SYED HAMID ALI SHAH, J. --- This single judgment will dispose of Writ Petitions Nos. 2911/2005, 1831/2006, 2917/2006, 2916/2006, 2915/2006, 2912/2006, 2913/2006 and 2914/2006, as the controversy involved in these -petitions, is common.
2. Late S. Muhammad Din left behind 1294 kanals and 15 marlas of land in various khattas in revenue estate. Attari Samba, Tehsil Cantt. Lahore. Deceased was survived by Abdur Rahirn (predecessor of the petitioners), Muhammad ldrees, Abdul Aziz, Muhammad Nazir, Abdul Majeed and Abdul Hameed (sons) and Mst. Rehmat Bibi .(widow) Khatta No. 423, Measuring 508 kanals and 5 marlas, remained in the ownership of four (4) brothers namely Abdur Rahim, Abdul Majeed, Abdul Aziz and Muhammad Nazir. Each brother had equal share in the said Khatta, to the exclusion of other legal heirs namely Abdul Majeed and Muhammad Idrees and Mst. Rehmat Bibi. Forty-six (46-) kanals and one (1) marla, from the afore-saidland, was acquired by the Government of Punjab, for the construction of a, Labour Colony. Now 442 kanals and 4 marlas of land is left in the said khatta. The entitlement of each joint owner is 122 kanals and 2 marlas.
3. Abdul Majeed and Muhammad Nazir (respondents Nos. 1 and 2 herein) had sold more than their respective share in the said Khatta. Abdul Majeed (respondent No. 1) sold 25 kanals and 15 marlas of land, in excess of his entitlement, while Muhammad Nazir (respondent No. 2) sold 46 kanals and 8 marlas, in excess of his entitlement, out of land in dispute. Mutations Nos. 2074, 2050, 2948, 2065, 2040 and 2067 were attested respectively on 30.3.1976, 23.12.1975, 24.4.1981, 3.3.1976, 23.12.1975 and 3.3.1976, showing alienation of land in favour of respondent No. 4. Mutation No. 2070, dated 3.3.1976 reflects that the sale was made. In favour of respondents Nos.4 to 6, while Mutation No. 2068 pertains to the sale of 4 kanals to respondent No. 4.
4. Petitioners challenged afore-mentioned mutations, in appeal before A.D.C. (G), who vide order dated 6.1.1995, dismissed the appeals, being barred by limitation. Order of rejection of appeals, was successfully challenged by the petitioners in revision petitions before the Additional Commissioner (Revenue), Lahore, who accepted revision petitions, vide order dated 31.7.1993. The revision before the Board of Revenue met the fate of dismissal, vide order dated 23.7.1996. Respondent Abdul Majeed and Ghulam Rasool, invoked the Constitutional jurisdiction of this Court, assailing therein the orders of Additional Commissioner (Revenue) and of Board of Revenue. Parties during the course of proceedings, reached Consensus and in view thereof, the writ petitions were disposed of vide order dated 28.11.2000. Resultantly, the impugned orders were set aside and the case was remanded to A.D.C.(G)/Collector Cantt. Lahore, to determine the exact, shares of each joint holder in Khatta No. 423 and also the sale, by the joint owner in excess of his respective share.
Respondents filed miscellaneous applications (C.M. No. 1-2000 in W.P. No. 19043/1996 and C.M. No. 1/2001 in W.P. No. 26140/1997), seeking clarification of order dated 28.11.2000. It was observed by this Court in order dated 26.6.2001 that there is no ambiguity in the order Kahatta No. 423 was owned by only four (4) brothers equally Muhammad Idrees, Abdul Hamid and their mother Rehmat Bibi, alongwith these four brothers are joint owners of landed property measuring 1294 kanals and 15 marlas, comprised in various khatas. Khatta No. 423, restricts to the share of four only. Request for extending, scope of ascertainment of sale to whole of the estate of late Abdur Rahim and permission for agitating other legal and factual objections was declined.
