' AMIN-UD-DIN KHAN, J.---Through this Writ Petition petitioners have made the following prayer:- "It is therefore, most respectfully prayed that the writ petition be accepted, and the direction be issued to the respondent No, 1 to sanction the mutation of sale in favour of the petitioners in pursuance of the order of Custodian dated 9-8-1959 in accordance with law. The costs of the petition may kindly be awarded to the petitioners."
2. The prayer made in this writ petition is very simple that on the basis of order of Custodian dated 9-8-1959 respondent No, 1 who is Deputy Commissioner/District Coordination Officer, District Collector, Faisalabad to sanction the mutation of sale in favour of the petitioners. The original as well as added record of the case consists upon near about 2000 pages and various applications, mostly by the petitioners, have been filed for permission to add record. Further C.M.No,2669-2006 was for summoning the record pertaining to the suit property allegedly under the custody of Secretary Settlement and Rehabilitation Commissioner, Board of Revenue, Punjab, .Lahore and on 16-12-2013 C.M.No,3968-2013 has been filed on behalf of the petitioners for seeking permission to place on record certain additional documents annexed with the application. C.M.No, 3969-2013 is for dispensation, as photocopies of the documents have been placed on the file and C.M.No,3970- 2013 was filed, head-note of which is as under:-- "APPLICATION UNDER SECTION 151 OF THE CODE OF CIVIL PROCEDURE 1908 FOR SUMMONING MR. AFTAB HAIDER ZIADI SENIOR CLERK IN THE OFFICE OF RESPONDENT NO. 3 TO APPEAR IN THE COURT AND INFORM THE COURT ABOUT THE STATUS AND GENUINENESS OF THE DOCUMENTS SUBJECT MATTER OF THE C.M.NO.2669/2006."
3. I have heard learned counsel for the parties on 3-12-2013, 9-12-2013, 10-12-2013, 17-12-2013 and 18- 12-2013 and minutely scrutinized the record with their able assistance.
4. The important factor is that more than thrice the parties went up to the level of august Supreme Court of Pakistan with regard to the matters relating to the suit property in various shapes and matter was agitated up to this Court so many times. As there is an observation of august Supreme Court of Pakistan in the order dated 26-3-1998 passed in Civil Appeal No, 579 of 1997, which is reproduced for ready reference:-- " The above appeal is disposed of with the observation that the High Court may dispose of Writ Petition No, 6700/95 now pending before it and decide the question of title without being influenced by any observation/finding recorded by the High Court on 13-6-95 in Writ Petition No, 3323/81 by .This Court in C. A. 578/97 .
' The above appeal is disposed of accordingly. There will be no order as to costs."
' I started hearing of the writ petition. As I have noted supra, though in the Writ Petition even at the time of filing of the Writ Petition or till to date there is no prayer for deciding the title of the petitioners with regard to the suit property, as for deciding the title the evidence is required and after complete hearing of the Writ Petition I am of the view that title of the writ petitioners cannot be decided in this writ petition as complicated disputed questions of fact are involved. Even otherwise the august Supreme Court of Pakistan has also not ordered this Court to decide the title of the writ petitioners. In the order dated 26-3-1998 passed in Civil Appeal No,579 of 1997, the august Supreme Court of Pakistan observed that this Court may decide the title. The tenor of the order is that this Court should not be influenced by the earlier observation findings recorded by the High Court on 13-6-1995 in Writ Petition No, 3323 of 1981 and that of the august Supreme Court of Pakistan in Civil Appeal No, 578 of 1997, therefore, I am not going to see the findings of this Court in Writ Petition No, 3323 of 1981 and of august Supreme Court of Pakistan in Civil Appeal No, 578/97.
