This revision petition has been taken up in pursuance of the Honourable High Court's order, dated 21-1-2000 in Writ Petition No.812 of 1995 in which the revision petition (SMROR No.1100 of 1991), decided on 7-11-1994 was directed to be treated as still pending for decision in this Court on its merits.
2. The brief background of this case is that a complaint in the year 1987 was moved to the Board of Revenue by the petitioner alleging fraudulent transfer of property of the petitioner by the respondents through forged and fictitious power of attorney. After preliminary enquiry/ investigation, the petitioner was advised to approach the Deputy Commissioner, Muzaffargarh for redressal of her grievance vide Memorandum No.181989/3046-E(F)II, dated 5-6-1989. Instead the petitioner filed the Revision Petition No.1100 of 1991 under section 164(1) of the West Pakistan Land Revenue Act, 1967 requesting therein that the Board of Revenue may take cognizance in pursuance of suo motu jurisdiction. The respondents objected through an application to the admission of this revision petition under section 164(1). The learned Member, Board of Revenue after hearing the parties vide his order dated 25-1-1992 decided that the revision petition was maintainable and admitted the same for regular hearing which was ultimately decided vide order, dated 7-11-1994 passed by learned Member (Judicial-I) whereby direction was issued to the A.C./Collector, Alipur to treat' the application of the petitioner admitted under section 164(1) of the West Pakistan Land Revenue Act, 1967 for hearing by the Board of Revenue as an appeal against the mutations challenged by the petitioner and decided them on merits.
3. Feeling not satisfied with this order, the petitioner filed the Writ Petition No.812 of 1995 which was decided on the ground that all the vendees were not made necessary party and the petitioner was directed to implead all the vendees of the transactions of assailed mutations and also furnish the list of assailed mutations so that the suo motu revision can be proceeded in accordance with law.
The case was remanded treating the revision petition in hand as pending.
4. Therefore, the already decided revision petition has been taken up again for fresh decision on merits. After observing all the formalities and obtaining amended information petition and making it part of the original revision petition and informing all the respondents including the latest vendees through the Mushtri Munadi on the spot, case was fixed for regular hearing and was argued in detail on 14-6-2000 and 20-6-2000.
5. The learned counsel for the petitioner right from the beginning stressed that the power of attorney, registered on 7-7-1977 with the Sub-Registrar, Lahore was never executed by the petitioner who is mother of the learned counsel for the petitioner (Mr. Javed Iqbal Jaffri) in favour of respondent Brig. Ijaz Hussain Shah. It was forged and fabricated by the respondent to swindle the property of the petitioner who is a Parda-observing lady. It was argued that the petitioner being a respectable Pardanasheen lady whatever she states on oath is to be taken as correct and since she has stated on oath that she never appointed Brig. Ijaz as General of Special Attorney on her behalf, therefore, burden of proof which is different from onus of proof rests with the respondent and will remain till the end of litigation. Relying upon PLD 1990 SC 642; 1997 SCMR 459; 1992 CLC 402 and KLR 1998 Civil Cases 344 (sic), 1988 CLC 1202, 1987 CLC 757 and 1989 CLC 418, it was contended that petitioner being a Parda-observing lady, the burden of proof is on the respondents. The learned counsel for the petitioner citing The State v. Abdul Hamid Jatoi and 3 others PLD 1973 Revenue 29 (Sindh) maintained that the present revision petition is on all fours with the cited case.
The respondent No.2 Syed Ijaz Hussain Shah was a serving Brigadier at Multan during Martial Law (1977 to 1985) and was using his official position to coerce the Revenue Authorities to transfer the property of the petitioner in favour of the so-called purchasers and all the Revenue Officers were helpless before him and obliged to carry out his wishes whether lawful or otherwise. Some of the Revenue functionaries rather colluded with the respondents and transferred illegally the landed property of the petitioner.
6. Therefore, the Board of Revenue should interfere to correct the wrong done to the petitioner exercising its suo motu powers. This is not an ordinary revision but a suo motu revision to be decided on merits and suo motu revision gives powers of a Qazi to do justice with sympathy regardless of the technicalities like limitation, pending proceedings before other forums etc. All the mutations sanctioned on the basis of a fictitious power of attorney should be set aside and land should be reverted to the original owner as was done in Jatoi's case by the Board of Revenue, Sindh. Reliance was also placed on Ghulam Ali v. Ghulam Sarwar Naqvi PLD 1990 SC 1.
7. It was further argued that the proceedings on the criminal and civil side have no bearing on the proceedings of the revenue authorities. The petitioner approached the police for criminal action but police did riot take any action and dismissed the F.I.R. without hearing the petitioner. Similarly a civil suit was filed in 1991 by the petitioner only seeking that relief which Board of Revenue cannot grant. The main pray before the Civil Court was to stop him (attorney of Mst. Shahzadi Mumtaz Jehan) from using the forged power of attorney. Under suo motu powers, Board of Revenue can order for the correction of the Revenue Record regardless of what is happening in the Civil Court.
