This revision petition has arisen from a suit filed by the petitioners for declaration that they were the owners of land and the status of respondents Nos.1 and 2 qua the same was that of the mortgagees, as such, Mutations Nos.2710, 2711 dated 31-7-1967 and Mutations Nos.2719 and 2722 dated 19-12-1967 through which the ownership of the land was mutated in favour of the said respondents and further disposal of the same by the said respondents in favour of respondents/defendants Nos.4 to 55 was also illegal and not binding on the petitioners and that they being owners/mortgagors of the said land were entitled to redeem the same under the law.
2. The facts of the case for the purpose of disposal of this revision petition shortly stated are that admittedly one Khuda Dad Khan deceased predecessor-in---interest of the present petitioners/plaintiffs was the owner of the land in dispute. He mortgaged 1 /3rd of the same in favour of Abdul Karim Khan, deceased, predecessor in the interest of Abdul Ghafoor Khan respondent No.3 in the year 1919 for four years. He also mortgaged the remaining 2/3rd land to Abdul Karim Khan in 1926 for 10 years. It was stated that in 1933 Khuda Dad Khan redeemed this portion of the land but I am not called upon to decide this point as the same is not required to be decided in this case. Abdul Karim Khan died and he was succeeded by his grand son Abdul Ghafoor Khan, respondent No. 3, who stepped into his shoes and became the mortgagee of the land.
3. Under the Martial Law Regulation No. 64 known as West Pakistan Land Reforms Regulation no person could either own or possess in any capacity land in excess of the ceiling fixed thereunder.
The land in dispute so far as ownership rights of the petitioner was concerned was admittedly below the said ceiling fixed by the said MLR, therefore, they were not required to file any declaration to surrender ownership rights, rather their ownership rights in the land in dispute were fully secured by express provisions of the said MLR.
4. It was also provided that no person in any capacity could possess land in excess of the ceiling fixed by the said regulation, therefore, the persons who were possessing the land in excess of the said ceiling as mortgagees, lessees, tenants or even lltensees were required to file declaration and surrender their possessory rights in the land in excess of the said ceiling. The respondents who were possessing the land in dispute as mortgagees of the petitioners alongwith some other land other owners of the mortgagors as such the total land in their possession as mortgagees from different mortgagors became in excess of the ceiling fixed in the said MLR, therefore, the petitioners under the land in dispute in order to reduce land under their possession as mortgagees to the limits/ceiling fixed thereunder. On such surrender the rights which a person surrendering the land was to vest in the Provincial Government, therefore, in the Revenue Record as is evident from the documents produced in this case in evidence such as copy of mutation (Exh. D/4) instead of Abdul Karim Khan the mortgagee the Provincial Government was shown to be the mortgagee under the petitioners having stepped into the shoes of Abdul Karim Khan who surrendered the mortgagee rights in the land in dispute as he could not surrender any right other than the rights which he was holding as possessory rights. However, subsequently Mutations Nos. 2710, 2711, 2719 and 2722 were sanctioned by the Revenue Authorities through which the ownership rights of the petitioners in the land in dispute were transferred to the Provincial Government of West Pakistan Land Commission which subsequently transferred the same through sale to respondents Nos.4 to 55 the legality of which was brought under challenge in the instant suit.
5. The suit was contested by the respondents. The trial Court reflected the controversies arising from the pleadings of the parties and the following issues framed by it:-- ISSUES:
(1) Whether the plaintiffs are owners, mortgagors of the suit land and are entitled to get it redeemed?
(2) Whether the impugned mutations in favour of defendants 1 and 2 are unlawful without notice and not binding on the plaintiffs?
(3) Whether the transfer of the suit property from the defendants Nos. 1 and 2- in favour of defendants No. 4 to 55 .Is illegal, void and not binding on the plaintiffs?
(4) Whether this Court lacks jurisdiction to adjudicate the suit?
(5) Whether the suit property has not been redeemed within the period of limitation as such the right of plaintiffs in respect of suit land has been extinguished?
(6) Whether the suit has been deliberately and wrongly valued for purposes of court-fee and jurisdiction?
(7) Whether the suit is not maintainable in its present form?
