CH.MUHAMMAD MASOOD JAHANGIR, J.---Precisely the facts of the case are that a suit for declaration was filed by the present petitioner and Mst. Sharifan Bibi (plaintiff No.2) with the assertion that they along with other legal heirs of Moosa were also entitled to get their legal share out of the property left by Moosa (deceased) predecessor-in-interest of the petitioner as well as the private respondents/defendants, who was in possession of lot in dispute owned by Government of Punjab as tenant through Co-Operative Farming Society being its regular member, whereas, the conveyance deed dated 13.9.1988 attested in favour of Ali Mohammad respondent/defendant No.3 and order dated 25.1.1999 passed by the Member Board of Revenue pertaining to the suit land were liable to be cancelled/set aside. The said suit was resisted by defendants Nos.1 and 3 by filing their independent written statements. The learned trial court after framing certain issues arising out of the divergent pleadings of the parties invited the parties to produce their evidence in pros and cons and while appreciating the same dismissed the suit filed by the petitioner and Mst. Sharifan Bibi vide judgment and decree dated 25.2.2005. Feeling dissatisfied, the petitioner as well as Mst. Sharifan Bibi preferred an appeal before the learned lower appellate court, who also dismissed the same vide judgment and decree dated 24.1.2006, hence this civil revision.
2. It is argued by the learned counsel for the petitioner that Moosa (deceased) was the original allottee of the disputed land, who was member of the Society and as soon as he died, the inheritance was to open in favour of all the legal heirs of deceased Moosa within the meaning of section 19-A. of the Colonization of Government Lands (Punjab) Act, 1912; that subsequent transfer of land by the revenue hierarchy or the Co-operative Farming Society in favour of single heir/defendant/ respondent No. 3 by attestation of conveyance deed was result of fraud and misrepresentation and was rightly annulled by the Member Board of Revenue vide his earlier order dated 1.6.1995, but the same was erroneously reviewed vide order dated 25.1.1999, which is liable to be set at naught. He has lastly prayed for the acceptance of the instant civil revision, setting aside of the impugned judgments and decrees passed by the learned courts below and that the suit filed by the petitioner be decreed.
3. Conversely, learned counsel for the respondent/defendant No.3 has supported the impugned judgments and decrees passed by both the learned courts below while refuting the arguments advanced by the learned counsel for the petitioner and submitted that during the meeting of General House of the Co-operative Farming Society, the membership of defendant No.3 was approved without objections from either side and since defendant No.3 was the contributory of membership fee as well as other revenues of the Society pertaining to the lot in dispute, hence, the conveyance deed was rightly sanctioned in his favour against his own rights; that defendant No.3 deposited the requited amount for the conferment of proprietary rights, but even then no body objected to the conferment of the proprietary rights and the sanctioning of conveyance deed in his favour; that land was never allotted to Moosa and the same was granted by the society to defendant No.3 as an independent member and that both the learned courts below while considering the said aspect of the case eminently dismissed the suit filed by the petitioner. He has lastly prayed for the dismissal of the instant civil revision.
4. Arguments heard. Record perused.
5. As per divergent pleadings of the parties the bone of contention emerges whether the disputed property was originally allotted to Moosa or it was independently allotted to Ali Mohammad, defendant No. 3 and whether Member Board of Revenue could review his order. The petitioners/plaintiffs by tendering copy of Register of Membership of the Society (Ex:P1) tried to prove that Moosa acquired membership of the society on 18.6.1949. By producing copy of Register Taqseem (Ex:P2) the petitioner also succeeded to prove that the suit land was allotted to Moosa by the Society on 18.6.1949. As per contents of Ex:P1, Ali Mohammad defendant No.3 was only a nominee on behalf of the allottee in the concerned Register maintained by the Society. No doubt Mohammad Din Manager of the Society entered into the witness box as DW4 and by tendering documents of membership and allotment executed by the Society in favour of defendant No.3 (Ex:D1 to Ex:D4) deposed that copy of 'Register Taqseem Arazi' (Ex:P2) in favour of Moosa tendered by the petitioners/plaintiffs is fictitious and forged out the perusal of cross-examination of the said witness (DW4) reveals that the record of the Society which he brought along with him regarding the allotment was full of overwriting and cutting. The learned trial court at a subsequent stage of proceeding summoned the said record and also scanned the same which brought this court to the conclusion that the statement of DW4 as well as the record maintained by the Society is not trustworthy. The above note Controversy could be unfolded by the learned courts below if the other admitted documents available on the record were examined. The perusal of copy of review petition No.263/1995 (Ex:P4) filed by respondent/defendant No.3 before the Member (Colonies)
Board of Revenue, Punjab, Lahore, reveals that in first 4 lines of para 4 the respondent/defendant No.3 claimed himself to be the nominee of original allottee. The said acknowledgment of respondent/defendant No.3 is reproduced in verbatim as under:- "That Musa son of Ilyas was admitted as regular member of the Co-operative Farming Society, Chak No.309-EB on 18.4.1949. The respondent is son of Ali Muhammad was accepted as nominee after his death on 30.11.1953."
