The brief facts out of which the present revision petition arises are that predecessor-in-interest of petitioner and respondents allotted Lot No, 2 consisting of two squares of land situated in Squares Nos.54 and 55 in Chak No, 3/3-R Tehsil Shorkot District Jhang under the Bara Scheme in the year, 1959. The possession of the land in question was handed over to late Ghulam Qadir by the Collector Jhang on 3-8-1959. Revenue. The petitioner filed a suit for Ghulam Qadir died on 14-8-1959 leaving specific performance of contract before the behind following legal heirs:---
1. Mubarik Ali (Petitioner), made expenses and fulfilled all the conditions
2. Muhammad Anwar (Respondent No, 1.),
3. Mst.Ghulam Zohra (Respondent No,2),
4. Mst. Noor Begum
5. Mst. Mubarik Begum daughters ' Respondent No,1 executed relinquishment deed in favour of the petitioner whereby respondent No,1 relinquished his rights in respect of the land in question in favour of the petitioner on 6-8-1966.
Similarly respondent No,2 along with Mubarak Begum and Noor Begum other two sisters executed relinquishment deed on 13-6-1975 relinquishing all their rights in respect of the land in question in favour of the petitioner. Respondent No,1 filed an application before Collector/Deputy Commissioner, Jhang respondent No,1 along with affidavit that the aforesaid land allotted in the name of their father be transferred in the names of all the legal heirs. The Deputy Commissioner after hearing all the legal heirs of late Ghulam Qadir accepted the application and transferred the land in favour of the legal heirs of the deceased vide order, dated 24-1-1979. The petitioner being aggrieved filed appeal before the Commissioner Sargodha Division Sargodha who dismissed the same vide order, dated 24-6-1979. The petitioner being aggrieved filed appeal before the Commissioner Sargodha Division Sargodha who dismissed the same vide order, dated 24-6-1979.
The petitioner did not challenge the order of the Commissioner before the Member Board of their rights in lot in favour of the petitioner. The respondents filed written statement controverted the allegations levelled in the plaint. Out of the pleadings of the parties the trial Court framed the following issues:---
(1) Whether valuation of the suit for the purposes of court-fee and jurisdiction has been correctly fixed ? If no, what is correct valuation of the suit? OPPs.
(2) Whether the plaintiff is estopped by his act and conduct to file this suit? OPD,
(3) Whether the plaintiff has cause of action and locus standi to file this suit? OPD.
(4) What is effect of preliminary objection No,4 of the written statement? OPD.
(5) Whether the suit is incompetent in its present form? OPD.
(6) Whether the suit land has been incorrectly described ? If so its effect OPD?
(7) Whether defendants are entitled to recover special costs ? If so, of what amount ? OPD
(8) Whether defendants Nos. 3 and 4 have unnecessarily been impleaded? If so, its effect? OPD.
(9) Whether defendants relinquished their rights about the suit land through registered deeds, dated 6-8-1966 and 13-6-1975? OPP.
(10) If issue No, 9 is proved, whether the said deeds are fictitious, void and ineffective qua rights of defendants for the reasons stated in the written statement? OPD.
(11) Whether plaintiff is entitled to the grant of decree for specific performance of agreement as prayed for? OPP.
12. Relief.
' The suit was decreed by the trial Court vide judgment and decree, dated 12-2-1986. During the pendency of the suit Mst. Noor Begum and Mubarik Begum sisters of the parties to the proceedings have transferred their share of the property in question in favour of the petitioner and their names were struck off from the plaint by the trial Court vide order, dated 9-7-1984. The respondents being aggrieved by the aforesaid judgment and decree of the trial Court filed appeal before the District Judge, Jhang, who entrusted the same to the learned Additional District Judge, Jhang. The learned Additional District Judge, Jhang accpeted the appeal vide judgment and decree, dated 5-6-1986, hence the present revision petition.
