ZULFIQAR AHM AD KHAN, J. Petitioners Zafar Ahmed Asharafi and Zubair Ahmed Khan Ashrafi being aggrieved and dissatisfied from the order dated 9.12.2019 passed by learned Senior Member Board of Revenue Sindh in Revision Application No. SROR-52 of 2019, whereby he while allowing the Revision Application set-aside the order dated 3.7.2019 passed by Additional Commissioner-II, Hyderabad and order dated 25.7.1998 of Additional Deputy Commissioner-I, Hyderabad, has filed the instant petition praying therein to call for record and proceedings of the above Revision Application and after its scrutiny set-aside the same.
2. Brief facts of the case are that respondent No.6 Aftab Hussain son of Altaf Hussain approached through an application to the office of City Survey Record Hyderabad for mutation of his name in the record on the ground that his father was transferee of Shop bearing C.S. No. D/321/1, acquired by virtue of PTD No. 14276 issued by Deputy Settlement Commissioner, Hyderabad on 27.7.1966; the said department instead of mutating his name issued him Rubkari informing that he is in possession of Parts of C.S. Nos. 1 to 3 and Part of C.S. No.321 Ward-D situated at Chotki Ghitti, Hyderabad and advised him to get his PTD corrected from the concerned authority, as such he moved an application dated 24.6.1997 to Additional Deputy Commissioner-I Hyderabad who vide order dated 25.7.1998 allowed the correction.
3. Respondent No.8 Hafiz Shafique Ahmed feeling aggrieved with the above order filed F.C. Suit No. 253 of 1998. During pendency of the suit respondent No.6 Aftab Hussain moved an application under Order VII, Rule 11, C.P.C. which was dismissed and against said dismissal he filed Civil Revision Application No. 09 of 2002 before learned District Judge, Hyderabad which was allowed by VIth Additional District Judge, Hyderabad vide order dated 28.2.2003; against the said order respondent No.8 Hafiz Shafique Ahmed filed C.P. No. D-139 of 2003 before this court which also dismissed vide order dated 21.12.2006. Feeling aggrieved with the said order he challenged the said order before Hon'ble Supreme Court of Pakistan in Civil Petition No. 124-K of 2007. The petition was dismissed as not pressed as he wanted to seek his remedy before the proper forum.
4. Subsequently, respondent No.8 filed Appeal before Commissioner Hyderabad Division, who also dismissed his appeal. Against the said dismissal he approached Senior Member Board of Revenue, Sindh by filing Revision Application No. SROR-52 of 2019 who allowed the same vide order dated 9.12.2019 and against the said order instant petition has been filed.
5. Heard learned counsel for the parties and perused the material available on record.
6. Learned counsel for the petitioners mainly argued that the order of Senior Member Board of Revenue was not competent to hear the appeal under Settlement Laws as the said law was repealed on 28th January 1975 and after its repeal only the Civil Court was competent to hear and decide the case of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975. Since the respondent No.6 Aftab Ahmed after repeal of above act approached the Civil Court through F.C.
Suit No. 253 of 1998 which was allowed in Civil Revision Application No. 09 of 2002 and respondent No.8 Hafiz Shafique Ahmed filed C.P. No. D- 139 of 2003 which was also dismissed vide order dated 21.12.2006 and against the said order respondent No.8 approached Hon'ble Supreme Court where he also failed and did not press his petition, hence the proceedings attained finality and as stated above learned Senior Member Board of Revenue had no authority to pass any order under Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975. He further argued that under section 172(vi) of Land Revenue Act it is provided that the correction of any entry in a record of rights, periodical record or register of mutations; is the power of Revenue Officer. That the PTD was issued to Aftab Ahmed after by orders of District Judge and Ex-Officio Settlement Commissioner on 16.7.1966 and 54 years have been passed, therefore, Senior Member Board of Revenue was not competent to cancel the mutation in the revenue record as Article 100 of Qanun-e-Shahadat Order provides that 30 years old document shall not be questionable before any court of law. He further submitted that under section 172(2) of Land Revenue Act 1967 provides that once a person approached the civil court then the Revenue Courts are restrained, even under section 09 of C.P.C. the civil court is the court of ultimate jurisdiction. He lastly contended that the City Survey Officer under section 172(6) Land Revenue Act issued roobkari and send to the notified officer i.e. ADC-I Hyderabad who had the jurisdiction under Land Revenue Act to pass order, hence all the forums are exhausted by the respondent No.8 and they are looser, hence the instant petition be allowed and the order of Senior Member Board of Revenue be set-aside being void ab-intio and had been passed without jurisdiction. In support of his contention, he relied upon the cases reported as 1997 SCMR 1840; 2000 CLC 685 and PLD 1984 Karachi 62.
