' This petition has been filed under Article 199 of the Constitution (1973) by Mrs Bina Riaz for seeking following reliefs
(a) To declare that the forcible possession of the petitioner's said property (i,e, Bungalow No,152, the Mall, Rawalpindi) by respondents Nos.1 to 4 has been taken without lawful authority, and is of no legal effect;
(b) to direct respondents Nos.1 to 4 to restore the possession of the said property to the petitioner immediately;
(c) to restrain respondents Nos.1 to 4 permanently from interfering in the petitioner's enjoyment of the said property;
(d) to give the petitioner such other and further relief as may be considered fit and proper by this Hon'ble Court in all the circumstances of this case.
' The factual claim of the petitioner, as set out in the memo. Of petition, is as follows:-- ' Vide an agreement dated 11-12-1908, the Secretary of States for India executed the agreement of lease in favour of Church of Scotland through G.R.M. Roshe Chaplain. Under this agreement, a building site now known as Bungalow No,152 situated at the Mall, Rawalpindi Cantt., was leased to the said Church for annual rent of Rs,18; that the lessee was given a right to construct the building and pay the monthly rent of Rs,1.50 per month. With the advent of Pakistan, what happened to that lease is not known and is shrouded in mystery. Thereafter, the aforesaid premises was leased to another institution namely United Presbyterian Church of North America on the terms and conditions embodied in previous agreement (11-12-1908 this happened vide letter dated 14-3- 1962). Unfortunately, this letter is neither with the memo. Of petition nor is with the Cantonment Board, Rawalpindi. It is common ground between the parties that the terms of this lease were same as embodied in agreement dated 11-12-1908. At this juncture, it is useful to describe that the aforesaid premises measured 7 Kanals, 4 Marlas and 90 acres. Statedly, this lessee transferred its rights to one Ch. Muhammad Abbas/respondent No,5 for a sum of Rs,250,000 by means of registered deed dated 25-7-1990. This document was executed by one Padri Sharif Alam who was a constituted attorney by means of a registered instrument dated 26-1-1984. This deed is annexed with the written statement. Thereafter, on 21-4-1998, the Military Estates Officer, Rawalpindi, on behalf of the Government of Pakistan, executed a lease agreement for a term of 99 years with said Muhammad Abbas. A sum of Rs,21,31,200 was paid as a premium and a ground rent was fixed at Rs,8,712. The aforesaid lessee/purchaser from the Church made the sale of the premises in dispute to Mrs. Bina Riaz for a sum of Rs,1,00,00,000 (Rupees one crore) vide registered deed dated 5-6- 1990. This newly inducted vendee paid all the necessary taxes/transfer taxes to the Cantonment Board. The sale-deed was executed on the stamp paper of worth Rs,600,000. She also paid a sum of Rs,250,000 as capital value tax. Allegedly, on 16-9-1998, the respondents, with the help of the Armed Forces, took over possession of the Bungalow when the petitioner and her husband were out of country. This is, however, this petition has come to this Court.
3. The aforenoted claim was gloriously controverted by the Federal Government, Military Estate Officer, Rawalpindi Cantt., Director Military Lands and Cantonment/Ministry of Defence Rawalpindi, Director General Military Lands and Cantonment. It was contended, in the written statement, that power of attorney executed by Reverend M.V. John Moderatory the Synod of the United Presbyterian Church of Pakistan in favour of Padri Sharif Alam of Gakhar Mandi was/is a sham document; that the aforesaid Institution had been registered with the Registrar, Joint Stock Companies, Lahore whereas the United Presbyterian Church of North America of Rawalpindi had also been registered with the Registrar, Joint Stock Companies, Lahore. On the strength of above, it was stated that both the were wholly different entities; that Rev. M.D. John had no authority whatsoever, to execute deed of attorney in favour of Padri Sharif Alam; that deed of attorney in favour of Padri Sharif Alam was a spurious, sham transaction, so all the subsequent acts made by said Padri were simply an exercise in fraud. Secondly, that writ petition raises examination of factual controversies which were outside the domain of Constitutional jurisdiction. Thirdly, that the Church of North America had brought to the notice of the competent authorities that all the acts made by Padri Sharif Alam, Muhammad Abbas were events in Chain of fraud and with an intention to deprive the said Church of valuable property. On these facts, the Cantonment Authorities opened the matter and found that all the acts noted above, had been committed by Qabza group in collusion with the functionaries of the Cantonment Board of Rawalpindi.
4. The contentions, raised by learned counsel for petitioner, can be conveniently summarised as below: Firstly, that entries in the copy of the General Land Register dated 19-11-1989 clearly showed that property in dispute was transferred to the Church of North America; that the aforesaid Church transferred it to respondent No,5 for a sum of Rs,25 lacs and on 21-4-1998, the property in dispute was leased to respondent No,5 for 99 years according to Schedule IX-C of the Cantonments Land Administration Rules, 1937; that the aforesaid lessee sold it to the petitioner for one crore rupees. On the strength of the aforesaid circumstance, it was canvassed that the entries in the General Land Register carried presumption of truth so dispossession of the petitioner was totally without lawful authority. On this line argument it was canvassed that this jurisdiction to issue a writ of -inns as prayed in the petition. Reliance was placed on Anjuman-e-Ahmadia Sargodha v. The D.C.
