1. SHUJAAT ALI KHAN, J.--- - Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioners have challenged vires of orders dated 25.08.2012 and 06.09.2010 passed by the Member, Board of Revenue, Punjab, Lahore (respondent No,1) and the Executive District Officer (Revenue) Narowal (respondent No,15), respectively.
2. 2.Unnecessary details apart, the facts, as spelt out in the instant petition, are that one Allah Ditta mortgaged his land measuring 73- Kanals and 16-Marlas, situated within the revenue estate of Mouza Bohungul Najar, Tehsil and District Narowal (hereinafter to be referred as the suit property) with Muhammad Shafi, predecessor-in-interest of the respondents Nos,2 to 9, for a period of 10 years, against consideration of Rs,45,000/-, through Mortgage Deed, dated 24.03.1981. Beside other conditions, it was stipulated in the said Mortgage Deed that during the currency of the mortgage the mortgagor shall not alienate the suit property in any manner. The mortgagee apprehending that the mortgagor was going to sell the suit property, filed a suit for permanent injunction which was dismissed on 30.09.1987 pursuant to a statement made by the mortgagor that he was not going to part away with the suit property. The mortgagee filed another suit for permanent injunction which was dismissed on 19.01.1988 on the ground that after dismissal of his earlier suit the subsequent suit was not maintainable. During the interregnum period the mortgagor alienated the suit property in favour of the petitioners through registered sale deed dated 20.01.1988. The mortgagee challenged sale deed dated 20.01.1988 by filing an application under Order XXI, rule 32 read with section 151, C.P.C. which was accepted through order dated 05.10.1989 and the sale deed executed in favour of the petitioners was cancelled. After having succeeded to get annulled the sale deed in favour of the petitioners, the predecessor-in-interest of respondents Nos,2 to 9 filed a suit for specific performance of an agreement to sell which was decreed vide judgment and decree dated 20.01.1990. As a result Sale Certificate was issued in favour of the predecessor-in- interest of respondents Nos,2 to 9 on the basis whereof mutation No,115 was also sanctioned on 12.02.1994. The petitioners challenged sale certificate issued in favour of predecessor-in-interest of respondents Nos,2 to 9 and others by filing an application under section 12(2), C.P.C. which was adjourned sine die vide order dated 01.02.1993. However, subsequently the petitioners withdrew the same on 15.04.2009 after getting it resurrected. On the other hand against order dated 05.10.1989 the petitioners filed a revision petition before the Additional District Judge which they subsequently withdrew due to change in law and filed the same before this Court bearing C.R. No,1751/1994 which later on was transferred back to the District Court due to further change in law and was accepted through judgment and decree dated 20.02.1997. The judgment and decree passed by the learned revisional Court was challenged by predecessor-in-interest of respondents Nos,2 to 9 and others before this Court through a Constitutional Petition (W.P. No,5602-1997) but without success as the same was dismissed vide judgment dated 09.10.2002 against which the respondents filed C.P.L.A.
3. No,3772-L-2002 before the august Supreme Court of Pakistan which too met with the same fate as the same was dismissed through order dated 06.01.2005. Consequent upon decision of the matter upto the apex Court of the country the petitioners filed an application before the Deputy District Officer (Revenue) Narowal for restoration of land in their favour which was accepted through order dated 11.05.2005 against which the respondents filed an appeal before respondent No,15 which was dismissed through order dated 08.07.2006. However, in review filed by the respondents, respondent No,15 recalled his earlier order dated 08.07.2006 and accepted the appeal filed by the respondents through order dated 26.12.2006 followed by another order dated 30.12.2006. The petitioners assailed orders, dated 30.12.2006, in ROR No,747-2007, before respondent No,1, who decided the same on 24.09.2007 and the order passed by respondent No,15 was set aside and respondent No,14 was directed to implement the decision rendered by this Court which was further upheld by the august Supreme Court of Pakistan. Pursuant to the direction issued by respondent No,1, respondent No,14 ordered for sanction of mutation in favour of the petitioners which was accordingly done while attesting mutation Nos,307 and 308 against which the respondents filed an application 'before respondent No,14 which was dismissed on 30.12.2009 which order was assailed by the respondents through an appeal before respondent No,15 which was accepted vide order dated 06.09.2010.
4. Aggrieved of the said order the petitioners filed ROR No,1900/2010 which was dismissed by respondent No,1 through order dated 25.08.2012; hence the instant petition.