(8) Whether, the rights of the defendants are protected under section 44 of Transfer of Property Act?
(9) Whether the defendants made improvements over the suit land and are entitled for compensation in case of decree?
(10) Relief.
6. After considering the evidence produced by the parties the trial Court dismissed the suit through judgment and decree dated 10-7-1988. Issues Nos. 1 and 2 were decided in the negative though it was held that the land in dispute originally was owned by the plaintiffs but due to the orders passed by the Land Reforms Authorities they lost their ownership rights and the mutations sanctioned transferring their ownership rights in favour of the Provincial Government under West Pakistan Land Reforms Regulation were valid Under Issue No. 3 it was held that the Punjab Land Commission was vested with the ownership rights, therefore, it could alienate the land in favour of the other defendants. It was also held that the jurisdiction of this Court was barred. Under Issue No. 5 it was held that though the plaintiffs' petition for redemption of land under Restitution of Mortgaged Lands Act, 1964 was pending but the same could not be got redeemed as the plaintiffs had become divested of all the rights. As regards Issues Nos. 6 and 7 it was observed that the same had not been pressed, therefore, were not decided. Regarding issues Nos. 8 & 9 it was observed that the same did not arise as the suit was not to be decreed, therefore, they were left undecided. Issue No. 10 was decided against the plaintiffs.
7. In appeal the learned Additional District Judge, Mianwali, affirmed the findings recorded by the trial Court and dismissed the appeal through judgment and decree dated 3-4-1990.
8. The facts of this case are very simple and have almost been admitted, therefore, it is a case of application of the law to the facts admittedly established. Admittedly the petitioners were the owners of the land in dispute. The land owned by them in dispute was within the ceiling fixed under the said M.L.R. No. 64, therefore, their ownership rights by express and substantive provisions of the Regulation was saved and kept intact as they were not required to file any declaration or surrender any portion of the land as such they could not be proceeded against under the said M.L.R. For they were not subjected to jurisdiction of the authority created under it.
9. The question which arises for determination is whether such a person whose ownership rights in the land were secured/saved by express and substantive provisions of the said M.L.R. Could be deprived of such rights in indirect manner at the instance of any person holding merely possessory rights inferior to him.
10. In this case the ownership rights of the petitioners were sought to have been demolished or taken away by an act of mortgagee under them on the basis of a decision said to have been taken in the meeting held on 5-5-1960 by which a provision was made for the redemption of mortgages and termination of leases, by requiring the mortgagors to redeem the land within the period fixed by the authority failing which the same could be sold to the persons in cultivating possession. The case as made out by the authorities was that according to the said decision the petitioners did not redeem this land within the time granted by the authorities under the said decision, therefore, the ownership rights of the petitioners stood confiscated in favour of the Provincial Government/Land Commission.
11. The question which requires consideration is as to what is the legal efficacy and effect of the said decision dated 5-5-1960 on the ownership rights of the petitioners in the land in dispute which as has already been observed were expressly saved and secured by the substantive provisions of the said Regulation. Copy of the said decision was produced in evidence as Exh. D/l. Learned counsel for contesting respondents referred to sub-para. 5 of para. 4 of M.L.R. No. 64 to contend that, the Land Commission was vested with the power to make such a provision in the said M.L.R.
Which decision if duly taken was to be read as part of the said Regulation and given effect to accordingly. Sub-para 5 of para 4 of the M.L.R. Reads as under: Sub-para. 5: "Where any matter is not provided for in this Regulation, or any difficulty arises in giving effect to the purposes of this Regulation the Commission may, by order notified in the official Gazette, make such provision in respect thereof as it thinks fit, and such order shall be deemed to form part of this Regulation and have effect accordingly."
12. It is manifest from a bare reading of this provision of the Regulation that the Commission was empowered to make an order under the same in respect of only those matters which were not provided in the Regulation itself or any difficulty had arisen in giving effect to the purposes of the said Regulation. The other condition for giving effect to such an order as part of the Regulation itself was that the same should be notified in the official Gazette.