5. D.D.O. (R), Lahore Cantt., in the post remand proceedings, procured Chant Certain omissions were found and were rectified. The "Chant" transpires that Abdul Majeed and Muhammad Nazir, alienated land measuring 72 kanals and 3 marlas, over and above their entitlement in Khatta No. 423, D.D.O. (R) on the question of limitation, had observed that mutations were sanctioned during the year 1976 and were assailable under Section 162 of the Punjab Land Revenue Act, 1967, within 30 days of the mutations. The delivery of possession to the vendees and construction raised thereupon by the vendees, was held by him, sufficient mean by knowledge to the appellant (petitioners herein) of the impugned alienation. It was further observed by him that controversy, involving cancellation of registered sale-deeds, cannot be challenged in the proceedings before Revenue Authorities. The appeals by the petitioners, against order of the Collector, were dismissed vide order dated 15.8.2002, on the question of limitation and maintainability. Petitioners challenged the order of D.D.O. (R) in revisions before E.D.O. (R) and Board of Revenue, but without a success. E.D.O. (R) through order dated 28.6.2003, adjourned the petitions, sine die, due to pendency of the matter before the Supreme Court of Pakistan. B.O.R dismissed revision petitions, through order dated 29.11.2005, which has now been-assailed in these petitions.
6. It is contended by learned counsel for the petitioners that the case was remanded to the D.D.O.
(R), for determination of exact shares of the parties and determination of sale by a co-sharer, in excess' of his entitlement. Learned counsel referred to the case of "Jameel Ahmed v. Saifuddin" (PLD 1994 SC 501) and "Mst. Agila Begum and another v. Pakistan Employee Cooperative Housing Society Ltd. And others" (PLD 2004 Karachi 1) to contend that in the post remand proceedings, Court or quasi-judicial forum, cannot proceed beyond the terms of remand. Respondents Nos. 9 and 10 had no jurisdiction to entertain and decide the question of limitation and subsistence of sale-deeds.
Learned counsel contended further that -a co-sharer cannot sell land,- in excess of his entitlement, in the joint Khatta. Such sale is nullity. Learned counsel supported this contention by referring to the law laid down in the case of "Rabnawaz and others Akbar Ali and v. Akbar Ali and others" (1989"
SCMR 93). Learned counsel emphasized that plea of bona fide purchaser is not available to vendee, as vendor cannot deliver, a better title, than the one, which he himself has learned counsel emphasized that superstructure raised on void foundation, has to fall on the ground alongwith the foundation, when such foundation has no validity. A vendee steps into the shoes of the vendor.
Learned counsel supported this contention by placing reliance upon the cases of "Syed Wajih-ul- Hassan Zaidi v. Government Punjab" (1997 SCMR 1901) and "Khuda Bukhsh v. Khushi Muhammad'
(PLD 1976 SC 208). Learned counsel has submitted that if the mutation is not legal and proper, it has no legal status and found support in' this respect, from the case of Muhammad Younus Khan and 12 others v. Government of N. -W.F.P. Through, Secretary, Forest and Agriculture, Peshawar and others" (1993 SCMR 618). Learned counsel has submitted that it is the domain of the Revenue Authorities to correct the entry in the Revenue Record and referred to Section 172(2)(vi) of the Land Revenue Act Learned counsel ,summed up his arguments with the submission that, the matter, where the Revenue Record is distorted and fabricated through fraud and misrepresentation, in collusion with revenue subordinates the remedy lies In invoking the provision of-Sections 13, 15 and 16 of the Land Revenue Act, with regard to appeal, review or revision.
