' SHUJAAT ALI KHAN, J. --- By virtue of this petition, under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (the Constitution), the petitioners have assailed orders dated 20.09.2008, 07.07.2009 and 16.09.2009 passed by the District Officer (Revenue), Okara (respondent No, 2), the Executive District Officer (Revenue), Okara (respondent No, 3) and the Member (Colonies), Board of Revenue, Punjab, Lahore (respondent No, 1), respectively.
2. Succinct facts, necessary for the disposal of instant petition, are that Khan Muhammad, father of respondent No, 5 (hereinafter to be referred as the original owner) availed loan facility amounting to Rs, 4,18,500/- from Zarai Taraqiati Bank Ltd., Depalpur Branch, District Okara (respondent No, 4), pledging his agricultural land measuring 71-Kanals & 18-Marlas, situated in revenue estate of Chak No, 46-D, Tehsil Depalpur, District Okara. The factum of mortgage was incorporated in the revenue record by way of attestation of Mutation No, 497, dated 25.11.1998. The original owner sold land measuring 16-Kanals to the petitioners through Mutation No, 617, attested on 10.03.2001. After the death of the original owner, on 19.06.2007, respondent No, 5 filed an application before respondent No, 2 inter alia challenging Mutation No, 617, sanctioned in favour of the petitioners. Besides that respondent No, 4 also filed an application before respondent No, 2 for correction of revenue record according to mutation of mortgage. The said applications were accepted by respondent No, 2 through order dated 02.09.2008 against which the petitioners filed an appeal before respondent No, 3 but without success as the same was dismissed through order dated 07.07.2009. Then the petitioners filed ROR No, 1225/2009 before respondent No, 1 assailing orders of the subordinate fora which was dismissed through order dated 16.09.2009; hence this petition.
3. The legal submissions put forwarded by learned counsel for the petitioners can be summed up in the words that though the original owner remained alive for a considerable period after attestation of mutation in their favour but he did not opt to challenge the same seemingly for the reason that he transferred the property in the name of the petitioners against valid consideration; that in his application, respondent No, 5 admitted his signatures on the mutation in question as an identifier, thus, no exception could be taken by the revenue authorities against the mutation attested in favour of the petitioners; that the mutation attested in favour of the petitioners was ordered to be cancelled by respondent No, 2 while exercising his powers of review u/s. 163 of the West Pakistan Land Revenue Act, 1967 (the Act, 1967) whereas no such power vests with the said authority, thus, his order was coram non judice; that the orders passed by respondents No, 1 & 3 while affirming the findings of respondent No, 2, being non-speaking in nature cannot be blessed with stamp of authenticity; that according to the provisions of Agricultural Development Bank Ordinance, 1961, charge or mortgage shifts with the title, thus, transfer of land in favour of the petitioners could not be held illegal; that mala fide and collusiveness of Bank authorities with the original owner and then his legal heirs is manifest from the fact that though the amount of loan availed by the original owner was not repaid but no proceedings have ever been initiated against them; that plea of respondent No, 5 that during currency of mortgage between the land owner and respondent No, 4 the land could not be transferred in the name of the petitioners stands negated from his own stance taken in the application that he was a witness of the said mutation; that after having come to know about the outstanding loan the petitioners offered for more than once that they are ready to pay the loan against the land transferred in their name; that the petitioners purchased the land in question on the basis of valid revenue record thus their case is fully covered under Section 43 of the Transfer of Property Act, 1882; that according to the revenue record provided by the Patwari there was no mention of any lien against the property in dispute, thus, no exception can be taken by the revenue authorities against the petitioners; that after transfer of title in the name of the petitioners revenue authorities became functus officio; that had there been any cause of action either with respondent No, 4 or respondent No, 5 they could approach the Civil Court for redressal of their grievances; that in case the impugned orders are not set aside respondent No, 5 shall succeed to get benefit of fraud played by him with the petitioners as well as the Bank authorities. In support of his contentions, learned counsel has relied upon the cases reported as Kala Khan and others v. Rab Nawaz and others (2004 SCM R 517), Ghulam Muhammad alias Ghulamoon v. Maula Dad and 6 others (1980 SCM R 314), Chief Land Commissioner and another v. Maula Dad and others (1978 SCM R 264), Nazar Muhammad v. Deputy Commissioner, Bhakkar, etc. (NLR 1999 Revenue 124) and Nur Muhammad and another v. Imam Sain and 2 others (1985 CLC 2256).
