Shujaat Ali Khan, J. Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has assailed validity of orders dated 21.12.1992 and 19.05.1993, passed by the Assistant Commissioner/Collector, Sheikhupura (respondent No.4) and the Additional Commissioner (Revenue), Lahore Division, Lahore (respondent No.3) respectively in addition to orders dated 10.11.2003 and 02.01.2006 passed by the Member Board of Revenue, Punjab (respondent No.2).
2. Succinctly, the facts, as capitulated in the instant petition are that the petitioner entered into agreement dated 29.03.1992 with one Ahmad Khan Jee qua sale of land measuring 1214-Kanals situated within the revenue estate of village Farooqabad, Tehsil & District, Sheikhupura. As the vendor was reluctant to complete the transaction the petitioner filed a suit seeking specific performance of agreement. During proceedings in the said suit the parties arrived at a compromise according to which decree with regard to 802-Kanal & 5 Marlas was passed in favour of the petitioner on 15.09.1992. In pursuance to the judgment & decree in his favour sale deed was executed in favour of the petitioner on 23.09.1992 which was incorporated in the revenue record by way of attestation of mutation No.2175 on 27.09.1992. Later, on 29.09.1992 respondent No.1 filed an application under section 12(2) CPC for setting aside of judgment & decree in favour of the petitioner. Simultaneously, respondent No.1 also filed an appeal before respondent No.4 for cancellation of Mutation No.2175 sanctioned in favour of the petitioner which was accepted through order dated 21.12.1992 against which the petitioner filed an appeal before respondent No.3 but without success as the same was dismissed on 19.05.1993. Thereafter, the petitioner challenged verdicts of the forums below before the Board of Revenue, Punjab, in ROR No.1259/1993 which was dismissed through order dated 10.11.2003 against which he filed WP No.224-2005 before this Court which was disposed of on 10.01.2005 with a direction to the petitioner to approach the Board of Revenue seeking review of order impugned in the said Writ Petition. In compliance with the observation of this Court the petitioner filed a Review Petition No. 50/2005 before the Board of Revenue which was dismissed through order dated 02.01.2006; hence this petition.
3. The Legal formulations of the petitioner can be summarized in the words that after filing of application u/s 12(2) CPC, respondent No.1 could not challenge the Mutation before respondent No.4; that the mutation in question was attested in favour of the petitioner on the basis of judgment & decree passed by a court of competent jurisdiction, thus, the revenue authorities had no jurisdiction to cancel the same; that the application filed by respondent No.1 u/s 12(2) CPC has already been dismissed by declaring the sale deed in her favour as fraudulent one; that the sale deed in favour of both the parties relate to distinct properties, thus, respondent No.1 could not challenge the mutation attested in favour of the petitioner on the ground that she being the senior vendee was entitled to the said land; that while filing appeal before respondent No.4, respondent No.1 did not arrayed the vendor as party for the reason that the sale deed in her was result of fraud; that the validity of judgment & decree passed by a court of competent jurisdiction cannot be determined by revenue authorities rather the higher forums in the same hierarchy enjoys the power to do so; that respondent No.4 while accepting the appeal filed by respondent No.1 did not attend to important question of limitation; that complicated questions requiring recording of evidence cannot be decided by revenue authorities and that the judgment & decree passed in favour of the petitioner was intact at the time of attestation of mutation in his favour, thus, no exception can be taken by the revenue authorities to the transaction in favour of the petitioner.
Relies on Abdul Majeed Khan through L.Rs and others v. Mst. Maheen Begum and others (2014 SCMR 1524), Allah Ditta v. Ghulam Muhammad and 3 others (2008 SCMR 1021), Muhammad Nawaz and others v. Fateh Sher and others (2008 SCMR 1658), Jan Muhammad through Mubarik Ali and others v. Nazir Ahmad and others (2004 SCMR 612), Muhammad Ali Sabtain and 4 others v. Mst.