7. Respondents Nos. 1, 2 and 6 were proceeded against ex parte. Learned counsel for respondent No. 4 has, submitted that predecessor of the petitioners, respondents. Nos. 1, 2., 3 & 5, their two ,brothers namely Muhammad; ldrees and Abdul Hameed alongwith their mother Mst. Rehmat Bibi, were joint owners of landed property, measuring 1294 kanals and 15 marlas, in various khatas of revenue estate of Atari Baraba. Khatta No. 423 was owned by Abdul Rehim and respondents Nos. 1 to 3. These owners kept selling parcels of land in the said Khatta, on the basis of their Hissadari possession. Siraj Diri (deceased father of respondent No. 4) purchased 14 kanals and 13 marlas from respondent No. 2, through sale-deed dated 3.2.1976, registered vide Deed No. 4893 and the same was mutated in favour of the vendee vide Mutation No. 2067. Land measuring 2 kanals and 17 marlas forming part of Khatta No. 423 (previously Khatta No. 297), was subsequently gifted by vendee (Siraj Din) vide gift deed dated 3.6.1976, in favour of his son (respondent No. 4). The donee subsequently sold the land to Haji Atta Muhammad, who has since died and neither he nor his legal heirs, were made party in these proceedings. 7 kanals of land out of said Khatta, was transferred by respondents Nos. 1 & 2, jointly to Mst. Zainab Bibi vide registered Sale-deed No. 32839, dated 27.11.1975, mutated in her favour vide Mutation No. 2040, dated 23.12.1975. Vendee further alienated the land. To her son Ghulam Rasool, Abdur Rehim and Abdul Aziz, filed a suit for declaration and permanent injunction, claiming that Abdul Hameed and Muhammad Idrees (two brothers of plaintiffs) have sold land in excess of their shares in Khatta No.. 423 and assailed the sale. Defendant contested the suit and through written statement, controverted the assertions of plaint. The suit was withdrawn' later on by the plaintiffs, With permission to file a fresh suit, which was never filed thereafter. Learned counsel added that instant proceedings are not competent and hit by the principles bf res-judicata. Learned counsel contended that petitioners had themselves sold land in their joint khatas, over and above their entitlement and had approached the Civil Court with unclean hands. Learned counsel went through the order dated 8.9.1980 and submitted that the Collector has decided the question of limitation within the parameters of law. Learned counsel has emphasized that Mutations. Nos. 2040 and 2067, were challenged after The delay of 14 years and two months and condonation of delay was sought on the plea that Abdul Rahim, being industrialist, was unaware and unfamiliar with agriculture sector and therefore failed to gain knowledge of the fact that respondents Nos. 1&2 had sold land out of joint Khatta, in excess of their respective shares. Learned counsel submitted that delay of 14 years cannot be condoned on such vague grounds. The Authorities in the hierarchy of BOR, have rightly held that challenge to impugned mutations, is barred by law of limitation. The rights of bona fide purchasers are protected, who have purchased the properties in joint Khatta against valuable consideration through registered document. Learned counsel contended that mutations based on registered deeds were not 'liable to be cancelled, therefore, no illegality Was committed by the Member BOR, while passing the impugned order.
8. Mr. Muhammad Ghani, learned counsel for respondent No. 5, once again explained the factual background of the instant' controversy and then contended that respondents Nos. 5 & 6 purchased land measuring 20 kanals and 7 marlas, out of Khatta No. 423, through registered sale-deed from the Vendors. The vendors were the transferees through register sale-deeds. The alienation of land through registered sale-deeds. The alienation of land through registered sale-deeds, and mutations attested on the basis of registered deeds cannot be cancelled through appeal or revision; before the Revenue Authorities. The authorities in the hierarchy of Board of Revenue, have rightly dealt with the issue and the finding of the Member, Board of Revenue, on the question of limitation are not open to exception. Learned counsel then submitted that enquiry has to be conducted regarding the entire joint holding and it cannot be restricted to Khatta No. 423, Whether or not a share-holder has alienated or sold land in excess of his share can be ascertained with regard to entire joint holding and restricting it to a specific portion, is against the principles of justice, fairplay and equity, Learned counsel has added that if rights of co-owners in joint holding are confined to specific Khatta s, instead of entire holding, then co-owners can join hands with each other and with revenue staff. One of them, may alienate land to the exclusion of others and so on and at the end of the day, they may join 'lands with each other to blackmail vendees.
Learned'counsel, on the basis of this logic has contended that such exercise will result into endless litigation and will provide opportunity of blackmailing Case of "Muhammad Muzaffar Khan v.
Muhammad Yousaf Khan" (PLD 1959 SC 9), was referred to contend that vendee is clothed with same rights, as the vendor, in the property no more and no less The vendee steps into the shoes of vendor, qua his ownership rights in the joint property, to the extent of area purchased by him, provided the area in question does not exceed the share, which the vendor owns in the entire property, Learned counsel then referred to the case of "Mustafa Khan v. Muhammad Khan" (PLD 1978 SC (AJ&K) 75) to contend that sale cannot be legally challenged on the ground that the land sold exceeds the share of the vendor in the specific number Learned counsel has added that there is no flaw in sale by a co-sharer, in exclusive possession of specific field numbers, provided such sale does not exceed 'the vendor's shares in the total land. Much stress was laid on the case of "Shah Hussain v. Abdul Qayyum" (1984 SCMR 427), wherein the apex Court has held that a co- sharer in his possession, can alienate land, if his share in specific field numbers, does not exceed, his over all entitlement in the whole, land Learned counsel has submitted that similar view has been expressed in the case of "Chaudhry Ghulam Abbas v. Barkat All and another" (1999 YLR 2190).