2. The learned counsel for the petitioner contended that judgments of both the Courts below are at variance. The learned first appellate Court reversed the judgment of the trial Court without adverting to the reasoning of the trial Court. He further stated that first appellate Court reversed the finding as the relinquishment deeds were executed without permissions of the Collector which is not in accord with the law laid down by the Superior Courts. The learned counsel of the petitioner further urged that the first appellate Court erred in law to place reliance on section 19 of the Colonization Act. He further urged that petitioner filed suit for specific performance of relinquishment deed which was executed by the respondents and other legal heirs of late Ghulam Qadir with their free will. The question regarding permission of the Collector does not arise. The petitioner filed the suit as proprietary rights were transferred to the legal heirs of late Ghulam Qadir on 24-1-1979. He further urged that the learned first appellate Court also erred in law to reverse the finding of fact on the point of estoppel. The Deputy Commissioner/ Collector at the time of transfer of the land in favour of all the legal heirs of late Ghulam Qadir on 24-1-1979 did not record statement of the petitioner. The Commissioner without any cogent reason counter-signed the order of the Collector dated 24-1-1979 vide his order, dated 24-6-1979. The respondents failed to bring on record any document or any oral evidence that the Collector passed the order on 24-1- 1979 after recording the statement of the petitioner, therefore, principle of estoppel does not arise.
He relied upon 1996 MLD 144. He summed up his arguments that judgment of the first appellate Court is result of misreading or non-reading of the record.
3. The learned counsel of the respondents contended that the jurisdiction of the Civil Court is exclusively barred by virtue of section 36 of the Colonization Act, 1912 read with sections 2 and 3, Government Grants Land Act, 1895. He relied upon 1998 SCMR 468. The Collector transferred the land in favour of all the legal heirs of late Ghulam Qadir under section 19-A of the Colonization Act on 24-1-1979. The order of the Collector was affirmed by the Commissioner in appeal. Petitioner failed to agitate the matter before any higher forum through revision, before Member Board of Revenue or through Constitutional petition. He further urged that the petitioner did not challenge the aforesaid orders in his suit, therefore, the aforesaid orders are binding between the parties on the well-known principle of res judicata. He further stated that petitioner is the eldest brother of the respondents and other legal heirs. He served in the office of the Deputy Commissioner and prepared the aforesaid relinquishment deeds in his favour. He did not dare to tell a lie before the Deputy Commissioner. The Deputy Commissioner passed the transfer order after hearing all the parties and the petitioner has given oral statement before him on the basis of which he transferred the land in question in favour of the respondents. During the pendency of the suit petitioner purchased land in question for consideration from two sisters namely Noor Begum and Mubarik Begum. He failed to bring on record counter statement from any independent source to the extent that he did not give oral statement before the Collector. The petitioner appears as P.W.9 and admitted in his statement that the land in question was irrigated through canal water at the time of redemption of the land in question in favour of the predecessor-in-interest of the parties which is sufficient to come to the conclusion that the relinquishment deeds are result of fraud and misrepresentation. The learned first appellate Court reversed the finding after proper appreciation of evidence on record. He summed up his arguments that the petitioner did not challenge the orders passed by the parties under the provisions of the Colonization Act, therefore, the learned first appellate Court was justified to accept the appeal of the respondents.
4. The learned counsel of the petitioner in rebuttal stated that he did not challenge the orders of the Collector and Commissioner as the petitioner filed a suit for specific performance of contract on the basis of the aforesaid relinquishment deeds.
5. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record myself. It is admitted fact that the land to question was allotted to the father of the parties. In the year, 1959. The petitioner admitted in cross-examination that the land was irrigated at that time, through the canal water. The contents of the relinquishment deeds reveal that respondents relinquished all their rights in favour of the petitioner on the ground that they had no resources to develop the land to make it cultivated. The relinquishment deeds do not reveal what did, they get in lieu of relinquishment of the land in question. Respondent No,1 submitted an application before the Collector/Deputy Commissioner, Jhang alongwith his affidavit to the following effect:- {{URDU TEXT}} ' The application was accepted by the Collector after providing personal hearing to the all concerned and transferred the land in favour of the legal heirs in the following terms:--- {{URDU TEXT}} ' This order was upheld by the Commissioner with cogent reasons after applying his independent mind and observed that the petitioner failed to bring on record any document to show that the observations made by the learned Deputy Commissioner are incorrect and there is nothing on the record as to why the observation made by the Deputy Commissioner should not be believed. The suit was decreed but the first appellate Court reversed the findings on issue No,2 with cogent reasons after appreciation of evidence on record. The word "relinquishment" means that the "relinquishment" takes place when the owner withdraws himself from the property and abandons his right thereto." The relinquishment deed as mentioned above does not show in lieu of relinquishment which benefits are derived by the respondents coupled with the fact that the original allotted died on 14-11-1959. The contents of the application of respondent No,1 coupled with his affidavit before the Deputy Commissioner/Collector reveals that respondent No,1 was not in a position to understand and petitioner got executed the relinquishment deed in his favour by force.
The second relinquishment deed was also . Executed in favour of the petitioner by all the three sisters on 13-6-1975. Judicial notice can also be taken of the values prevailing in our village society, according to which if there is an old man died leaving behind minor daughters and son then elder male member made every efforts to grab property of his father so that the female heirs and minor male heirs could be deprived of the same. This is what appears to have been happened in this case. The petitioner who is nlil elder son of late Ghulam Qadir appears to have bent upon to deprive of the heirs of the deceased who are daughters and minor son of the deceased from inheriting the property in question, relinquishment deeds in question, therefore, are proved to be shamed, hence void and even without consideration because no evidence has been brought on record that the amount of consideration was ever paid to respondents. The relinquishment deeds are result of fraud and misrepresentation as the principle laid down by the Hon'ble Supreme Court in PLD 1990 SC 1 (Ghulam Ali's case). It is also admitted fact that the first appellate Court has given finding of fact against the petitioner. The petitioner is estopped to agitate matter on the well- known principle of estoppel and waiver. It is settled proposition of law that nobody is allowed to approbate and reprobate as the principle laid down by the Hon'ble Supreme Court in Ghulam Rasool's case. PLD 1971 SC 376. It is also settled proposition of law that doctrine of estoppel is an equitable doctrine, a rule of exclusion is implied that if a person had by act or omission altered his position he would be estopped and be precluded or debarred from denying. I am fortified by Gulfam's case PLD 1989 Karachi 499. The observation of' the first appellate Court that permission from Collector under section 19 of the Colonization of Government Lands Act is mandatory has no force as the principle laid down by this Court in Mushtaq Husain's case 1999 MLD 3384. It is admitted fact that first appellate Court has given finding of fact against the petitioner regarding his conduct and petitioner failed to challenge the orders of the authorities under the provisions of the Colonization Act, 1912. The same are binding between the parties and final as the principle laid down by the Honourable Supreme Court PLD 1987 SC 145. As regards findings of the learned Additional District Judge and specially on issue No,2 coupled with the fact that the petitioner purchased the land from his two sisters during the pendency of the suit, it may be noticed that in his capacity as appellate Court, the learned Additional District Judge possessed the jurisdiction to come to his own conclusion, on the basis of evidence adduced before the trial Court by the parties and resultantly he could competently reverse the finding of the trial Court on the question of fact involved in this issue. It is settled proposition of law that findings on question of fact or law, howsoever, erroneous the same may be, recorded by a Court of competent jurisdiction, cannot be interfered with by the High Court in exercise of its revisional jurisdiction under section 115, C.P.C.
Unless such findings suffered from jurisdictional defect, illegality or material irregularity. I am fortified by the reported judgment in PLD 1945 PC 26. The learned counsel of the petitioner failed to point out any piece of evidence which was misread or material irregularity committed by the first appellate Court.
' In view of what has been discussed above the revision has no merit and the same is dismissed, with no order as to costs.