5. Now the facts in series are that petitioners claim an unregistered sale deed dated 14-7-1947 in favour of their predecessor Khushi Muhammad by a Non-Muslim Evacuee. It is the case of the petitioners that the Sale Deed could not be registered as the Evacuee migrated to India and as per their case there is an application on behalf of their predecessor to the Deputy Custodian dated 29- 12-1948 for declaring the suit property as non-evacuee, the Deputy Custodian vide his order dated 16-12-1957 declared the suit property as Muslim property and declared the sale deed as genuine document and the Custodian confirmed the order of Deputy Custodian vide his order dated 9-8- 1959 and therefore, learned counsel argued that respondent No, 1 is bound under the law to sanction a sale mutation in the name of the petitioners on the basis of order passed by the Custodian. Admittedly neither the original nor copy of the said alleged Sale Deed is on the record.
6. On the other hand, learned A.A.-G. As well as learned counsel representing Board of Revenue have vehemently opposed the arguments advanced by learned counsel for the petitioners and prayed for dismissal of the writ petition. Learned counsel representing respondent No,3/Board of Revenue has stated that it is the categorical stance of respondent No, 3 that the alleged orders of Deputy Custodian as well as Custodian are forged and fictitious one and no record of said orders is available with the respondent and further that all the other documents specifically the alleged applications moved by the predecessor of the petitioners for declaring the suit property as non- evacuee, are forged and fictitious one, therefore, learned counsel for the respondents have also opposed the applications moved by the petitioners.
7. Respondents Nos. 8 and 9 are purchasers of the suit property in the auction proceedings by the Banking Court and after purchase a sale certificate was issued and mutation was also sanctioned in their favour. According to the learned counsel representing respondents Nos. 8 and 9 the matter has been finally decided by the august Supreme Court of Pakistan, judgment of which is reported as "Hudaybia Textile Mills Ltd. And others v. Allied Bank of Pakistan Ltd. And others" (PLD 1987 SC 512) and it is stated by the learned counsel that the suit property has been sold by the said respondents to hundreds of people who have purchased the same and constructed their houses and they are residing therein and the area is now known as New Nazimabad Town.
8. As I have noted that this case has been heard on five dates of hearing with full length with complete scrutiny of the record and further I have also noted that prayer of this writ petition is very simple one 'which can only be granted on the basis of admitted facts and documents between the parties and it will not be out of place to mention here that the original writ petition was consisting upon 20 pages only and when the file of this case completed the journey of about 18 years, its volume today is near about 2000 pages. The proceeding of the writ petition shows that originally three documents were annexed with this petition but afterwards on raising objection by the respondents to meet with the said objections the petitioners started to pray for permission to annex further documents with the petition, which was liberally granted by this Court and it was observed that the evidentiary value of the said documents will be decided at the time of final hearing of the writ petition.
Additional documents have been produced by both the parties. For granting relief claimed in the writ petition, the requirement is that the orders annexed with the original petition i,e, the alleged order of Deputy Custodian dated 16-12-1957 and of Custodian dated 9-8-1959, if these orders, alleged certified copies of which have been produced along with the main petition, at the time of its filing, be presumed, as correct and validly issued by the competent forum, even then in the light of objections raised by learned counsel for the respondents, the relief claimed cannot be granted and the orders are not implementable in the revenue record, therefore, I will refrain myself from deciding question of title of suit property keeping in view the prayer made in the writ petition, otherwise the discussion of the case will be voluminous without any result because that discussion is neither permissible while dealing with a constitutional petition nor beneficial for the parties keeping in view the prayer made in the petition.
The order of the Deputy Custodian dated 16-12-1957 shows that date of institution of application by the petitioners is 25-3-1957 and it has been registered as Case No, 3 of 1957.
8(sic). In Rule 12 of the Administration of Evacuee Property Rules, 1950, the procedure for confirmation of a transaction has been given, application was to be made within 60 days and the order of Deputy Custodian implementation of which has been sought by the petitioners, shows that application before the Deputy Custodian was filed on 25-3-1957, which prima facie shows that the same has been filed long after the alleged accrual of cause of action or publication of the Rules. I am conscious of the fact that if there was delay that should have been consciously considered and condoned in the light of "Ahsan Ali and others v. District Judge and others" (PLD 1969 Supreme Court 167) by the Deputy Custodian and the Custodian and in the light of "Ata Ullah Malik v. The Custodian Evacuee Property, West Pakistan and Karachi and others" (PLD 1964 Supreme Court 236) a delay cannot be condoned impliedly and in accordance with Rule 12(5) of the rules referred supra the Custodian was obliged to issue notice to the Rehabilitation Authorities of the area and affected persons but no such notice has been claimed to have been issued by the Custodian.