Learned counsel has emphasized that the Revenue Record and the division of the land into. Khatta s, within a 'revenue estate, is only meant for certain procedural and revenue purposes. The entitlement of a co-sharer has to be determined with reference to all khattas and it cannot be confined to one Khatta alone. The Khattas are meant for collecting revenue and as such do not affect the right of all the parties in total.
9. Heard learned counsel for the parties, record and written submissions by the parties, perused. 10.
The first question; which needs to be attended to is whether in the post remand proceedings, there was any scope for the Revenue Authorities to travel beyond Khatta No. 423 and examine share holding of all the legal heirs of late S. Muhammad Din, in the total estate of the deceased and decide the matter on questions of limitation and maintainability of appeals/revisions. Order dated 8.11.2000, in Writ Petition No. 19043/1996 was passed and the case was remanded to the Collector with the consent of the parties as well as their learned counsel. It is, reflected from order dated 8.11.2000 that the case was remanded for the determination of the exact share of the shareholders in Khatta No. 423 and alienations, in excess of entitlement, made any .Co-sharer. While deciding the application for clarification of, order dated 8.11.2.000, moved by the respondents, it was observed by this Court, in order dated, 26.6.2001 that Muhammad Idrees, Abdul Hameed and their mother Rehmat Bibi have nothing to do with Khatta No. 423, as they were not joint owners in the Khatta. It was further observed by the Court that extending the scope of ascertainment of the respective shares of all the legal heirs regarding entire joint holding, would amount to opening of a Pandora Box. The prayer for allowing the investigation of the alienations by the joint owners of the entire joint holding i.e. 1294 kanals and 15 marlas, was declined. The order of this Court was assailed through C.P.L.A. No. 2923/L/2001, wherein inter alia the following question was proposed:--- "Whether learned Judge while passing the impugned order; could be down the acts of learned ADCJ (G)/Collector by directing not to look beyond Khatta No. 423 (now Khatta No. 964), which direction is clearly against the law declared by this Court in PLD 1959 SC 9 and 1984 SCMR 427)."
The remand order dated 811.2000 of this Court, attained finality on withdrawal of petition for leave to appeal.
11.. The Court or authority trying the lis, has to regulate proceedings and proceed with the matter, according to order of remand passed by the High Court/higher forum. Any attempt to sidetrack issue or decision in a manner not directed by High Court, would be a defiance of demand order.
The Revenue Authorities have ignored the terms of remand orders, passed by this Court on 26.6.2001 and 08.11.2000. The orders impugned in this petition, being erroneous, are not sustainable in the eyes of law.
12. While deciding revisions in the first round of litigation (ROR No. 1815/1993 to ROR No. 1962/1993), learned Member, Board of Revenue has held in his order dated 23.7.1996, that mutations sanctioning alienation of land, in excess of vendors share, being void ab initio to the extent of excess, would not attract application of law of limitation. The order of learned Member was assailed in W.P. No. 1-9043/1996 etc. (11 writ petitions) before this Court. The impugned decision was set aside, case was remanded by the consent of parties for ascertainment of shares of four joint owners in Khatta No. 423 and sale in excess by any of them. It is settled law that the case cannot be remanded ertner for the resolution of legal issues or in a technical ground. When clarification of order dated 8.11.2000 sought, it was urged before the Court that the parties be permitted to raise legal and factual objections. The application for clarification of the order was dismissed disallowing the respondents to raise legal objection. Question of limitation, being a legal objection, was not available to the respondents. Nor the authorities in the hierarchy of the BOR had the authority to extend their scope of inquiry in this regard in post remand proceedings.