3. Learned counsel for the petitioners, while opening his arguments, submits that sale in favour of the petitioners was validated upto apex Court of the country, thus, respondent No,15 had no power to order for cancellation of mutations sanctioned in favour of the petitioners; that though initially the suit filed by the respondents was decreed on the ground that Allah Ditta alienated suit land in favour of the petitioners in violation of the condition postulated in the mortgage deed, however, later on findings of the trial Court were reversed by the revisional Court whose order remained intact upto the apex Court of the country; that fate of decree in favour of the respondents and the subsequent sale deed on the basis thereof has also been adjudged by this Court as well as apex Court of the country, therefore, the order passed by respondents Nos,1 and 15 are nullity in the eye of law; that under Article 189 of the Constitution of Islamic Republic of Pakistan, 1973, the judgment rendered by apex Court of the country has binding force upon respondents NOs.1 and 15, thus, while passing the impugned orders the fora below have committed gross contempt of this Court as well that of apex Court of the country; that in the earlier round the appeal filed by the respondents against the decision of respondent No,14 was dismissed by respondent No,15, however, in review he reversed his own findings in an illegal manner and that while passing the impugned order respondent No,1 has relied upon the report submitted by Patwari Halqa coupled with the fact that decreased in favour of the respondents in a suit for specific performance and the subsequent sale deed were intact but he has not uttered even a word about judgments passed by this Court as well as apex Court of the country which speaks volumes about mala fide on his part. In support of his oral submissions, learned counsel has relied upon the cases reported as Abdul Majeed Khan through L.Rs and others v. Ms. Maheen Begum and others (2014 SCM R 1524), Nazar and others v.
5. Member (I-II), BOR (2010 SCM R 1429), Muhammad Nawaz and others v. Fateh Sher and others (2008 SCM R 1658), Allah Ditta v. Ghulam Muhammad and 3 others (2008 SCM R 1021), Shahra and others v. Member, Board of Revenue, Punjab and others (2004 SCM R 117), Maulvi Aziz-ur-Rehman v.
6. Ahmad Khan and others (2004 SCM R 1622), All Pakistan Newspapers Society and others v.
7. Federation of Pakistan and others (PLD 2004 SC 600), Abdul Majid and another v. Qazi Abbas Hussain Shah (1995 SCM R 429), Minn Abdul Quddous v. Mst. Surrya Mir and 3 others (PLD 2015 LHR 687) and M/s Modern Continental Business (Pvt.) Ltd. through Chief Executive v. Government of Pakistan through Secretary, Ministry of Finance, Revenue and Economic Affairs, Pak Secretariat, Islamabad and another (2002 CLC 233).
4. Conversely, learned counsel representing the respondents, while defending the impugned orders, submits that after passing of decree in favour of the respondents and registration of sale deed, the condition mentioned in the Mortgage Deed regarding restriction on the power of the mortgagor to alienate the suit property during currency of mortgage became irrelevant; that there is nothing on record to show that either decree passed in favour of the respondents as well as the subsequent sale deed have ever been challenged before any forum or the same were declared illegal; that appellate authority always enjoys powers of review under the provisions of General Clauses Act, 1897, inasmuch as the authority who has power to do something also enjoys power to undo the same; that without cancellation of sale deed registered in favour of the respondents, mutation Nos,307 and 308 could not be attested in favour of the petitioners; that there is no question of applicability of principle of lis-pendens to the decree passed in favour of the respondents for the reason that after withdrawal of application filed by the petitioners under section 12(2), C.P.C. the respondents filed suit for specific performance; that after making statement in the suit filed by predecessor-in-interest of respondents Nos,2 to 9, Allah Ditta was debarred to alienate land in favour of the petitioners, thus, any act done by the mortgagor in violation of commitment made before the Court was nothing but nullity in the eye of law; that fate of the decree passed in favour of the respondents as well as the mutation No,115 was not specifically discussed by any forum rather observations of this Court as well as that of the apex Court of the country were confined only to the condition regarding restriction on the power of the mortgagor to alienate the property during subsistence of the mortgage; that Constitutional jurisdiction of this Court is not attracted in every case rather same is confined only to adjudge the jurisdictional errors committed by the fora below whereas according to contents of the petition no such ground has been mentioned. In support of his oral submissions, learned counsel has relied upon the cases reported as Muhammad Sadiq v. Muhammad Raman and 8 others (2002 SCM R 1821), Ittehad Chemicals Ltd. v. VIIth Additional District and Sessions Judge and others (2010 CLC 599), Mughla and others v. Jafar and others (2001 CLC 1410), Mst. Sharifan Bibi and others v.
8. Member, Board of Revenue, Lahore and others (1996 CLC 644) and Javed Manzoor and v. Member, Board of Revenue (1980 CLC 1196).
