The dispute in this revision petition relates to 55 Kanals 7 Marlas of land situate in Chak No. 153/GB,,Tehsil and District Toba Tek Singh which was purchased by the petitioners from Fateh Muhammad respondent No.l through a registered deed of sale, dated 24th of March, 1966 (Exh.P.9).
It appears that subsequently a dispute arose between the parties as regards the validity of the transaction which was alleged to be violative of Land Reforms Regulation, 1959 (M.L.R. 64 of 1959).
Fatch Muhammad respondent filed a suit against the petitioners praying that it be declared that the sale in question was illegal and void on this ground. This suit was, however, dismissed by the trial Court on 27-2-1975 (Exh.P.5). The appeal filed by the respondent also met with failure and was dismissed by the learned District Judge, Faisalabad on 17-6-1978 (Exh.P.6). It seems that earlier the respondent No.l had tied to evict the petitioners by filing an ejectment petition (Exh.P.l) before the Revenue Court which was, however, dismissed by the Assistant Collector on 1-4-1971.
On 15-11-1978 Fateh Muhammad respondent No.l transferred by way of gift an area of 114 Kanals 3 Marlas to his sons who are respondents Nos. 2 and 3 to the present petition. While making this gift Patch Muhammad notwithstanding the earlier sale in favour of the petitioners, also included the disputed area of 55 Kanals 7 Marlas in the decd of gift.
2. On the basis of this gift a mutation bearing No.161 was entered by the Revenue Authorities in favour of the donees. However, this mutation was rejected by the Assistant Collector and instead with regard to the area in dispute mutation bearing No. 165 (Exh.P.9) was sanctioned in favour of the petitioners on the basis of the sale-deed in their favour. Respondents Nos. 2 to 7 filed an appeal against this decision before the Collector which was dismissed on 17-6-1980. They went before the Additional Commissioner (Rev.) by filing a revision which was, however, withdrawn on 2-4-1981 (Exh.P.4).
During the pendency of this revision petition, an order was passed by the Collector on 4th of March, 1981 whereby he accorded permission to review the order, dated 12th July, 1979 sanctioning Mutation No. 165 in favour of the petitioners. In pursuance of this order, the Revenue Officer proceeded to review the mutation on 24th of March, 1981 and cancelled it on the ground that it was violative of the provisions of M.L.R.
64. It was, in these circumstances that the present suit was filed by the petitioners on 24th of May, 1981 for declaration that they were owners in possession of the suit land and that the order of the Collector permitting the review of Mutation No.165 and its subsequent cancellation by the Assistant Collector were illegal, unlawful, void and without jurisdiction. It may be mentioned that earlier on the basis of the sale-deed in favour of the petitioners Mutation No. 189 was entered in their name which was, however, not sanctioned and the petitioners had filed a civil suit which had been withdrawn by them on 2-10-1970.
The suit was resisted by the respondents by raising various preliminary objections in the written statement. It was stated that the suit was not correctly valued for the purpose of court-fee and jurisdiction, that it was time-barred and also that in view of the withdrawal of the previous suit, it was barred by Order 23, Rule 1, C.P.C. On merits it was pleaded that the sale in favour of the respondents was void being violative of the West Pakistan Land Reforms Regulations, 1959 (M.L.R. 64 of 1959. The learned trial Court after framing necessary issues and recording the evidence of the parties dismissed the suit of the petitioners on 18-2-1986. It was held that as both the parties had violated the provisions of M.L.R. 64, they were in pari delicto and as such the Court should wash its hands of the dispute and the plaintiffs must fail.
3. Aggrieved by this decision the petitioners filed an appeal which was dismissed by an Additional District Judge on 8th of May, 1986. The learned Additional District Judge, held that the Civil Courts could not examine the legality of the orders of the Collector and the Revenue Authorities which were the subject-matter of the suit filed by the petitioners. It was further held that the sale in favour of the petitioners was in violation of M.L.R.
64. The petitioners have assailed the judgments of the two Courts below by filing this civil revision.
4. Ch. Muhammad Farooq, learned counsel for the petitioners has contended that the orders of the Collector and the Assistant Collector passed on 4-3-1981 and 24-3-1981 respectively which were impugned by the petitioners in their suit were illegal, unlawful and void and the two Courts below have acted with material irregularity in dismissing the suit. The learned counsel further argued that the question as to whether the sale in favour of the petitioners was in violation of M.L.R. 64, could not be examined by the Civil Courts but only by the Land Commission Authorities. It was also submitted that as respondent No.l had transferred the land for valuable consideration to petitioners neither he nor his sons and donees (respondents Nos. 2 to 7) could impugne the validity of the transaction and were estopped from doing so.
Mr. Aamar Raza A. Khan, learned counsel for the respondents has, on the other hand, contended that as the sale in favour of the petitioners was clearly void being in violation of paragraph 25 of M.L.R. 64 of 1959, they had no right, title ~-,r interest in the land and the mutation in their favour, which had been sanctioned illegally by the Revenue Authorities was rightly reviewed under the orders of the Collector.
