This judgment shall also deal with and dispose of C.R. No.214 of 1977, C.R. No.215 of 1977 and C.R.
No.216 of 1977 as the common questions of law and facts are involved therein.
2. Sadiq- Ali, who is petitioner in all the four civil revisions, was allotted a piece of land measuring 101 Kanals 18 Marlas situated in the area of Chak No.123/RB, Tehsil and District Sheikhupura. His allotment was confirmed on 28-11-1953. Out of this land, he mortgaged 8 Kanals and 13 Marlas with one Sher Muhammad son of Fazal Din and the mortgage mutation was sanctioned on 3-3-1959.
On 4-7-1959 another piece of land measuring (sic) was allotted and confirmed to him.
Out of the aforesaid land, he sold 17 Kanals 6 Marlas to Ghulam Muhammad, vide Sale Mutation No. 143 sanctioned on 26-11-1959. At the time of this sale he was allottee of 119 Kanals 4 Marlas, inclusive of 8 Kanals 13 Marlas which he had mortgaged in favour of Sher Muhammad aforesaid. Then he sold 6 Kanals 4 Marlas to the same Ghulam Muhammad vide Sale Mutation No.251 sanctioned on 25-2-1962. Subsequently, by Sale Mutation No. 198 sanctioned on 11-5-1962 he sold 7 Kanals, 18 Marlas in favour of Munir Ahmad and others. Then he sold 8 Kanals 9 Marlas vide Sale Mutation No.247 sanctioned on 6-8-1963 in favour of Shahab-ud-Din and others. Later he disposed of another piece of land measuring 25 Kanals 2 Marlas to Ghulam Muhammad son of Natha vide Sale Mutation No.251 sanctioned on 21-9-1963. He sold yet another piece of land measuring 25 Kanals 4 Marlas to him vide Sale Mutation No.264 attested on 30-8-1964. Then he disposed of 24 Kanals 18 Marlas to Sher Muhammad vide Sale Mutation No.273 sanctioned on 15-2--1965. His last sale transaction was that of 3 Kanals 3 Marlas in favour of Ghulam Muhammad by means of Sale Mutation No.28 sanctioned on 16-11-' 1967. In this way the total land sold by the petitioner in favour of Ghulam Muhammad son of Natha by different sale transactions was 59 Kanals 13 Marlas and he in turn gifted it in favour of his sons who were plaintiffs in Suit No.492, ultimately giving rise to C.R.
No.215 of 1977. i
4. It appears that after some time a dispute arose between the petitioner and the vendees and he agitated the matter before the Revenue Authorities, challenging the validity of the sale transactions by alleging the violation of Martial Law Regulation No.64 and the Assistant Commissioner, Sheikhupura, exercising the powers of Collector, vide his order, dated 23-2-1973, held all the aforesaid sale transactions as violative of the said Regulation and declared them illegal and void.
The vendees eventually took the matter to the Board of Revenue by invoking its jurisdiction but there too they remained unsuccessful so they brought four different suits against the petitioner in the Civil Court giving rise to the four revision petitions now in hand. In each suit they sought the declaration to the effect that they were owners in possession of various pieces of land purchased by them from the petitioner and by way of consequential relief they sought perpetual injunction, seeking to restrain their opponent from interfering in their possession. The petitioner defended all the suits and in each suit his defence in the first instance was that he never sold the suit land to his opponents and he was still its owner and in the alternative he alleged violation of the mendatory provisions of Martial Law Regulation No.64. And consequent invalidity of each sale transaction. He also raised certain preliminary objections.
5.On the pleadings of the parties the learned trial Judge in every suit almost framed identical issues in the following terms:- (1)Whether the defendant has not sold the suit land to the plaintiffs?
(2)If issue No.1 is not proved, whether this sale is against the provisions of Martial Law Regulation No.64?
(3) - Whether the suit is not properly valued?
(4) Whether the suit is not in proper form?
(5) Whether this Court has no jurisdiction?
(6) Whether the plaintiffs'are owners in possession of the suit land?
(7) Relief.
6. After recor I ding the evidence of the parties and hearing their counsel, he came to the conclusion that the petitioner had sold the suit land'by various transactions to his opponents but each transaction was hit by the provisions of Martial Law Regulation No.64 and as such the sale being void, the plaintiffs were not owners of the suit land. He recorded these findings on issues Nos.2 and 6. However, all other issues were decided against the defendant-petitioner. As a result of his findings on issues Nos.1, 2 and 6, he dismissed all the four suits. Aggrieved by these findings, the plaintiffs in each suit preferred appeal to the District Court and the learned District Judge, Sheikhupura, vide his consolidated judgment, dated 19-11-1976, accepted these appeals, set aside the judgments and decrees of the Court below and decreed in all the four suits, thereby compelling the defendant- petitioner to invoke the revisional jurisdiction of this Court in each matter.