8. It was pointed out that consolidation proceedings are going on for the last 25 years in Tehsil Alipur where the land of the petitioner is situated. The petitioner's husband (Syed Iqbal Hussain Shah) died in 1972. After his death, there was no one to look after the property. Respondent No.2 Syed Ijaz Hussain Shah was asked to look after the consolidation work of the petitioner's property.
The respondent deceived the petitioner and obtained signatures of the petitioner on various blank papers by telling her that these signatures/papers were required in connection with the consolidation operations. Her signatures were then misused for ulterior motives and most probably power of attorney was also executed under those very signatures. Under the concept of non est factum, it was argued, since the signatures have been used for other than the purpose for which they were obtained, therefore, all other purposes should be treated as illegal. Respondents being in a position of trust, instead of acting in a bonnum sonnum manner, acted in a disgraceful manner and swindled away the property of the petitioner. Since the petitioner neither gave any power of attorney nor sold her property nor received any money/consideration her property should be restored in her name which will ultimately go to a charitable trust: If the subsequent vendees are going to suffer any loss as a result of reversal of the property to the original owner that loss will have to be made good by the respondents Nos.1 to 5 because they cannot resile from the loss being the actual beneficiaries.
9. Relying upon the dictum that law will accept the impossible but not unreasonable, it was argued that it looks unreasonable that the petitioner would give a power of attorney to the son-in-law by ignoring the elder son (Mr. Jaffri) who was very much present in Lahore in the year 1977 when power of attorney was registered and who himself is a Lawyer and who was already having one power of attorney from all the legal heirs of his deceased father Mr. Iqbal Hussain Shah. It was further contended that even if the power of attorney is assumed as genuine but the sales/Tamleeks made through this power of attorney of the petitioner could only be made for a demonstrated necessity and burden of proof is on the respondents. The petitioner being a well off lady living in Gulberg, Lahore and being looked after by two sons, there was hardly any necessity for her to sell her property because her needs were very limited. Since all the sales/Tamleeks were based on fraud, it is axiomatic that fraud vitiates the solemness. The respondents have not come with clean hands in the Court. Any sale/purchase that has been accomplished through fraud will be treated as null and void ab initio and for ever because fraud annuls the most solemn proceedings.
10.While preparing the so-called power of attorney, as the respondents were in a hurry to commit the frauds even the name of the petitioner has not correctly been incorporated in the contents of power of attorney. Petitioner's correct name is Shahzadi Mumtaz Jehan but in the forged power of attorney, she had been shown as Saeeda Mumtaz Jehan. If the real son had accompanied for execution of the power of attorney, he would have at least corrected the, name of the petitioner.
Since everything was done in a fraudulent manner none of the vendees bothered to check from the original owner about the authenticity of the transaction. Normally the vendees would trace not only the history of the property but also of the owner and the seller. Since so many sales occurred through various mutations, it was duty of the so-called vendees to confirm the bona fide of these sales/Tamleeks. It was incumbent upon them to ensure that the property was being sold for necessity or some dire need. If the respondents say that they had been paying the money to the petitioner then the question is, was she so destitute to sell her property. She has already submitted on oath that she did not sell and did not receive any money from the respondents. None of the sale/Tamleeks was made in good faith for necessity and there was no bona fide purchaser for value in open market. The property was transferred just on nominal prices by the respondent No.2 using his official position and by coercing and in collusion with the Revenue Authorities. Quoting an extract from Chapter 9, page 296 of the book "good faith in sale", it was requested that all the transactions are to be treated as unconscionable bargains making market of other's weakness.
Such bargains are to be probed and investigated in depth. Even if finalized on the basis of registered documents and as a result of in-depth probe if element of fraud comes out the consequences of fraud including even decrees of the Civil Courts are always null and void. The petitioner trusted the respondents Nos.1 to 5 and all the Revenue Authorities but all betrayed her trust. Their conduct does not amount to fair dealings because the so-called sales were neither fair nor transparent. Though, Ijaz Hussain Shah was not a genuine attorney but even if he was posing himself as attorney, it was his duty to get maximum price of the property for the original owner, but he sold for nominal prices.
11.On the basis of forged power of attorney, Tamleeks were initially made in favour of the four daughters and subsequently the property of the three daughters was also got transferred in favour of the fourth daughter Mst. Aqeela Parveen Ijaz who is wife of respondent No.2 Syed Ijaz Hussain Shah. A trustee cannot approbate and reprobate and cannot enjoy the forbidden fruits of poisonous tree. If Ijaz was genuine attorney, he would not have indulged in self-serving.
12.Winding up his arguments, the learned counsel for the petitioner stressed that the power of attorney was forged which was never executed in favour of Ijaz Hussain Shah. Petitioner never sold her property neither there was any necessity nor received any money. Ijaz alongwith other respondents and in collusion with the Revenue Authorities and so-called vendees none of whom is a bona fide purchaser for value, swindled away the valuable property of the petitioner and caused a big wrong to the petitioner which should be rectified. If some vendees are to be compensated, compensation should be paid by the respondents Nos.1 to 5 and entire burden of proof is on the respondents.
