' This judgment shall dispose of Writ Petition No,305-R of 1987, Writ Petition Nos.1211 of 1989, Writ Petition No,24269 of 1997 and Writ Petition No,26664 of 1997 as somewhat overlapping controversy is involved therein and even otherwise the said writ petitions proceed on interwined facts and common background.
2. In Writ Petition No,305-R of 1987 Malik Muhammad Aslam and Khan Baz Khan being informers in regard to the allotment made in favour of the predecessor-in-interest of Mst. Iqbal. Begum and Mst. Zubeeda Begum, have challenged the order, dated 19-10-1986 passed by the Additional Commissioner (General) while in Writ Petition No,1211 of 1989 Ghulam Muhammad and Mst. Jannat Bibi, legal heirs of Fazal Karim have taken exception to the orders dated 12-11-1986 passed by the Additional Commissioner and the order, dated 30-6-1988 passed by the Board of Revenue, Punjab.
Writ Petition No,24269 of 1997 has been filed by Mst. Iqbal Begum and three others seeking declaration that the order, dated 15-10-1997 passed by the Additional Commissioner (Revenue) with the powers of 'Administrator (R.P.)/Chief Settlement Commissioner, Gujranwala Division, Gdjranwala, be declared to be without lawful authority and of no legal effect. The last writ petition i,e, Writ Petition No,26664 of 1997 is again filed by Mst. Lqbal Begum, wherein the order dated 16-11- 1996 passed by the Additional Deputy Commissioner (General) and consequent transfer deed, dated 21-11-1996 as also Mutations Nos,14235 and 14236, dated 28-11-1996 entered and attested by Additional Deputy Commissioner (General) with the powers of Deputy Settlement Commissioner alongwith the order, dated 28-5-1997 passed by the respondent No,1 and the order, dated 7-4-1986 are sought to be declared to be without lawful authority and of no legal effect.
3. The relevant facts may be gathered from Writ Petition No,24269 of 1997 and Writ Petition No,26664 of 1997 and these are to the effect that land measuring 49 Kanals, 14 Marlas situate in village Fattumand falling within the municipal limits of Gujranwala was allotted to one Umra son of Eida and another parcel of land measuring 42 Kanals, 6 Marias situate in the same village was allotted to Barkat sort of Allah Bakhsh. Umra sold his allotted land to Abdul Ghani, Mst. Ghafooran and Mst. Sughran, who further sold it to Mst. Zubeda wife of Rashid Ahmed by means of registered sale-deed and mutation to that effect was also sanctioned in her favour. Similarly Barkat son of Allah Bakhsh sold his allotted land to one Fazal Karim by means of registered sale-deed, dated 19- 10-1966 and Mutation No,161, dated 19-11-1966 was also reflected on his favour in the Revenue papers. The vendee aforenoted i,e, Fazal Karim in turn sold 26 Kanals and 6 Marlas, Mst. Lqbal Begum petitioner No,1 in Writ Petition No,24269 of 1997 and Writ Petition No,26664 of 1997 while the remaining area of 16 Kanals to Bakkat Ali son of Nawab through a registered sale-deed, The said area was also subsequently purchased by Mst. Iqbal Begum vide sale-deed dated 9-3-1967, thus the petitioner became owner of the land measuring 42 Kanals, 6 Marla; located in village Fattumand, Tehsil and District Gujranwala. The petitioner in turn started selling her land to different persons and exhausted the same except 1 Kanal, 19 Marlas, which remained with the petitioner and according to Jamabandi of 197172 the same is shown to be in her ownership. Similarly the said chunk of land is recorded 'in the ownership of the petitioner in the Jamabandi of 1991-92.