9. 5.Learned Additional Advocate General has supported the stance adopted by learned counsel for the petitioners with the additional submission that perhaps both the forums below escaped to mention about judgments passed by this Court as well as Supreme Court of Pakistan.
10. 6I have heard learned counsel for the parties at considerable length and have also scanned the documents annexed with this petition as well as the case-law cited at he bar.
11. 7.Firstly taking up the question as to whether fate of the decree and the subsequent sale deed in favour of the respondents was determined by this Court or the apex Court of the country or not, I am of the view that to resolve the controversy a perusal of judgment passed by this Court in W.P.
12. No,5602/1997 is of paramount consideration, operative part whereof is reproduced herein below:- "As regard the question that the petitioners during the pendency of the petition had entered into an agreement to sell with the respondent Allah Ditta and had obtained a decree and also procured a sale deed, suffice it to say that such transaction had been made during the pendency of the litigation of the case between the parties and thus decree for specific performance and sale made in favour of the petitioners, in pursuance thereof is hit by the principle of lis pendent.
13. Therefore, on account of above it cannot be held that the petitioners have become lawful owner of the suit property."
14. The afore-quoted portion of judgment rendered by this Court, which was further affirmed by the apex Court of the country, makes it crystal clear that not only plea regarding passing of decree in favour of the respondents and registration of sale deed in pursuance whereof was agitated by the respondents during hearing of said petition but also the same was exhaustively responded to by this Court. The transaction entered during pendency of proceedings before a court of competent jurisdiction is inconsequential irrespective of the fact that as to whether any subsequent court decree has been passed on the basis thereof or not. If any case law is required, reference can safely be made to the cases reported as Farzand Ali and another v. Khuda Bakhsh and others (PLD 2015 SC 187), Muhammad lqbal and others v. Khair Din through LRs and others (2014 SCM R 33), Basit Sibtain through LRs v. Muhammad Sharif through LRs (2004 SCM R 578), lkram Elahi v. The Settlement and Rehabilitation Commissioner (Lands) Lahore and 2 others (1976 SCM R 143), Col. (R)
15. Sadiq Hasan Sheikh v. Abdul Rashid and another (1993 M LD 486), Malik Jahangir Khan v. Syed Sibtul Hassan and others (1990 CLC 1659), Muhammad Sharif and others v. Lahore Development Authority and others (1989 M LD 95) and Falak Sher v. Muhammad Rashid and another (PLD 1982 LHR 426). Learned counsel representing the respondents has not denied the fact that at the time of filing of suit for specific performance proceedings were pending before the revisional forum. In this scenario, there leaves no ambiguity that the decree passed in favour of the respondents was inconsequential, thus, the same cannot be allowed to remain in field merely for the reason that the same was not challenged by any party or any proceedings challenging the same were withdrawn subsequently.
16. 8.Considering from another angle, presumably proceedings in the application filed by the petitioners under section 12(2), C.P.C. were adjourned sine-die due to the reason that proceedings against order dated 05.10.1989 were pending adjudication before the higher forum and the outcome of the said application was subject to the final outcome of the matter pending before the revisional Court. There is no cavil with the proposition that the petitioners after getting resurrected application under section 12(2), C.P.C. opted to withdraw the same seemingly for the reason that the same had become infructuous after determination of fate of order dated 05.10.1989. In this backdrop, the respondents cannot take any premium on the ground that the application filed by the petitioners challenging decree passed in favour of the respondents in a suit for specific performance was withdrawn.
17. 9.At the cost of repetition, it is observed that initially sale deed executed in favour of the petitioners was declared illegal by the civil court while accepting the application filed by the respondents, however, the said findings were reversed by the revisional Court whose order remained intact upto the apex Court of the country. Learned counsel for the respondents has argued with full force that during subsistence of court decree as well as registered sale deed in their favour mutations Nos,307 and 308 could not be attested. Perhaps, the learned counsel has raised such plea in oblivion of the fact that after restoration of sale deed in favour of the petitioners how a decree in favour of the respondents and subsequent sale deed could remain in field. It is established principle that in presence of a sale deed qua a property second sale deed cannot be registered and if it is done the junior vendee has to suffer especially when he is well aware about pendency of proceedings before a court of law qua the same property.
18. 10.A cursory glance over the impugned orders renders it clear that the same were passed without considering the earlier findings of the Board of Revenue as well as that of this Court and apex Court of the country. As per Article 189 of the Constitution of Islamic Republic of Pakistan, 1973, judgment of apex Court of the country has binding force upon all the organs of the State and the revenue authorities whose orders C have been impugned in this petition are no exception. Further, respondent No,1 while dismissing the revision petition filed by the petitioners observed that they should approach the civil court for determination of their rights. It is beyond the comprehension of a man of prudent mind that after determination of fate of rights between the parties how they could be asked to again approach the Civil Court in violation of the orders of the superior courts.
