SHAHID BILAL HASSAN, J.---- Facts in nutshell as have been asserted in the instant constitutional petition are as such that predecessor of the parties namely Muhammad Yamin Khan was owner of land measuring 183 kanals 10 marlas falling in Khewat No.301 as per Record of Rights for the year 1965-66 in. Haveli Lakha, Tehsil Depalpur , District Okara; he leased out an area measuring 01 kanal 15 marlas for a period of ten years from 1965 to 1975 to Muhammad Saleh, etc. for the construction of Petrol Pump vide mutation No.368 sanctioned on 30.07.1966; at that time, allegedly the land was temporarily divided in two khewats: one measuring 01 kanas 15 marlas and other for an area of 129 kanals 08 marlas. The predecessor of the private parties namely Muhammad Yamin died in the year 1976. Subsequently , all the legal heirs i.e. five sons And five daughters, partitioned their total property through family partition. Mst. Shagufta Begum, inherited land measuring 07 kanals 11 marlas, however , she sold out land measuring 09 kanals 12 1/2 marlas, which was in excess of her entitlement. Allegedly , the land of the Petrol Pump came under the ownership of father of the petitioner namely Aman Ullah Khan; the petitioner allegedly extended lease in favour of Saleh Khan, etc. from time to time till 19.11.1996 and finally upon determination of lease vide mutation No.9275, the said land measu ring 01 kanal 15 marlas was made part of Khata comprising of land measuring 129 kanals 08 marlas. The father of petitioner alienated the said land measuring 01 kanal 15 marlas through two gift deeds bearing Nos. 2448 & 2449 dated 12.12.1996 in favour of the petitioner and in consequence of these two gift deeds mutations Nos.9606 and 9607 were sanctioned in favour of the petitioner on 28.01.1998.
Musharaf Ali Khan, legal heir of Mst. Shag ufta Begum instituted two civil suits in which he claimed himself to be the owner of land measuring 01 kanal and 15 marlas as legal heir of Mst. Shagufta Begum despite the fact that her mother had already sold out more land than her entitlement. He also filed an application for holding inquiry and correction of record. The said application was dismissed vide order dated 24.05 .2008 by the District Collector , Okara. The said order was challenged by Musharaf Ali Khan before the Executive District Officer (Revenue), Okara, whereas the petitioner got lodged an FIR No.749/2008 against Musharaf Ali Khan on the said score.
Allegedly , during pendency of the appea l, the parties entered into a compromise where-after Musharaf Ali Khan withdrew his appeal vide order dated 05.03.2009 as well as his suits.
One Nasrullah Khan, another co-owner in the Khata initiated process of correction of record and the Assistant Collector/T ehsildar , Depalpur prepared a Fard Badr No.34 dated 18.01.2010, whereby he divided one Khata into two and also created ownership of Mst. Shagufta Bibi who had already sold land in excess of her entitlement.
Through this Fard Badar , the petitioner , who was, as per registered gift deeds, owner in possession of land measuring 01 kanal 15 marlas became landless. The petitioner assailed the said order of preparing Fard Badr dated 18.01.2010 before the District Colle ctor which was dismissed on 22.06.2010 by District Collector (Revenue), Okara. Both the above said orders were assailed by the petitioner before the Additional Commissioner (Revenue), Sahiwal Division, but the appeal was dismissed vide order dated 20.12.2012 and same remained the situation before Board, of Revenue, as revision petition of the petitioner was dismissed on 30.09.2014 and review petition thereof was dismissed on 15.10.2015; hence, the instant constitutional petition calling into question the above said orders.
2. Learned counsel for the petitioner has argued that while deciding the revision petition on 30.09.2014, the learned Member (J-VII), Board of Revenue, Punjab did not pass any speaking order at all, as such, the same cannot be considered as judicial order; adds that it was duty of the learned Member to take into consideration all the points raised by the parties and decide the same after independent application of mind; decision of revision petition in such a cursory manner was an error appa rent on the face of the record and it was the duty of the learned Member to look into all aspects of the case while deciding review petition but the needful was not done; hence, the impugned orders suffer from jurisdictional error, thus, the impugned orders are liable to be declared void and of no legal effect. Contends that while decid ing review petition, the learned Memb er identified certain illegalities committed by the Revenue Officers, but despite all this dismissed the review application, which amounts to renunciation of jurisdiction vested in him. Maintains that after dismissal of the application for holding enquiry regarding alleged wrong entries in revenue record by the learned District Collector , there was no justification for preparation of Fard Badr by Tehsildar but all the forums below while passing the impugned orders have lost sight of the doctrine of res judicata viz. not to open already settled issue. If the responde nts had any grievance, the only course available to them was to approach the civil Courts, because revenue Courts being of summary jurisdiction could not decide intricate issues relating to entitlement of the parties settled and reflected in revenue record for a long time. Maintains that the learned Revenue Officers while passing the impugne d orders on the premise that the matter should be resolved by the civil court, has failed to take into consideration the provisions of section 172 of the Punjab Land Revenue Act, 1967, which bars the jurisdiction of civil court regarding the matters relating to correction of the revenue record, because the revenue officers had the jurisdiction to correct the entries wrongly been altered by preparing Fard Badr. Therefore, the revenue officers by not exercising jurisdiction vested in them, have committed blatant illegalities which have resulted into miscarriage of justice. Hence, by allowing the constitutional petition in hand, the impugned orders may be set aside and declared void and of no legal effect.
