Ali Akbar Qureshi, J:- This civil revision is directed against the judgment and decree dated 02.04.2002 and 26.05.2001, whereby the suit for declaration filed by the respondents was decreed by the learned courts below.
2. The facts, as depict from the record are, that the respondents instituted a suit for declaration, wherein the order dated 25.05.1994, passed by the learned Member, Board of Revenue, was challenged alleging therein, that respondent No.2/defendant was allotted land under Grow More Food Scheme in Chak No.266 GB; that respondent No.2 made the land cultivable and also paid the requisite dues; that the land was resumed by the petitioner on the ground, that the same is required to the government for its own project; that after some time, the government decided to give alternate land to the affectees of Grow More Food Scheme; that the suit land was given to respondent No.2 as alternate land through a registered sale deed along with the possession; that the sale made in favour of respondent No.2 was given effect in the Revenue record on 26.02.1990; on the same day, the suit land was transferred through attorney by Nama in favour of the respondent No.1 namely, Muhammad Farooq through sale mutation No.215 dated 26.02.1990; that respondent No.1 obtained possession which is still with him; that the Board of Revenue cancelled the allotment from the original allottee namely, Nama Khan.
3. The suit was contested by the petitioner/defendant (Province of Punjab), wherein it was alleged, that respondent No.2 was not entitled for alternate entitlement; that the application was not given within the time stipulated for granting the alternate land by respondent No.2, to the proper forum; that respondent No.2 did not deposit the consideration, thus was entitled for alternate land measuring 50 Kanal 09 Marla, whereas respondent No.2 had succeeded to obtain the allotment of land measuring 83 Kanal 13 Marla.
The learned trial court, out of the divergent pleadings of the parties, framed necessary issues, recorded evidence of the parties and finally decreed the suit. Against which, an appeal was filed by the petitioner which too was dismissed. Hence, this civil revision.
4. Learned Assistant Advocate General has questioned the validity of the judgment and decree passed by the learned courts below mainly on the grounds, that the learned appellate court has not recorded the issue-wise findings, the application has not been given by respondent No.2, to the proper forum and lastly, that Clause 13(f) of sale deed (Exh.P.14) has been violated by respondent No.2, whereby the land given by state, cannot be further transferred for a period of fifteen (15) years.
5. On the other hand, learned counsel appearing on behalf of respondent No.1 has supported the concurrent findings recorded by the learned courts below and submitted, that respondent No.1 is a bona fide purchaser.
6. Arguments heard, record perused.
7. It is revealed from the record, which was perused during the course of arguments with the assistance of learned counsel for the parties, that although the learned appellate court has referred the documents produced by the parties but no findings have been recorded regarding the documents, which were produced and got exhibited during the course of recording the evidence.
The most important document which was placed on record by the respondent is 'Bai Sultani' (sale deed, Exh.P.14) whereby the proprietary rights of the suit land were transferred in the name of respondent No.2 Nama Khan. The clause 13(f) of the 'Bai Sultani' (sale deed, Exh.P.14) referred supra clearly states, that the transferee of the suit land cannot further transfer or sale the proprietary rights for a period of fifteen years. The same is reproduced hereunder:- "13. In these conditions, unless there is anything repugnant in the context:
(a) ...
(b) ...
(c) ...
(d) ...
(e) ...
(f) ...
A displaced person will not be allowed to alienate, sell, gift or mortgage, the land for a period of fifteen years, even if he had paid the price in a lump-sum without the approval/ permission of the Collector.
The aforesaid provision/restriction of Exh.P-14, which is Bai Sultani clearly depicts that it is a contract and both the parties are bound by the terms of the contract and the violation of any clause will entail the penal consequences given therein.
8. The conduct of the respondent is dubious particularly in the circumstances that the mutation was entered in the name of respondent No.2 allegedly original allottee namely, Nama on 26.02.1990 and the same day, the land in question was transferred in favour of respondent No.1, which is clear violation of the aforesaid condition/restriction of 'Bai Sultani'.
9. Needless to mention, that respondent No.2, while receiving the aforesaid 'Bai Sultani' (Exh.P.14), had admitted all the terms and conditions, therefore, the violation of one of the clause will entail the cancellation of the proprietary rights transferred in favour of respondent No.1
10. The learned appellate court, as earlier observed, although referred almost all the documents placed on record by the parties during the course of recording evidence including Exh.P.14 but did not advert to while dictating the judgment impugned herein, therefore, has committed jurisdictional defect and glaring illegality not warranted by law.
11. Even otherwise, the restriction imposed in the 'Bai Sultani' (Exh.P.14) has a logic behind it, that normally this type of the grant is given to the landless formers for their livelihood and also to make the land cultivable.
12. The learned Assistant Advocate General has rightly argued, that the learned appellate court neither recorded the issue-wise findings not interpreted or evaluated the documentary evidence placed on record, therefore, it appears, that it is a case of mis-reading and non-reading of evidence. This part of the judgment when confronted to the learned counsel appearing on behalf of respondent No.1, the learned counsel could not defend but anyhow reiterated his earlier arguments. In these circumstances, it would be appropriate, without further commenting upon the facts of the case, to remit the matter to the learned appellate court to re-write the judgment after careful appraisal, appreciation and evaluation of the evidence, particularly the documentary evidence available on file.
13. The concurrent findings although should not be interfered in routine but where the learned appellate court has committed glaring illegality and jurisdictional defect, this Court, as observed by the Hon'ble Supreme Court of Pakistan in esteemed judgment cited as Nasir Abbas v. Manzoor Haider Shah (PLD 1989 Supreme Court 568), can interfere for the fair adjudication of the matter. The relevant portion is reproduced as under: "11. It is also settled that if the lower Court, misreads the evidence on record and fails to take notice of a vital fact appearing therein, comes to an erroneous conclusion, it would be deemed to have acted with material irregularity and its decision is open to revision by the High Court. See Dwarika v.
Bagawati (A.I.R. 1939 Rangoon 413) and Fut Chong v. Maung Po Cho (A.I.R. 1929 Rangoon 145)."
In another esteemed judgment cited as Muhammad Nawaz alias Nawaza and others v. Member Judicial, Board of Revenue and others (2014 SCM R 914) the Hon'ble Supreme Court of Pakistan has observed as under: "8. The argument that when all the fora functioning in the revenue hierarchy concurrently held that the appellants were occupying the land in dispute in their capacity as tenants, such finding being one of fact could not have been interfered with by the High Court under Article 199 of the Constitution of Islamic Republic of Pakistan, has not impressed us as a finding does not become sacrosanct because it is concurrent. It becomes sacrosanct only if it is based on proper appraisal of evidence. The finding of the fora functioning in the revenue hierarchy despite being concurrent was not based on proper appraisal of evidence and due application of law, therefore, the High Court was well within its jurisdiction to interfere therewith. For the very condition for conferment of jurisdiction on a Court of law is to render a finding on proper appraisal of evidence and due application of law. If and when it would do otherwise, it would go outside its jurisdiction. Such order can well be quashed in exercise of Constitutional jurisdiction of the High Court."
14. Resultantly, this civil revision is allowed, judgment and decree dated 02.04.2002, passed by the learned appellate court is set aside, the case is remitted to the learned appellate court for afresh decision.
15. Parting with the judgment, since it is an old matter, therefore, the parties to the case shall appear before the learned District Judge, Toba Tek Singh, on 08.07.2015, who may hear the case himself or assign it to any other court of competent jurisdiction.