11. There is no cavil with the preposition that a forum or Court can rectify any clerical or arithmetic mistake going to roots of the case while exercising its power of review but the said power cannot be used for rehearing of a matter especially when a remedy of appeal/revision is available to the aggrieved party. Admittedly, mutations Nos,307 and 308 were attested pursuant to a direction issued by the Board of Revenue in order dated 24.09.2007, operative part whereof reads as follows: "7. For this reason, these orders dated 26.12.2006, 30.12.2006 and 17.02.2007 of the Executive District Officer (Revenue), Narowal are set aside. A copy of this order, may be sent to the District Officer (Revenue), Narowal. He may ensure that the orders of the Hon'ble High Court and august Supreme Court are complied with in letter and spirit. The parties may pursue their cases in the civil court in the manner they deem appropriate."
19. Had the afore-quoted order been considered by respondent No,14 as well as respondent No,1, the decision would have been entirely different. It seems that the fora below instead of scrutinizing the checkered history of the case in detail opted to decide the same in a slipshod manner. It is very strange to observe that mutations Nos,307 and 308 despite having been attested on the direction of Board of Revenue respondent No,15 dared to review the same through order dated 06.09.2010 whose order was further upheld by respondent No,1 in a wholly unlawful manner. Moreover, there is nothing on record to show that the respondents ever challenged the direction issued by respondent No,1, contained in order dated 24.09.2007, which means that the same attained finality, thus, the same could not be reviewed by the subordinate forum.
20. 12.Now coming to plea of learned counsel for the respondents that the jurisdiction of this Court is only confined to see as to whether any jurisdictional flaw exists in the orders of the subordinate fora or not. In this regard, I am of the view that generally said rule is applicable to the Constitutional Petitions before this Court, however, in the peculiar facts and circumstances of the instant case said plea cannot be used as a shield to validate the orders passed by respondents Nos,1 and 15 in violation of the judgment passed by this Court which was further affirmed by the apex Court of the country. Further, the Constitutional jurisdiction of this Court to adjudge the validity of an order passed by the executive/administrative authorities cannot be abridged on the ground that the said authority had the jurisdiction to deal with the matter as if such approach is allowed to take place perhaps there would be no case of interference even where gross illegality on the part of executive is apparent on the face of the record. Insofar as the case in hand is concerned, in my humble opinion, respondent No,15 as well as respondent MO have no jurisdiction to reopen the matter after decision by this Court as well as by the apex Court of the country.
21. 13.Insofar as the case law cited by learned counsel for the respondents is concerned, I am of the view that the same is not applicable to the facts and circumstances of the case inasmuch as in the case of Muhammad Sadiq (Supra) the apex Court of the country while highlighting the ingredients of a sale has held that delivery of possession is one of the important condition to complete the sale but in the instant case just after registration of sale deed in favour of the petitioners, the respondents challenged the same by filing an application under Order XXI, rule 32, C.P.C. thus the petitioners did not find an occasion to get possession of the suit property. In the case of Ittehad Chemicals Ltd., it was decided that concurrent findings arising out of civil proceedings cannot be adjudicated upon in Constitutional jurisdiction whereas the illegality in the impugned orders is floating on the surface justifying interference by this Court in exercise of its Constitutional jurisdiction. Now coming to the case of Mughla and others I have noted that the proposition decided by this Court was that after dismissal of revision petition in a civil matter the Constitutional jurisdiction of this Court is rarely exercised whereas in the instant case the petitioners have impugned decision of respondent No,1 and not that of any Court in the civil hierarchy. So far as the case of Mst. Sharifan Bihi (Supra) is concerned, the findings of Board of Revenue were upheld on the ground that substantial justice was done while dealing with the matter whereas in the case in hand the findings of fora below being in clear cut violation of the judgment passed by this Court as well as that of august Supreme Court of Pakistan cannot be allowed to hold the field. Likewise, in the case of Javed Manzoor (Supra), the controversy involved was as to whether the Tribunal had the jurisdiction to pass the order whereas in the instant case the exercise of jurisdiction by respondents Nos,1 and 15, after decision of the matter, by this Court and august Supreme Court of Pakistan, justifies interference by this Court.
14. For what has been discussed above, instant petition is accepted and impugned orders dated 25.08.2012 and 06.09.2010 passed by the respondents Nos,1 and 15 respectively are set aside. As a result, order dated 30.12.2009 passed by respondent No,14 shall hold the field. No order as to cost.