7. On the other hand learned counsel for respondent No.8 submits that after repeal of Settlement Laws on 1.7.1974 the above petition is not maintainable; that petitioners 1 and 2 have concealed the fact that F.C. Suit No. 248 of 2020 is pending between the parties in which petitioners have filed written statement and pleading same case before two courts against the order of Senior Member Board of Revenue which shows mala fide intention of petitioners; that Settlement Laws repeated on 1.7.1974, the petitioners filed application on 24.6.1997 for correction in PTD of 27.7.1.966. after 32 years of repeal of settlement laws; that the petitioners managed the PTD in which the name of Allahdin in C.S. No. 321 was cancelled in the year 1960; that ADC-I, Hyderabad had no jurisdiction to entertain the application after Repealed of Settlement Laws;
8. Perusal of record shows that ADC-I passed the order on 25.7.1998 which is reproduced below:- " This case has been initiated on an application of Aftab Hussain son of Altaf Hussain requesting for correction of City Survey No. according to the Rubkari of City Surveyor Western Circle Hyderabad.
Applicant's deceased Grand father Allahdin son of Budhaji had been transferred his occupied shop on his 'CS' form showing its No. as D/321/1. The applicant's fathers Altaf Hussain and his two brother Ashique Hussain and Sadiq Hussain being successor-in-interest of deceased transferee Allahdin were issued P.T.D. -accordingly on 27.7.66.
When the applicant approached the City Survey office for mutation of the said P.T.D he has been issued a Rubkari dated 13.6.97 by the City Surveyor Western Circle Hyderabad to the effect that the shop in question is situated on parts of C.S. Nos. D/1 measuring 10.0 sq. yds D/2 measuring 8.5 sq. yds, D/3 measuring 5.7 sq. yds and D/321 measuring 5.1. sq. yds, as shown in the possession site plan drawn by a licensed Architact instead of D/321/1 as shown in the P.T.D. As such the applicant has approached this office for necessary correction of C.S. No. This position has also been verified by the concerned official of this office and found the shop in question is situated on C.S. Nos. on the G/F as prescribed in the Rubkari issued by the C.S. office. It is further reported that on the site there is a double storey building constructed on 4 C.S. Nos. viz. D/1, D/2, D/3 and D/321 belonging to same Evacuee owner Dialdas and others which consist of 5 shop on G.F. and one residential house on F/F of the all 5 shops.
In the Rubkari it was further disclosed that C.S. No. D/1 was originally mutated in the name of Mst.
Mohsana Begum against full area on G/F vide P.T.D. dated 6.4.73, which now stands finally entered in the name of Hafiz Shafique Ahmed son of Fayyaz, Ahmed through Registered Sale' Deed. The C.S. No. D/321 is measuring 28.0 sq.yds and is shown to have been entered in the name of Bundoo son of Ghulam Rasool on the basis of P.T.D. dated 8.3.68 who also sold the said property.
According to the record of the defunct Settlement Department, 5 shops and one residential house on F/F have been transferred to following persons on the basis of 'physical possession showing Nos. according to the D.V.L. register S. No.Property No.Name of original transferee.