13.On the other hand, the learned counsel for respondents Nos.1, 2, 4 and 5 Mr. Najaf Abbas Shah started his arguments with the background position stating that when the husband of the petitioner died in 1972, family was in very poor financial position. The power of attorney was given in favour of the eldest son (presently learned counsel for the petitioner) by all legal heirs of husband Syed Iqbal Hussain Shah. But when Mr. Jaffri started abusing the power of attorney, it was revoked one by one by all the legal heirs through registered cancellation deed in December, 1986 and including his brother. Since all the legal heirs had lost trust on Mr. Jaffri, therefore, Mr. Ijaz Hussain Shah, respondent No.2 was genuinely appointed as attorney of the petitioner in the year 1977. She herself appeared before the Sub-Registrar for execution of the power of attorney which was registered in the year 1977 and it was witnessed by her second son Dr. Saeed Ahsan Mukhtar, who is brother of the learned counsel for the petitioner. He has himself admitted in the Civil Court the revocation of earlier power of attorney given in 1972 in favour of the learned counsel for the petitioner and genuineness of his own signatures on the power of attorney in favour of Ijaz Hussain Shah. The petitioner has also repeatedly admitted before various revenue, civil and criminal authorities that she herself appointed Ijaz Hussain Shah as her attorney. She has given affidavit to this effect to the police also in the F.I.Rs. lodged by the learned counsel for the petitioner. She has admitted that she has revoked the power of attorney in favour of Mr. Jaffri and appointed Ijaz Hussain Shah as her attorney. Not only the petitioner's but affidavits of brothers, sisters and other whole family members are on record showing that everything was done with full consent and will of the petitioner. These affidavits were obtained for showing to authorities in F.I.Rs. complaints and civil suits. Power of attorney is genuine duly registered with the competent authority and witnessed by petitioner's son Dr. Ahsan Mukhtar. The respondent No.2 had always held prized posting in Army and he resigned in the year 1982 which was accepted in the year 1983 because he refused to do Martial Law duties. Therefore, the contention that he misused his position during the Martial Law and coerced the Revenue Authorities for sanctioning illegal transactions is sheer allegation. All the mutations were sanctioned after observing due process of law and there was no compulsion on Revenue Authorities for doing anything illegal. Even otherwise, they were fully competent to disobey the illegal orders. Civil suit was filed by the petitioner on 25-3-1991 prior in time to the filing of the present revision petition on 31-3-1991. In the civil suit not only the power of attorney but all the sales made thereunder through registered sale-deeds have been challenged and the matter is still sub judice .
14.The learned counsel for the petitioner did not stop at dragging the respondents in Revenue and Civil Courts but he also lodged three F.I.Rs. and one private complaint on criminal side on various occasions. The private complaint was lodged on 19-4-1988 and it was ultimately cancelled on merits. F.I.R. No.54 of 1989 was lodged in Police Station, Alipur City on 29-3-1989 which was finally cancelled under order of the Ilaqa Magistrate. Another F.I.R. No.83 of 1993 with the same allegations was again cancelled after thorough probe and investigation. Similarly, F.I.R. No.580 of 1992 after detailed investigation was ultimately cancelle because police could not find anything wrong or any fraud. The police even obtained the register of Sub-Registrar and after thorough examination of the Sub-Registrar's office record came to the conclusion that power of attorney was registered in accordance with the law. Even in the parawise comments submitted by D.I.-G. Dera Ghazi Khan, in Writ Petition No.2545 of 1991, he himself admitted that Investigating Officer personally went twice to the petitioner who confirmed to him that power of attorney was genuinely given and all other relatives also confirmed the genuineness of the power of attorney.
15.It was further argued that even prior to the disputed power of attorney, the petitioner had given a duly registered power of attorney on 6-2-1975 in favour of respondent No.2 i.e. Ijaz Hussain Shah, when there was no Martial Law. Second power of attorney was given in the year 1977 and both powers of attorney were witnessed by Dr. Ahsan Mukthar brother of the learned counsel for the petitioner, who has admitted his signatures on both the powers of attorney in the Civil Court.
16.So far as the name of the petitioner in the disputed power of attorney is concerned, the name Saeeda Mumtaz Jehan has correctly been written because her name in the entire Revenue Record is being shown exactly in the same manner. The respondents have come to the Court with Clean hands. Rather the learned counsel for the petitioner has not come with clean hands before the Court because respondents Nos.3, 4 and 5 were even minor in the year 1975. Power of attorney was first executed in favour of respondent No.2 and these respondents have got no connection with the property or anything connected therewith. That is why they were not even included in the F.I.R.
Equity demands that the petitioner should have come with the clean hands. Just to defame and pressurise the family, all other family members have been included in the list of respondents. Both powers of attorney duly registered are still intact with the Registration Authorities. They have neither been got revoked or cancelled nor there is any stay order by any Court. They being still in operation in itself is a big proof of their genuineness.