13. Order dated 5-5-1960 (Exh. D/1) in my view cannot stand the test of scrutiny if examined on the touchstone of sub-para. 5 of para. 4 of the Regulation for the very first condition that the Commission could pass an order in respect of a matter not provided in the Regulation was not satisfied. As has already been observed through express provision of the Regulation which in my view are the substantive provisions the ownership rights in the land in dispute of the petitioners were secured and saved as the land in dispute in their ownership was within the limits/ceiling fixed in the Regulation itself. Secondly no evidence has been produced on the record that the said decision was published in the official Gazette as mere passing and issuance of the same for information of the public through any other mode was not permissible or envisaged by the express provisions of the said sub-para. In order to give effect to such a decision as part of the Regulation.
It is firmly settled law that when the law requires the performance of an act in a particular manner to take legal effect affecting adversely the valuable rights of any person or group of persons the same is necessarily to be performed in that manner and performance of the same through all other modes shall be deemed to have been either forbidden or if adopted the same would not have the effect of giving legal efficacy to act performed. Reference may be made to the cases reported as E.A. Evans v. Muhammad Ashraf (PLD 1964 SC 536) and Malik Abdul Aziz v. West Pakistan Publishing Company (PLD 1965 (W.P.) Lah: 82).
14. The legal effect of the surrender of the Mortgagee's rights in the land by respondents Nos. 1 and 2 in favour of the Land Commission had the effect of only transferring the mortgagee's rights in its favour who stepped into the shoes of the mortgagee's qua the mortgagor i.e., the petitioner whose ownership rights in .The land in dispute were not affected adversely rather secured under the M.L.R.
Being below the ceiling fixed thereunder for maintaining his ownership. This legal position was not only accepted but given affect to by sanctioning mutation (Exh. D/4) through which in the Revenue Record instead of the name of Abdul Karim Khan, deceased, i.e, the mortgagee the name of Provincial Government through Land Commission was substituted as mortgagee and entries in the ownership column showing -the petitioner as owner as before were continued.
15. Subsequent to this, however, the disputed Mutations Nos. 2710, 2711, 2719 and 2722 (Exh. P/4, P/5, P/6 and P/7) were sanctioned through which the ownership rights in the land of the petitioners were transferred in favour of the Provincial Government/Land Commission on the basis of an order allegedly passed on 29-6-1967 under the M.L.R. As disclosed in the order sanctioning' the said mutations. In the evidence copy of the said order was not produced in this case to prove the basic fact on the strength of which the said mutations were sanctioned and the petitioner deprived oh his ownership rights secured and acknowledged under the same M.L.R. No evidence was also produced that the petitioners were heard before the said order was passed for it is firmly settled law that "no one should be condemned unheard" before passing any order by any authority acting under the law effecting adversely valuable rights of such person unless the application of abovementioned principle of natural justice had been expressly excluded. In this case there is no provision in the M.L.R. That the application of the said principle was expressly excluded.
16. Learned counsel for respondents when faced with this situation made submissions that from the copy of the order produced in evidence as Exh. D/5 passed by the authority under the said M.L.R. It appears that the petitioners themselves approached the said authority for grant of further time to redeem the mortgage. He also pointed out that copy of the order dated 26-10-1959 which is available on the record also shows that respondent No. 3 i.e., the mortgagee also approached the Deputy Land Commissioner, Mianwali, for permission to retain the possession of that much land permissible under the Regulation, therefore, it should be assumed that the proceedings under the said M.L.R. To some extent were commenced, therefore, the same was immune from challenge in a Civil Court as jurisdiction of the Civil Court stood ousted, as such, the findings of the two Courts below to this effect do not suffer from any illegality.
17. The fallacy of this argument lies in the erroneous assumption by the learned counsel that the matter as regards ownership rights of the petitioners in the land could be the subject-matter of any proceedings under M.L.R. No. 64 and that the decision/order of the Commission dated 5-5- 1960 (Exh. b/1) was a valid order and valid law.