1. D/1 Shop Mst. Mohsina Begum widow of Shafiul Hassan.
2. D/2 Shop Karim Bux son of Hussain Bux
3. D/3 Shop Mohammed Ismail son of A. Rehman
4. D/321/1 ShopAltaf Hussain and others son of Allahdin (applicant)
5. D/321/1 ShopM. Ismail son of A. Rehman
6. D/321 HouseBundoo Khan son of Ghulam Rasool Since the G/F of the C.S. No.D/1 and D/321 was wrongly entered by the City Survey office originally in the name of Mst. Mohsina Begum and Bundoo on the basis of P.T.D., apparently without the site verification and getting the possession site plan from the concerned transferees, the correction of C.S. No. as prayed by the applicant, the transfer position of the said two transferees also needs clarification, to facilitate the mutation in the C.S. record of the P.T.D of the applicant and the said two transferees properly. The said two transferees/present owners were issued notices for appearance for correction of C.S. No. Mr. Saeeduddin Siddiqui Advocate appeared for the applicant Aftab Hussain and Syed Masood Ali Advocate for the opponent Hafiz Shafique Ahmed, while Bundoo choose to remain absent, the learned counsel for the applicant and the respondent, have been heard at length. It has been argued by the learned counsel for the respondent that his client has purchased the shop through Sale Deed which stands mutated on a area of 26-2 sq.yds this office has no jurisdiction to make any amendment in the record after repealing the settlement law, but refrained to deny the factual position of the situation of the shop of the applicant and the respondent on the site shown in the possession site plan drawn by a licensed architect.
The learned counsel for the applicant argued that the above said shops and the residential house transferred to respective transferees on the basis of possession, hence whatever was in possession of Mst. Mohsina Begum was transferred to her on her "C.S. form as shop showing No. D/1 and was accordingly issued P.T.D. there is no mention of area 26.2 sq,yds in the P.T.D.
As such she actually sold the shop in her physical possession and put the purchaser into possession of the said shop. The City Survey office wrongly mutated the shop on whole area of C.S. No. without site verification and similar position of the house transferred to Bundoo showing No. D/321. Since it is mistake of mutation/transfer authority this office is competent to allow the correction of C.S. No. in the P.T.D. The learned counsel of the applicant has reliance of the ruling PLD 1980 Karachi 99 granting correction in the P.T.D.
In view of the above factual position and arguments of the learned counsel of the applicant I have no hasitation but to allow the correction of C.S. No. in the P.T.D. of the applicants father according to the Rubkari of City Survey office Hyderabad.
It is accordingly ordered that necessary correction be made in the P.T.D. of Altaf Hussain and others son of Allahdin.
A copy of the order be sent to the City Survey officer Hyderabad for mutation of the corrected P.T.D. of applicant and making necessary entries for the shop transferred to Mst. Mohsina Begum to the extent of area in possession of transferee/present owner after getting possession site plan and verification of the site.
9. After passing of the above order Respondent No.8 Hafiz Shafique Ahmed filed Civil Suit. hi the said suit respondent No.6 Altaf Hussain moved an application under Order VII, Rule 11, C.P.C. which was dismissed; against the said dismissal he moved Revision Application before Additional District Judge, Hyderabad who allowed, the Revision Application and dismissed the suit of respondent No.8. He challenged the said order before this Court in Constitutional Petition which was also dismissed. Hence he approached the Hon'ble Supreme Court by filing petition. The said petition before Hon'ble Supreme Court of Pakistan was disposed of in the following terms: "After arguing out the petition at some length, Mr. Shakeel Ahmed, learned ASC for the petitioner, states that the petitioner would like to seek his remedy before the proper forum of law that may be available to him. In this view of the matter, he does not press this petition which accordingly disposed of as not pressed".
10. Subsequently, Hafiz Shafique Ahmed filed Appeal before Additional Commissioner-II, Hyderabad which was disposed of in the following terms :- "On the point of correction of City Survey Number by learned Additional Deputy Commissioner-I Hyderabad, he has rightly held that since there is no mention of area of PTD hence the same is to be decided on the basis of possession to the extent of area in possession after getting the possession site plan and verification of the site. Mere mention of City Survey number mistakenly in PTD, does not provide ownership rights.
As regards on the issue of jurisdiction; the advocate for appellant has argued that since the law has been repeated in 1975, and learned Additional Deputy Commissioner-I, Hyderabad, has no authority to interfere in the matter.