Shahjahan Bibi and 9 others (2004 YLR 1201), Mst. Ghulam Sakina v. Member (J) Board of Revenue Hyderabad and 4 others (PLD 2004 Karachi 391), Nadir Hassan v. Sadaruddin and 3 others (PLD 2004 Karachi 395), Barkat Ali and 8 others v. Member (Judicial), Board of Revenue, Punjab, Lahore and 3 others (2001 YLR 2531), Aurang Zaib v. M/s. Al-Haider Construction Co. through Managing Partner and 4 others (PLD 1993 Karachi 397), Syed Mustafa Haider v. Provincial Government and others (1992 CLC 1329), Nasir Muhammad and another v. Haji and 7 others (PLD 1988 Revenue 24) and Muhammad Amin v. Allana and 3 others (PLD 1988 Revenue 29).
4. Learned counsel for respondent No.1 while defending the impugned orders of the revenue authorities submits that the disputed questions cannot be decided in Constitutional jurisdiction rather for the purpose the party concerned should approach the appropriate forum; that under section 53 of the West Pakistan Land Revenue Act, 1967, in case of doubt about title the aggrieved party should institute a declaratory suit; that sale deed in favour of respondent No.1 being prior in time the mutation attested in favour of the petitioner was rightly cancelled by the revenue authorities; that the land, subject matter of sale in favour of respondent No.1, was not available for sale by the vendor through subsequent sale deed in favour of petitioner; that the decree in favour of the petitioner being result of fraud and collusiveness had no binding force on the revenue authorities; that the fraudulent attitude of the petitioner is very much clear from the fact that while filing the suit he did not array respondent No.1 as party, thus, the said decree could not operate against vested right of respondent No.1; that Ahmad Khan Jee, the vendor, having not been joined in the present petition, the same is not proceedable rather deserves to be dismissed on that ground; that dismissal of application filed by respondent No.1 under section 12(2) CPC is not conclusive as the appeal filed by her against the said order has already been admitted to regular hearing by the learned Division Bench of this Court with a direction to the parties to maintain status-quo; that the rights of respondent No.1 are duly protected under section 43 of the Transfer of Property Act, 1882 and that the revenue authorities passed speaking orders with reasoning, thus, the same cannot be set aside in Writ jurisdiction in a casual manner. In support of his contentions, learned counsel has relied upon the cases reported as Hafiz Tassaduq Hussain v. Lal Khatoon and others (PLD 2011 SC 296), Nazir and another v. Member, Board of Revenue, Lahore, and another (1985 SCMR 356), Muhammad Younus Khan and 12 others v. Government of N.W.F.P. through Secretary, Forest and Agriculture, Peshawar and others (1993 SCMR 618), Muhammad Hayat and 38 others v. Abdul Rahim and 24 others (2001 MLD 1524) and Muhammad Sadiq v. Muhammad Ramzan etc. (NLR 2002 Revenue 169).
5. The petitioner, while exercising his right of rebuttal, submits that since Ahmad Khan Jee was not impleaded as party in the appeal filed by respondent No.1, out of which the present petition has emanated, he was not arrayed as party in this petition and that if the factum of alleged sale deed in favour of respondent No.1 was not incorporated in the revenue record the rights of the petitioner are protected being a bonafide purchaser against valid consideration without any notice of sale in favour of respondent No.1.
6. Learned Assistant Advocate General states that since the matter in dispute is between private parties the revenue department is bound to implement any order passed by this Court.
7. I have heard learned counsel for the parties at considerable length and have also gone through the documents annexed with this petition as well as the case-law cited at the bar.
8. Learned counsel for respondent No.1 has raised objection that instant petition is not maintainable as disputed questions of facts cannot be decided without recording of evidence. In this regard, I differ with the learned counsel for the reason that in the instant petition this Court has to decide the fate of impugned orders passed by the revenue authorities, thus, no factual controversy is involved therein and the objection raised by the learned counsel is accordingly spurned.
