The petitioners plead to have purchased a tract of land, measuring 202 Kanais, situate in Mauza Pattal Munda, Chak No.566/TDA, Tehsil Kot Addu, District Muzaffargarh, from one Aisha daughter of Sallah, in the year 1953, and to have also been delivered possession of the land, there and then.
E.A.C.O. Bhakkar, in the year 1957, made 'adjustment' of the land, under the TDA Scheme, and the same was implemented in the "FARD TAQSEEM" m favour of the predecessor-in-interest of the petitioners. Thereafter, in the year 1977, the land was 'readjusted' by the EACO, Layyah, and the same was reflected in the record of rights for the year 1979-80. With a view to favour respondent No.3, Aisha Sultana daughter of Moeen-ud-Din, who- already owned several squares of land, the revenue officials tampered with the public record and played a big mischief, and under a fake order, shown to have been passed on 28-9-1980 by the Settlement Officer, this land was resumed and was mutated in favour of TDA, without any notice to the petitioners (or their predecessor-in- interest). This was done on 13-10-1980, when in one and the same sitting the land was transferred from TDA to one Dost Muhammad, and then in favour of the Central Government, and finally in the name of Mst. Aisha Sultana. Mutations Nos.9, 10 and 11, in succession, were attested on 13-10-1980, and this unusual and. Illegal exercise was undertaken presumably under the fake' order dated 28- 9-1980, purported to have been passed by the Settlement Officer.
2. The petitioners, preceded by their predecessor, were kept in complete dark, for long time, about all that; and when through a man known to Nawabzadi Aisha Sultana, the petitioners, became aware of this fraudulent deal, fictitiously and secretly carried out, they rushed to find out as to what had actually happened. By establishing contact with the local revenue officials, they got copies on the above said mutations, but they could not locate the S.O.'s order dated 28-9-1980. As it did not have any existence. They approached the District Collector/ Settlement Officer, District Muzaffargarh, with a request for conducting an inquiry into the affair, but to no avail. The petitioners now face imminent risk of ouster from the land, as Aisha Sultana has further alienated a piece of land in favour of respondents Nos.4 to 6. Who are planning to dislodge the petitioners, who have invoked the writ jurisdiction of this Court by filing this petition under Article 199 of the Constitution, and make a prayer that the order dated 28-9-1980, attributed to the S.0., and aforesaid mutation proceedings based thereupon be declared to be without lawful authority and of no legal effect.
3. It is averred that once the land is 'adjusted' in favour of s6meone, and it is also given effect to, in the Revenue Record, the EACO has no authority to interfere it, and Commissioner alone can make any order altering the initial adjustment. As the impugned order dated 28-9-1980, shown to have emanated from the Settlement Officer, had been passed without any knowledge of and with no notice to the petitioners, they allege to have been defrauded outright and the matter therefore merits interference this Court, in exercise of its extraordinary, writ jurisdiction, it is so pleaded.
4. Learned counsel for the petitioners has placed reliance on PLD 1980 (Lahore 571, Amina Begum v.
Deputy Settlement Commissioner, Lahore and others, PLD 1986 Quetta 32, Province of Baluchistan v.
M/s. Tribal Friends Company and 1987 SCM R 1119, Pakistan Post Office v. Settlement Commissioner and others, in assailing the questionable order of the Settlement Officer and all the subsequent proceedings based thereupon. It has been held that superstructure built on a void order, a coram non judice order would automatically fall to the ground and limitation even would not run against such an order, which has in any case to be struck down, regardless of consequences of such decision and irrespective of what has been the conduct of the litigant, impugning such an order.
Rule of laches, in equitable jurisdiction, may be equated with principle of estoppel, but not with statutory provisions of Limitation Act. Learned counsel for the contesting respondents, on the contrary, has cited, in support of his contentions, PLD 1967 Lahore 762, Abdul Aziz v. Muhammad A.I and others 1986 SCM R 598 (Supreme Court of Pakistan), Ata--ur-Rehman Khan v. Dost Muhammad etc., and 1988 SCM R 1803, Muhammad Aslam v. Member, Board of Revenue, Punjab and another. If the petitioner loses his case before the Commissioner or Additional Commissioner, it is necessary for him to agitate the matter before the Member, Board of Revenue, and if he does not do so, he will be deemed to have accepted the order of the Additional Commissioner and would lose his locus standi to file a writ petition. For challenging correctness of entries in the register of mutations, writ is not the proper remedy and such a question can only be decided by a Court of general jurisdiction, name the Civil Court. Equity acts, where law fails and if there is no other adequate remedy, one can invoke the equitable jurisdiction of the High Court, available under Article 199 of the Constitution, but such remedy would not be available to a person, who has deliberately withheld material facts or has made a false representation, (ii) who has no right or title tothe property and will not be able to benefit from the order, even if one, as prayed for, is passed,
(iii) if the impugned order is taken to be technically incorrect but its rescission would be iniquitous, and (iv) if the petitioner has been guilty of laches.