17.Before putting forward his arguments on the law points, the learned counsel for the respondents submitted photo copies of the opinion given by the Supreme Court of Illinois. U.S.A. upheld by the United States Court of Appeals of Philadelphia, whereby Mr. Jaffri was disbarred from the practice of law and his name was struck from the role of attorneys on the ground of making frivolous law suits and being incapable of conforming his conduct to an acceptable standard. His unprofessionalism was declared as an abuse of the privilege to practise the law and tended to bring the judicial system and legal profession into disrepute. Similarly a photo copy of the judgment in Suit No.1727 titled Cheng Jaffri v. lqbal Jaffri of . Honourable Judge Saleeman of High Court of Justice Family Division, London was placed on record by the learned counsel to show the conduct of the learned counsel for the petitioner who consistently abuses every indulgence in spite of repeated warnings and consistently refuses to address his mind to the relevant issues in the case.
18. It was argued that when the power of attorney duly authorized/executed and registered is still intact and when almost all the transactions took place on the basis of registered sale-deeds and when the civil suit is still pending in this regard this revision petition is not maintainable which should be dismissed. None of the three conditions for the admissibility/maintainability of the revision petitions as laid down in section 11 of C.P.C. i.e. (i)Wrong exercise of jurisdiction; (ii)Exercise of jurisdiction not vested; and (iii)Jurisdiction exercised in illegal/irregular manner; is/was fulfilled. One of these three conditions has to be proved even before admission of the revision petition for regular hearing. But in this case, none of the conditions is attracted. Revenue Officer had the legal powers and jurisdiction to sanction the mutations on the basis of registered sale-deeds and registered power of attorney. Mutations are only for record and fiscal purposes as held so many times by the superior Courts in chain of authorities. Mutations do not create any title or rights which are created by the registered sale-deeds. So by sanctioning the mutations on the basis of registered power of attorney and registered sale-deeds no illegality/ irregularity has been committed PLD 1966 (W.P.) Revenue 106. Attestation of mutations are summary proceedings which do not decide about the rights of the people as in these proceedings a detailed factual enquiry cannot take place. Questions of title are to be decided by the Civil Courts 1984 CLC 3279, PLD 1988 Revenue 57 and PLD 1981 Revenue 1.
19. It was further argued that complicated questions of fact and law are always to be determined by the Civil Courts and Revenue Authorities are restrained to determine such questions. Reliance was made on 1986 SCMR 598, PLD 1960 (W.P.) Lah. 300, PLD 1986 Revenue (Sindh) 131, PLD 1966 (W.P.)
Revenue 106 etc. etc. Revenue Authorities are bound to incorporate registered documents in the Revenue Record. Even if they have doubt about any registered document, they are supposed to first comply with the registered documents and then let the parties go to the Civil Court to determine the authenticity of those documents. It was further contended that whenever there is an allegation of fraud and misrepresentation which had led to attestation of mutation, the Revenue Authorities have no jurisdiction to adjudicate as held in:--
(i) PLD 1988 Revenue 57; (ii) PLD 1964 (W.P.) Revenue 1; (iii) PLD 1964 (W.P.) Revenue 65; and (iv) PLD 1964 (W.P.) Revenue 101.
20.When the registered sale-deeds are intact, mutations cannot be set aside. Even if mutations are cancelled, it would not affect the title and rights of the parties unless the sale-deeds. are cancelled. Correction, rectification and even cancellation of a registered document can be done only by the Civil Court, as held in 1971 SCMR 414(c), 1984 CLC 3130, PLD 1986 Revenue (Sindh) 43 and NLR 1978 Revenue 125. It was averred that long-standing entries in the Revenue Record cannot be set aside even by the Board of Revenue. If there is a delay in challenging the mutations such a challenge should not be entertained by the Revenue Authorities and parties should be directed to go to the Civil Court as held in PLD 1990 Revenue 79 and PLD 1987 Revenue 25.
21.Referring to the decision of the Board of. Revenue in case Muhammad Ismail and others v. Mst.
Bashir Bibi reported at 1997 CLC 1204 the circumstances of which are exactly the same as of the case in hand, it was argued that if mutation is sanctioned on the basis of a registered power of attorney, the same cannot be set aside. It was held that it was the function of the Civil Courts and not of Revenue Courts to sit in judgment over genuineness of power of attorney which was a registered document. Revenue Courts could not go beyond registered power of attorney and registered sale-deeds to establish alleged fraud concerning a registered document, the same could be examined only by the Civil Court. The Revenue Authorities are not supposed to know the purpose for which the property is being sold, as contended by the learned counsel for the petitioner. How and why the Revenue Authorities should know whether the petitioner was in a need to sell her property. They are simply to go by the registered documents PLD 1965 (W.P.) Revenue 42.