4. Malik Muhammad Aslam and Khan Baz Khan the petitioners in Writ Petition No,305-R of 1987 alongwith some other informers filed a Mukhbari application under sections 10 and 11 of the Displaced Persons (Land Settlement) Act, 1958 before the Assistant Commissioner/ Additional Settlement Commissioner (Land), Gujranwala, and obtained a favourable order on 22-9-1976. This order was challenged by the petitioner by filing a Constitutional petition, which was dismissed vide order, dated 12-1-1985 and is reported as Mst. Lqbal Begum v. Assistant Commissioner and others (PLD 1985 Lahore 342).. The Intra-Court appeal filed against the above said order was also dismissed by a Division Bench of this Court vide order dated 11-2-1985. The petitioner in Writ Petitions Nos.24269 and 26664 of 1997 then filed a C.P.S.L.A. Bearing No,281 of 1985 before the Honourable Supreme Court of Pakistan in which the status qua was ordered to be maintained.
Needless to mention here that Mst. Zubeda Begum had also filed a writ petition wherein a similar order of stay was passed. The parties i,e, Mst. Iqbal Begum (petitioner in Writ Petitions Nos.24269 of 1997 and 26664 of 1997) Mst. Zubeda Begum, Malik Muhammad Aslam and Khan Baz Khan (petitioners in Writ Petition No,305-R of 1987) Syed Habib Ahmed (respondent in all the writ petitions aforenoted) as also the various occupants of the land reached a compromise before the Honourable Supreme Court of Pakistan, whereby it was agreed that Khan Baz Khan and Malik Muhammad Aslam shall receive Rs,5,00,000 and in lieu of their claim and their Writ Petition No,305- R of 1987 shall be withdrawn and that the three C.P.S.L.As., filed by Mst. Iqbal Begum and Mst.
Zubeda Begum shall be decided in accordance with the compromise. It was then that an order was passed by the Honourable Supreme Court of Pakistan, whereby the C.P.S.L.As., were converted into appeals and were accepted, resultantly the order passed by the High Court was set aside and the case was remanded to the Notified Authority to make an effort to hear all the parties having interest in the matter and also to take note of the compromise and deal with them in accordance with law.
5. In the post remand proceedings it was eventually decided vide order dated 30-4-1991 passed by the Additional Deputy Commissioner (General)/Deputy Settlement Commissioner (Land), Gujranwala that the allotment of the land in the name of Umra, Barkat and Feroze Din, a third allottee, was restored and Khan Baz Khan having received Rs,5,00,000 surrendered all his allotted land in favour of Mst. Iqbal Begum petitioner and others. The compromise was accepted with the result that Khan Baz Khan and Malik Muhammad Aslam withdraw their Writ Petitions Nos.181-R of 1986 and 182-R of 1996 from the High Court while Writ Petition No,305-R of 1987 remained pending.
Needless to add that this writ petition specifically finds mention in the compromise entered before the Honourable Supreme Court of Pakistan that the same shall also be withdrawn by the said Malik Muhammad Aslam and Khan Baz Khan.
6. Another important aspect which needs to be attended to is to the effect that while controversy in regard to the two chunks of land as aforementioned was going on wherein the status quo order had been issued on 20-3-1985 by the Honourable Supreme Court of Pakistan, which was also confirmed on 5-5-1985, the various parties or the illegal occupants continued to grind their own axe and in certainly proceedings the Additional Commissioner (General)/Deputy Administrator (R.P.) passed his order dated 28-4-1985 with a caution to the Tehsildar Gujranwala to keep in mind any contradictory order from the superior Courts or a stay order against the abovementioned land while making entries in the Revenue Record. Anyway the interim orders issued by the Honourable Supreme Court were not brought to the notice of the Additional Commissioner when he passed the revisional order dated 7-4-1986 and taking advantage of the same Habib Ahmed respondent No,2 in Writ Petition No,24269 of 1997 and respondent No,3 in Writ Petition No,26664 of 1997) filed an application on 15-10-1997 for implementation of the said order in the Revenue Record thereby showing the Provincial Government as owner of the land in dispute. The Additional Commissioner (General/Deputy Settlement Commissioner (Land) Gujranwala directed on the same day that the revisional order dated 7-4-1986 passed by the Additional Commissioner (Consolidation)/Administrator (R. P)/Chief Settlement Commissioner (Land) Gujranwala be unimplemented in the revenue papers. This order has been challenged in Writ Petition No,24269 of 1997 primarily on the ground that the same was passed when there was a subsisting stay order issued by the Honourable Supreme Court of Pakistan already in the field. Additionally it was challenged on the ground that the affected parties were not heard and that the effort on the part of Mr. Habib Ahmed being mala fide so as to obtain the land from the Provincial Government. It is also urged that the order passed by the Additional Deputy Commissioner (General)/Deputy Administrator (R.P.) was conditional for it was cautioned that Tehsildar should keep in view any contradictory order from superior Courts or any stay with regard to the land in dispute while making the entries in the Revenue Record as directed by him and though the said officer was mindful of the said direction yet the Additional Commissioner (General)/Admistrator (R.P.)/Chief Settlement Commissioner (Land). Gujranwala, did not remain mindful of the same and proceeded to pass hasty order.
