By the present order I propose to dispose of two inter-linked Writ Petitions Nos.10524 of 1994 and 11773 of 1994, Muhammad Aslam son of Muhammad Ramzan and Bilqees Begum wife of Ikram-ul- Haq being the petitioners in the former and Bilqees Akhtar wife of Muhammad Anwar being the petitioner in the latter, respondents being the same, Malik Muhammad Sarfraz Khan, Advocate, Faisalabad and others. Facts and legal propositions involved are common in both the petitions.
2. Muhammad Aslam and Bilqees Begum had purchased, vide registered sale-deed dated 3-5- 1989, 5 Kanals and 1 Marla of land, and Mst. Bilqees Akhtar had purchased on 23-8-1989, 9 Kanals, 10 Marlas of land, situate in Chak No.241-RB, Tehsil and District Faisalabad. Maqsooda Begum was the vendor in the previous transaction dated 3-5-1989 and Muhammad Akram brother of Muhammad Afzal, deceased husband of Maqsooda Begum, was the alienor in the subsequent sale, dated 23-8-1989. Malik Muhammad Sarfraz Khan, Advocate, Faisalabad was stated to be in cultivating possession of 85 Kanals of land as lessee, and the land belonged to grandfather of Tariq Mahmood, etc. Who had made an application for becoming a patty to the proceedings of Writ Petition No. 10524 of 1994. Malik Sarfraz obtained a decree on the basis of his adverse possession from a Civil Court at Faisalabad on 22-12-1991. Tariq Mahmood, etc. Who alongwith the petitioners were parties in the civil suit had made an application under Order 9, Rule 13, C.P.C. For setting aside the ex parte decree; but the same was dismissed on 27-4-1994, and they preferred an appeal before the learned District Judge, Faisalabad, on 2-5-1994.
The same is stated to be pending before a learned Additional District Judge at Faisalabad.
3. The sale-deeds aforesaid were testified, as is stated, by Malik Muhammad Sarfraz Khan as Lambardar. An application under section 12(2), C.P.C. Assailing the decree, dated 22-12-1991 was filed, and alongwith it, a stay application was also submitted. Rana Muhammad Shafi, Civil Judge, Faisalabad granted the stay order, and suspended execution of the decree dated 22-12-1991 by an order made on 8-11-1993. Malik Muhammad Sarfraz appealed against the order dated 8-11-1993; and the learned Additional District Judge, Faisalabad, Mr. Jalal-ud-Din Akbar, on 4-12-1993, admitted the appeal for regular hearing and he also suspended operation of the order dated 8-11- 1993, without notice to the respondents before him (writ petitioners herein). Malik Muhammad Sarfraz is said to have made a statement in the Court on 4-12-1993 to the effect that he will not alienate land of the other party and would also maintain status quo. According to the writ petitioners, Malik Muhammad Sarfraz had secured the decree in his favour by misrepresentation and by practising fraud upon all concerned. He had purposely given incorrect addresses of the defendants in the suit. Maqsooda and Muhammad Akram belong to Chak No.209 R.B., but they were shown to be residents of Chak No.61 J.B. It is also an admitted fact that Malik Sarfraz Khan had not purchased the land from any one, but had asserted his proprietary title to this chunk of land through prescription. Learned counsel appearing for the writ petitioners had drawn attention of this Court to the law laid down by the Shariat Appellate Bench of the Supreme Court in the case reported as Maqbool Ahmad v. Government of Pakistan 1991 SCM R 2063, decided on 22-5-1991.
Section 28 and Article 144 of the Limitation Act were declared to be repugnant to the Injunctions of Islam. Rule of acquisition of ownership title through adverse possession was resultantly struck down, as being no longer the law of the land. It is to be borne in mind that the Civil Court had awarded the disputed decree in favour of Malik Sarfraz Khan on 22-12-1991. The Supreme Court had fixed 31-8-1991 as the terminus a quo, with a command to the Government to amend the law accordingly, failing which the aforesaid provision of Limitation Act would become invalid and ineffective. This Court, in exercise of its writ jurisdiction can straight away declare the decree to be void and inoperative, but there may be other grounds, having been invoked by the judgment- debtors and others, in assailing the decree, and the matter should better be adjudicated upon by the Civil Court concerned.
4. Malik Sarfraz Khan moved the Revenue Authorities for attestation of the mutation in his favour.
This would have entailed cancellation of the mutations sanctioned in favour of the purchasers of different parcels of the land on the strength of sale-deeds abovementioned. The writ petitioners had prayed that this must not be permitted to be done so long as their petition under section 12(2), C.P.C. Was pending. Justice and equity demanded that the requisite relief be conceded to them and the learned Civil Judge granted them the stay order that was sought. When, however, Malik Sarfraz Khan went up in appeal, the learned Additional District Judge, Mian Jalal-ud-Din Akbar, on entertaining the appeal, proceeded to suspend the stay order dated 8-11-1993. One fails to follow as to what was then the purpose of keeping the appeal pending, as the same had virtually been decided in favour of the decree-holder, Malik Sarfraz Khan. On the face of it, the appellate order dated 4-12-1993 was insensible, inquitable, improper and unjust. The appeal obviously did not involve any complicated question, for it was directed against a stay order. The Additional District Judge should have fixed the appeal itself for actual hearing and disposed it of finally before long.