22.Relying on PLD 1961 (W.P.) Revenue 14, it was urged that when issue is pending in the Civil Court as well'as before the Revenue Authorities, as in this case, Revenue Courts need not decide the case to avoid possible conflict of decision. It was stressed that the petitioner is solely relying upon Jatoi's case which is no longer relevant in this case because in that case the forged signatures were admitted by the parties whereas there is no such admission in this case. Rather petitioner admits and owns her signatures. Similarly this is not a case of fraud as alleged by the petitioner. It has been probed not once but thrice by the Police Authorities also but they did not detect any fraud and if still they allege it as a fraud then the petitioner should first prove and establish the fraud for which she has already gone to the Civil Court. Moreover, after Jatui's case, .which was announced in the year 1973, so many authorities of the superior Courts have come in the field in the light of which this case is no longer at all applicable to the case in hand and all the authorities of the superior Courts as quoted earlier clearly say that the petitioner should go to the Civil Court.
23.So far as allegation of selling the land on nominal/throwaway price is concerned, the apparent nominal price was received because the area was non-cultivable when it was sold in the late 1970s. Whatever money was received that was paid to the petitioner sometime in cash for which proper receipts were obtained and sometimes amount was deposited into the account of the petitioner. Those receipts have been signed by the other son of the petitioner and the petitioner herself and they still own it. As regard transfer of property by the three daughters in favour of the fourth daughter i.e. respondent No.1 . Tamleek was made in favour of all the four daughters as per desire of the petitioner and subsequently three daughters voluntarily sold their property to the fourth sister and received proper payment through cross pay order into their accounts which can even now he verified from the bank accounts. If there had been any element of fraud with them they would have challenged the transactions before the competent forum. But none in the family is disturbed except the learned counsel for the petitioner. Even his brother Dr. Ahsan Mukhtar who is highly educated has admitted his signatures on the power of attorney before the Civil Court where the suit is pending. If the Board of Revenue decides this case, it would be setting a wrong precedent by sitting upon the judgment on the decision of the Revenue Officer directly and by depriving the vendees the three rights of appeal down below, as provided under the law. It would neither be equitable to eliminate all the stages down below nor is it the spirit of the law. Therefore, the revision petition in hand should be dismissed.
24.The learned counsel for respondents Nos.3 and 40 other vendees taking the arguments further said that the presumption of truth is attached to the duly registered power of attorney and sale- deeds by the competent Authority which have not yet been rebutted. If the Board of Revenue accepts the revision petition on the suo motu side, it will have far-reaching and legal bearings particularly on the bona fide purchasers who purchased the lands after proper verification of revenue and other record regarding the property purchased. A genuine purchaser could at the most satisfy himself about the genuineness of the property and the sale as per entries in the Revenue Record. He would and he should not know about the family disputes. After getting copies of the Revenue Record they purchased the property through registered sale-deeds, made the payment and got the possessions as per requirements of the law. Therefore, all the rights of the bona fide subsequent purchasers are fully protected under section 41 of the Transfer of Property Act, 1882. The decision of Mushtry Hoshiar Bash has already been declared un-Islamic in PLD 1978 SC 249. There is no fault on the part of the vendees. Their valuable rights cannot be disturbed on simple application under section 164(1) of the Land Revenue Act by the Board of Revenue in which neither any evidence could be recorded, no issues can be framed, no cross-examination is allowed, no document can be exhibited nor a detailed enquiry can be undertaken to determine the rights of the parties. In this situation, if the Board of Revenue accepts the revision petition on suo motu side, highly valuable legal rights of the vendees would be injured. Those rights have been created by the registered sale-deeds which are still intact. All transactions took place during the last 20 years. Nobody has ever challenged them. Nobody disturbed their possession. Nobody ever served the vendees with any notice. There is no ejectment suit against them, nor anybody has claimed any Lagan or share in the produce which clearly shows that their title has been accepted.
All the mutations stand incorporated in the Revenue Record in such a situation. It will be highly unjust/harsh for the vendees if their rights are disturbed through a simple application under section 164 of the Land Revenue Act. Particularly so, when section 53 of the Act itself advises, in such a situation the party to file a civil suit. In the present form and under the present conditions, this petition be dismissed when other various other legal remedies are available. When both the parties have already gone to the Civil Court, the legal/genuine purchasers should not be disturbed by the present suo motu revision petition.
25.So far as assertion of the, learned counsel for the petitioner that burden of proof is on the respondents is concerned, the basic law says that it is he who alleges must prove and the learned counsel for the petitioner has got no proof against the vendees who are bona fide purchasers. They have unnecessarily been dragged in this litigation by the petitioner knowing that the poor have to come all the way from Muzaffargarh on each hearing by spending a lot of money through a frivolous petition which should be dismissed with heavy cost.
26.In rebuttal, the learned counsel for the petitioner said that the petitioner (Shahzadi Mumtaz Jehan) denies/controverts all the contentions/ arguments of the respondents and holds them to strict proof. She filed verified information complaint personally before the learned Senior Member in 1987. After investigations, Secretary (Revenue), Board of Revenue advised to file the suo motu revision petition. All the contentions of Shahzadi Mumtaz Jehan still remain uncontroverted as all burden of proof is on the respondents, petitioner being a Parda-observing lady. As held in case titled Ramzan v. Chiragh Bibi reported at 1989 CLC 418 mere denial of sale by a Parda-observing lady is sufficient and is to be believed and burden of proof rests on the respondents. All the documentary evidence placed on record by the respondents/affidavits by family members, registered power of attorney of 1975 etc. have been and are denied by those family members through telegrams to this Court.