9. To establish that the petitioner having alternate remedy instant petition is not available, learned counsel representing respondent No.1 has referred to section 53 of the West Pakistan Land Revenue Act, 1967, which for convenience of reference is reproduced herein below:- "53. Suit for declaratory decrees by persons aggrieved by an entry in a record. If any person considers himself aggrieved by an entry in a record-of-rights or in a periodical record as to any right of which he is in possession, he may institute a suit for a declaration of his right under Chapter VI of the Specific Relief Act, 1877 (Act I of 1877)"
A perusal of the afore-quoted provision shows that if a party is aggrieved of an entry in the revenue record, it should approach the Civil Court through declaratory suit. Indubitably, respondent No.1 was aggrieved of the attestation of mutation in favour of the petitioner in presence of sale deed in her favour thus there was a dispute qua title. In view of the law laid down by apex Court of the country in the case of Ataur Rehman Khan v. Dost Muhammad and others (1986 SCMR 598) respondent No.1 was not obliged to file appeal before respondent No.4 especially when her application under section 12(2) CPC against the judgment and decree in favour of the petitioner was pending decision. Thus, the present petition having emanated from the appeal filed by respondent No.1 cannot be dismissed mere on account of availability of alternate remedy. In my humble view the plea raised by the learned counsel for respondent No.1 being self-destructive cannot be given any weightage.
10. Admittedly, prior to filing of appeal before respondent No.4, respondent No.1 filed an application under section 12(2) CPC challenging the judgment & decree passed in favour of the petitioner.
Having approached the court of competent jurisdiction, in my humble opinion, the revenue authorities could not decide the matter without waiting decision of the application of respondent No.1 before the Civil Court as the sale deed, very basis of the mutation in question, was executed pursuant to decree in favour of the petitioner. It is well entrenched by now that when a mutation has been attested on the basis of court decree, the jurisdiction of the Revenue authorities to adjudge veracity thereof is ousted. In this behalf, I stand guided by the judgment reported as Muhammad Aslam v. Collector and another (1992 CLC 851) wherein while dealing with the powers of the revenue authorities to interfere with any entry in revenue record based on verdict of a court of law, it has inter-alia been observed as under: - "*There is nothing on the record to show that the respondents despite being aware of the decree have taken any action to have it set aside. In these circumstances when the mutation was sanctioned on the basis of the decree, it was clearly not open to the Collector to review it and thereby, nullify the effect of the decree passed in favour of the petitioner."
If we adjudge the validity of the verdicts of the revenue authorities impugned in this petition on the touchstone of afore-quoted case, the same being coram non judice cannot be allowed to hold the field.
11. Moreover, in chain of judgments the august Supreme Court of Pakistan has pronounced that the revenue authorities cannot resort to variation/correction of old standing entries in the revenue record except those which crept in due to some omission, inadvertence or clerical mistake. If any case law is required, reference can conveniently be made to the cases of Waris Khan and 18 others v. Col. Humayun Shah and 41 others (PLD 1994 SC 336) and Muhammad Yousaf and 3 others v.
Khan Bahadur through L.Rs. (1992 SCMR 2334). In the case of Muhammad Yousaf and 3 others (Supra) the august Supreme Court of Pakistan has drawn a line of distinction between the matters wherein the revenue authorities have the jurisdiction to effect any correction and those which are to be determined by the Civil Courts on the move of the aggrieved party. Relevant portion of the said judgment is reproduced herein below: - "*The learned Appellate Court while returning the plaint for want of jurisdiction has referred to section 41 read with section 172 of the West Pakistan Land Revenue Act and came to the conclusion that the grievance of the appellants can be redressed by the revenue officers under section 44 of the Act ibid. We have anxiously considered the relevant provisions of West Pakistan Land Revenue Act. Section 172 barred the jurisdiction of the Civil Courts in certain matters exclusively within the competence of the revenue officers which have been enumerated in subsection (2). Section 44 relates to the determination of disputes arising during the course of making, revision or preparation of record or in the course of any inquiry under Chapter VI relating to record-of-rights and periodical record. But once the inquiry is made or the entries recorded in the Revenue Record, a presumption of truth is attached to it under section 52 of the Act ibid until the contrary is proved or the new entries are substituted therefor. To dislodge this presumption a remedy is provided under section 53 of the said Act which provides that if any person considers himself aggrieved by an entry in a record-of-rights or in periodical record as to any right of which he is in possession, he may institute a suit for declaration of his rights under section 42 of the Spec Relief Act, 1877 Act (I of 1877). Apparently, the jurisdiction of the Civil Courts is not ousted to question the correctness of the entries of revenue record, or declaration of title under the Specific Relief Act, or claiming relief of possession of immovable property, rather aggrieved party has been invested with a right to challenge the entries made in the Land Revenue Act through a suit for declaration in Civil Court "
(emphasis provided).