7. Writ Petition N6:26664 of 1997 goes even beyond for it is mentioned therein that Mr. Habib Ahmed in order to legalize his illegal possession and construction on 13-1/2 Marlas in Khasra No,886 proceeded to file an application on 19-9-1996 thereby praying that price of the plot of land measuring 13-1/2 Marlas be received from him and the land be mutated in his favour. It is submitted that the whole subordinate staff of ADC being in collusion with the said Habib Ahmed proceeded with extraordinary speed in making various reports and the final report was submitted for issuance of the transfer deed on 21-11-1996. The Deputy Administrator (R.P.) issued the transfer deed which appears to have been signed by him on 21-11-1996, consequently the Revenue Record was amended and the land in question was transferred in favour of the Provincial Government from the name of the petitioner vide Mutation No,14235 attested on 28-11-1996. On the same day the land was mutated in the name of Habib Ahmed vide Mutation No,14236. The total proceedings right from the filing of application and culminating with the mutation in the name of Mr. Habib Ahmed have been challenged on the same grounds, which have been earlier mentioned with the rider that the said proceedings were also unilateral and were taken in unearthly haste, which smacks of the mala fide and collusion.
8. Coming to Writ Petition No,1211 of 1989 the relevant facts as laid in the said writ petition are that Fazal Karim the predecessor-in-interest of the petitioners was allotted land measuring 34 Kanals and 8 Marlas comprising Khasras Nos.838, 837, 887, 895, 922, 978, 892 and another Khasra bearing No,874 at Khata No,34 of the registered R.L. II of village Fattumand, Tehsil and District, Gujranwala.
The said allotment was duly incorporated in the Revenue Record Register Haqdaran Zamin for the year 1967-68. The said register is, however, stated to have been misplaced and it is alleged that respondent No,3 i,e, Haji Khurshid Ahmed taking undue advantage of the said position started claiming the allotment of Khasra No,887 in favour of one Feroze Din at Khata No,41 of Register R.I. II of village Fattumand and its subsequent purchas.e by him from the said Feroze Din. It is stated that as a matter of fact Khasra No,887 measuring .8 Kanals was never allotted to Feroze Din and no entry was made in his favour, therefore, he was not competent to transfer the same to Khurshid Ahmed i,e, respondent No,3. However, the said respondent with connivance of field staff got entered and interpolated Khasra No,887 in Mutation No,398. It is submitted that it is evident from the bare perusal of the said entries and the change brought about in the total land i,e, from 20 Kanals, 6 Marlas to 28 Kanals. 4 Marlas. It is then asserted that Feroze Din was not entered as owner of Khasra No,887 in the Register Haqdaran Zamin for the year 1967-68. In any case the allotment in the name of Feroze Din was also challenged by the same Khan Baz Khan and Malik Muhammad Aslam through a Mukhbari application filed by them and in the proceedings ensuring therefrom Feroze Din appeared and made a categorical statement that surplus units were never transferred to Mouza Fattumand and that he never procured any allotment of these units. The Patwari had also made a statement to that effect. Consequently the entire allotment made in favour of Feroze Din was cancelled on 14-9-1976. Haji Khurshid Ahmed respondent alongwith Anjuman Tamir-o-Taraqi Islamia Park, Gujranwala filed an application on 11-6-1983 seeking correction of the entries in the ReVenue Record. As a matter of fact they had challenged the allotment of Khasra No,887 made in favour of the petitioner. It was then submitted that a detailed inquiry was held, in the matter and vide order dated 20-7-1985 it was held that Khasra No,887 stood allotted to Fazal Karim and that the same was duly incorporated in his name at Khata No,324/581. It was further held that respondent No,3 got introduced the said Khasra number in the mutation in favour of Feroze Din with the connivance of the lower Revenue Staff. The application filed in that regard was dismissed on 20-7-1983, whereafter respondent No,3 filed an appeal before the Additional Commissioner, who accepted the same vide his order dated 12-11-1986. The order passed by the Additional Commissioner, Gujranwala was challenged before the Board of Revenue in revision, which was also dismissed vide order dated 