7. During the course of discussion on issues Nos.2 and 6 the learned District Judge found Sale Mutation No.143 sanctioned in favour of Ghulam Muhammad son of Dhunda in respect of land measuring 17 Kanals 6 Marlas in violation of paragraph No.25 of Martial Law Regulation No.64 on account of its having reduced the ownership of the defendant-petitioner to less than subsistence holding but irrespective of this finding he accepted the appeals and set aside the orders of the trial Court on the ground that the Chief Land Commissioner in his ruling known as PLD 1976 Revenue 13, the facts of which were identical to these cases had observed that the Punjab Land Commission had resolved to move the President for the amendment of the Regulation which was entailing great hardship for the vendees and was unnecessarily rewarding the vendor who first sold the land, received and misappropriated the sale price and then challenged the transaction on the basis of the violation of Martial Law Regulation No.64. The learned District Judge also noticed with reference the statement of Patwari that the defendant-petitioner had sold his entire holding in the village. He thought it in the interest of justice that the plaintiff-vendees be allowed to remain in occupation of the land purchased by them. Like the Chief Land Commissioner, he also blamed the revenue staff for the violation of the Martial Law Regulation No.64 and held the plaintiff- vendees as bona ride purchasers. In support of his views he called in aid the principle of laws aimed at the promotion of ends of justice and did not think proper to allow the defendant- petitioner to reap benefit of his own mistake or those of the revenue staff who were responsible for the violation of the mendatory provisions of Martial Law Regulation No.64.
8. It was argued on behalf of the defendant-petitioner that with the sale of 17 Kanals 6 Marlas of land to Ghulam Muhammad vendee, vide Sale Mutation No.143 sanctioned on 26-11-1959, his land measuring 119 Kanals 4 Marlas was reduced to 101 Kanals 18 Marlas, which was less than the' subsistence holding of 111 Kanals 5 Marlas of the village wherein the land was situated and in this way the transaction was void in view of the paragraph No.25 of Martial Law Regulation No.64. This position, according to the learned counsel, was conceded even by the learned District Judge in the impugned judgment but he still proceeded to accept the appeal of the plaintiffs-respondents on the. Basis of the decision of the Chief Land Commissioner, in which no definite finding was recorded. It was contended that once the sale transaction embodied in the aforesaid Sale Mutation No.143 dated 26-11-1959 was declared void, then all the subsequent sale transactions had to be declared void because each of such transactions further reduced the subsistence holding of the defendant-petitioner entailing violation of paragraph No.25 ibid. It was also urged that the question as to whether or not any sale transaction violated the provisions of paragraph No.25 of the said Regulation, was within the exclusive jurisdiction of Land Reforms Authorities and Civil Courts, including this Court, had no jurisdiction to record a finding on this point. In support of his contentions he placed reliance on Rulia and others v.
Fateh Muhammad and others 1989 CLC 1705.
9. On the contrary, it was argued on behalf of the plaintiffs-respondents that the defendant- petitioner could not take advantage of his own wrongful act, if any, and in any case none of the sale transactions in question violated any provision of paragraph No.25 of the said Regulation because the entire holding, of defendant-petitioner ranged between the subsistence holding and the economic holding and he could alienate any portion thereof to any land holder in the village as the plaintiffs-respondents in each case were. On the question of jurisdiction, the learned counsel was of the view that since the Revenue Authorities had acted without jurisdiction while reviewing the sale mutations and cancelling the same on the ground of their being in violation of Martial Law Regulation No.64, the Civil Court had the jurisdiction to set aside the illegal orders passed by them. He also cited Ruha and others v. Fateh Muhammad and others 1989 CLC 1705 which in turn referred to a number of authorities of the Supreme Court on various points.
10. It may be mentioned here that as per record of the lower Courts, the parties first took the dispute to the Revenue Authorities and the, Assistant Commissioner, Sheikhupura, exercising the powers of Collector, vide his order dated 23-2-1973 came to the conclusion that the sale mutations, being in violation of the provisions of Martial Law Regulation No.64, were void. The vendees challenged this order before higher Revenue Authorities but remained unsuccessful even up to the level of Board of Revenue and then they brought respective suits giving rise to these revision petitions.
11. To my mind, the very first question which requires decision is that of jurisdiction viz. Which authority is to decide as to whether or not the sale transactions in question offended against the provisions of paragraph No.25 of Martial Law Regulation No.64, also known as Land Reforms Regulation, 1959. On this point an esteemed authority of the Supreme Court reported as Nisar Ahmad Khan v. Ismat Jehan Begum 1968 SCM R 667 is very clear. It was observed therein 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."