12. Undeniably, the mutation, subject matter of the present petition was sanctioned on the basis of sale deed which was registered pursuant to a judgment & decree passed by the Civil Court in favour of the petitioner. By virtue of orders impugned in this petition the revenue authorities have nullified the effect of said judgment & decree. According to the plethora of judgments of the august Supreme Court of Pakistan the revenue authorities cannot be allowed to sit over the judgments & decrees passed by the courts of law. In this regard reliance can be placed on the cases of Abdul Majeed Khan through L.Rs and others and Muhammad Nawaz and others (Supra).
In the latter judgment, the august Supreme Court of Pakistan, while determining the question regarding powers of the revenue authorities to implement the judgments & decrees of courts of law has inter-alia concluded as under: - "10. There is another most important aspect of the case. The decrees are binding upon revenue officers and the decrees of the Civil Court cannot be upset or reversed by the Revenue Authorities, as these authorities have got no such power to sit upon the judgments and the decrees of the Civil Court as an appellate authority. These authorities are bound to implement these decrees in their Revenue Record, therefore, the learned Member Board of Revenue had exceeded in its power and authority, while rejecting the implementation of those decrees and making those decrees ineffective by his disputed order dated 18-12-1985."
13. Learned counsel for respondent No.1 has put much emphasis on the fact that without impleading the vendor instant petition is not maintainable. In this regard, I am of the view that since respondent No.1 did not array the vendor in her appeal filed before respondent No.4, out of which the present petition has stemmed, the petitioner was under no obligation to join him as a party. Since the question involved in this petition revolves around fate of orders passed by the revenue authorities in appeal filed by respondent No.1 and other allied matters, the vendor was neither necessary nor a proper party. Thus, the request of respondent No.1 for dismissal of this petition due to non-joining of vendor as party cannot be entertained.
14. Insofar as contention of learned counsel for respondent No.1 that detailed and well-reasoned orders of the revenue authorities could not be upset in Writ Jurisdiction by this Court, is concerned, I do not see eye-to-eye with the learned counsel for the reason that question before this Court is as to whether revenue authorities enjoy any power to annul any transaction entered in the revenue record on the basis of a judgment & decree of Civil Court and that too during the pendency of proceedings against said judgment & decree in the shape of application u/s 12(2) CPC before the court of competent jurisdiction. At the cost of repetition, I have no second opinion except to hold that when an entry in the revenue record is based on a verdict of a Court of law, the revenue authorities have no power to annul the same until and unless the same is directed as such.
Moreover, this Court enjoys ample jurisdiction to take care of the decision of the executive authorities/tribunals in exercise of jurisdiction vested under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 and the same cannot be abridged on the basis of any technicalities. In this regard verdict of the august Supreme Court of Pakistan rendered in Suo Motu Case No.24 of 2010 reported as (PLD 2011 SC 963) can be referred, relevant portion whereof is reproduced herein below: - "*The exercise of constitutional powers by the High Court and the Supreme Court is categorised as power of judicial review. Every executive or administrative action of the State or other statutory or public bodies is open to judicial scrutiny and the High Court or the Supreme Court can, in exercise of the power of judicial review under the Constitution, quash the executive action or decision which is contrary to law or is violative of Fundamental Rights guaranteed by the Constitution. With the expanding horizon of Articles dealing with Fundamental Rights, every executive action of the Government or other public bodies, if arbitrary, unreasonable or contrary to law, is now amenable to the writ jurisdiction of the Superior Courts and can be validly scrutinised on the touchstone of the Constitutional mandates "
15. To establish collusiveness and fraud on the part of the petitioner, learned Counsel for respondent No.1 has taken plea that respondent No.1 was not joined as respondent in the suit filed by the petitioner. Since the subject matter of the suit filed by the petitioner was confined to specific performance of his agreement to sell with Ahmad Khan Jee, respondent No.1, in no way, was a necessary party, thus, no exception can be taken to the judgment & decree passed by the Civil Court favouring the petitioner in the present petition which otherwise has stemmed from the proceedings on the revenue side. It is interesting to note that respondent No.1, on the one hand elected to challenge legality of judgment & decree in favour of the petitioner through an application under section 12(2) CPC and on the other opted to institute proceedings before the revenue authorities. It is well established by now that when a party opts to choose a forum it cannot be allowed to switch over to another forum qua the same grievance during pendency of proceedings before the former. Reliance in this regard is placed on the cases reported as Shaukat Khan v. Assistant Political Agent, Landi Kotal, Khyber Agency and others (PLD 2002 SC 526), Messrs Chakwal Textiles Mills Limited, Rawalpindi Road Chakwal and another v. Director Social Security, Rawalpindi and 2 others (2012 PLC 270) and World Trade Corporation v. C.B.R. and others (1999 PTD 2341).