30-6-1988. The two orders aforenoted have been challenged in this writ petition inter alia on the ground that the well-reasoned order based on inquiry could not be set aside by either the Additional Commissioner or the Board of Revenue; that after the repeal of the evacuee laws there was no jurisdiction left with the Additional Commissioner to pass any order in respect of the allotment of evacuee land and that in any case the Revenue Authorities were not competent to adjudicate in regard thereto. It was also asserted that the Revenue papers were interpolated and Khasra No,887 was entered and introduced in the mutation and that in any case the reliance upon order dated 19-10-1986 passed by the Additional Deputy Commissioner (General) was entirely misplaced for the petitioner was not party to the said proceedings. It was submitted that the order dated 19-10-1986 has been challenged in Writ Petition No,305-R of 1987 by the informants i,e, Khan Baz Khan and Malik Muhammad Aslam.
9. The two writ petitions filed by Mst. Iqbal Begum and others have been contested by Habib Ahmed, who had been arranged as respondent No, 2 in Writ Petition No,24269 of 1997 and respondent No,3 in Writ Petition No, 26664 of 1997, primarily on the ground that Mst. Iqbal Begum had admitted in so many words in her revision petition, filed before the Additional Commissioner/Settlement Commissioner/Administrator (R.P.), Gujranwala that she has sold the property in favour of respondent No,3 and that being so she is estopped under the law to maintain otherwise. A detailed history of the case has also been narrated which may not be recapitulated here for the facts are already marshalled hereinabove. The order, dated 30-4-1991 passed in pursuance of the compromise filed in the Supreme Court and sanctified by the Notified Officer has also been adversely commented .Upon and the order passed during the course of subsistence of stay order issued by the Supreme Court were sought to be defended on the ground that they were so passed in the lawful exercise of the jurisdiction. The writ petitions were charged with the allegation that they had suppressed material facts from the Supreme Court and that in regard to Khasra No,886, it was submitted the writ petitioner has no concern whatsoever with the said Khasra. In nutshell, the order passed in regard to cancellation of the allotment from the name of the petitioner and the subsequent mutation in favour of the Provincial Government as also in his favour were defended on the ground that they were legally and validly passed by the authorities concerned.
10. It is matter of record and even not denied by all concerned that in the first round of litigation, status quo was ordered to be maintained by the Honourable Supreme Court of Pakistan which was also subsequently confirmed. This contest was going on between Khan Baz Khan and Malik Muhammad Aslam on the one side and Mst. Iqbal Begum and Mst. Zubeda Begum on the other.
The various legal and illegal occupants of the land were also arrayed before the Honourable Supreme Court of Pakistan who entered into a compromise, whereby Khan Baz Khan and Malik Muhammad Aslam agreed to surrender all their rights in regard to land forming subject-matter of the dispute in lieu of R.5,00,000 to be received by them. It was on the basis of this compromise that the matter was remitted to the Notified Officer by the Honourable Supreme Court of Pakistan to decide the same after hearing all the relevant parties. Before the Notified Officer the two informants i,e, Khan Baz Khan and Malik Muhammad Aslam had admitted to have received Rs,5,00,000, and therefore, they made a categorical statement that they had surrendered their all rights in regard to the land in dispute. It was thereafter that the various petitions Writ Petition Nos.181-R of 1986 and 182-R of 1986) filed by Khan Baz Khan and Malik Muhammad Aslam were dismissed as withdrawn but strangely enough Writ Petition No,305 of 1987 remained pending and has been taken up as connected matter alongwith the writ petitions aforenoted. Since it was agreed in the compromise that all the petitions pending in regard to the disputed property shall le withdrawn and Writ Petition No,305-R of 1987 specifically finds\ mentioned in the compromise itself, which was subsequently sanctified by the Notified Officer, therefore, the said writ petition cannot now be entertained for any hearing, resultantly the same is hereby dismissed.
