AMIN-UD-DIN KHAN, J.---- Through this writ petition the following prayer has been made:- "It is, therefore, respectfully prayed that Mutations Nos.819, 820 be ordered to be modified by setting aside order dated 19.07.2013 passed by the Assistant Commissioner Toba Tek Singh and order of additional commissioner 27.10.2014 and that of Member Board of Revenue dated 22.11.2016 be set aside by accepting this writ petition giving direction to the Revenue Authority only an area measuring 13-kanal 8-marlas be ordered to be mutated/transferred in the name of Respondent ordered to be mutated/transferred in the name of Respondent No.4 and remaining area be ordered to be restored in the name of Petitioners."
2. I have heard the learned counsel for the parties at full length and also gone through the record as well as the case law cited by the learned counsel for the respondents.
3. The noting of history of the case is necessary . The petitioners purchased 43-kanals 19-marlas land from Amjad Nazir and Iftikhar Ahmad. The share sold by Amjad Nazir was 492, according to which the land comes to 24-kanals 19-marlas, whereas the share sold by Iftikhar Ahmad was 387, which comes to 19-kanals 9-marlas, total share 879/4056 out of total Khata of land measuring 202-kanals 16-marlas. The mutati on was attested on 07.03.2005.
Muhammad Aslam respondent No.3 filed a suit for specific performance against Iftikhar Ahmad on 02.11.2005 on the basis of an agreement to sell dated 03.10.2001 for the land measuring 37-ka nals 1-marlas, the share being 741/4056 from total land of Khata measuring 202-kanals 16-marlas. The petitioners were also impleaded in the suit on the ground that some of the portion of suit property was transferred in the name of petitioners. In the suit it was pleaded through the amended plaint that out of 37-kanals 1-marla land, 23-kanals 13-marlas land was transferred in the name of plaintif f and the suit was only for remaining land i.e. 13-kanals 8-marlas. The learned trial court vide judgment and decree dated 01.03.2010 decreed the suit. The concluding paragrap h of the judgment is reproduced as under:- "In the light of my findings on above issues, the suit of the plaintif f is hereby decreed and he is directed to deposit the remaining sale consideration within fifteen (15) days. In case of failure to pay the remaining sale consideration, the suit of the plaintif f shall be consider ed as dismissed. Since the defendants Nos.2 and 3 are the bona fide purchasers of the land measuring 19-Kanals 7-Marlas from defendant No.1. Therefore, they are held entitled to get their sale consideration from the defenda nt No.1 along with interest at the bank rate by way of separate suit and have also right to initiate any other legal remedy against the defendant No.1 in acco rdance with law. Parties are left to bear their own costs. File be consigned to the record room after its due completion."
The petitioners filed an appeal against the judgment and decree dated 01.03.2010 before the learned District Judge, Toba Tek Singh, which was dismissed vide judgment and decree dated 14.07.2010.
4. The decree holder moved for review of Mutation No.556, same was reviewed by the revenue hierarchy and while passing Mutation No.819 on 24.05.2012 with reference to the decree passed by the learned trial court in a suit for specific performance in favour of Muhamm ad Aslam reviewed the mutation and reversed the total land in favour of the seller of the property through Mutation No.556 and thereafter while sanctioning Mutation No.820 on 24.05.2012 transferred 13-kanals 8-marlas land under the said decree from the name of Iftikhar Ahmad the judgment debtor in the name of Muhammad Aslam decree holder . The petitioners being aggrieved by the passing of Mutation No.819 and cancellation of total Mutation No.556 filed an appeal before the Assistant Commissioner/Collector , Toba Tek Singh, which was dismissed holding that if there is any grievance, same be agitated before the civil court. The order of Assistant Commissioner was further challenged before the Commissione r. The Additional Commissioner dismissed the revision petition vide order dated 27.10.2014 in accordance with the order passed by the Assistant Commissioner . This order was further challenged before the Board of Revenue through ROR No.138 of 2015, which too was dismissed vide order dated 22.1 1.2016. Hence, this writ petition.
5. Learned counsel for the respondents while relying upon "Mst. Sharifan Bibi and others v. Member , Board of Revenue, Lahore and others " (1996 CLC 644) and "Allah Dad v. Mst. Noor Bhari and others " (1996 CLC 374) argues that against the mutation proceedings no writ petition is competent.
6. The proposition is very simple. Iftikhar Ahmad was the alleged vendor , whereas Amjad Nazir the second seller through Mutation No.556 in favour of the petitioners was having no concern with the suit for specific performance nor his land transferred through Mutation No.556 measuring 24-kanals 19-marlas in any way connected with the suit, whereas the land in dispute sold by Iftikhar Ahmad in favour of present petitioners measuring 19-kanals 9- marlas was concerned only and the land measuring 13-kanals 8-marlas was in dispute, therefore, while implementation of decree of the civil court in a suit for specific performance dated 01.03.2010 confirmed by the learned appellate court vide judgment and decree dated 14.07.2010 was to the effect of suit land and petitioners were declared bona fide purchasers, therefore, the seller i.e. Iftikhar Ahmad was directed to compensate them and that portion of judgment relates to the land measuring 13-kanals 8-marlas and by no stretch of imagination it can be said that the total land sold in their favour i.e. 19-kanals 9-marlas will be reverse d in favour of the seller Iftikhar Ahmad who malafidely sold the land in their favour . Only 13-kanals 8-marlas land was to be reversed through Mutation No.556, thereafter it was to be transferred in favour of decree holder i.e. Muhammad Aslam and actually it was done through Mutation No.820. I am clear in my mind that no one can get the benefit of his own fraud and if any fraud was committed, that was by Iftikhar Ahmad and all the revenue courts failed to consider this legal aspect.
The technical argument advanced by the learned counsel for the respondents has absolutely no force in the circumstances of this case when Iftikhar Ahmad is the person who committed fraud and he wants to take the benefit of his own wrong. This Court cann ot be a tool in doing injustice and give benefit to a person who committed the fraud when the present petitioners were declared bona fide purchasers by the learned trial court in its judgment dated 01.03.2010, which was af firmed by the learned appellate court.
7. In the above circumstances, the orders passed by the Board of Revenue, Commissioner and Assistant Commissioner are declared to be without jurisdiction and nullity in the eye of law. While implementing the decree of civil court in a suit for specific performance Mutation No.556 was only to be reversed with regard to the land measuring 13-kanals 8-marlas to the seller i.e. Iftikhar Ahmad and the land measuring 13-kanals 8-marlas was to be transferred through Mutation No.820 and actually after sanction of mutation No.820 land measuring 13-kanals 8-marlas was transferred in favour of Muhammad Aslam the plaintif f/decree holder from the name of Iftikhar Ahmad. The concerned revenue officials to correct the record in accordance with the judgment of this Court. This writ petition is allowed in the above terms.