' The facts, in brief, are that Khair Din deceased was owner of agricultural land measuring 100 Kanals, situated in Chak No,122/1-L, Tehsil Khanpur, respondent No,3, Mst. Salima Bibi, is his widow and respondent No,4, Sarfraz Ali, is his minor son. The case of the petitioner is that Khair Din sold the abovesaid land to the petitioner, vide Mutation No,116, attested on 10-7-1991, for a consideration of Rs,2,11,000 and the possession was also delivered to the petitioner under the sale. Thereafter Khair Din died on 26-7-1991, his date of death was wrongly entered as 23-6-1991. The petitioner applied for the correction of the record of the Union Council to the Deputy Commissioner, Rahimyar Khan.
After thorough probe, the Chairman, Union Council, vide report, dated 2-12-1991, and the District Health Officer, Rahimyar Khan, on reference from the Assistant Director, Local Government and Rural Development Department, Rahimyar Khan asked the concerned Authorities to correct the record of Union Council, Bagh-o-Bahar, incorporating 26-7-1991 as the correct date of birth of Khair Din deceased vide letter dated 20-2-1997 (Annexure 'G').
' The respondents, Mst, Salima Bibi, the widow, and others filed appeal against the order of attestation of Mutation No,116, dated 10-7-1991 in the Court of Assistant Commissioner/Collector, Khanpur, who, vide order, dated 8-3-1992, accepted the appeal, cancelled the sale mutation in favour of the petitioner. The Additional Commissioner (Revenue), Bahawalpur Division, Bahawalpur, vide his order, dated 23-2-1993, dismissed the petitioner's appeal against the order, dated 8-3- 1992 of Collector, Khanpur, and the orders of Revenue Authorities of cancellation of the mutation were challenged by the petitioner/vendee on 25-2-1993 through a civil suit for declaration and permanent injunction against the respondents, Mst. Salima Bibi and others, in the Court of Civil Judge, Khanpur. Mst. Salima Bibi also filed a suit challenging the sale in favour of the petitioner, both the suits were consolidated and the learned Civil Judge, Khanpur, vide order, dated 23-10- 1993, accepted the petitioner's application under Order 39, Rules 1 and 2, C.P.C., and restrained the respondents, Mst. Salima Bibi and others from interfering with the possession of the petitioner while such an application filed by Mst. Salima Bibi was rejected, vide the same order. Both the suits later on were transferred under the orders of this Court from the Court of Civil Judge, Khanpur, to the Court of Mr. Zafar Hussain Bhatti, Civil Judge, Multan. This was, however, not the end of the matter and one Muhammad Akram, a third person, also instituted a suit for permanent injunction in the Court of Senior Civil Judge, Rahimyar Khan, seeking relief that the petitioner and the respondent, Mst. Salima Bibi, be restrained permanently from alienating the suit land interfering with his possession on the basis of his alleged purchase. This suit was also transferred to Khanpur and later on to the Court of Mr. Zafar Hussain Bhatti, Civil Judge, Multan. Mst. Salima Bibi and Sarfraz Ali respondents withdrew their suit and it was dismissed as such and Muhammad Akram also withdrew his suit on 24-11-1996 and now the only suit remaining in the field is that of petitioner, Muhammad Aslam, which is pending adjudication. At this juncture, it is alleged that respondents produced the certified copy of judgment and decree, dated 24-11-1996 (whereby the suit of Muhammad Akram against the petitioner and respondents was dismissed as withdrawn) before the Revenue Officer without disclosing that petitioner's suit was pending and a stay order existed in favour of the petitioner, and on the production of the abovesaid judgment and decree, the Revenue Officer, Khanpur, attested Mutation No,157 on 29-11-1996, transferring the land in dispute in favour of Khair Din deceased while deleting the name of the petitioner and sanctioned another Mutation No,158 on the same day i,e, 29-11-1996 in favour of the respondents, widow and minor son.
Later on, on the Transfer Application No,41-C of 1997, moved by the petitioner .For the transfer of the suit to Rahimyar Khan, the Hon'ble Chief Justice, Lahore High Court, Lahore vide order dated 27-1- 1997, has issued notice to the respondents and further proceedings have been stayed. During the pendency of the petitioner's suit, respondent Mst. Salima Bibi, widow of Khair Din, gave an application, dated 7-3-1997 to the Prime Minister of Pakistan which was marked to the Deputy Commissioner, Rahimyar Khan, and ultimately had landed in the office of respondent No,1, Assistant Commissioner/Collector, Khanpur, District Rahimyar Khan, who after receiving the reports from the revenue staff, passed the impugned order dated 8-7-1997, whereby he directed the Tehsildar "to get the possession handed over to Mst. Salima Bibi Wd/o Khair Din and Sarfraz Ali son of Khair Din, on the basis of Mutations Nos. 157 and 158, dated 29-11-1996". He further directed that the possession of the agricultural land, detained in the order, be delivered to Mst. Salima Bibi and Sarfraz Ali even by use of the police froce if necessary. In pursuance of this order the petitioner has been dispossessed. Hence, this petition.
2. I have heard the learned counsel for the petitioner, learned counsel for the respondents 3 to 5 and have also seen the record produced by the parites which is attached with this petition.
3. It is contended by the learned counsel for the petitioner that the Assistant Commissioner/Collector, Khanpur, District Rahimyar Khan, passed an illegal order, impugned in this petition, on 8-7-1997, whereby he directed the Tehsildar to get the possession handed over to Mst.