Even before the Member Board of Revenue, the learned counsel for respondent/defendant No.3 reiterated the same stance as was pleaded in the memo of appeal, which finds mentioned in the order dated 25.01.1999 (Ex.P/5) passed by said authority and is reproduced as under:- "He referred to the decision of the learned Member Colonies) dated 23.7.1998 in ROR No.2089/1995. where the nominee of the allottee was allowed to retain the land."
So the said stance of respondent/defendant No.3 which he had already taken before the revenue hierarchy where he had already admitted that property was allotted to Moosa and he being nominee was entitled to retain the same. These admitted documents, which were prepared on behalf of defendant/respondent No.3 cannot be withdrawn by him in the second round of litigation.
During the course of arguments when these relevant documents were confronted to Ch: Abdul Ghani, Advocate learned counsel for respondent No.3, he could not respond reasonably and submitted that if for the sake of argument the membership and allotment of Moosa is admitted, even then, respondent/defendant No.3 being nominee of original allottee was entitled for the transfer of the land in his favour. The said stance of the learned counsel is not tenable and against the mandate of section 19-A of the Colonization of Government Lands (Punjab) Act, 1912. For ready reference, the said provision is reproduced hereunder:- [19-A.Succession to the tenancy.
When after the coming into force of the Colonization of Government Lands (Punjab) (Amendnient)
Act, 1951, any Muslim tenant dies, succession to the tenancy shall devolve on his heirs in accordance with the Muslim Personal Law (Shariat), and nothing contained in sections 20 to 23 of this Act shall be applicable to his case: Provided that when the tenancy rights are held by a female as a limited owner under this Act, succession shall open out on the termination of her limited interest to all persons who would have been entitled to inherit the property at the time of the death of the last full owner had the Muslim Personal Law. (Shariat) been applicable at the time of such death, and in the event of the death of any of such persons before the termination of the limited interest mentioned above, succession shall devolve on his heirs and successors existing at the time of the termination of the limited interest of the female as if the aforesaid such person had died at the termination of the limited interest of the female and had been governed by the Muslin Personal Law (Shariat): Provided further that the share, which the female limited owner would have inherited had the Muslim Personal Law (Shariat) been applicable at the time of the death of the last full owner shall devolve on her if she loses her limited interest in the property on account of her marriage or remarriage and on her heirs under the Muslim Personal Law (Shariat) if her limited interest terminates because of her death].
6. The inheritance of allottee of a Cooperative Farming Society is governed by Shariat Laws and not through the bye-laws. An identical question has already been clinched by the apex revenue hierarchy in a case reported as "Muhammad Tufail v. Yaqub etc." (PLD 1985 Rev. 158(1)), wherein, it was observed that the bye-laws of Co-operative Farming Society could not: supersede the law of Shariat and all the legal heirs were entitled to get their share in the legacy of allottee of Cooperative Farming Society. The bare reading of Section 19-A of the Colonization of Government Lands (Punjab) Act, 1912 (added in 1951) leaves no room that the succession lo the tenancy of a Muslim tenant shall devolve on his heirs in accordance with the Muslim Personal Law (Shariat).
