' Through instant Civil Revision, applicant has assailed the judgment dated 25th October 2010 passed by 1st Additional District & Sessions Judge, Mirpurkhas in Civil Appeal No, 69/2010, whereby judgment and decree dated 31.05.2010 and 05.06.2010 in F.C. Suit No, 64/2003 (Re-Shamshair Ali v.
Mukhtiarkar and others) recorded by IInd Senior Civil Judge, Mirpurkhas was maintained.
Consequently, civil suit filed by plaintiff/applicant was dismissed.
2. Succinctly, facts are that applicant/plaintiff filed F.C. Suit for Declaration and Mandatory Injunction, stating therein that Muhammad Hashim son of Abdul Hakeem was owner of plot bearing C.S. No, 1206 area 2560 Sq feet situated in Ward No, 5 Kot Ghulam Muhammad Town; his name was entered as owner in the Extract Form of Property Register, maintained by the Respondent/Defendant No,
1. Plaintiff/applicant purchased an area of 40 X 32=1280 Sq feet out of the said plot under registered sale-deed Bearing No, 336 dated 02.09.1997, thereby came into physical possession of it which still lies with him, without any disturbance; such mutation was effected in. City Survey Record. Rest of area of above plot was purchased by Akhtar Ali through registered sale-deed. The Respondent/Defendant No, 1 at his own motion without hearing the applicant/plaintiff cancelled such mutation entry entered. Thus applicant/plaintiff approached to Respondent/Defendant No, 1 for recalling and setting aside such order but he was refused sternly.
Even he was refused to have its certified true copy, in similar fashion mutation effected in favour of Akhtar Ali was cancelled hence applicant/plaintiff and Akhtar Ali moved joint application dated 02.01.2002 to Respondent/Defendant No, 2 pursuance to that Rubkari No, 704 dated 27.06.2002 was issued contending therein that the suit area and the area purchased by Akhtar Ali was a property, reserved for "Tapedarr Deera" and the same stands shown in the Map; On the site it is lying unoccupied and further that the applicant/plaintiff and said Akhtar Ali have had no concern with it; however for restoration of such mutation entry they may approach to Civil Court. It is further averred in the plaint that the respondent/Defendants No, 1 & 2 who are subordinate of the Respondent/Defendant No, 3 have transgressed their powers vested in them in unlawful and illegal manner and as such their acts are without jurisdiction and mala fide.
3. The Defendant No, 1 (respondent) in his written statement contended that entry in the name of Muhammad Hashim son of Abdul Hakeem in the property Card Register of City Survey Record of Kot Ghulam Muhammad was wrong, illegal and malafide; at the time of preparing such record by the survey Team, the suit property never belonged to any private person including Muhammad Hashim; since the original entry in the record was illegal and malafide hence the authority who passed such order had power to withdraw the same under the provision of General Clauses Act, accordingly the matter is subjudice before the competent authority for cancellation of entry as such suit is not competent; the suit property is Government property reserved for Tapedar Dera and was not property of any private person and its sale mere on the basis of Extract Form of City Survey Record is illegal, unlawful as the original owner Muhammad Hashim had no title over the suit property. It is further contended that the purchase of suit property from one Muhammad Hashim is in violation of Transfer of Property Act and sale-deed does not create title in favour of applicant/plaintiff; plaintiff is not in possession of suit property as in the year 1990 building of Tapedari Dera has been constructed and the remaining area of suit property is to be covered by erecting boundary wall and the plaintiff as well as outgoing alleged owner Muhammad Hashim never remained in possession of suit property; that entry in the name of Muhammad Hashim in the City Survey Record was illegal, unlawful, void ab-initio and malafide. Since Muhammad Hashim had no title hence mere entry in the city survey record does not create title in favour of Muhammad Hashim; since the name of Muhammad Hashim wrongly, illegally and fraudulently entered in the City Survey Record thus the then Mukhtiarkar by his letter No, 825 dated 28.8.1998 submitted his report to the then Assistant Commissioner for cancellation of entry made in the extract in the name of Muhammad Hashim and such matter was pending adjudication and it seems that plaintiff has managed with the City Surveyor and succeeded in entering his name in the city survey record on the basis of sale-deed. When the entire facts came to the knowledge of Defendant No, 1 the Defendant No, 1 withdrawn the attestation order as provided u/S. 166 of L.R Act as the entry was attested erroneously and the entry in favour of applicant/plaintiff was illegal and malafide; that such property was never available for allotment to any private person.