5. In the instant case, the basic order causing grouse to the petitioners is the one stated to have been rendered by the Settlement Officer as back as 28-9-1980. In his detailed comments, the Tehsildar, Kot Addu, respondent No.2 has stated the entire background and the comments are endorsed by the Deputy Commissioner, Muzaffargarh, respondent No.1. Respondents Nos. 1 and 2's comments, coupled with the submissions made by respondents Nos.4 to 6, on the strength of Revenue Record, make a revelation as under.
6. Aisha daughter of Sullah was an owner of 372 Kanals ' Shamlat' and 28 Kanals 'Had-basti' category of land. She sold away 172 Kanals Shamlat to Khuda Bakhsh etc. Through Mutation No. 1541 dated 13-3-1952 and 172 Kanals Shamlat to Jalal Din etc. Through a registered deed of sale dated 11-12-1952. Although, thus, Aisha-remained owner of only 28 Kanals land, she alienated in favour of Muhammad A.I etc. 202 Kanals of land, vide registered sale-deed dated 25-9-1953. Mutation of Sale No. 1791 was on 28-9-1953 also sanctioned in favour of Muhammad A.I etc. Muhammad A.I etc. Further alienated the entire tract of 202 Kanals of land, through two registered deeds of sale, one dated 22-11-1966, executed in favour of Talib A.I etc., and the other dated 20-5-1967 in favour of predecessor-in-interest of the writ-petitioners. When this fact came to the notice of the District Collector, he proceeded to cancel the mutation, to the extent of 172 Kanals, although to the extent of 28 Kanals it was kept intact. This was done on 23-7-1973. The writ petitioners approached the learned Commissioner, their main plea being that they had not been heard by the District Collector, before cancelling the mutation of sale in their favour. The Commissioner, vide order, dated 9-2-1974, remanded the case, with the direction that the petitioners be afforded an opportunity of hearing. The AC/Collector, Kot Addu, on hearing the petitioners, on 14-5-1975, confirmed Mutation No. 1791 earlier attested on 28-9-1953.
7. Land to different people in Thal had been allotteed subject to condition of right of return, the predecessors-in-interest of the petitioners, having been left with only 28 Kanals, could have got the same ' adjusted' . They, however, on the basis of the old deed of sale, dated 20-5-1967, in favour of their ancestor, succeeded in securing ' adjustment' of 202 Kanals of land, on having recourse to the EACO Layyah on 14-6-1977. This was evidently much in excess of their entitlement. Out of this area, one Dost Muhammad had already on 18-S-1976 been able to get allotment of 174 Kanals of land in his favour, Patwari having made the proposal, on having been approached through under-hand means. This was obviously a case of double allotment, as also the one having been made in excess of entitlement.
8. Dost Muhammad, being bogus allottee of land, one Nawabzadi Aisha Sultana, daughter of Ghulam Moeen-ud-Din, got information of it and conveyed it to the concerned quarters. Mian Ihsan-ul-Haq, Settlement Commissioner, with powers of Chief Settlement Commissioner, on 24-5- 1977, ordered resumption of the land and its allotment to Aisha Sultana, whose claim as a displaced person was pending. The EACO Layyah implemented the order on 9-5-1980.
9. Settlement proceedings being in progress, the Settlement Officer came in the picture, and by an executive order made only for straightening the record, he directed resumption of 174 Kanals of land on 28-9-1980, as this land had only fictitious and no physical existence. The petitioners thus were owners of only 28 Kanals of available land, as area to that extent had not been resumed, but the rest (174 Kanals) were symbolically resumed in favour of T.D.A. All these proceedings were in the knowledge of the petitioners, as also their predecessor-in-interest. Old or original instruments of sale and mutation of sale having all been cancelled, there arose a need for entering and attesting fresh mutations. Accordingly Mutations Nos.39, 40 and 41 were entered and sanctioned on 14-10- 1982. By the way, the petitioners, who have, taken exception to three orders in succession, having been passed by the Settlement Officer, on one day i.e. 13-10-1980, did not object to a similar exercise having been undertaken on 14-10-1982.
10. They cannot possibly take up the plea that they had remained ignorant of all that, since they had filed a civil suit against Aisha daughter of Sullah, who had played the basic fraud in having sold away to Muhammad A.I etc. 174 Kanals of land, in excess of her proprietorship, vide Mutation No. 1791, dated 28-9-1953, and the petitioners had derived their title to the land from Muhammad A.I etc., who had executed in favour of their predecessors-in---interest a registered conveyance of sale on 20-5-1967. It may once again be mentioned that Aisha daughter of Sullah had effected alienations of sale rightly in favour of two sets of people (i) Khuda Bakhsh etc. And (ii) Jalal Din etc. But when she was transferring land to the third set of people, Muhammad A.I etc., she could part with only 28 Kanals of land, but she transferred 202 Kanals of land -- 174 Kanals in excess. Similar plea was taken up in their civil suit by the petitioners. They were thus aware of all that.