This argument of learned Advocate is very much clarified in section-4 of The Evacuee Property and Displaced Persons Laws (Repeal) Act 1975 which allows disposal of residue work and the Provincial Government notified every Collector of the district for disposal of residue work and it is also natural justice that if any error is left in city survey numbers etc. may be rectified in order to update the record and third party litigation.
In light of the discussion above, I found no reason to modify/set aside order of learned Additional Deputy Commissioner-I as no irregularity is observed. I, therefore, hereby upheld the order dated 25.07.1998 of learned Additional Deputy Commissioner-I and the status quo is vacated.
11. Feeling aggrieved with the aforesaid orders, Hafiz Shafique Ahmed moved Revision Application before Senior Member Board of Revenue Sindh who vide order dated 9.12.2019 allowed the Revision setting aside the order of Additional Commissioner-I and Additional Commissioner-II, Hyderabad.
The order is reproduced below:- "Heard the arguments of learned counsel for both the parties and perused the original record of city survey viz. relevant Ruled Card which shows following status of ownership in the respective Ruled Cards of the properties in City Survey numbers (a) D/1, (b) D(2, (c) D/3 and C.S. 321 before the impugned correction made under the orders of learned Additional Deputy Commissioner-I, Hyderabad dated 25.7.1998.
(a) C.S. No. D/1= As per original Ruled card of City Survey Taluka City Hyderabad this property bearing C.S. No. D/1 admeasuring total area 26-2 sq.yds and fts is entered in Ward D and shown transferred in the name of Mst. Mohsina Begum widow of Shariful Hassan on the basis of claim vide PTD No. 24578 dated 6.4.1973.
Subsequently the property is seen transferred in the names of present successor-in-interest namely Hafiz Shafique Ahmed son Haji Fayaz Ahmed.
(b) CS No. D/2= As per original Ruled Card of City Survey Taluka City Hyderabad the property bearing C.S. No. D/2 admeasuring total area 23-00 sq.yds and fts is entered in Ward D out of which an area admeasuring 12-1 sq. yds and ft is seen transferred in the name of Mr. Karim Bux son of Hussain Bux on the basis of claim vide PTD No. 12551 dated 24.6.1965. Subsequently the said area is seen transferred to others upto last entry on 10.04.1988.
(c) C.S. No. D/3= As per original Ruled card of City Survey Taluka City Hyderabad the property bearing C.S. No D/3 admeasuring total area 23-00 sq.yds and fts. is entered in Ward D out of which an area admeasuring 6-1 sq.yds and ft stands transferred in the name of Mr. Muhammad Ismail son of Abdul Rehman on the basis of claim vide PTD No. 1581 dated 2014.1962. Subsequently the said area is seen transferred to others upto last entry on 29.05.1988.
(d) CS No. 321= As per original Ruled card of City Survey Taluka City Hyderabad the property bearing C.S. No. 321 admeasuring total area 28-00 sq.yds is entered in Ward D out of which an area admeasuring 22-8 sq.yds and ft stands transferred in the name of Bundoo son of Ghulam Rasool on the basis of claim vide PTD No. 18126 dated 8.3.1968.
Subsequently the property stood transferred in the names last successor in interest namely Haji Abdus Sattar son of Suleman on 29.08.1998.
From the above, it would be seen that property Shop D/1 exhausted its full area. 26-02 against a valid claim. Whereas properties D/2, D/3 and CS No. 321 were transferred to the extent of partial areas and the remaining 8-5, 5-7, 5-1 sq.yds and fts being government property was available in the above said city survey numbers respectively. Altaf Hussain, Ashique Hussain and Sadiq Hussain sons of Allahdin have managed a PTD No. 14276 dated 27.07.1997 in lieu of a purported claim in the name of Messrs Allahdin, Muhammad Hussain, Abdul Razzak which was cancelled on 5.4.1960 as he was not willing to purchase these shops as apparent from an entry of the said copy of document.
But afterwards in recent past, the above named legal heirs managed a very obvious insertion in the said copy of PTD which is apparent from the face of photocopy showing that a new City Survey number as CS No. 321/1 (area 5-1 sq.yds) D/1 (area 10-00 sq.yds) D/2 (area 8-5 sq.yds) and D/3 (area 5-7 sq.yds), and presented the said fabricated document to the Additional Deputy Commissioner-I, Hyderabad for "correction" in the record of City Survey, Taluka City Hyderabad.