4. The Defendant No, 2 in his written statement contended the same contention as contended by the Defendant No,
1. He further contended that the name of Muhammad Hashim was entered in City Survey Record without any title and grant in his favour thus entry in the name of Muhammad Hashim was illegal, unlawful, void, ab initio, without jurisdiction and malafide, and said Muhammad Hashim or his forefathers the predecessor in interest of plaintiff were never granted the suit plot any time by the competent authority; plaintiff is not entitled for the relief claimed and thus the suit of the plaintiff is liable to be dismissed.
5. Learned counsel for applicant has argued that revenue authorities cancelled the mutation affected in favour of applicant without issuing show-cause notice hence the applicant has been condemned unheard; applicant purchased suit property by registered sale-deed thus such mutation was affected in his favour; registered deed cannot be cancelled on revenue forum; learned Courts below failed to appreciate the evidence produced by applicant hence impugned judgments passed by .Both Courts are against the settled norms of Civil Administration of Justice.
In support of his contentions, learned counsel has relied upon the cases reported as Mir Muhammad Ali Rind v. Zahoor Ahmed and another (PLD 2008 Supreme Court 412), Moulana Atta- ur-Rehman v. Al-Hajj Sardar Umar Farooq and others (PLD 2008 Supreme Court 663), Dr. Manoj Kumar Malani u. Returning Officer and 2 others (2006 MLD 205), Muhammad Asghar v. Member Board of Revenue and others (2009 MLD 1023), Amir Jamal and others v. Malik Zahoor-ul-Haq and others (2011 SCMR 1023) and Messers Ahmed Clinic v. Government of Sindh and others (2003 CLC 1196).
6. Learned A.A.G. While refuting the above contentions has argued that suit property was government property and one Muhammad Hashim who was Peon in revenue office fraudulently entered such property in his name, thereby he sold out same to plaintiff/applicant; revenue authorities on getting knowledge cancelled such mutation thus aggrieved person was Muhammad Hashim but he has not challenged such cancellation; purchased suit property was not relating to Muhammad Hashim thus he was not competent to sell out the same to applicant; under any law applicant/plaintiff is not entitled to agitate his legal character over the suit property; however if he has been cheated by seller Muhammad Hashim, he has right to sue him with regard to such forgery.
7. Before headfirst into the merits of the case, suffice to say that it is settled principle of law that while exercising revisional jurisdictional, this Court cannot disturb the factual controversy resolved by subordinate Courts unless it is surfaced that impugned judgments are the result of non- reading, misreading and violation of legal principles. Scope of revisional jurisdiction is very limited and is confined for correction of jurisdictional defects, patent illegality/ irregularity effecting merits of the case and not merely for substituting its own finding with that of appellate Court. Reference, if any, can well be made to the case law, reported as 2012 SCMR 508.
8. In view of above touch stone and perusal of judgments passed by both Courts, it appears that the applicant/plaintiff nowhere challenged the stand of the revenue authorities (defendants/ respondents) with regard to rout of the subject matter i.e title of Muhammad Hashim to be result of fraud but the applicant/plaintiff has challenged the concurrent findings on two counts only i.e:
(i) he remained condemned unheard as revenue authorities served no notice upon him before canceling mutation entry;
(ii) he is the bonafide owner under a register sale-deed; ' Therefore, his acquired status was required to be protected.
9. At this juncture it would be pertinent to mention that it is well established principle of law to the effect that what one cannot get directly he cannot get the same indirectly'. This principle of law is not only to give due weight to what law insists for doing a particular thing but it is also to put ill doer on a notice that things obtained through any other mode, except as provided by law, shall always remain open for action of the law. Significant to refer the case of Bank of Punjab and another u.