11. Meanwhile, Muhammad Aslam, Shahid Hameed and Tahir Jamil sons of Muhammad Sadiq, respondents Nos.4 to 6 purchased from Nawabzadi Aisha Sultana 195 Kanals of land, vide Mutation No.85 dated 8-12-1986. Through a domestic or private arrangement, Muhammad Aslam and Shahid Hameed surrendered their area in favour of Tahir Jamil, and Mutation No. 86 on 21-1-1987 was sanctioned. On having purchased the land, these persons made a demand for possession thereof. The petitioners however, resisted it.
12. Going back once again to the year 1980, an explanation has been furnished as to why 3 or 4 mutations had been sanctioned on one and the same day i.e. 13-10-1980 Aisha daughter of Sullah and Dost Muhammad had resorted to lot of hanky-panky. Nawabzadi Aisha Sultana, being the informer, had established her entitlement to secure allotment of land against her certified claim, unsatisfied so far 174 Kanals of land, which in actual practice were not available for allotment, were ordered to be resumed, on paper, in favour of TDA, by an executive order of the Settlement Officer, and Mutation No.8 was sanctioned. This parcel of land had been alienated by Aisha daughter of Sullah, in excess of her entitlement. It was a case of bogus as also double allotment, as Dost Muhammad had further secured allotment of that piece of land in his favour. To preserve continuity of transactions, same tract of 174 Kanals of land was mutated in the name of Dost Muhammad (Mutation No.9). Further Mutation No.10 was entered and attested, and this very piece of land, standing in the name of Dost Muhammad, was resumed in favour of the Central Government; and through Mutation No. 11, the land was transferred in the name of Nawabzadi Aisha Sultana, against her pending claim Mutations Nos.8 to 10 had thus to be entered and attested for purpose of ' Takmeel' or for correction and completion of the record.
Under the Land Records Manual and provisions of the Land Revenue Act, S.O. Was competent to pass such orders to undo excess allotments and set right matters of double adjustments, and such orders being in the nature of executive orders were not required to be preserved perpetually, but could be detached and destroyed, on expiry of a period of 4 years. The orders however, had duly been incorporated in the mutations and the relevant Revenue Record.
13. Respondents Nos.4 to 6 had to have recourse to the AC/Collector for securing ejectment of the petitioners, in possession of the land, and they state to have paid a heavy amount of Rs.50,000 as compensation for the standing crops, fruit, trees, etc. The petitioners approached the Additional Commissioner (Revenue), D.G. Khan against EACO Layyah's order, dated 18-5-1976, 'adjusting' and allotting the land in favour of Dost Muhammad, but their appeal was dismissed on E-2-1988. They went in revision to the Member (Colonies), Board of Revenue, but the revision petition too was dismissed on 21-11-1993, by Mehr Jewan Khan, M.B.R. In all these forums the petitioners who had themselves been agitating their entitlement to land were fully heard; and there would be no point in urging that the proceedings all were taken behind their back and to their ignorance.
Respondents Nos.4 to 6, considered from any angle, cannot be treated as unlawful aliencees of the land; and the petitioners cannot assert their entitlement to the whole lot of land. Having met failure everywhere, they have approached this Court, invoking its writ jurisdiction, suppressing material facts, so much so that there is no mention even of final order dated 21-11-1993 having comprehensively been made by Member, Board of Revenue, who had expressed the view that all the orders having been passed by competent forums are in field, and in presence of such valid orders, the petitioners' contention would lose whatever little force the same otherwise might have.
14. The petitioners had purchased the land not directly from Aisha daughter of Sullah, who had sold away the land to Muhammad A.I etc. Through Mutation-- No.1791, dated 28-9-1953. They had further alienated it in favour of predecessors-in-interest of the petitioners in November 1966 and May 1967, but Mutation No. 1791 dated 28-9-1953 having been cancelled in July, 1973, Muhammad A.I etc. Had remained no longer the owners of the land and could not pass on title of proprietorship in favour of the petitioners or their predecessors-in-interest. The petitioners had not disclosed all these facts in their writ petition and they have not even made mention of institution of the civil suit, which they subsequently had withdrawn.
15. I need not have given the details and dilated upon different aspects of the matter, for if any factual inquiry was required, it lay within the domain of either the Revenue Authorities or the Civil Courts, and this Court in exercise of its summary powers under Article 199 of the Constitution could not possibly embark upon such an exhaustive exercise, required to unearth the foul-play or fraud, if any, committed by the Revenue/Settlement Authorities, or l any private persons, as is alleged by the petitioners, who have however, gone l~ right up to the Board of Revenue, without achieving any success. Their entitlement to retain the land, as such, cannot possibly be upheld by this Court.
16. The writ petition is incompetent, as also misconceived, as it has been filed with ulterior object; and it is hereby dismissed.