NASIM HASAN SHAH, J.-The dispute relates to Ihata No. 21, situated in Chak No. 4-S. B. Tehsil Bhalwal, District Sargodha. This Ihata was granted to Manzoor Ahmad (respondent No. 1) by the order of the Collector, Sargodha dated 16-1-1957 and the price thereof was deposited by him in the Government Treasury. It appears that before the possession of the Ihata should be delivered to respondent No. 1 and a formal sale deed executed in his favour Ahmad Khan (predecessor-in- interest of the petitioner herein) made an application before the Collector for the review of the order granting the said Ihata in favour of respondent No. 1, contending that the legal formalities to be completed before the sale of the Ihata in favour of Mansoor Ahmad could be made, laid down by the Collector, were not fulfilled. The Collector, in the course of the review proceedings, found that no publicity was given in respect of the proposed sale of the Ihata in favour of respondent No. 1 and that fraud had been committed by forging the signatures of the lambardar on the notice with a view to showing that due publicity had been given. Consequent the Collector reviewed his order dated 16-1-1957 and the Ihata was oral ere to be given to the present petitioners as successors in interest of Ahmad Khan by the order of the Collector dated 21-10-1957. Respondent No 1 preferred appeal before the Commissioner which failed. A revision petition thereafter was moved by him before the Board of Revenue, which too was dismissed on 16-5-1962. In the meanwhile respondent No. 1 had instituted a suit for a declaration that he eras the owner of the plot in question. Herein he also prayed for a perpetual injunction to restrain the present petitioners from interfering with his possession over the Ihata in dispute.
2. On the pleadings of the parties five preliminary issues were framed by the trial Court, of which the third issue was as follows; "(3) pas the civil Court no jurisdiction to try the suit?"
All the five issues were decided against the present petitioners (the defendants in the suit) ride order of the trial Court dated 8-1-1962. Thereafter issues were formed on merits of which Issues Nos.
6 and 7 are relevant, namely :- "(6) Has the plaintiff purchased property in dispute for consideration and is owner of it?
(7) If issue No. 6 is proved then was the plaintiff guilty of any fraud as alleged in para. 3 of the written statement filed by defendant No, 9 and was she sale incomplete for want of the registered document arid by cancellation of the allotment."
The issues were disposed of together and it was held that the alleged sale in favour of respondent No. 1 was indeed vitiated by fraud, consequently the orders passed by the Revenue Authorities did not require any interference. On appeal, the learned District Judge maintained the decree of the trial Court. In the course of his judgment he, inter alia, observed that the question whether any fraud had been committed in the course of the proceedings regarding proclamation was entirely within the jurisdiction of the Collector and the civil Court could rot distort those findings. On second appeal, however, the learned Judge in the High Court held that the question of fraud could be considered by the civil Court. He, therefore, reappraised the evidence with a view to ascertaining whether the fining that the pale in favour of respondent No. 1 was indeed vitiated was sustainable.
The learned Judge after reappraising the evidence came to the conclusion that tile witnesses on which reliance was placed by the learned trial Court were interested and their evidence was biased and liable to be rejected. As the Burden of proof on Issue No. 7 lay heavily on the present petitioners, they had failed to discharge it. Consequently, it was not proved that respondent No. 1 was guilty of any fraud and had got the Ihata in sale from the Collector by fraudulent means. As a result of this finding it was held that the sale in favour of respondent No. 1 was valid and as he had become proprietor thereof, the Collector did not have any jurisdiction to treat the Ihata to still under his control and to review the matter of its grant. Accordingly, the suit of respondent No. 1 to the effect that he was the owner in possession of the residential plot on the basis of the sale executed by the Collector was decreed.
3. Before us, it was argued that although the learned Additional District, Judge had observed that the finding recorded by the Collector that fraud) was committed by respondent No. 1 could not be disturbed by the civil Court, the tenor of his order showed that he also agreed with this finding and that the trial Court had expressly recorded the finding that fraud was indeed committed in his judgment. Hence, in effect, the learned Judge in the High Court had upset a concurrent finding of fast which was not permissible in second appeal. It was submitted that the issue as regards the jurisdiction of the civil Court to try the suit was decided in favour of respondent No. 1 and the impression of the learned Judge in the High Court that the Courts below had failed to exercise jurisdiction in the case on all account of their impression that the civil Court's jurisdiction to go into the matter was barred, was based on a wrong assumption. It was also argued that as the sale was not complete, the Collector was in law, fully competent to withdraw his order whereby the Ihata in question was directed to be transferred in favour of respondent No. 1.
4. The questions raised are of considerable Importance and require further consideration. We accordingly grant leave to appeal.
Security in the sum of Rs.1,000. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.