Here along with others, I have mainly observed two things: that area of D/1 viz. 26-00 sq.yds stood already fully exhausted in lieu of PTD No. 24578 dated 6.4.1973 whose entry in the City Survey Record, I can see has been validly made on 4.5.1978 and subsequently transferred through a valid Registered deeds upto the name of present appellant. The question is, how its area to the extent of 10-00 sq.yds was shown un-utilized? Secondly, if the settlement department issued PTD to Allahdin in the year 1966 in respect of C.S. No. 321 then how the entry in the said Ruled Card in the name of original owner Bundoo son of Ghulam Rasool in the year 1968 was maintained?
Obviously, Allahdin (predecessor-in-interest of Altaf and others) ought to come first in the entry of area purported to be allotted to him!
Be that as it may, the Additional Deputy Commissioner-I, Hyderabad vide his impugned Order dated 25.7.1998 has allowed the corrections on the basis of a fake, managed and fabricated PTD No. 14276 dated 27.7.1966 in the above referred original Ruled Card as follows:-- a) The area of D/1 Shop property was corrected from its original area in the name of present applicant viz. 26-02 sq.yds fit to the extent of 16-02 sq.yds ft and the reduced area of 10-00 sq.yds ft allowed in the ownership of the fake owner namely (1) Altaf Hussain (2) Ashique Hussain (3)
Sadique Hussain son of Allahdin who had been shown as original owner of such area.
A balance area (purported to be Government area) admeasuring 8-5 sq.yds out of D/2 Shop- property was corrected and allowed in the ownership of the fake owner namely. (1) Altaf Hussain
(2) Ashique Hussain (3) Sadique Hussain son of Allahdin who had been shown as original owner of such area. c) A balance area (purported to be Government area) admeasuring 5-7 sq.yds out of D/3 Shop- property was corrected and allowed in the ownership of the fake owner namely (1) Altaf Hussain
(2) Ashique Hussain (3) Sadique Hussain son of Allahdin who had been shown as original owner of such area. d) A new C.S. No. 321/1 was created allowing its remaining area from C.S. No. 321 viz. 5-1 sq.yds area coupled with balance areas of D/1, D/2 and D/3 and allowed in the ownership of the fake owner namely (1) Altaf Hussain (2) Ashique Hussain (3) Sadique Hussain son of Allahdin who had been shown as original owner of such area.
I can also see that there is no entry of the claim of private respondents in the City Survey Record up-till 1998 and for the first time such entry is made on the basis of order dated 25.7.1998 of Additional Deputy Commissioner-I, Hyderabad for which he was incompetent to decide the matter after a long period of 32 years under the Limitation Act, 1908. The Additional Deputy Commissioner- I, Hyderabad also erred that the Evacuee law had been repealed in the year, 1974 and also such act does not come under the residuary work for which provision of Section 4 of Settlement Law 1975 (Repealed) has defined that those matters are said to be residual work which are pending before competent Courts before the repeal of settlement law. There is no instance which prove that such claim of respondents (herein) was pending ever before, any authority / Court before repeal of Evacuee law, though it was particularly asked form the Counsel for respondents to prove such act as a residual work under the repealed Evacuee law but he failed.
Keeping in view the arguments of both the parties and record as well as case law so perused, I hold that PTD No. 1426 dated 27.7.1966 was already cancelled as Allahdin did not want to purchase such property and the same has fraudulently been managed to exist in collusion with concerned City Surveyor who in the knowledge of balance area in the above referred properties being Government property, hence the same is a nullity and is hereby cancelled. Secondly, the order dated 03.07.2019 passed by 'Additional Deputy Commissioner-II Hyderabad as well as order dated 25.07.1998 of Additional Deputy Commissioner-I Hyderabad carries material legal defects and, irregularities under the law and are not sustainable hence both the order's are hereby set-aside. Consequently, the corrections curtailing area of 10-00 sq.yds (shop) made in the Ruled Card pertaining to CS No. D/1, area 8-5 sq.yds ft (shop) made in the Ruled Card pertaining to CS No. D/2, 05-7 sq.yds ft
(shop) made in the Ruled Card pertaining to CS No. D/3, and creating a new C.S. No. 321/1 with its area as 5-1 sq.yds fit with addition of areas of above said other CS Nos of Ward D Taluka City Hyderabad is hereby cancelled and the status of the said properties including its area is restored to its original positions as were before passing impugned orders".