5. The fact that by virtue of the sale-deed executed on 24th of March, 1966, an area of 55 Kanals 7 Marlas of land was alienated by Fateh Muhammad, respondent No.l, to the petitioners stands admitted on the record. On the basis of this sale, Mutation No.165 was sanctioned in favour of the petitioners on 12th of July, 1979. In the suit filed by the petitioners, the validity of the order dated 4th of March, 1981 passed by the Collector allowing review of Mutation No. 165 and its subsequent cancellation by the Assistant Collector on 24th of March,1981 was assailed. The learned Additional District Judge while dismissing the suit of the petitioners refused to examine this question on the ground that in the plaint the order was not being challenged as being without jurisdiction but only illegal and therefore, the Civil Courts could not enter into this controversy. The trial Court, however, did not examine the vires of these orders but instead proceeded to dismiss the suit on another ground.
6. From a perusal of the record, it is apparent that against the order, dated 12th of July, 1979 (Exh.D.l) sanctioning mutation in favour of the petitioners, an appeal was filed by the respondents which was dismissed on 17th of June, 1980 by the Collector. Thereafter a revision petition was instituted by the respondents which remained pending till 2-4-1981 when it was withdrawn. The question which arises for consideration is as to whether the Assistant Collector was competent to review the order sanctioning mutation dated 12th of July, 1979 and the subsequent order passed by him in this respect was legal. Under section 163 of the West Pakistan Land Revenue Act, 1967, an order passed by an Assistant Collector can be reviewed on the grounds mentioned therein. This power has been subjected to certain limitations inter alia, by sub-clause (d) of the proviso to this section which provides that the order against which an appeal has been preferred shall not be reviewed. In the present case, as already mentioned, not only an appeal was filed by the respondents against the order, dated 12th of July, 1979 but it was dismissed by the Collector on 17th of June, 1980. In these circumstances, the Assistant Collector clearly acted in excess of jurisdiction in reviewing the order of mutation and his order is wholly void. Similarly, the order of the Collector allowing the Assistant Collector to review is also without any lawful authority and is in defiance of the mandate of clause
(d) of the proviso to section 163 of the Act. Even on general principle, the question of review by the Assistant Collector, in the circumstances of the case, could not at all arise. It is well-settled that once an appeal is filed against an order, its finality is destroyed and after the decision of the appeal, the original order merges in the appellate order. The only operative order left in the field is the order of the appellate Court. F.A. Khan v. The Government of Pakistan PLD 1904 SC 520 refers. In Shah Muhammad v. Ghulam and another PLD 1970 SC 196 it was observed at page 200 of the report that `if before filing an application for review, an appeal has already been filed and is pending, the Court has no jurisdiction to entertain an application for review. Similarly, where an appeal has been disposed of, an application cannot be made. To the trial Court to review its decision'. The Privy Council in the case of Indrajee Partab v. Amar Singh and others AIR 1923 PC 123 pointed out that where an appeal has been preferred, a review is out of question. Reference may also be made to the decision of a Division Bench of Patna High Court which is directly in point as the facts were almost identical. In that case Dhopal Singh and others v. Ramdevi Dusach and others AIR 1943 Pat. 353 an order passed by the Assistant Settlement Officer was affirmed on appeal by the Settlement Officer. Subsequently, the Assistant Settlement Officer on a receipt of a circular from Settlement Officer reviewed his previous decision. It was held that Settlement Officer had no jurisdiction to review his previous decision not withstanding any direction from the Settlement Officer and order of review was void and of no legal effect.
7. From the above discussion, it is obvious that order of Collector allowing the Assistant Collector to review his order and the subsequent order of review are illegal, void and without jurisdiction. In this view of the matter, the objection that the Civil Courts had no jurisdiction to set aside these orders pales into insignificance, for it is well-settled that if the Revenue Authorities do not comply with the statutory provisions or their orders are contrary to law -a civil suit against these orders would be competent and in such a case it was not necessary to file an application for review. Mian Muhammad Latif v. Province of West Pakistan through the Deputy Commissioner, Khairpur and another PLD 1970 SC 180 refers. The approach of the Additional District Judge to this question is wholly untenable. The petitioners had challenged the orders of the Revenue Authorities as being illegal, unlawful. In these circumstances it could not be held that jurisdiction of Civil Courts was barred or the suit was not maintainable.
8. In the present case, the Assistant Collector had no jurisdiction to review its earlier order which had been affirmed in appeal. On no rational basis could it, therefore, be held that the civil suit was not competent. In the above-cited case Dhopal Singh and others v. Ramdevi Dusach and others AIR 1943 Pat. 353 a similar order was declared to be null and void and the objection as to jurisdiction of civil Court was repelled.
9. The next question which arises is as to whether the Additional District Judge was justified in holding that the sale in favour of the petitioners was void being in violation of the provisions of M.L.R.