18. As I have already observed above which fact is also admitted that so far as ownership rights of the petitioners in the land were concerned the same were not hit or affected by the provisions of M.L.R. No. 64 as it was below the ceiling fixed thereunder, as such, the petitioners could hold; possess and own the land in dispute as a whole, as such, they could not be subjected to the jurisdiction of the authorities under the said M.L.R. Qua their ownership rights alongwith the right to possess the land. The power granted under sub-para. 5 of para. 4 of the M.L.R. Was only limited to the extent of making decisions in respect of any matter which was either not provided in the Regulation or if any difficulty had arisen in giving effect to the purpose of the same. Keeping in view the settled principles that a statute conferring power on the public functionaries to pass orders affecting adversely the rights of citizens should be contrued strictly. No power under this provision of the M.L.R. Can be held to have been conferred on the Commission to annul, repeal or amend the express provisions of the Regulation as regards maintaining of land in his ownership without surrendering any part of the same if the total land owned by him was not in excess of the ceiling so fixed. The rights created in such person by the M.L.R. To hold and enjoy ownership of the land could not have been confiscated in indirect manner on the act of the mortgagee who was possessing land as mortgagee of different mortgagors/owners and the total land under his possession of different mortgagors was in excess of the ceiling, who at his choice may surrender possessory rights regarding land of one of such mortgagors. The decision dated 5-5-1960 (Exh. D/1) had the effect of annulment of substantive provision of the M.L.R. Regarding right of the petitioners to hold, possess and own land in dispute being below the ceiling fixed thereunder, as such, the same was of no legal 'effect qua their rights of ownership. There was no question of confiscation of the same under such decision.
19. This is apart from the fact that no evidence has been produced that in fact the petitioners approached the Land Commission Authorities for grant of further time or redeem the mortgage and even if they had approached them the same would not operate as estoppel against them as there can be no estoppel according to law against a statute. It is cardial principle of law that the ouster of jurisdiction of a Civil Court regarding civil rights under a statute can be operative only when the orders passed were such which could have been passed under the statute ousting the jurisdiction and the person whose rights had been adversely affected by the order passed under the statute must be the person who could be proceeded against under the said statute and subjected to jurisdiction of the authority established thereunder. This criteria and principle was laid down in the famous case Zafar-ul-Ahsan v. The Republic of Pakistan through Cabinet Secretary, Government of Pakistan (PLD 1960 Supreme Court (Pak.) 113).
20. I have already held that the petitioner by virtue of his ownership of land in dispute which was below the ceiling fixed by M.L.R. No. 64 was not hit by the said M.L.R., therefore, was not a person who could be proceeded against under the said M.L.R. Or subjected to jurisdiction of the authorities established thereunder to maintain his ownership rights in the land in dispute and no power could be conferred on the Commission under sub-para. 5 of para. 4 to annul this substantive provisions of the M.L.R. Allowing the petitioner to hold, possess and own the land in dispute, therefore, the provisions of the Regulation regarding ouster of jurisdiction of the Civil Courts was not applicable and the Civil Court in this case was vested with the jurisdiction to entertain the suit and decide the question regarding ownership rights of the petitioners in the land in dispute.
21. The upshot of the above discussion is that the Provincial Government/Land Commission would continue to be the mortgagees in respect of the land in dispute and the petitioners mortgagors/owners who shall have right to redeem the mortgage under the ordinary law regarding redemption of mortgages for which they had already approached the concerned authority but the matter was kept pending due to pendency of the dispute in the case before the Civil Court which proceedings may be got revived by the petitioners and taken to its logical conclusions. The disposed of land in favour of other respondents by the Provincial Government/ Land Commission on the assumption that it had become the owner of the same being superstructure based on the void orders of confiscation of ownership rights of the petitioners have to fall on the ground -as they cannot stand independently having been raised on the void orders.
22. In the light of the above discussion I am of the considered view that the judgments and decrees passed by both the Courts below suffer from not only misapplication of law but also misreading and misconstruction of the record and the erroneous assumption that jurisdiction of the Civil Court stood ousted which resulted in failure by them to exercise jurisdiction vested in them under the law and cannot be sustained. The findings recorded by both the Courts below on the issues decided against the petitioners are hereby reversed.
23. In the result this revision petition is accepted, the judgments and decrees passed by both the Courts below are set aside and the suit of the petitioners is decreed with costs throughout.