He could vacate the stay order finally, but there was no sense in undoing it as an interim measure and keeping the appeal pending.
5. It may be said that Malik Sarfraz Khan decree-holder had undertaken to maintain status quo and not to alienate the land, in so far as share of the judgment-debtors in the land was concerned.
But oblivious of this commitment, he had expressed keenness, and had taken steps to have the mutation sanctioned in his favour, on the strength of the decree, dated 22-12-1991. Adamance on his part in the matter, which he has given vent to, even in this Court, in not understandable indeed.
Either he is apprehensive about rescission of the decree dated 22-12-1991, or he has some other momentous and mysterious objectives. Undeniably it is a joint Khata, and has not been partitioned, either privately or through Revenue Court. It appears that Malik Sarfraz Khan wants to appropriate to him better portion of the land, or its front, and push the share-holders to the posterior, and even the Revenue Authorities are inclined to dance on his tune. The Tehsildar and Naib Tehsildar have been coming to the Court. They are respondents in the writ petitions. When questioned by the Court, they also have signified their intention to go ahead with the attestation of the mutation, stating that they have to enter and attest mutations in accordance with the decree delivered by the Civil Courts, not realising that this decree is under challenge, and actually, on the face of it, it seems to be not sustainable in law and, equity. If mutation, as asked for by the decree-holder, is entered and attested, it will evidently infringe status quo, which Malik Sarfraz Khan had undertaken to preserve. Learned counsel representing him urges that it is a premature petition as the Revenue Officers have not so far acted in the matter. This is an odd plea. If they are allowed to proceed and the mutation is sanctioned, there would obviously be no point in the judgment-debtors still praying for maintenance of status quo and pressing for non-attestation of the mutation. In Sri Lakshmindra Theetha Swamiar of Sri Shirur Mutt and others v. The Commissioner, Hindu Religious Endowments, Madras AIR 1952 Mad. 613, Gul Zaman v. Settlement Commissioner PLD 1976 Lah. 1454 and Maqbool Ahmad v. Settlement Department 1986 CLC 2419, it has been pronounced that if a functionary is likely to transgress limits of his authority or act in disregard to an order of the Court he may be restrained from doing so, and exercise of writ jurisdiction in such a case would indeed be congenial and conducive to public policy and peace.
Prayer for issuance of appropriate writ against a threatened action would not be premature and existence of an alternative remedy would be an irrelevant consideration in granting a writ of prohibition.
6. It is further to be noted that the order adverse to the interests of the petitioners (respondents before the Appellate Court) had been passed without serving upon them a notice and without hearing them. The wisdom and logic followed by the Additional District Judge in conducting himself in that unusual and hastly manner, to say the least, is not understandable; and this kind of conduct cannot be approved of. One fails to follow what after all was the hurry. Advocates are to be respected but they also have to restrict themselves within the frontiers of domain of law and justice, and Courts should politely, if not bluntly, decline to surrender to their wishes and refuse to advance their selfish interests at the cost of those, who are exposed to imminent and irretrievable injury. If, as is urged by the learned counsel representing respondent No. 1, mutation is nothing, it is only a fiscal measure and does not create a title, nor is it evidence of ownership, the decree-holder who has not moved for implementation of the decree over a period of about three years ought to exhibit patience for some time more, and await the result of appeal filed by him, and actually the result of the application under section 12(2), C.P.C, submitted by his adversaries. It cannot be said that they had no right under the law to impugn the decree. Well, if they had such an entitlement, they must not be precluded from pursuing a permissible remedy. It will also not be denied that in the odd situation; obtaining in this case, the appellate Court below had readily come to the rescue of the appellant and had refused to safeguard the interests of the other party, even on interim D scale. Interference by this Court, in exercise of its extraordinary writ jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, is eminently warranted, as the petitioners have been hit very hard and left with no other alternative and efficacious remedy.
7. I would accept both the writ petitions and order maintenance of status quo order, strict sense.
Final adjudication of the civil litigation shall have to be awaited, for if it is not done, legitimate interests of the petitioners would be stifled. I would withdraw the appeal from the Court of Mian Jalal-ud-Din Akbar and entrust it to Mr. Abdul Qayyum Raja, A.D.J., Faisalabad, who will dispose it of within a period of one month. The parties shall appear before him on 6-11-1994. Decision of petition under section 12(2), C.P.C. Shall' also not be delayed. It shall be disposed of by avoiding unnecessary adjournments and by giving adjournments of shortest possible duration, within a maximum period of four months, following decision of the Appeal by the learned Additional District Judge. A copy of the order shall immediately be communicated to both the Courts, so that records of appeal are remitted to the transferee Court.