12. Admittedly, the Evacuee Property and Displaced Persons Laws were repealed in 1974 and after its repeal Land Revenue Act Sindh was promulgated and under the said Act the Revenue Officer/ Mukhtiarkar was authorized to correct any entry in the record of rights, periodical record or register of mutations. The said Revenue Officer issued Rubkari and on the basis of which respondent No.6 moved application to ADC-I who allowed the application and ordered for necessary correction.
Against the said order respondent No.8 approached the civil court by filing Civil Suit. In the suit respondent No.6 Altaf Hussain moved an application under Order VII, Rule 11, C.P.C. which was dismissed but in Revision before Additional District Judge, the said application was allowed and the suit was dismissed. Against the said dismissal respondent No.8 filed Constitutional Petition before this court which was also dismissed, hence he approached Hon'ble Supreme Court; where the respondent No.8, himself did not press the petition which was dismissed being not pressed. After withdrawal of petition from Hon'ble Supreme Court the respondent No.8 approached ADC-II, by filing Revision Application which was dismissed and against such dismissal he moved Revision Application before Senior Member Board of Revenue allowed his Revision Application. The perusal of order of Senior Member Board of Revenue shows that it has been passed without jurisdiction as after promulgation of Land Revenue Act he was snatched with the power of hearing the Revision and further he has wrongly hold that PTD No. 14276 dated 27.7.1966 was already cancelled as Allahdin did not want to purchase such property. Perusal of said PTD shows on 25.4.1960 transfer in favour of Allahdin and others was cancelled as he was not willing l to purchase the shop, on 24.1.1964 Mr. Allahdin expired and his sons Altaf Hussain, Ashique Hussain, Sadar Hussain were appointed his legal heirs, on 17.11.1964 the shop was transferred to Mr. Ismail son of Abdul Rehman through auction and on 17.1.1964 the auction proceedings in favour of Mr. Ismail were confirmed; on 21.5.1995 Altaf Hussain moved Application No. 63 of 1965 before Additional Settlement Commissioner, Hyderabad which was dismissed being time barred, hence on 21.5.1995 he filed Revision Application No. 93 of 1965 before Settlement Commissioner and District Judge, Hyderabad which was allowed and auction in favour of Muhammad Ismail was cancelled and shop transferred to Mr. Atlaf Hussain and his brothers on 16.7.1966 and such PTD No. 833 dated 6.11.1989 was issued in their favour. The Senior Member Board of Revenue was not competent to hear the appeal under Settlement Laws as the said law was repealed on 28th January 1975 'and after its repeal only the Civil Court was competent to hear and decide the case of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975. The respondent No.6 Aftab Ahmed after repeal of above act approached the Civil Court through F.C. Suit No. 253 of 1998 which was allowed in Civil Revision Application No. 09 of 2002 and respondent No.8 Hafiz Shafique Ahmed filed C.P. No. D- 139 of 2003 which was also dismissed vide order dated 21.12.2006 and against the said order respondent No.8 approached Hon'ble Supreme Court where he also failed and did not press his petition, hence the proceedings attained finality before the Civil Court and under section 172(2) of Land Revenue Act 1967 once a person approached the civil court then the Revenue Courts are restrained, even under section 09 of C.P.C. the civil court is the court of ultimate jurisdiction, therefore, Senior Member Board of Revenue had no authority to pass any order under. Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 and ADC-I has rightly passed the order as under section 172(vi) of Land Revenue Act it is provided that the correction of any entry in a record of rights, periodical record or register of mutations is in the ambit of Revenue Officer. This view finds support on the case reported as 1997 SCMR 1840; 2000 CLC 685 and PLD 1984 Karachi 62.
13. For the above reasons, instant petition is allowed and the order of Senior Member Board of Revenue is set-aside. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.