Record shows that a Textile Mill was established in the year 1952, which is prima facie evident that possession was transferred to the mill and further litigation also shows the facts in series that matter was started with the acquisition and subsequently the suit land was exchanged with the other land. I have noticed that to support the orders passed by Deputy Custodian and Custodian, petitioners moved C.M.No,3007 of 2006 for permission to produce the additional documents. In the alleged application moved by the predecessor of the petitioners for declaring the suit property as non-evacuee in the year 1947 the alleged certified copy has been produced. The copy was applied On 17-12-1999 whereas the same was allegedly received by the petitioners on 22-5-2000 but the application for permission to produce the same on the record of this writ petition was filed in the year 2006, which also speaks volume. As I have noted supra, the application C.M. No,3007 of 2006, was allowed just to bring on record the documents annexed with the petition and their evidentiary value was to be seen at the time of main decision of the writ petition. As respondent No, 3 has categorically denied from any such record and issuance of any such certified copy from the office of respondent No, 3, in these circumstances against the stance of respondent No, 3 petitioners cannot be permitted in these proceedings to prove the same by adducing witness as well as other evidence as the petitioners have prayed for permission to produce the previous Record Keeper as a witness who allegedly issued the certified copies and for appointment of local commission for confirmation of possession. I am afraid all these prayers are not permissible under the law when this Court is dealing with this case under constitutional jurisdiction vested in it under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, therefore, all the above mentioned applications moved by the petitioners are not competent, same are dismissed.
9. The alleged applications moved by the predecessor of the petitioners before the Deputy Custodian for declaring the said property as non-evacuee or Muslim Property in the year 1947 are in contradiction with the endorsement of the order of Deputy Custodian which shows that the application was moved on 16-12-1957-and it was registered as Case. No, 3 of 1957. It is very astonishing that the petitioners are relying upon the order of Deputy Custodian dated 16-12-1957 and of Custodian dated 9-8-1959 and in the same breath they are producing the record in contradiction with some contents of these orders. Perusal of the order of Custodian dated 9-8-1959 itself shows that it is not an order passed after application of mind, therefore, it cannot be termed as an order in the eye of law as the Custhdian through his order just confirms the order of Deputy Custodian.
For resolving the dispute between the parties a complete and full-fledge civil trial is required which practice cannot be adopted by this Court in constitutional jurisdiction. Light can be taken from "Amir Jamal and others v. Malik Zahoor ul Haq and others" (2011 SCM R 1023) and "Executive Engineer, Irrigation Department, Layyah Division and another v. Abdul Majeed and others" (2006 SCM R 907).
10. Principle of laches is also in the way of the petitioners. No valid explanation has even been advanced by the learned counsel for the petitioners, as the order sought to be implemented is of the year 1957 and the writ petition has been filed in the year 1995, i,e, near about 38 years after the alleged order and even the orders passed by this Court as well as august Supreme Court of Pakistan in the execution proceedings whereby the suit property was auctioned by the Banking Court and a Sale Deed has been issued in favour of the concerned respondents and further the property has been sold to the various persons, who have constructed their houses and residing therein, have also not been challenged in this petition.
11. In the light of what has been discussed above, the petitioners failed to prove the existence of the order of the Deputy Custodian dated 16-12-1957 and of the Custodian dated 9-8-1959 and also failed to prove that certified copies of the alleged orders are valid certified copies issued by the keeper of record of those orders, therefore, no question of issuance of writ for sanction of mutation of sale in favour of the petitioners arises. The prayer made by the petitioners in this writ petition is not tenable under the law, therefore, this petition stands dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.