27.Regarding conduct of the Javed Iqbal Jaffri (counsel for the petitioner) showing opinion of foreign Courts, it was said that these are sheer allegations which should not affect the merits of the case'as son's action will not allow swindling away the property of the mother by respondents. Civil Courts do not allow copies of the pending cases. Documents produced concerning Mr. Javed Iqbal Jaffri have not legally been obtained and are irrelevant. These are all tactics by the respondents because they do not have a viable evidence/case. All the case-law cited by the respondents is irrelevant as none involved suo motu revision petition and a Pardanashin lady. The Jatoi case is on all fours applicable to the case in hand. So far as purchases by the subsequent vendees are concerned, it was said that all the property involved is lis pendens, therefore, all transfers are subject to the order of this Court. On the two powers of attorney one in 1975 and the other in 1977 in favour of respondent No.2 it was argued that 1975 power of attorney did not exist and 1977 power of attorney was rescinded and cancelled on 25-3-1991 (cancellation brought on record with amended petition). Since 1977 power of attorney was rescinded nune pro-tune (w .e.f. 7-7-1977) none is in the field. Respondents cannot talk now both ends of the mouth because 1975 power of attorney could not be in the field in the presence of 1977 power of attorney. Shahzadi Mumtaz Jehan denies execution of both powers of attorneys. 1972 power of attorney in favour of Javed Iqbal Jaffri was through a commission being a Pardanashin lady. So, why would she go to the Sub- Registrar for execution of power of attorney in favour of Ijaz Hussain Shah, respondent No.2. Both powers of attorney are based on fraud. It looks unreasonable that Mr. Ijaz who being in the Army and more busy would be appointed attorney by the mother-in-law ignoring two other sons-in-law who are related to her and relatively more free being not in Government service. Statement by the respondents that Mr. Javed lqbal Jaffri misused the 1972 power of attorney in his favour is scandalous and statements of counsel are no evidence and not acceptable in law. Not a single instance of abuse of attorney by Javed Iqbal Jaffri has been quoted by the respondents.
28.Regarding three F.I.Rs. it was stated that no investigation worth the name took place in the presence of the complainant. Two F.I.Rs. are still alive so far as petitioner is concerned and one has been cancelled by the major D.I.-Gs. of Police under the influence of respondent No.2. Non- inclusion of few names in the F.I.R. has got nothing to do with this case as it is to be decided regardless of the other proceedings before the Criminal or Civil Courts. Doctrine of Mushtri Hoshiar Bash continues to be a part of jurisprudence of this country and if vendees have purchased the property being sold through fraud, they will have to suffer because fraud vitiates the solemnness.
Too many wrongs do not make one right.
29.Relying upon the following authorities:-- (i) PLD 1990 SC 1195 and (ii) PLD 1979 Revenue 1.
It was stressed that jurisdiction of Civil Courts is excluded in Revenue matters and all remedies are to be exhausted in the revenue forums. Under section 164 of the West Pakistan Land Revenue Act, 1967, Board of Revenue has got vast powers and may pass any order as it deems fit to set right a wrong PLD 1978 Revenue 41. It is duty of the Courts to undo the fraud and no party is allowed to take advantage of the fraud 1990 CLC 220. Affidavit-in-evidence without cross-examination is not accepted 1990 CLC 1003 (Karachi). The one who could prevent the loss must suffer the loss 1990 CLC 686. So, in this case Ijaz being the major beneficiary should suffer. Certified copies of documents could not be taken in evidence without execution of the original document 1985 CLC 2831.
30.Regarding proceedings in Revenue matters it is preferable to save multiplicity of proceedings PLD 1985 SC 209 under suo motu jurisdiction, the Board of Revenue has vast powers on revisional side PLD 1970 Lah. 614, PLD 1972 Journal 24 and 1992 SCMR 2334. In furtherance to this an article by Rana Abdul Majid titled "Prevention of Frauds on Mutations" was presented..Relying on "Words and Phrases", Volume 40-A, CJS Volume 83 and American Jurisprudence, Volume 73, it was stressed that evidence can be recorded in sun-unary proceedings as summary proceedings are simplified for the purpose of expediting justice because one who commits fraud is not entitled to appeals etc. Documents allegedly executed by Pardanashin/ illiterate lady are to be established beyond doubt by the beneficiaries 1993 MLD 1979 (Lahore).