Haris Steel Industries (Put.) Ltd. And others reported as PLD 2010 SC 1109 wherein it was held by honourable Supreme Court that: ' In the recorded judicial history such a situation attracted judicial notice in the year 1889 in case of Madden u. Nelson (1889 AC 626) and it was Lord Helsbury who declared for the first time that what was not permitted by law to be achieved directly could not be allowed to be achieved indirectly.
And the said principle has been has been repeatedly acknowledged and followed by the Courts ever since then and the Courts in Pakistan are no exception in the said connection. The case of Mian Muhammad Nawaz Sharif and Haji Muhammad Boota (supra) are evidence to the said effect."
10. Thus, germane to endorse that one can competently transfer a title but he cannot transfer what he does not have. One cannot claim to have acquired a better title than the one transferor was capable of. In the instant matter the applicant/plaintiff has not sought any declaration about the title of Muhammad Hashim under whom he is claiming and which is the basic/route. This goes to mean that the foundation/route of the subject matter is not being sought to be protected by applicant/plaintiff. Even for a moment the plea of the applicant/plaintiff is allowed with regard to his own title yet his title shall fail for the well established principle of law that ' where foundation is found defective the whole superstructure, raised thereon, shall collapse'. Noteworthy to add here that the benefit of law (Section 41 of Transfer of Property Act) would be available to a bonafide owner but this benefit/protection is not available to one who acquires a title from an unauthorized and incompetent person or from the person who acquired title through fraudulent mean. The position so, for simple and very logical reason that even a bonafide claim cannot save 'fraud' from action of process of law as and when it comes to light. Reference can be taken by the case Nawab khan Raisa Begum, & Ors 12003 SCMR 1498), wherein it is contended that:--
7. So far as the question of benefit under Sections 41 and 53-A of Transfer of Property Act is concerned, we have given our considered, thought to the legal proposition involved and have come to the conclusion that such benefit cannot be extended to a party whose entire claim is based on fraud, intrigue and misrepresentation
11. In the case of 'Talib Hussain & Ors v. Member Board of Revenue & Ors' 2003 SCMR 549, it is held that: ' It goes without saving that as far as fraudulent transaction is concerned it has no foundation to stand and whenever such transaction is declared null and void then the whole series of such order Along with superstructure built upon it is bound to collapse. Reference in this behalf may be made to the case of Yousuf Ali v. Muhammad Aslam Zia (PLD 1958 SC(Pak.) 104). ' "c" It would also not be out of context to note that fraudulent transaction is considered to vitiate even most solemn proceedings as it has been held in the judgments (1) Ghias-ud-Din u. Iqbal Ahmed and 5 others (PLD 1975 Lahore 780), (2) Lal & another v. Muhammad Ibrahim (1993 SCMR 710) (3) Government of Sindh through Chief Secretary & others v. Khalil Ahmed & others (1994 SCMR 782), John Paul v. Irshad Ali & others (PLD 1997 Karachi 267), (5) Mst. Sarwari Begum v. Atta- ur-Rehman (1997 CLC 1500) and (6) Muhammad Yagoob v. The State (1997 P Cr.LJ 1979).
"E" It is important to emphasis that petitioner's entitlement is based upon the entitlement of Sved Nizamuddin therefore, petitioner either to have survive or sink depending upon determination of legal status of the property which was transferred to him and as now he has failed to keep his entitlement alive, therefore, petitioner's claim is bound to be rejected.
12. In the case of Abdul Hameed through L.Rs & Ors v. Shamsuddin & Ors. PLD 2008 SC 140; it is held that:-- ' 'C' We are afraid, Mst. Feroza Khanum having stepped into the shoes of Abdul Hameed, who was not a lawful owner of the property, would not get a better title and we having examined the record with the assistance of learned counsel for the parties, have not been able to take any exception to the legal position and also have not been able to find out any substance in the grounds raised by the learned counsel in support of the present petition for interference.
13. It is germane to mention here that from the record it stood established the subject matter property, happened to be government property, and Muhammad Hashim (under whom the applicant/plaintiff is claiming) got the entry in record of the rights fraudulently without any allotment or reference to earlier outgoing seller hence in absence thereof the Muhammad Hashim was never a legal and lawful owner of the subject matter, capable to enter into any lawful transaction of transfer of property. Thus, protection of Section 41 of the Transfer of Property Act would not be available against a fraudulently obtained title or in respect of fraud committed with reference to Government property else it would be very easy for ill-doer to first arrange an entry and then to seek protection thereof by arranging a subsequent 'transfer'. To provide a legal protection to an ill-gotten or fraud is not the object of the law.