12. Thus it will be seen that it was only for the Land Commission or the Chief Land Commissioner or their delegates, who were charged with the duty of implementing the said Regulation, to examine and decide as to whether or not the sale transactions in questions, as embodied in various sale mutations, violated any provisions of paragraph No.25 of Martial Law Regulation No.64 and no other authority, including the Civil Courts and their higher hierarchy, could go into this aspect of the matter. Not even the Revenue Authorities had any concern with the determination of the validity or otherwise of the sale transactions in the context of paragraph No.25 of the said Regulation -and as such not only the orders passed by the trial Court and the learned District Judge, Sheikhupura, determining the validity of the sale transactions on the basis of paragraph No.25 of the said Regulation are without lawful authority but those of the Assistant Commissioner/Collector, Sheikhupura, dated 23-2-1973 and all subsequent orders passed by the Revenue Authorities right up to the Board of Revenue were also without jurisdiction. It may be noted here that the Revenue Authorities such as Tehsildar/Assistant Collector; Assistant Commissioner/Tehsil Collector, Deputy Commissioner/District Collector Commissioners and Board of Revenue are the creation of West Pakistan Land Revenue Act, while the Assistant Land Commissioner, Deputy Land Commissioner, Commissioner and the Commission are the creation of Land Reforms Regulation No.59 (MLR No.64) and both of them are separate and distinct legal. Entities being creation of two different statutes exercising powers under each law and one is neither synonymous with the other though the same set of officers is often empowered by both the statutes. For instance, a Deputy Commissioner in a district is the District Collector under the West Pakistan Land Revenue Act, 1967 and he is also the Deputy Land Commissioner under the Land Reforms Regulation, 1954 (MLR No.64) and Land Reforms Regulation 1972 (MLR No.115) due to the same officer exercising both the powers. Not only the litigants and their lawyers are often misled but even the officers who exercise powers under the two different enactments, frequently confuse and mix up the same. As in the instance case, the Assistant Collector, Sheikhupura, considering himself competent to review the sale mutations in the ordinary exercise of his powers as a Collector under the Land Revenue Act 1967, proceeded to review the sale mutations without realising; that he was dealing with the matter under the Land Reforms Regulation, 1959 (MLR No.64) which he could handle only if he had been authorised to do so under any provision of this Regulation or under the delegated powers of the Land Commissioner are the Chief Land Commissioner. He could not confuse or mix up his powers as a Collector with his powers as an officer under the Land Reforms Regulation, 1959 and proceed to review the sale mutation on the ground that the same were in violation of the Land Reforms Regulation, 1959 [M.L.R.
No.641 because as a Revenue Officer he had no power to enforce the provisions of Martial Law Regulation 64 unless he had been empowered under the Regulation and he had exercised those powers distinctly and consciously as an officer of Land B Reform hierarchy. So far as he knew, neither he nor any other Revenue Officer, right up to the level of Board of Revenue, has been authorised or empowered by the Commission under the said Regulation, even as delegatees, to handle and decide the cases of violation of para. 25 of that Regulation and without such authorisation or delegation they could not act in the exercise of their original, appellate or revisional powers under the Land Revenue silent with regard to the remedy to be availed by the affected persons by way of appeal, review or revision but despite the absence of any such direction or authorisation given by the Commission, the Revenue Officers of different categories, as in the instant case, continue to pass orders of review, appeals and revisions in the normal course in exercise of their powers under the Land Revenue Act, 1967. They have not been empowered under the Martial Law Regulation No. 64 or under the Martial Law Regulation No.115, and they, in my opinion, still continue to act without jurisdiction. To my mind, even the authorisation in respect of appeals against the orders of refusal passed by the Sub-Registrars and Registrars appears to be defective because under sections 71 to 74 of the Registration Act appeals he only against the orders of refusal of the Sub-Registrars and no appeal lies against the order of the Registrar. It reflects abdication of exercise of jurisdiction by the Commission itself I Act, 1967.
13. In this connection one can refer to paragraph No.235 of the book known as 'Land Reforms in West Pakistan', Vol. 1, written by Malik Khuda Bukhsh. The Commission in this paragraph had directed the Registrars and the Sub-Registrars not to accept deeds for registration unless the same were in confirmity with the provisions of paragraph No.25 ibid and, while doing so, to write an order of refusal. Such an order was made appealable like any other order under the Registration Laws.
14. Under the same paragraph the Commission directed the Revenue Officers to refuse to sanction the oral transactions embodied in the mutations, if-the same contervened the provisions of paragraph No.25 of the Regulation, irrespective of the fact whether -such mutations were based on the direct statements of the parties or on the registered deeds or on the decrees of the Court. However, no further direction was given as to what was to be done if the sanction of the mutations had been refused by the Revenue Officers on the ground of the violation of paragraph No.25 ibid or mutations had been sanctioned in violation of such order. Unlike the directions given to the Sub-- Registrars and Registrars, the directions given to the Revenue Officers were
15. In view -of the above, all the four civil revisions are accepted and not only the judgments and decrees of both the Courts below are set aside but also the orders passed by the Revenue Authorities, including the order dated 23-2-1973 passed by the Assistant Commissioner/Collector, Sheikhupura, right up to appellate and revisional. Level, are declared without lawful authority. As a result, if the defendant-petitioner wants to challenge the validity of the sale transactions on the basis of their being in violation of the provisions of paragraph No.25 of the Land Reforms Regulation, 1959 (Martial Law Regulation No.64), he will have to take recourse to the Punjab Land Commission or the Chief Land Commissioner or their delegatees, if any, whosoever is legally competent under the said Regulation to take decision in the matter despite its repeal by virtue of para. 32 of the Land Reforms Regulation, 1972 (Martial Law Regulation No.115).