Section 2 of the Muslim Personal Law (Shariat) Application Act, 1948 also lays down that in all questions regarding succession, rule of decision shall be the Muslim Personal Law (Shariat) in case the parties are Muslims. These provisions of the law, are very clear and there is no ambiguity about it and any order, which contravenes the provisions of this law cannot be sustained. It has, inter alia, been held by the Supreme Court of Pakistan in Civil Appeal No. 139 of /987, titled as Mst. Aisha, etc. v. Member (Colonies), Board of Revenue, Punjab and others decided on 21.11.1990 that the statute i.e. section 19-A of the Colonization of Government Lands Act has to prevail over any bye-law of a Society. It was similarly held in the judgment reported as (PLD 1974. SC 185) by the apex court that :- "Unless a nomination can amount to a valid gift inter vivos, it cannot pass title to the nominee in respect of immovable property, nor can the making of a nomination give the right to the nominator at his own choice to change the law of .succession, which would otherwise be applicable in the case of his death. Obviously, the nomination cannot operate as a valid gift under the Muhammadan Law, because, such a gift in order to confer title on the donee, must be accompanied by delivery of possession of the property gifted."
There is, thus, no doubt that the bye-laws of a Society or a practice or custom or usage cannot override the express provisions of the law. No such gift was either claimed or alleged to have been made in favour of the respondent/defendant No.3. It has also been held in the judgment reported as "Fatal Shah v. Muhammad Din and others" (1990 SCM R 868) that nomination by a member of Co-operative Society does not operate either as a gift or as a will and, thus, could not deprive the other heirs, who might be entitled thereto, under the law of succession applicable to the deceased.
This view has also been laid down in the judgment reported as "Mst. Amtul Habib and others . v.
Mst. Musarrat Parveen and others" (PLD 1974 SC 185) wherein while interpreting section 27 of the Co-operative Societies Act, 1915, it has been observed as under:- "We are of the opinion, however, that the correct view has been taken in the cases referred to earlier,'namely, that the nomination merely confers a right to collect the money or to "receive the money". It does not operate either as a gift or as a will and, therefore, cannot deprive the heirs of the nominator who may be entitled thereto under the law of succession applicable to the deceased. The nominee thus collects as a trustee for the benefit of all persons entitled to inherit from the decease employee. It is not without significance that section 5 of the Provident Funds Act neither vests the amount in the nominee nor declares him to be the owner thereof. It merely gives him the exclusive right to receive the amount and nothing more. In any event the position under section 27 of the Bombay Co-operative Societies Act is different because the wording of this section is materially different. There is no analogy between the two.
7. This view has further been affirmed by the apex Court in the judgments reported as "Manzoor Ahmad v. Mst. Salaman Bibi and others" (1998 SCM R 388) and "Muhammad Bakhsh v. Mst. Ghulam Fatima through L.Rs. and others" (2007 SCM R 1227). So when it is proved that the disputed property had originally been allotted to Moosa, predecessor-in-interest of the parties, the same was to be devolved upon his all legal heirs. The stance of learned counsel for respondent/defendant No,3 that the disputed property had been independently allotted to the respondent/defendant No,3 is misconceived.