14. With regard to the stance that plaintiff has been condemned unheard this legal plea is governed by the known principle of 'audi alteram partem' which, no doubt is followed by the Courts but it cannot be applied to defeat the ends of justice, or to make the law lifeless, absurd, stultifying, self-defeating or plainly contrary to the common sense of the situation. In the instant matter, the record shows that the concerned quarter on coming into notice about fraudulent entry in name of Muhammad Hashim exercised jurisdiction to cancel the same. In my view cancellation of such fraudulent entry was, in no way, caused any harm to the applicant/plaintiff because cancellation was of rout entry i.e in name of Muhammad Hashim who never challenged the same. The applicant/plaintiff, being transferee was/is to sail and sink with Muhammad Hashim. His claim, if any, lies against Muhammad Hashim particularly when title in name of Muhammad Hashim is no more disputed to neither be fraudulent nor even the present applicant/plaintiff sought any declaration about title of Muhammad Hashim which also means that he accepts the title of Muhammad Hashim to be fraudulent. Even otherwise, the principle of 'audi alteram partem' is not of universal application but would be excluded, if importing the right to be heard has the effect of paralyzing the administrative process or the need for promptitude or the urgency of the situation so demands. I would like to take full advantage to make application of said principle of law clear by referring the judgment of Honourable Supreme Court of Pakistan, passed in the case of "Re-Justice Khurshid Anwar Bhinder & Ors v. Federation of Pakistan & another' (PLD 2010 SC 483). The operative and relevant portions thereof are reproduced hereunder: ' In Seneca's Medea, I tis said: "a judge is unjust who hears but one side of a case, even though he decides it justly'. Based on this, has been developed. 'Audi alteram partem' as a facet of natural justice'. (Seneca Medea r BC-AD 65). 'Audi alteram partem' means hear the other side; hear both sides. Under the rule, a person who is to decide must give the parties an opportunity of being heard before him and fair opportunity to those who are parties the controversy for contradicting or correcting anything prejudicial to their view' (emphasis provided), (union ov India v. Tulsiram Patel AIR 1985 SC 1416 at p. 1460). The petitioners were admittedly not a party in the main controversy.
Since the audi alteram partem rule is intended to inject justice into the law, it cannot be applied to defeat the ends of justice, or to make the law lifeless. Absurd, stultifying, self-defeating or plainly contrary to the common sense of the situation. 'Audi alteram partem' rule as such is not cast in a rigid mould and judicial decisions established that it may suffer situational modifications'
(Emphasis provided). (Maneka Gandhi v. Union of India AIR 1978 SC 597). It may to be out of place to mention here that by now it is well established that where a right to a prior notice and an opportunity to be heard before an order is passed would obstruct the taking of prompt action, such a right can be excluded. Thus the rule may be discarded in an emergent situation where immediate action brooks no delay to prevent some imminent danger or injury or hazard to paramount public interests' The 'audi alteram partem.' Rule would be excluded, if importing the right to be heard has the effect of paralyzing the administrative process or the need for promptitude or the urgency of the situation so demands Further is held:-- ' A prima facie right to opportunity to be heard may be excluded by implication in the following cases:-
(a) When an authority is vested with wide discretion.