16. As far as plea of learned counsel for respondent No.1 that the judgment & decree passed in favour of the petitioner being result of collusion and fraud could not be implemented in the revenue record, is concerned, I am of the opinion that the same is immaterial at this stage inasmuch as after implementation of judgment & decree in favour of the petitioner by way of sanctioning of mutation the revenue authorities rendered themselves functus officio. In the given circumstances, proper course available with respondent No.4 was to direct the parties to get decided the matter regarding their title from the court of competent jurisdiction and then to proceed with the mater in accordance with decision thereof.
17. Learned counsel for respondent No.1 had made a request that this petition be tagged with RFA No.547-2013 filed against dismissal of application of respondent No.1 under section 12(2) CPC. The controversy involved in the said RFA is fate of judgment & decree passed in favour of the petitioner whereas the subject matter of instant petition, which is pending for the last about a decade, is confined to fate of decisions rendered by the revenue authorities. In this backdrop, it is not appropriate to club this petition with the said RFA which is still at initial stage. Further a perusal of order dated 16.05.2013, passed by a learned Division Bench of this Court in aforesaid RFA, shows that the parties have been directed to maintain status-quo, thus, decision of this petition cannot be delayed just due to pendency of said RFA especially visualized in the light of the fact that respondent No.1 opted to file an appeal before respondent No.4 during pendency of her application under section 12(2) CPC. Further, the parties would be bound by the outcome of the aforementioned RFA.
18. Now coming to the case-law relied upon by learned counsel for respondent No.1, I am of the view that the same is not applicable to the facts and circumstances of present case inasmuch as in the case of Hafiz Tassaduq Hussain (Supra) the apex Court of the country interalia resolved that when a party asserts something specifically it is bound to prove the same whereas in the present case the petitioner has already succeeded to establish the factum of lawful decree in his favour by a court of competent jurisdiction. As far as the case of Nazir and another (Supra) the apex Court of the country laid law to the effect that fraud vitiates all solemn proceedings and any benefit availed under such fraudulent transaction cannot be allowed to hold the field but in the instant case till date respondent No.1 has not succeeded to establish that judgment & decree in favour of the petitioner was result of collusion and fraud, thus, the said judgment is of no help to the petitioner at this moment. Now coming to the case of Muhammad Younus Khan and 12 others (Supra), I have observed that in the said case the apex Court of the country has inter-alia decided that when mutation is not legal and proper the entire structure on it shall crumble but in the instant case till date the judgment & decree passed in favour of the petitioner having not been set aside by any higher forum, the said case is not attracted to the facts and circumstances of the instant petition. In the case of Muhammad Hayat and 38 others (Supra) this Court held that the beneficiary of the transaction is bound to prove existence even after incorporation of the same in the revenue record whereas in the instant case the mutation was attested on the basis of judgment & decree passed by the Civil Court, thus, it was not attestation of the mutation simplicitor. As far as the case of Muhammad Sadiq (Supra), is concerned, the apex Court of the country inter-alia dealt with the fate of the sale deeds registered or un-registered without payment of price and delivery of possession whereas in the instant petition the legal preposition is the power of the revenue authorities to annul any entry entered in the revenue record on the basis of judgment & decree of Civil Court.
19. As a necessary corollary to the discussion made in the fore-going paragraphs, I have no hesitation to hold that the revenue authorities, right from respondent No.4 to respondent No.2, were not empowered to adjudge the legality of mutation sanctioned in favour of the petitioner on the basis of a sale deed which was registered as a result of a decree of the Court. Consequently, instant petition is accepted and the impugned orders passed by the revenue authorities are set aside with no order as to costs.