Sargodha and others (PLD 1966 SC 639). Secondly, that the petitioner was not a trespasser. He had been inducted into possession of the premises in dispute through lawful agreement executed by Cantonment Board Rawalpindi and so the action of dispossession of petitioner was tantamount to an exercise without lawful authority by respondents Nos.1 to 4 and needed to be checked through Constitutional jurisdiction of this Court.
5. On the contrary, the learned .Counsels for the respondents raised a preliminary objection to the maintainability of the petition by saying that the writ petition raised a complicated questiors of law and fact which 'cannot be resolved without taking evidence of the parties. In view of the above it was said that the petition be dismissed as being incompetent. Secondly, that petitioner had come to this Court with unclean hands and with an intention to reap the benefit of a scientifically executed fraud.
6. From the foregoing narration of factual background of the instant petition, the arguments submitted by the counsel for the parties, the following questions arise for consideration:-
(1) Whether on the facts and circumstances of the case in hand, the petitioner was possessed of uncontrovertible title in the property in dispute so as to claim relief by way of writ of mandamus under Article 199 of the Constitution?
(2) Whether the entries incorporated in the General Land Register carried the presumption of truth and the Court has no other way to give effect to the same?
(3) Whether the petitioner has come to this Court with soiled hands and so is not entitled to relief under Article of the Constitution?
7. With regard to Question/Points Nos.1 and 2 it can be safely said that they are inter-connected and represent two faces of the same coin. The case of the petitioner, as narrated above, is that the property in dispute had been leased out to the United Presbyterian Church of Scotland in 1908; that thereafter it was leased to the United Presbyterian Church of North America on 14-3-1962; that this new lessee transferred its rights to Ch. Muhammad Abbas/respondent No,5 vide registered sale- deed dated 25-7-1990; that the Cantonment Board Rawalpindi executed a lease agreement with him on 21-4-1998; that the aforesaid lessee made the sale of the premises to the petitioner through registered sale-deed dated 5-6-1998. On the contrary, the claim of respondent is that power of attorney in favour of Padri Sharif Alam was a fake instrument; that the lease deed made by the said attorney was spurious in nature; that lease-deed in favour of Muhammad Abbas was fraudulent in character and so was the status of the deed dated 21-4-1998. The first question for consideration is whether the aforesaid questions are complicated and can be decided in the writ jurisdiction. This question was examined by Supreme Court of India in Shari Schan Lal v. Union of India AIR (1957 SC 529). In this case, one Jagan Nath came to India as a displaced person/refugee from Pakistan. He moved an application for allotment of a house under a Rehabilitation Scheme.
He deposited a sum of Rs,5,600 as the sale price and the ground rent for the plot on which the house had been built and so he was allotted House No,35. He, thus, entered into the possession of the said house. Jagan Nath, however, was evicted from the house in dispute in September 1952 under a warrant of eviction dated 11-9-1952 issued under section 25 of Ordinance III of 1952.
Resultantly, he moved a writ petition for restoration of possession. The High Court allowed the same and commanded the Authorities to put him back into the disputed house. Feeling aggrieved, Shari Sehan Lal/appellant preferred civil appeal which was allowed/ holding that the controversies raised in the petition were complicated in nature and so could not be resolved through Constitutional jurisdiction. It will be useful to reproduce para. No,7 of this report:- "The eviction of Jagan Nath was in contravention of the express provisions of section 3 of the Public Premises (Eviction) Act. His eviction, therefore, was illegal. He was entitled to be evicted in due course of law and a writ of mandamus could issue to on an order in the nature of mandamus could be made against the Union of India to restore possession of the property to Jagan Nath from which he had been evicted if the property was still in possession of the Union of India. The property in dispute, however, is in possession of the appellant. There is no evidence and no finding of the High Court that the appellant was in collusion with the Union of India or that he had knowledge that the eviction of Jagan Nath was illegal. Normally, a writ of mandamus does not issue to or an order in the nature of mandamus is not made against a private individual. Such an order is made against a person directing to do some particular thing, specified in the order which appertains to his office and is in the nature of the public duty (Halsbury's Laws of England, Vol.II, Lord Simonds Edition, page 84). If it had been proved that the Union of India and the appellant had colluded, and the transaction between them was merely colourable, entered into with a view to depriving Jagan Nath of his rights jurisdiction to issue a writ to or make an order in the nature of mandamus against the appellant right he said to exist in a Court. We have not been able to find a direct authority to cover a case like the one before us, but it would appear that so far as election to an office is concerned, a mandamus to restore, admit, or elect to an officcwill not be granted unless the office is vacant. If the office is infact full, proceedings must be taken by way of injunction or election petition to oust the party in possession and that a mandamus will go only on the supposition that - there is nobody holding the office- in question. In R.v. Chester Corporation, 1855-25 LJQB 61(E), it was held that it is an inflexible rule of law that where a person has been defacto elected to a corporate office and has accepted and acted in the office, the validity of the election and the title to the office can only be tried by proceedings on a quo warranto information. .A mandamus will not lie unless election can be shown to be merely colourable. We cannot see why in principle there should be distinction made between such a case and the case of a person, who has, apparently,' entered into bona' fide possession of a property without knowledge that any person had been illegally evicted therefrom."