31.Relying upon 1997 SCMR 459, 1992 CLC 402, PLD 1990 SC 642, PLD 1990 SC 1, it was again stressed that burden of proof is on the respondents. It was argued that police complaints papers cannot be used in civil cases. Reliance was made on Law Reports in the Time London, dated 29-12- 1992. Referring to the book titled Course on Evidence by Sir Rupat Cross, London, 1985, 118 and 121, Edition 1985, it was argued that evidence is to be produced by one within whose power that evidence is. Since all burdens including legal buiden, evidential burden, general burden, ultimate burden were on the respondents but none of these has been discharged by them. Whatever the respondents say that have to be proved. If they say that they sold the property of the petitioner with her consent they will have to prove. If they say that consideration money was received by the petitioner, again they will have to prove. But they have not discharged themselves from any of these burdens so far.
32.Using the right of reply to the new points raised in rebuttal, the learned counsel for the respondents, stressed that none of the authorities quoted including the Jatoi case are relevant. At the most they are a bad law.
After Jatoi case standing view of the Courts prevails. The view taken by Court in Jatoi case was relevant if it had consistently been upheld in subsequent judgments. But further interpretations and authorities of the superior Courts have come in the field. Previously view, as in Jatoi case, has become a bad law the latest view has come in 1997 CLC 104 which is on all fours relevant in this case and parties be referred to go to the Civil Court. Not a single sale has been pointed out to show the transfers as Benami. If the purchases have not been for value in the open market, pre-emption suits would have been filed but not a single pre-emption suit has been filed against about 2000 sales/mutations.
33.The petitioner cannot be accepted and believed to be Pardanashin lady by the simple saying of the counsel for the petitioner. This is a question of fact yet to be determined whether she is a Pardanashin lady or not because the petitioner had been personally appearing before the Sub- Registrar and even twice appeared in the Board of Revenue, as admitted by the learned counsel for the petitioner. Photographs of the petitioner in Europe moving without Parda can be produced to show that she is not a Pardanashin lady. Again this'fact cannot be determined by this Court.
Therefore, the petitioner cannot shift all the burden of proof simply by saying that the petitioner is a Pardanashin lady.
34.Sales continued strictly in accordance with the law since 1983 onward because there was no injunction or stay of any competent forum despite lot of hue and cry of the learned counsel for the petitioner regarding alleged fraud. If there was any element of fraud, Board of Revenue could have stopped further transactions where complaint was lodged in 1987 but no such order was issued.
The Revenue Authorities have exclusive jurisdiction in revenue matters like correction of Revenue Record etc. In this case alleged fraud is involved which is the exclusive jurisdiction of the Civil Courts. There is no doubt, where intricate questions of law and facts are involved, where questions of fact are to be established, such matters are out of the jurisdiction of Revenue Authorities. Since the petitioner has already gone to the Civil Court, therefore, the revision petition should be dismissed.
35.After listening to the detailed arguments from both sides in two lengthy sittings and carefully perusing the record as well as the authorities cited and material produced, the nutshell of the whole matter devolves on the point of alleged fraud committed by respondent No.2, Ijaz Hussain Shah who allegedly misusing his position in the Army, forged the power of attorney and sold/swindled the valuable property situated in Tehsil Alipur of the petitioner as far back as in 1980s. Despite repeated requests, the petitioner could not provide the details of the property sold and complete list of purchasers etc. These details were finally obtained by the Court from the consolidation and revenue field staff. As per details provided by the field staff, the total area owned by the petitioner and disposed of through various mutations is as under:-- S. No. Name of MauzaTotal Area Area sold Remaining areaNo. of registered deedsNo. of oral mutations K-M K-M K-M
1. Ghalluan-I 252-05 251-18 00-07 34 25
2. Ghalluan-II 327-12 273-15 53-17 37 20
3. Mutfarraqqa 35-05 28-15 6-10 1 15 Total 615-02 554-08 60-14 77 60
36. Majority of the transactions/transfers took place initially on the basis of registered documents.
Most of the fresh vendees got the property transferred through registered sale-deeds. Some got through oral mutations. None of these sale-deeds have been cancelled so far. The basic documents on the basis of which superstructure of whole the transactions was built is the power of attorney allegedly executed in favour of respondent No.2 by the petitioner in the year 1977. This power of attorney is the main bone of contention. Both sides are sticking to their guns. The learned counsel for the petitioner alleges that this power of attorney was forged and was fraudulently obtained whereas respondents insist that the power of attorney is genuine in all respects duly registered by the competent Authority and still intact whereas the petitioner claims its cancellation.
The petitioner's main claim/request is to undo all the transactions mentioned above exercising the suo motu revisional powers being based on fraud. There is no doubt that Board of Revenue has unfettered powers in suo motu reyisional jurisdiction but those powers are only concerning the revenue matters. Board of Revenue obviously cannot trespass into the domain of Civil Courts. To my mind all the issues involved in this case are exclusive domain of the Civil Courts. All the transfers and mutations have been sanctioned after observing due process of law. The only allegation is that those were sanctioned under the influence of the respondent No.2 who was a Brigadier in Martial Law days. This allegation has neither been proved nor is believable because more than 100 mutations spreading over a period of about 15 years obviously have not been sanctioned by one Revenue Officer. One or two Revenue Officers could have been influenced but it is unbelievable, that all the Revenue Officers who sanctioned all these mutations from time to time came under the influence of respondent No.2 or connived with him. Out of so many Revenue Officers few could have definitely said no to the respondent No.2 even if he was on Martial Law duties as during Martial Law times civil matters are disposed of rather more carefully and strictly in accordance with the law.
