be kept in view while exercising writ jurisdiction by the High Court.
From the perusal of judgment in the case of Samar Gull (Supra) in which case also the mortgaged rights of the non-Muslim evacuees were transferred in favour of Central Government and land was then allotted to one Chhuntna in lieu of his claim in the year 1973, it is evident that controversy of the nature could appropriately be determined through a proper suit before the Civil Court in which decree was passed that the mortgagors were "owner of the equity of redemption in the suit land."
The said judgment.Was followed in Muhammad Hanif and another v. Ghulam Rasool through L.Rs.
And others (2005 SCMR 1004), which also arose out of a declaratory suit filed for such purpose. The Assistant Commissioner/D.S.C. (Land) Bhalwal vide his order dated 29.1.2001 was fully justified to observe that the petitioners should seek remedy from the Civil Court which observation is eminently consistent with the above view of the law on the subject. which is dismissed accordingly.