11. As for the two writ petitions filed by Mst. Iqbal Begum and others i,e, Writ Petitions Nos.24269 of 1997 and 26664 of 1997, it would be noted that in the C.P.S.L.A. Filed before the Supreme Court status quo was ordered to be maintained vide order, dated 20-3-1985, which was subsequently confirmed vide order, dated 5-5-1985, while the Additional Deputy Commissioner (General)/Deputy Administrator (R.P.) Gujranwala proceeded to pass the order, dated 28-1-1985, which became basis of all the controversy triggered by Mr. Habib Ahmed (respondent No,2 in Writ Petition No,24269 of 1997 and respondent No,3 in Writ Petition No,26664 of 1997). The said order was obviously without jurisdiction and nullity in the eye of law for it is axiomatic that the stay order operates from the day that it is issued and the order 28-4-1985 can but be termed as coram non judice for it was passed during the subsistence of the stay order. The revisional order which was passed in continuation of the said order shall also fall to the ground for this basic order was void ab initio, therefore, the total effort on the part of abovesaid Habib Ahmed was absolutely futile for although he sought implementation of the said order in the Revenue papers and was successful in obtaining a direction in that regard yet he remained woeful ignorant about the legal position thereof or perhaps he obtained the order with mala fide intention to secure his own ends. The matter did not rest there for Habib Ahmed continued his chartered course by applying that he be allowed to pay the price of the land in dispute and that having been allowed on the basis of the same order, he not only deposited the said amount but also obtained mutation in favour of the Provincial Government in the Revenue papers and thereafter obtained a mutation in his own name when permanent transfer deed has been issued in his favour. The total exercise had been based on an illegal order passed by the Settlement Authorities, therefore, the same cannot be sustained.
The argument that the petitioners having admitted that they sold the various plots to the occupants of the same including the petitioners are estopped under the law to turn around and to claim the same on the ground that it was not so sold and in this regard a reference has also been made to the grounds taken in the revision petition filed before the Administrator (R.P.), wherein this admission is recorded, may not be considered for more than one reason. Firstly, no sale-deed or mutation is forthcoming on the record thereby showing that the land has been sold by Mst. Iqbal Begum in favour of Habib Ahmed. Secondly the admission which was found to be made on point of fact or is made in ignorance of a legal right has no binding effect on the person making it. If any authority is needed, reference may be made to Barkhurdar v. Muhammad Razzaq (PLD 1989 SC 749) and Ahmed Khan v. Rasul Shah (PLD 1975 SC 311), thirdly, it is the case of the respondent that he applied for the transfer of the land from the Settlement Authorities and having paid the price obtained PTD to secure his title. This plea heavily works against his earlier plea that he has purchased the property from Mst. Iqbal Begum. It is also well settled that nobody is allowed to play hot and cold in the same breath. Habib Ahmed knowing fully about weakness of his standpoint appear to have raised contradictory pleas, but soon in the true perspective of the facts as also the law applicable thereto he has no legs to stand on. The feeble attempt on the part of Habib Ahmed to comment upon the order, dated 30-4-1991 is also of no use to him for the said order has remained unchallenged and has thus attained finality. Needless to add here that the aforestated order was passed by the Honourable Supreme Court of Pakistan whereby compromise between the parties was accepted. Need it be stated here that the land was originally entered in the name of Mst. Iqbal Begum in the revenue papers and was cancelled from her name under the order dated 15-10-1997 and in turn was mutated in the name of the Provincial Government, therefore, the plea that it had been purchased by Mr. Habib Ahmed from Mst. Iqbal Begum cannot be countenanced. Respondent No,3 has also tried in vain to confuse the issue by raising certain fateful pleas, which are not supported by the true facts as also the, law applicable in this case. In the circumstances, the order, dated 19-10-1986 passed by the Additional Commissioner (General) with the powers of Administrator (R.P.)/Chief Settlement Commissioner, Gujranwala Division, Gujranwala, is declared to be without lawful authority and of no legal effect. Sitnilarly, the order, dated 16-11-1996, transfer deed dated 21-11-1996, Mutations Nos.14235 and 14236, dated 38-11-1996 passed by the Additional Deputy Commissioner (General) with the powers of Deputy Settlement Commissioner, Gujranwala alongwith the order, dated 28-5-1997 and order, dated 7-4-1996 passed by respondent No,1 are declared to be without lawful authority and of no legal effect, resultantly the petitioner are held to be the lawful owners of the land in dispute. The writ petitions are accepted in the above terms.