8. The other backdrop of the case is that after the death of Moosa when the membership of the society and allotment of the property was transferred to respondent/ defendant No,3, a complaint was moved by the petitioner/plaintiff against the said transfer, the matter went upto the apex Court of revenue hierarchy, who vide order dated 1.6.1995 (Ex:P3) set aside the Conveyance Deed executed in favour of respondent/defendant No,3 and declared that the disputed property should be devolved upon all the legal heirs of Moosa deceased, the original allottee but thereafter vide order dated 25.1.1999 (Ex:P5) the Member Board of Revenue while accepting review application filed by respondent/ defendant No,3 recalled his earlier order, which was also impugned by the petitioner/plaintiff in her suit. There is no other cavil that a review petition can only be entertained when new and important grounds are advanced which could not be brought on the record at the time of hearing at earlier stage or there is error apparent on face of record. Some illustrations may be given as to what have been taken to be erroneous apparent on the face of the record. An error which does not require any extraneous matter to show its incorrectness can be treated as being apparent. Such errors are not demonstrated by any process of close reasoning. Any erroneous view of law on a controversial matter, or a wrong exposition of law, or a wrong application of law, or failure to apply correct law has never been treated as a mistake or error apparent on the face of record. If the court applies its mind to a particular fact or law and then comes to a wrong conclusion after conscious reasoning, it can never be assumed that the error is one apparent on the face of record and can be corrected by means of a review. It cannot be converted into instrument of harassm ent of parties. The scope of review is quite limited and opportunity cannot be availed of for reagitating entire case and this power cannot be exercised to undertake reexamination of matters of fact or re-exposition of law. It is only available in certain special circumstances as provided in Section 8 of the West Pakistan Board of Revenue Act, 1957. The ground that the court has fallen into error in deciding on a particular question, or that a new ground' which could have been urged at the original hearing, is not a ground for review, for, a review is not an appeal and cannot be allowed to be treated as an appeal. Any matter which if is disputed and requires an elaborate inquiry for determination cannot possibly be described as a patent fact justifying a review of an opinion already formed. The Member Board of Revenue without considering the scope and mandate of review while ignoring the grounds of review and submissions of the learned counsel for respondent/defendant No 3 (as referred in para No,5) reviewed his earlier order dated 1.6.1995 (Ex:P3). Both the courts below in derogation of the law declared by the superior Courts on the subject and while twisting the material on the record erred in law in non-suiting the plaintiff through. the impugned judgments and decrees, which cannot be sustained in the eye of law.
9. At the fag end of his arguments, learned counsel for the petitioner has argued that concurrent findings recorded by both the courts below cannot be interfered with by this Court while exercising jurisdiction under section 115, C.P.C., is also without any force. Although, the scope of interference with concurrent findings of fact is limited, but such findings can be interfered with by this Court under section 115, C.P.C. if courts below appeared to have either misread evidence on record or while assessing evidence had omitted from consideration some important piece of evidence, which had direct bearing on the issue involved. In arriving at such view this court is fortified by the dictum laid down in the judgment reported as "Abdul Hakeem v. Habibullah and 11 others" (1997 SCM R 1139) and the relevant portion thereof is reproduced as under:- "6. Before considering the contentions of the parties on merit, we would like to mention here that the scope of interference with concurrent finding of fact by the High Court in exercise of its revisional jurisdiction under section 115, C.P.C. is very limited. The High Court while examining the legality of the judgment and decree in exercise of its power under section 115, C.P.C. cannot upset a finding of fact, however erroneous it may be, on reappraisal of evidence and taking a different view of the evidence. Such findings of facts can only be interfered with by the High Court under .section 115, C.P.C. if the Courts below have either misread the evidence on record or while assessing or evaluating the evidence have omitted from consideration some important piece of evidence which has direct bearing on the issues involved in the case. The findings of facts will also be open to interference by the High Court under section 115, C.P.C. if the approach of the Courts below to the evidence is perverse meaning thereby that no reasonable person would reach the conclusions arrived at by the Courts below on the basis of the evidence on record."
' This question has also been dealt with by the august Supreme Court of Pakistan in the judgments reported as "Ghulam Muhammad and 3 others v. Ghulam Ali" (2004 SCM R .1001), "Mushtari Khan v.
Jehangir Khan" (2006 SCM R 1238) and "Muhammad Anwar and others v. Mst. Ilyas Begum and others" (PLD 2013 SC 255) while holding that it is obvious and clear that no Court in the country has the jurisdiction to decide about the rights of the parties wrongly and in violation of law and the Revisional Court has no exception to this rule. It has also been held therein that Court could not pass an order of its liking, solely on the basis of its vision and wisdom, rather it was bound and obligated to render decisions in accordance with law and the law alone. So, when there is gross misreading and non-reading of evidence and patent violation of the law apparent on the face of record the revisional court/High Court is under legal obligation to rectify the error by interference in such illegal findings.
11. On the touchstone of the above discussion, the instant civil revision is accepted, impugned judgments and decrees passed by both the learned courts below are H hereby set aside and the suit filed by the plaintiff is hereby decreed with cost throughout.