Relies on Narayana Prabhu Venkateswara Prabhu v. Narayana Prabhu Karishna Prabhu (dead) by L.Rs. (AIR 1977 Supreme Court 1268) , Kothandarama Gramani v. Sellammal and others (AIR 1959 Madra 524 (V 46 C 167), Mst. Sudehaiya Kumar and another v. Ram Dass Pandey and others (AIR 1957 Allahabad 270 (V 44 C 82 May), Land Acquisition Officer and Assistant Commissioner , Hyderabad v. Gul Muhammad through Legal Heirs (PLD 2005 Supreme Court 311) and Mst. Shireen Khanum v. Member (Revenue), Board of Revenue, Punjab, Lahore and others (2001 YLR 2387 -Lahore).
3. On the contrary learned counsel representing the respondents has argued that factual controversy is involved, which cannot be resolved through this writ petition, because a suit for declaration was instituted on 02.02.2010, which is pending between the parties and in paragraph No.5 of the said civil suit, the order with regards to Fard Badr bearing No.34 dated 18.01.2010 has been challenged and the same was impugned through this writ petition as well. Moreover , a suit under section 5 of the Specific Relief Act, 1877 was also filed on 06.07.2010 on the same subject matter relating to the issuance of said Fard Badr , which is in issue before this Court. Moreover , two civil suits germane to the same property on the basis of said Fard Badr were also filed on 23.12.2010 and 02.10.2012, respectively . A suit was also filed on the same subject matter on 02.07.2013. Adds that the matter with regards to Fard Badr No.34 dated 18.01.2010 has been decided by the revenue hierarchy upto the Board of Revenue and it has been observed that matter in dispute is of civil nature and the Civil Court being the competent jurisdiction will decide the matter; hence, the impugned orders were based on proper exercise of jurisdiction. Prayer for dismissal of the constitutional petition in hand has been made. Relies on Rai Ashraf and others v. Muhammad Saleem Bhatti and others -, (PLD 2010 Supreme Court 691), Dr. Muhammad Tahir-Ul-Qadri v. Federation of Pakistan'through Secretary M/o Law, Islamabad and others (PLD 2013 Supreme Court 413), Civil Aviation Authority through Director General and 3 others v. Mir Zulfiqar Ali and another (2016 SCMR 183), Muhammad Sarwar v. Additional District Judge, Faisalabad and 5 others (2017 CLC 1361 -Lahore) and Park View Enclave (Pvt.) Ltd. through Chief Financial Officer v. Capital Development Authority through Chairman and 2 others (2018 CLC 947 -Islamabad).
4. Heard.
5. There is no cavil to the proposition that factual controversy cannot be considered and dealt with while exercising constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 and if the Court reaches to such conclusion, the relief sought for by the petitioner in such petition cannot be granted.
6. In the present case, admittedly , the petitioner has opted to approach the Court of ultimate jurisdiction i.e. Civil Court by instituting suits for declaration, wherein he has challenged the vires of Fard Badr No.34 dated 18.01.2010, certified copies of which have been submitted by the rival party , which are titled "Irfan Ullah Khan v. lyasrullah Khan and others" and "Irfan Ullah Khan v. Tehseen Ullah Khan and others "; moreover , another suit on the same subject matter titled "Sardar Ahmad Afzal and others v. Irfan Ullah Khan and others " is also pending adjudication.
The Revenue Officers upto the Board of Revenue, after such development vide impugned orders, have standstill their hands from making any interference in the order passed with regards to Fard Badr dated 18.01.2010 and have observed that as the matter with regards to cancellation of registered sale deeds falls within jurisdiction of Civil Court, where litigation is pending inter se the parties. In this scenario, when the petitioner and the rival party has already approached the Court of ultimate jurisdiction and has challenged the validity of Fard Badr , the forums below giving observations as stated above have not committed any illegality and have exercised vested jurisdiction as per mandate of law, because the reven ue hierarchy is bound to implement the decree passed by Civil Court and cannot say "no" to a decree determining rights of the parties.
7. Here comes the doctrine of election into play. In Black's Law Dictionary 11th Edition, "Election" is defined as: "the exercise of choice; esp., the act of choosing from several possible rights or remedies in a way that precludes the use of other rights or other remedies. Needless to observe that the petitioner has already knocked the door of Civil Court by instituting suits for declaration, obviously on the same set of facts, challenging the wires of Fard Badr , subject matter in the present constitutional petition, besides other documents; thus, when the position is as such, the doctrine of election comes into play in full force.