13. Respondent No. 10 has fallen into error, while observing that Revenue Authorities have no jurisdiction to set at naught the mutation based on registered sale-deed as jurisdiction in such controversy, vests with 'the Civil Court. The respondent (respondent No. 6 in Writ Petition No. 2917 2006), in his petition for leave to appeal (C.P.L.A. No. 2923L-2001), has framed the following question of laws:--- 'Whether, in view of the fact that complicated questions of facts and law, are involved, the jurisdiction of the Civil Court was not attracted and of the Officers in the Revenue hierarchy, not barred, and whether Abdur Rahim, having himself approached the Civil Court and being conscious of weaknesses of his case, having withdrawn the Civil Suit, could, at all agitate the matter by means of a hopelessly time-barred appeal."
14. By dismissal of the C.P.L.A., on it's withdrawal by the petitioner, there was no room for the Revenue Authorities to re-open the question of jurisdiction. The Collector through order dated 15.8.2002, has held that the appeals are not tenable, on the plea that the registered sale-deeds of the vendees are intact unchallenged.
The authorities, in. The hierarchy of Board of Revenue, have given weightage to the registered sale- deed and ignored the decision of this Court and effect of withdrawal of the petition for leave to appeal. It is not an absolute rule that whenever mutation is attested, on the basis of registered sale-deed, Revenue Authorities are not required to look into it's validity. It is within the competence of. Revenue Authorities to disallow and refuse mutation, when the alienation of land is made by a person, who has no valid title in the property (subject-matter of alienation).
15. The Collector had directed for preparation of "Chant" by the revenue field staff and the same was submitted to the Collector on 24.1.2002. There were certain corrections to be made in the Chant and after correcting the same, the position, which emerged with regard to Khatta No. 423 is as under:- Name of Share-.
HolderAbdul RahimAbdul MajeedAbdul Aziz Muhammad NazirTotal Entitlement 122 Kanals - 1 Marla122 Kanals - 1 Marla122 Kanals - 1 Marla122 Kanals - 1 Marla488- Kanals - 5 Marla Area sold 77 Kanals- 9 Marlas 147 Kanals - 16 Marlas93 Marlas - OM168 Kanals - 9 Marlas486 Kanals - 10 Marlas Over sold 25 Kanals - 15 Marlas 46 Kanals - 8 Marlas72 Kanals - 3 Marlas
16. According to the Chant, Abdu Majeed (respondent No. 1) sold 25 kanals, 15 marlas of land, in excess of his share and Muhammad Nazeer (respondent No. 2) sold 46 kanals and 6 marlas of land, in excess of his share. Resultantly, land measuring 72 kanals and 3 marlas was sold over and above the entitlement by respondents Nos. 1&2 in Khatta No. 423. No one has raised any objection to the Chant prepared by revenue field staff, at any stage. The mutations, through which the land in excess, has been alienated, were required to be cancelled as per orders of this Court dated 26.6.2001 and 8.11.2000. Collector was under an obligation to cancel the last mutation being void transaction.
17. The officials, in the Revenue hierarchy, instead of proceeding to cancel the mutations, have proceeded to resolve the matter on technical grounds i.e. Competency of proceedings and limitation, which was not the intent of remand order. The "Chant" has since been prepared by the field staff, which reflects that land measuring 72 kanals and 3 marlas, over and above the entitlement of respondent No. 1 .(Abdul Majeed) & respondent No. 2 (Muhammad Nazir) has been alienated, therefore, alienations to that extent carry no value in the eyes of law. Share Of each joint holder has since been determined and sale from joint Khatta by the respondents Nos. 1&2, in excess of their entitlement funds it's mention in the "Chant", therefore, referring the matter back to the Revenue Authority for fresh ascertainment, will not serve any useful purpose. This litigation has already consumed considerable long time. The sale by respondents Nos. 1&2, in excess of their entitlement, in Khatta No. 423, are declared void.
18. For the foregoing, these petitions are allowed and the order impugned passed by respondent No. 10, is declared to have been passed without any lawful authority and with no legal effect. The sale of joint property by a joint owner/owners, in Khatta Nos. 423, in excess, of entitlement is declared void. "Chant" has already been prepared; which depicts the sale of excess land in the said Khatta. Respondent No. .7 is directed to cancel last mutations, through which a joint owner has sold more land than his share in joint holding (Khatta No. 423) and correct relevant Revenue Record expeditiously, after complying with codal and procedural formalities. No order as to costs.