37. Therefore, all the duly sanctioned mutations cannot be set aside on the simple assertion of having been sanctioned under the influence of one person when majority of them stand incorporated in permanent record of rights. Particularly those mutations cannot be touched by the Revenue Authorities which have been sanctioned on the basis of registered sale-deeds because mutations neither create rights or extinguish them. They are simply for fiscal and record purposes.
Since the rights have been created by the registered sale-deeds which are still intact, therefore, to set aside the mutations exercising the suo motu powers is uncalled for. Unless the registered sale- deeds on the basis of which these mutations have been sanctioned, are cancelled by the competent forum these mutations cannot be touched. It appears that the petitioner after having availed all remedies like criminal proceedings before the police and the Criminal Courts and civil suits challenging the impugned power of attorney and sale-deeds and failing to get the desired quick relief now wants to use the shoulders of the Board of Revenue having suo motu powers. But I am not inclined to use these powers in this case specifically on the following grounds:--
(i) The matter is already pending before the Civil Court and petitioner herself has chosen that forum.
(ii) If Board of Revenue gives today one decision and tomorrow the Civil Court gives another, the question will crop up which one of the two decisions will prevail? If for example, mutations are set aside treating them based on fraud and fictitious power of attorney, what will be the fate of the rights of the vendees if the challenged power of attorney is declared genuine tomorrow by the Civil Court which is already seized of the matter? Obviously, conflict of decision is to be avoided.
(iii) Learned counsel for the petitioner has not established any one of the allegations and shifted the responsibility simply by saying since petitioner is a Pardanasheen lady, therefore, burden of proof is on respondents. This fact is bitterly contested by the respondents and is yet to be established. Even if it is believed that all the burden of proof in this case rests on the respondents but Revenue Courts are not the proper forum for discharging that burden. Burden can be discharged in the true sense by respondents if proper issues are framed and then parties are invited to bring evidence on each issue so framed, examination and cross-examination of the witnesses takes place, detailed enquiries are held where required, the experts' opinions are obtained on the genuineness of the signatures and thumb-impressions on all the documents produced by both sides like powers of attorney, affidavits, registered sale-deeds etc. etc. For discharging this burden of proof Civil Courts are the best forum and not the Revenue Courts who always undertake summary proceedings.
(iv)Since the intricate questions of laws and facts like whether the petitioner is genuinely Pardanashin lady or not; whether she personally appeared before, the Sub-Registrar for execution of so many powers of attorney etc. etc. are involved such intricate questions of law and facts are obviously handled by the Civil Courts and not by the Revenue Courts.
(v)All documents like sale-deeds, powers of attorney, affidavits and signatures on them are claimed to he genuine by the respondents but the petitioner side is claiming them bogus through telegrams and some of signatories of these documents have disowned them. For determination of the genuineness of these documents again detailed evidence is required for which Civil Courts are the best forum. Similarly points like sales were for necessity or not consideration money received by the owner or not and who appeared before the Sub-Registrar for execution of the power of attorney, all are matters of detailed enquiry which is the exclusive jurisdiction of Civil Courts.
(vi)Even if it is accepted that all the transactions/bargains amounted to make the market of petitioner's weakness, still each and every transaction requires an in-depth probe individually. As a result of in-depth probe in which all the characters involved in each transaction obviously will have to be heard, if the element of fraud is determined only then the consequences of that fraud can be declared null and void.
(vii) If the petitioner feels that relief can be provided only by Revenue Courts and not by Civil Courts, she has still got the remedies available by filing individual appeals (as area in each case has changed so many hands through further sales) against all the mutations sanctioned by Revenue Officers and come through the hierarchy of Revenue Courts. By entertaining direct petitions against the judicial orders of Revenue Officers and cancelling them, Board of Revenue would be setting a bad precedent of encouraging people to approach directly to Board of Revenue against orders of Tehsildar/A.C.-I by ignoring and bypassing the Revenue Courts of Collector, District Collector, Commissioner etc.
38. Since the petitioner has already chosen both the criminal and the civil forums for undoing the consequences of the alleged fraud, therefore, I do not find any justification for interfering in the duly sanctioned mutations on the basis of registered documents exercising the suo motu powers at such a belated stage when the Civil Court is already seized of the matter. Since all the above mentioned facts and details of information which have now come on record during regular hearing were not available at the time of admission of the application of Shahzadi Mumtaz Jehan under section 164(1) of the Land Revenue Act, 1967 by Board of Revenue, I do not have any hesitation in dismissing the suo motu revision petition of the petitioner. Let the petitioner contest her case before the Civil Court and whatever verdict of the Civil Court finally comes out, obviously that will be binding on the Revenue Authorities.
39. After hearing the arguments of both the parties, the judgment in this case was reserved on 20- 6-2000 and is being announced today. The parties should be informed through their counsel.