64. In this context, as already seen respondent No.l, himself had earlier filed a suit for declaration in which a similar challenge to the sale was made. This suit was dismissed by the trial Court on 27-2-1975, inter alia, on the ground that the jurisdiction of the Civil Court to determine whether or, not a transaction was in violation of the Land Reforms Regulations was barred. Such a question could only be examined and decided by the Land Commission Authorities. This judgment (Exh.P.5) was affirmed in appeal by the District Judge on 17-6-1978 (Exh.P.6). These two decisions were not challenged by the respondents any further and as such became final and debar the respondents from raising the same issue in present proceedings. It is provided in section 11, C.P.C.
That if an issue has already been heard and finally decided between the same parties, no Court shall in a subsequent matter, try the same issue. In the present case, the matter directly and substantially in the former suit between the parties was the same, which was being agitated by the respondents in this suit. They could not, therefore, be permitted to re-agitate the same matter after allowing the judgments in earlier suit to become final. A similar question came up for consideration before the Supreme Court in Muhammad Umar v. Mr. S.M. Nasim, Member Board of Revenue and 9 others 1985 SCM R 1591 where the facts were almost identical, it was observed that:- "... In that judgment the learned Judge had held that the question of the effect of M.L.R. 64 could not be examined by the Civil Courts and had to be raised before the Land Commission. As the petitioner is allowed this judgment to become final, he cannot reopen it by invoking the plea that the mortgage is void, because the plea that a transaction is void only means that a transaction is illegal and by describing the transaction as void, the petitioner cannot get round the bar of res judicata, because of the finding of the Lahore High Court in the judgment by which his second appeal was dismissed..:"
This authority is applicable with full force and the Additional District Judge erred in giving weight to the contention of the respondents that the sale in favour of the petitioners was void.
10. Even otherwise, the question as to whether or not a transaction is hit by the provisions of M.L.R.
64 of 1959 or 115 of 1972, is within the exclusive domain of the Land Commission Authorities and cannot be raised or examined by the Civil Court. In the present case, the respondents could not challenge the validity of the transaction on the ground of the violation of the Regulation and the Civil Courts were debarred from examining this plea. This question was considered by the Supreme Court in Muhammad Umar's case cited above and it was held that the jurisdiction of the Civil Courts to examine it was barred. In Nasir Ahmad Khan v. Mst. Ismat Jehan Begum 1968 SCMR 667 it was observed that:- ".. Paragraph 27 bars the jurisdiction of all Courts including the High Court and the Supreme Court or of any other authority other than an authority appointed under the Regulation, in respect of any matter which the Commission or , an officer acting under the authority of the Commission, is empowered to determine. It would thus appear that the question whether para. 25 invalidates the transaction or not is one falling within the exclusive functions of the Commission or of the Chief Land Commissioner who are charged with the duty of implementing the provisions of the Regulation:"
11. There is no denying the fact that Fateh Muhammad, respondent No.l,' had for valuable consideration transferred the land in question to the petitioners. He, therefore, could not have subsequently made any gift in respect of the same land to his sons who are respondents Nos. 2 to
7. His effort by making such a gift was obviously to gain unfair advantage and was an attempt to overcome the effect of the judgment of the civil Court whereby the suit filed by him was dismissed on 27-2-1975. In Abdul Ghafoor and others v. Muhammad Ismail PLD 1982 SC 364 while examining the provisions of Land Reforms Regulation, 1972, it was observed that paragraph 24 of the Regulation is more a restriction on vendor than on vendee. In Ghulam Muhammad alias Ghulamoon v. Maula Dad and 6 others 1980 SCMR 314, it was observed by the Supreme Court that:- "... We agree with the learned Judge of the High Court that due to the agreement wherein the petitioner had undertaken to do all that was necessary for formally completing the sale and having parted with the possession after receiving the consideration, he could not rely on either para. 25 of Martial Law Regulation 64 of 1959 or on section 19 of the Colonization of Government Lands (Punjab) Act (V of 1912) so as to non-suit the purchasers; particularly when the Provincial Government did not contest the suit nor did any other functionary of the State raise any objection to the declaration sought in the suit.. "
For this reason also the respondent No.l or his successor could not be permitted to plead invalidity of the transfer. It is also to be noticed that the matter having attained finality before the Civil Court in the earlier round of litigation could not ` be reopened by the Revenue Authorities nor could on the same basis the mutation in favour of the petitioners be cancelled.
12. The argument of the learned counsel for the respondents that since the respondents are in possession of the property and both the parties arc in pari delicto the suit be dismissed cannot be accepted, in the context of the present controversy. As already observed, the invalidity of the transaction has been pleaded on the basis of violation of M.L.R. 64 which cannot be examined in the (; present proceedings. The petitioners cannot therefore, be denied the relief on this ground.
Moreover, as observed by the Supreme Court in Abdul Ghafoor's case. Supra, paragraph 24 is more a restriction on vendor than on vendee and,' therefore, it cannot be said that the parties are in pari dclicto.
In view of what has been stated above, this revision petition is accepted and the impugned judgment and decrees of the two Courts below are set aside and the suit of the petitioners is decreed leaving the parties to bear their own costs.