Salima Bibi, widow of Khair Din and Sarfraz Ali, the defendnats in the suit filed by Muhammad Aslam, petitioner, which is pending before a Civil Judge, Multan, where a stay orer has also been issued in favour of the plaintiff/petitioner. This order by the Assistant Commissioner/Collector was passed on the application of Mst. Salima Bibi, the proceedings were conducted and the report was submitted by the Patwari to the effect that the land in dispute is in possession of Muhammad Aslam and Muhammad Anwar (the brother of Muhammad Aslam) who have refused to hand over the possession as regarding title a suit is pending between the parties. Tehsildar, Khanpur, on 14- 5.1997 also submitted the report to the similar effect and thereafter the abovementioned order was passed by the Assistant Commissioner/Collector, Khanpur, directing to hand over the land in dispute to Mst. Salima Bibi. It has further been submitted that the possession was forcibly taken from the petitioner, the petitioner was also sent to jail under the proceedings of section 107/151, Cr.P.C. And on legal plane it is submitted that Assistant Commissioner/Collector, Khanpur, had no lawful authority to issue direction to anyone to hand over the possession to Mst. Salima Bibi and at the most, such a direction can be issued by the Revenue Authorities in execution of a decree and so far no decree has been passed in favour of the respondents.
4. On the other hand, while vehemently opposing the petition, learned counsel for the respondents has submitted that this Constitutional petition is not maintainable as the alternate remedy before the Civil Court under Order 39, Rule 2(3) of the C.P.C. Is available to the petitioner. It is further submitted that the stay order issued by the Civil Court lapsed automatically after six months in view of the provisions of Act XIV of 1994, whereby Rules 1 and 2 of Order 39, C.P.C. Were amended and, therefore, the A.C./Collector was competent to pass the order of delivery of possession to respondents, Mst. Salima Bibi, and Sarfraz Ali, at the time when the same was passed. Reliance in this regard is placed on Syed Muhammad Shah Jehan Shah v. Fazlur Rehman and 45 others (1996 CLC 1572), wherein it has been held that the orders of temporary injunction under this amendment expire after six months from the date of issuance of the same. The next submission is that the A.C./Collector has passed the order as a Collector which is subject to an appeal before the Commissioner under the Land Revenue Act and in the presence of an alternate remedy the writ petition is not competent. Reliance in this regard is placed on Hafiz Muhammad Arif Dar v. Income Tax Officer (PLD 1989 SC 109) and Syed Saghir Ahmed Naqvi v. Province of Sindh (1996 SCM R 1165).
On facts, it has been argued that the petitioner was never in possession of whole of the land in dispute and this brother, Muhammad Anwar, was also in possession over 56 Kanals of land as sub- tenant of the replying respondent. Reference in this regard is made to copies of Register Haqdaran/Record of Rights, pertaining to the years 1990-91, 1994-95 (Annexures R-1 and R-2), wherein Muhammad Anwar s/o Imam Din is entered as tenant-at-will. Reference is also made to the copies of Khasra Girdawari for the period from Kharif 89 to Rabi 91 (Annexure R-3) which show that possession of Muhammad Anwar over a part of the land in dispute. Learned counsel has also referred to a declaratory document/an affidavit executed by the abovesaid Muhammad Anwar, wherein he has narrated that the land in dispute measuring 6 acres was given by Khair Din to the respondent, Mst. Salima Bibi in lieu of dower and that he was her tenant and will keep on giving the owner's share to her. Learned counsel has also referred to Annexure R-5, which is copy of an application given by Mst. Salima Bibi to the Prime Minister of Pakistan which was marked to the District Collector, Rahimyar Khan, whereunder the above proceedings/directions were conducted/issued by the Assistant Commissioner/Collector, Khanpur. In the last, it has been submitted that the technicalities should not be allowed to prevail when the substantial justice has been done. Reliance is placed on Allah Ditta v. Barkat Ali and 3 others (1992 SCM R 1974).
5. The abovementioned narration shows that the Assistant Commissioner/Collector, Khanpur, passed the impugned order, dated 8-7-1997 during the pendency of the petitioner's suit before the Civil Judge, Multan, while the respondent previously had withdrawn her suit for declaration and permanent injunction. The stay was granted in favour of the petitioner by the learned Civil Judge and there is no order of the vacation of stay order. Furthermore, it has not been explained as to under what law or authority the Assistant Commissioner/Collector, Khanpur, directed the Tehsildar through the impugned order to hand over the possession of the land in dispute to respondents, Mst. Salima Bibi and Sarfraz Ali. The present Assistant Commissioner/Collector, Khanpur, has shunned the responsibility by merely stating In his comments that it was not he who has passed the order and has otherwise not opposed this petition.
6. The Revenue Authorities cannot order the delivery of possession of a piece of land to a particular party who is not in possession independently of their own and they can act only under the orders of a competent Authority under any execution proceedings. The sanction of Mutation No,158 in favour of the respondents did not create any automatic right of possession in their favour executable by the Collector without any decree or order of possession in favour of the respondents. The impugned order passed by the Assistant Commissioner/Collector, Khanpur, is patently illegal, which is set aside and it is directed that all consequential steps/acts taken by the Revenue Authorities regarding delivery of possession in favour of respondents be treated as illegal and void and the Revenue Authorities shall restore the position on the spot as it was on the day and time when the impugned order was passed. Disposed of.