(b) When the maxim 'expressio unius est exclusion alterius' is involved
(c) Where absence of expectation of hearing exists
(d) When compulsive necessity so demands
(e) When nothing unfair can be inferred
(f) When advantage by protracting a proceeding is tried to be reaped
(g) When an order does not deprive a person of his right or liberty
(h) In case of arrest, search and seizure in criminal case
(i) In case of maintaining academic discipline
(j) In case of provisional selection to an academic course
(k) In case of enormous malpractices in selection process
(42) It must not be lost sight of that in the above mentioned 'exclusionary cases, the 'audi alteram parten' rule is held inapplicable not by way of an exception to fair play in action but because nothing unfair can be inferred by not affording an opportunity to present or meet a case Therefore, where a person does not appear 5t appropriate stage before the forum concerned or is found to be otherwise defiant the doctrine would have no application. It is also to be kept in view that application of said principle has its limitations. Where the person against whom an adverse is made has acted illegally and in violation of law for illegal and benefits through an order obtained with malafide intention, influence, pressure and ulterior motive then the authority would he competent to rescind/withdrawn/cancel such order without affording an opportunity of personal hearing to the affected party. Said principle though was always deemed to be embedded in the statute and even if there was no such specific or express provision, it would be deemed to be one of the parts of the statue because no adverse action can be taken against a person without providing right of hearing to him. Principle of audi alteram partem, at the same time, could not be treated to be of universal nature because before invoking/applying the said principle one had to specify that the person against whom action was contemplated to be taken prima facie had a vested right to defend the action and in those cases where the claimant had no basis or entitlement in his favour he would not be entitled to protection of the principles of a natural justice.
' Thus, in view of above, plea so taken by the learned counsel for the applicant/plaintiff also appears to be of no help for the applicant; plaintiff.
15. Even, otherwise; the judgment(s) of both the Courts below appear to be well reasoned. It is pertinent to mention that learned trial Judge while deciding Issues No, 6, 7 and 8 has resolved the basic route of controversy with regard to subject mutated property hence it would be conducive to refer such answer on aforesaid issues:-- "ISSUES NOS. 6, 7 & 8:-- "These issues are very important to resolve the controversy of this suit and are also interrelated with each other, as such firstly I discuss these issues together. The burden to prove these issues is upon the plaintiff. It is case of the plaintiff that sone Muhammad Hashim son of Abdul Hakeem was owner of one plot bearing city Survey No, 1206 admeasuring 2560 sq. Ft. Situated in Ward "B" Kot Ghulam Muhammad Town and his name was also entered in the Extract from property Register Card and the plaintiff purchased an area of 40 x 32= sq: ft: out of the said plot from said Muhammad Hashim through registered sale-deed dated 30.08.1997 and thereafter the plaintiff moved before the Defendant No, 1 for mutation of the suit plot in his name in the City Survey record and the same was allowed on 13.06.2001, but later-on the Defendant No, 1 on his own motion without hearing the plaintiff cancelled such mutation entry in the City Survey record, for which the plaintiff made application on 22.01.2002 to the Defendant No, 2, who issued Rubkari Bearing No, 704 dated 27.06.2002, intimating that the suit plot was a property reserved for "Tapedari Dera" and the same is also shown in the map. It was argued by the learned counsel for the plaintiff that the plaintiff is absolute legal owner of the suit plot under the registered sale-deed, which he had purchased from the original owner namely Muhammad Hashim and the Defendant No, 1 on his own motion cancelled the mutation entry entered into by him on the basis of said registered sale- deed in the City Survey record in the name of the plaintiff without hearing the plaintiff and as such the said act of the Defendant No, 1 is illegal and based on some malafide. On the other hand it was argued by the learned DDA for the defendants that the said Muhammad Hashim had no valid and legal title over the suit property and the entry in the name of Muhammad Hashim was entered in City Survey record without any title in his favour erroneously because the suit property is the Government property and reserved for Tapedari Dera and even the mutation entry in the city survey record does not create any valid and legal title over the suit property in favour of Muhammad Hashim, as such the purchase of suit property by the plaintiff through registered sale- deed from the said Muhammad Hashim is in violation of provisions of Transfer of Property Act. It was also argued by the learned DDA that the Defendant No, 1 withdrawn the attestation order as provided under Section 166 of Land Revenue Act, 1967, for which he had power to re-call such attestation. The plaintiff has filed this suit in which he has sought declaration that he is absolute legal owner of the suit plot under registered sale-deed and he is legally and lawfully entitled to have the mutation entry of the suit plot in the relevant city survey record. Admittedly, the plaintiff had purchased the suit plot/area from one Muhammad Hashim. Through registered sale-deed only on the basis of mutation entry in the name of Muhammad Hashim in the city survey record.