4. Learned Additional Advocate General, while defending the impugned orders, submits that as a matter of fact mutation attested in the name of the petitioners was not cancelled by respondent No, 2 while exercising his power of review rather he did so as an Appellate Court in terms of Section 161 of the Act, 1967, thus, there is no question of review by respondent No, 2; that recitals of the applications submitted by respondents No, 4 & 5 shows that there is no mention of any provision of law, thus, respondent No, 2 exercised his power vested under Section 161 ibid to undo the mutation attested in favour of the petitioners for the reason that the land in dispute could not be transferred during the currency of mortgage and that after availing remedy of appeal/revision against orders passed by respondent No, 2 before higher forums, the petitioners cannot claim that respondent No, 2 passed impugned order while exercising his power of review in terms of Section 163 ibid.
5. Learned counsel appearing on behalf of respondent No, 5, while adopting the arguments advanced by the learned Additional Advocate General, additionally submits that since there are concurrent findings of three fora in the revenue hierarchy against the petitioners, the Constitutional jurisdiction of this Court is not attracted in the instant case; that if for the sake of arguments it is presumed that respondent No, 2 passed order while pressing into service the provisions of Section 163 ibid, even then he was competent enough to take care of mutation attested in favour of the petitioners; that when the very basis of the transaction in favour of the petitioners was spurious the subsequent superstructure raised thereon cannot be allowed to remain in the field; that since there is no time frame for attestation of mutation of inheritance, respondent No, 2 rightly assumed jurisdiction and passed the order which was upheld upto respondent No,1 ; that after attestation of Mutation No, 1024, on 20.07.2009, instant petition has become infructuous.
6. Learned counsel appearing on behalf of respondent No, 4, while supporting the view point taken by respondent No, 5, submits that the petitioners were bound to take due care and caution prior to purchase of property in view of the principle of caveat emptor and in case of any omission or commission on the part of revenue officials they cannot claim any exception; that instant petition having been filed while concealing material facts the petitioners are not entitled for any equitable relief; that though the petitioners have been offering for return of loan amount but till date they have not paid anything; that even otherwise mere attestation of mutation in favour of a person does not create any title and that as the Bank could file a suit for recovery of loan amount within 12 years, no adverse inference can be drawn against it merely for the reason that no proceedings were initiated for recovery of amount payable by the original owner and then his legal heirs till the filing of application by respondent No, 5.
7. Learned counsel for the petitioners, while exercising his right of rebuttal, submits that a perusal of order dated 02.09.2008 shows that respondent No, 2 passed said order in exercise of powers vested under Section 163 Ibld and that as a matter of fact if for the sake of arguments it is admitted that it was a fit case for review then the Assistant Commissioner at Tehsil level had the jurisdiction to decide the said question and not respondent No, 2 in the capacity of District Collector.
8. 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.
9. Firstly taking up plea of the respondents that till redemption of property after repayment of loan same could not be transferred in the name of the petitioners, I am of the view that there is no cavil with the preposition that the lien of Bank against the pledged land remains intact till the payment of outstanding amount but the said lien cannot be used to deprive a person to alienate his property during continuation of mortgage. There is no doubt that a loanee is bound to repay the loan availed by him but the said fact does not deprive him of his right to transfer his property according to his own wishes as held by the apex Court of the country in the case of Chief Land Commissioner and another (Supra) and followed by this Court in the case of Nur Muhammad and another (Supra). Further, Article 24 of the Constitution ensures protection of a right of private owner to utilize his property according to his own wishes. The discussion made above leaves no ambiguity that the original owner was competent enough to transfer land in favour of the petitioners even during the currency of mortgage.
10. Learned Additional Advocate General has vehemently argued that mutation attested in favour of the petitioners was not cancelled by respondent No, 2 while exercising his powers of review vested under Section 163 ibid rather he did so while assuming jurisdiction under Section 161 ibid. In this regard, I do not find myself in agreement with the learned Additional Advocate General for the reason that when respondent No, 2 in his order has admitted that he cancelled mutation attested in favour of the petitioners while exercising powers u/s. 163 ibid, no contrary view can be taken. To substantiate said fact following portion from order dated 02.09.2008, passed by respondent No, 2, can be referred with convenience.
"4 Therefore the prayer of the petitioners is accepted and as a consequent. Mutation Nos. 617, 628 and 681 Chak No, 46/D Tehsil Depalpur are cancelled by way of review as required u/s. 163 of the Land Revenue Act, 1967."