The August Supreme Court of Pakistan in Trading Corporation of Pakistan v. Devan Sugar Mills Limited and others (PLD 2018 Supreme Court 828), has invariably held that:- The moment suitor intends to commence any legal action to enforce any right and or invoke a remedy to set right a wrong or to vindicate an injury , he has to elect and or choose from amongst host of actions or remedies available under the law. The choice to initiate and pursue one out of host of available concurrent or co-existent proceeding/ actions or remedy from a forum of compe tent jurisdiction vest with the suitor . Once choice is exercised and election is made then a suitor is prohibited from launching another proceeding to seek a relief or remedy contrary to what could be claimed and or achieved by adopting other proceeding/action and or remedy , which in legal parlance is recognized as doctrine of election, which doctrine is culled by the courts of law from the well-recognized principle of waiver and or abandonment of a known right, claim, privilege or relief as contained in Order II, Rule (2) C.P.C., principles of estoppel as embodied in Article 114 of the Qanun-e-Shahadat Order , 1984 and principles of res- judicata as articulated in section 1 1, C.P .C. and its explanations. '
Apart from above vivid observations, the Apex Court of the country has further held in the same case:- 'Fair trial, does not envisage recourse to successive remedies one after another against one and the same impugned order on substantially same set of facts and pleadings seeking substant ially similar relief, as it would be against the doctrine of election, as expounded above.'
In addition to the above, this Court in Muhammad Boota v. Judge Family Court and others 2019 CLC 640- Lahore (Multan Bench) has already held:- 'It is by now settled that where more than one remedy is available to a person and he avails one of those remedies for redress of his grievance, he cannot later on abandon that remedy and turnaround to seek another remedy'
With further observation that:- "Reliance in this regard is placed on Messrs Shell Pakistan Limited through Legal Affairs Advisor and Attorney v . Aurangzeb Khan (2005 PLC 424 ) wherein it is held as under: `It is a settled principle of law that where two remedies are available to a person he has option to choose either of the two remedies however once he exercises such option, he could not resort to the other remedy .'
Earlier to this, the Hon'ble Sindh High Court was also of the same view in a judgment reported as Raees Ghulam Sarwar Through Attorney v . Mansoor Sadiq Zaidi and others (PLD 2008 Karachi 458 ).
8. Pursuant to the above, any decisive observation at this stage, especially when factual controversy is involved in the matter in hand and matter is sub judice before the Court of competent jurisdiction inter se the parties, would prejudice case of either of the party .
9. Another aspect in this case is germane to splitting of claim. It is settled principle, by now, that splitting of claim by a party is against the spirit of law as provi ded under Order II, Rule 2 of the C.P.C. The rationale behind Rule 2(1)(2)
(3) of Order II, Code of Civil Procedure, 1908 clearly indicates that the Legislature introduced the said provisions to control splitting up of claim and to restrict the multiplicity of suits- Mian Muhammad Iqbal v. Mir Mukhtar Hussain and others (1996 SCMR 1047 ).
On this subject, this Court in Zahoor Ahmad v . Master Mushtaq Ahmad (2016 CLC 937 Lahore), has observed:- `Order II, Rule 2, C.P.C. stipulates that if the cause of action is the same, the plaintiff has to prefer all the claims arising thereunder before the court in on suit. It, therefore, prohibits splitting of claim and enjoins unity of all claims based on the same cause of action in one suit. The object appears to prevent further litigation between the same parties over the same cause of action and this object is very much apparent from the language of Rule 1 which states that "Every suit shall as far as practicable be framed so as to afford ground for final decision upon the subjects in dispute and to prevent further litigation concerning them." The term 'cause of action' in the context of Order II, Rule 2, C. P. C. has often explained as the facts which give occasion to and form the foundation of the suit. The Privy Council in a judgment reported as Muhammad Khalil Khan and others v. Mahbub Ali Mian and others PLD 1948 PC 131 has defined "cause of action" as every fact which will be necessary for the plaintiff to prove, if traversed, in order to support his right to judgment. In Ranbir Singh v. Dalbir Singh and others Decided on 18th of July, 2012 by the Delhi High Court, the rationale of Order II, Rule 2, C.P.C. was explained in the following terms: 'A plain reading of Order II, Rule 2 shows that mandate of law is that when a caus e accrues, all actions which are required to be taken based on the said cause have to be included in one proceeding unless leave of the court is sought, and obtained, under Order II, Rule 2 of the Code of Civil Procedure. The policy of law behind this rule is that it is in the interest of the State and the citizens that litigation is brought to an end at the earliest and that no person is vexed twice for the same cause."
Avoiding multiplicity of unnecessary legal proceedings, in different forums, should be an aim of all courts D.
Cawasji & Co. and others v. The State of Mysore and another on 29 October , 1974 (AIR 1975 ??? 813, 1975 SCR (2) 511). Therefore, when the petitioner has, as referred to supra, elected to avail remedy before the Civil Court, which is Court of ultimate jurisdiction, the revenue Courts have rightly withheld themselves from deciding the lis on merits.
10. For the foregoing reasons and discussions while placing reliance on the judgments supra , the constitutional petition in hand having no IG force and substance stands dismissed. No order as to the costs.