12. This brings me to Writ Petition No,1211 of 1989. The dispute in this case relates to. Khasra No,887 measuring 8 Kanals situate in village Fattumand, Tehsil and District, Gujranwala. According to the petitioner this Khasra number alongwith many others was allotted to Fazal Karim predecessor-in- interest of the petitioner, which fact is reflected in the Register Haqdaran Zamin. For the year 1967-
68. However, the Register R.L.II of village Fattumand was misplaced by the field staff, resultantly, Khurshid Ahmed respondent No,3 started claiming the allotment of Khasra No,887 in favour of one Feroze Din at Khata No,41 of register R.L.II of village Fattumand and asserted that the said Feroze Din sold the land to him. It is submitted that the said Khasra number was never allotted to Feroze Din, therefore, he was not competent to sell the same to Khurshid Ahmed and that he got the same entered and interpolated in the Mutation No,398 which manoeuver is manifest from the perusal of the said entries and the change of total area from 20 Kanals, 6 Marlas to 28 Kanals, 4 Marlas. It is also submitted that the ownership in regard to the said Khasra number was obtained fraudulently with the result that the said change was challenged under sections 19 and 11 of the Displaced Persons (Land Settlement) Act, 1958 before the A.C. Sadar/ASC, Gujranwala on 14-9-1976, where, said Feroze Din had appeared and made a statement that he never got any allotment in the said village, resultantly his entire allotment was cancelled vide order, dated 14-9-1976, whereupon Haji Khurshid Ahmed alongwith Anjuman Tamir-o-Taraqi filed a miscellaneous application for the correction of entries in the Revenue Record, which was dismissed by the Deputy Commissioner of the area vide his order, dated 20-7-1985. The appeal filed by Khurshid Ahmed respondent No,3, however, succeeded, while the revision filed by the petitioner against the above-said order before the Member Board of Revenue failed for it was dismissed by the said Member vide order, dated 30- 6-1988.
13. It is so obvious from the abovesaid narration of facts that certain complicated questions of facts are involved in the said writ petition which could not be determined without recording evidence for it is submitted that the mutation was interpolated whereby Khasra No,887 was got incorporated in the said mutation and that the total effort in regard thereto is fraudulent, therefore the appropriate forum for the determination of the said question would be the Court of plenary jurisdiction. The plea that Feroze Din made a statement that he never got allotted any land in village Fattumand is belied by the order, dated 30-4-1991 passed by the Additional Deputy Commissioner (General)/Deputy Settlement' Commissioner, Gujranwala in pursuance of the remand order of the Honourable Supreme Court of Pakistan (placed on the record of the connected Writ Petition No,24269 of 1997), wherein the allotment in the name of Feroze Din in village Fattumand was restored. This is another question of fact, which requires evidence, therefore, the petitioner may, if so advised and, permitted by law, approach the Court of plenary jurisdiction for the redressal of his grievance.
14. In the circumstances, this petition is disposed of in the terms noted above.