Moreover, when respondent No, 2 had no jurisdiction to adjudge the validity of mutation attested in favour of the petitioners in exercise of powers under Section 163 ibid the order passed by him cannot be considered as a valid one.
11. Insofar as contention of learned counsel for respondent No, 5 that concurrent findings of facts recorded by three revenue fora cannot be upset in Constitutional jurisdiction, is concerned, I am of the view that generally concurrent findings of facts recorded by for a below are rarely upset by this Court, however, when the impugned orders otherwise are not tenable, the Constitutional jurisdiction of this Court cannot be abridged on the said analogy as no order can be considered sacrosanct from the judicial review of this Court.
12. I have failed to understand that learned counsel representing respondent No, 5 has put much emphasis on the fact that respondent No, 2 could undo mutation attested in favour of the petitioners while exercising powers of review under Section 163 ibid but a perusal of the said provision goes otherwise inasmuch the said powers can only be exercised by the authorities mentioned in the said Section when either the orders have been passed by themselves or their predecessors. It is not the case of respondent No, 5 that the mutation in favour of the petitioners was attested by respondent No, 2, thus, he could not set aside the same while exercising powers of review under Section 163 ibid.
13. Now while dealing with the objection raised by learned counsel representing respondent No, 5 that after attestation of Mutation No, 1024, dated 20.07.2009, instant petition has become infructuous. In this regard, I am of the view that firstly the instant petition has been filed challenoing the vires of different revenue fora and mere attestation of aforesaid mutation does not take away jurisdiction of this Court to decide fate of the said orders and secondly, apparently, the mutation relied upon by the petitioners was attested during pendency of proceedings before different forums and this Court can take note of subsequent proceedings to arrive at a just conclusion. The said proposition came under discussion before the apex Court of the country in number of cases including that reported as Muhammad Shehzad Malik v. Muhammad Suhail and another (2010 SCM R 1825) wherein the august Supreme Court, while dealing with the powers of the superior courts to look into the subsequent events, has inter alia held as under:- "The learned High Court had also not taken note of the subsequent events as stated by the parties before us that legal heirs of original owner Noor Mohammad have filed suit against the petitioners and others for securing compensation of land in question. It is also settled principle of law that superior courts had ample jurisdiction to look into the subsequent events at the time of deciding the ease. (emphasis provided)
14. There is no cavil with the preposition that mere non-quoting or wrong quoting of a provision of law in the pleadings cannot vitiate proceedings, however, when the authority passing the order has specifically observed that he exercised powers under Section 163 ibid perhaps it is not a case of mere no quoting or misquoting of any provision of law. Thus, no premium can be given to the respondents on the said ground.
15. Learned counsel representing respondent No, 4 has vehemently argued that the petitioners were bound to take due care and caution prior to purchase of land in question. In this regard, I am of the view that only source available to the petitioners was to consult the revenue record and according to the documents annexed with this petition the Patwari Halqa, while issuing Fard Malkiyat, for sale of land, gave a note that there is no bar against transfer of land in favour of the petitioners, thus, all pc 'sible care and caution was taken by the petitioners and no adverse inference can be drawn against them especially when transaction in their favour is protected under Section 43 of the Transfer of Property Act, 1882.
16. It is important to mention over here that during the course of hearing learned counsel for the petitioners with a view to show bona fide of the petitioners, has produced a certificate issued by Mr. Muhammad Akram Ch., Manager, Zaral Taraqiati Bank Ltd, Depalpur, bearing No, DPR/2016/NOC/110, dated 04.03.2016, according to which an amount of Rs, 3,15.000/- towards principal amount of loan has been deposited by petitioner No, 1 against Loan Case No, 270937 and 348382. Faced with this learned counsel for respondent No, 4, without controverting the contents of said certificate, submits that only an amount of Rs, 3 15 000/- has been deposited whereas in fact the outstanding amount comes to Rs, 4,18,000/-.
17. As a necessary corollary to the discussion made in the fore-going paragraphs, I have no hesitation to hold that the revenue authorities proceeded on wrong track while undoing the mutation attested in favour of the petitioners. Consequently, instant petition is accepted and the impugned orders are set aside, subject to the condition that the petitioners shall clear the outstanding dues of the Bank to the extent of land transferred in their name within three months after rendition of accounts with the Bank. As a result, Mutation No, 617, attested in favour of the petitioners, shall stand restored. Respondent No, 2 shall ensure rectification of record accordingly.
In case of failure on the part of petitioners to deposit the outstanding dues within the time stipulated above, instant petition would be deemed to have been dismissed.