The only point that deserves consideration in this case is whether the said Muhammad Hashim being owner of the suit area only on the basis of mutation entry was competent to sell out the suit property to the plaintiff. It is apparent from the record that the name of Muhammad Hashim was entered in city survey record without any valid title and grant in his favour and even he or his fore- fathers were never granted the suit property by competent Government authority. This shows that the said Muhammad Hashim being peon of Revenue office fraudulently kept entry in his name in the city survey record in respect of suit plot without any legal and title documents. Thus it is clear that it was Government land and the entry entered in favour of Muhammad Hashim in respect of suit property was/is based on fraudulent. The Rubkari Bearing No, 704 dated 27.06.2002 (Ex:80/B) also speaks that the suit property was a Government land reserved for Tapedari Dera. Even the mutation does not create title but is primarily meant for fiscal purpose. Where the seller had secured a mutation of property in his name but there was no registered sale-deed, thus he had acquired no title in lands by mere mutation. Thus it is clear that the said Muhammad Hashim had no valid and legal title over the suit property and since the alleged original owner Muhammad Hashim was not lawful and true owner of the suit property. Therefore., the alienation and transfer of suit property by such outgoing owner to plaintiff does not create any title right or interest in favour of plaintiff and as such the Defendant No, 1 had not acted illegally or rnalatide by cancelling the mutation entry in the name of the plaintiff from the city survey record, who had power to re-call such attestation order under the provision of 166 of Land Revenue Act, 1967. Even under the provisions of 22 of General Clauses Act, the authority, which passed such order, has also power to withdraw the same and for this purpose, hearing of the plaintiff was neither mandatory nor obligatory. That being so, I am of the considered view that the said Muhammad Hashim was neither lawful owner of the suit property, nor he was competent to sell out the same to the plaintiff on the basis of mutation entry because the mutation itself did not convey any title, as such the cancellation of mutation entry in favour of the plaintiff which based on registered sale-deed executed by the Muhammad Hashim in favour of plaintiff by the Defendant No, 1 is legal as mere sale of suit property on the basis of extract from city survey record by the Muhammad Hashim to the plaintiff is illegal and unlawful under the provisions of Transfer of Property Act, hence the plaintiff is not legally and lawfully entitled to have the mutation entry of suit property in the city survey record, therefore these issues are answered in negative." (underlining has been supplied for emphasis).
16. Moreover, perusal of judgment passed by appellate Court, it is held as under:-- "Upshot of the above discussed I am of the view that the learned trial Court has rightly held said Muhammad Hashim was neither lawful owner of the suit property nor he was competent to sell the same to plaintiff on the basis of mutation entry in his favour. The learned counsel for appellant has forcefully contended that the learned trial Court judge has relied upon the order dated.
4.5.2010 which has not been produced in the evidence. Needless to mention here that the order dated.
4.5.2010 through which the fraudulent entry in the name of Muhammad Hashim in the city survey record has been cancelled is the part of that inquiry which was initiated on knowing the fact of fraud committed by Muhammad Hashim, hence the order dated.
4.5.2010 passed on the entry is part and parcel of inquiry and the learned trial Court judge has rightly relied upon the order dated 4.5.2010. The learned trial Court judge while deciding the Issue No, 5 has rightly held that the alienation and transfer of suit property by such outgoing owner to the plaintiff does not create any title, right or interest in favour of plaintiff as such the purchase of suit property by the plaintiff through registered sale-deed from the said Muhammad Hashim is in violation of provision of Transfer of Property Act. Needless to mention here that the case laws relied by the learned counsel for appellant does not attracts to the case in hand."
17. With regard to plea of learned counsel that revenue authorities are not competent to cancel the registered deed, on this proposition there is no cavil and undisputedly only Civil Court is competent to cancel the registered deed but here question is only with, regard to the cancellation of mutation that was challenged by plaintiff/applicant but trial Court framed issues and discussed the same on evidence produced by both parties and while reaching at the conclusion, that said property was fraudulently mutated in favour of Muhammad Hashim hence one cannot be entitled to derive his legal character from a fraudulent transaction, therefore, this plea taken by learned counsel has no force. Besides, learned counsel for applicant has failed to point out any illegality or irregularity in impugned judgments.
18. These are, the reasons of short order dated 22.10.2014, whereby instant Civil Revision was dismissed.