' The rule so enunciated was followed in State of Orissa v. Ram Chandra (AIR 1964 SC 685). If was held:-- "Mr. Tata Chari, however, has contended that the right on which the petitions of the respondents are founded is a right flowing from the respondents continuous possession of the properties for many years and he argues that if such a right is proved, the High Court would be justified in issuing a writ protecting that right. This argument is clearly fallacious. Mere possession of the property for however, long a period it may be, will not clothe the possessor with any legal right if it is shown that the possession is under a grant from the State which is resumable. Such long possession may give him a legal right to protect his possession against third parties, but as between the State and the grantee, possession of the grantee under a resumable grant cannot be said to confer any right on the grantee which would justify a claim for a writ under Article 226 where the grant has been resumed. In dealing with this argument, we have assumed without deciding that though a suit under section 9 of the Specific Relief Act would have been incompetent against the appellant, a similar relief can be claimed by the respondents against the appellant under Article 226. Even on that assumption, no right can be claimed by the respondents merely on the ground of their possession, unless there right to remain in possession is established against the appellant, and this can be done if the grant is held to be not resumable."
This rule was taken by our apexi Court in 1997 SCM R 1687 and 1998 SCM R 2268. The ratio, deducible from the foregoing discussion is that Constitutional jurisdiction is extra-ordinary and equitable in nature. It can be exercised in such cases where the petitioner can show ftR undoubted title in the property; possessory relief cannot be granted by way of mandamus when the title of the petitioner is open to inquiry; ordinarily this Court is not required to decide factual controversies in Constitutional jurisdiction and ask the parties to lead evidence/material in support of their claim.
This is the sole function of a Court of plenary jurisdiction; of course, subject to certain exceptional circumstances.
8. Applying these rules to the facts and circumstances of the case in hand, I find that the petitioner had failed to make out any uncontrovertible claim of title. There is no material annexed with the petition which can demonstrate that the United Presbyterian Church of North America and the United Presbyterian Church of Pakistan registered at Lahore are the same entities; that Messrs Rev.
M.D. John had any authority on behalf of Church of America to execute deed of attorney in favour of Padri Sharif Alam of Gakhar Mandi. On this state of affairs, it cannot be safely concluded that the deed of attorney was/is a valid instrument and so he was competent to execute the lease deed in favour of one Muhammad Abbas. Resultantly, it cannot be concluded without evidence and without providing right of cross-examination to the parties; that Muhammad Abbas had so validly executed deed of lease in favour of Bina Riaz. Add to it, a case had been registered with F.I.A. And the claim of the Cantonment Board is that all the proceedings commencing from the lease deed to sale-deeds dated 5-6-1998 are exercise in fraud. Furthermore, the Cantonment Board has claimed that all these deeds wel' prepared in favour of the petitioner by the erring employees of the Cantonment Board. On these facts, I have no hesitation to say that this Court in Constitutional jurisdiction has no material to decide the claim of the petitioner, and therefore, this Court cannot issue a writ of mandamus as prayed in this petition. This being the position, I am not persuaded to exercise Constitutional jurisdiction in favour of the petitioner.
9. With regard to the second point, it may be sated that the learned counsel for the petitioner did not show any provision of the Cantonment Act, 1924 or any Rule of Cantonment Land Administration Rules, 1937 to show that the irrebutable presumption of correctness was attached to the entries of the General Land Register. To the maximum, an analogy of section 52 of Land Revenue Act can be pressed into service. A bare reading of section 52 (ibid) shows that the entries made in Record of Rights in accordance with law are clothed with a rebuttable presumption of truth that is to say that they are presumed to be true unless the contrary is proved or no entries lawfully substituted thereof. In the case in hand, I do not find any entry with regard to the agreement of 1908. The case of the Department is that the entries in the General Land Register were manipulated and had been made by a collaborating official of the Cantonment Board. This being the position, no presumption of truth can be presumed unless and until they are proved before the Court of plenary jurisdiction. See Raja Shah and 38 others v. Nazar Hussain Shah and 16 others PLD 1976 Lah.
658.
9. As a result of the afore-going discussion, whatsoever I do not find any in this petition. On merit my conclusions that this petition raises complicated questions of law and fact which can only be decided by the Court of plenary jurisdiction. Consequently, this petition fails and is hereby dismissed with costs throughout .
11. Before parting with this order, it is made clear that if the petitioner moves the Court of plenary jurisdiction, the aforesaid forum shall decide/determine the controversies between the panics after affording opportunity of hearing to them and strictly in accordance with law and without being influenced by any observation whatsoever made in this judgment.