' Noor Hassan petitioner filed a suit for a declaration that he was owner in possession of land measuring 15 kanals 5 marlas situate in Chak No, 4/B. C., Tebsil Bahawalpur ( fully described in the heading of the (plaint by virtue of an oral gift, acknowledged in 1961 by a memorandum BO. P/1, made by Major Shamsuddin deceased, predecessor-in-interest of respondents 1 to 12 and that the sale made by respondents 1 to 12 in favour of respondents 13 and 14 was ineffective qua his rights.
He also prayed for a permanent injunction restraining the respondents from interfering with his possession. The respondents 13 and 14 only contested the suit while ex parte proceedings were taken against others. The two respondents admitted that the land in dispute was owned by Major Shamsuddin deceased. They, however, stated that the same land devolved on respondents 1 to 12 as legal heirs of Major Shamsuddin vide Mutation No, 222 dated 11th February 1969. Who sold it to them by a registered tale/dead dated 11th March 1969. They also denied that it had been gifted to the plaintiff and possession given. They pleaded that as the gift-deed was not registered it was not admissible in evidence.
' The trial Court framed the following issues
(1) Whether the plaintiff is in possession of the property in dispute? If not, what is its effect?
(2) Whether the valid gift deed had been made by Shames Din deceased in favour of the plaintiff?
(3) What is the effect of the non-registration of the alleged acknowledgement of gift on the rights of the parties?
(4) Relief.
2. The parties led oral as well as documentary evidence. The trial Court, however, dismissed the suit vide its judgment and decree dated 14th November 1972. An appeal also having failed on 5th June 1975, before the learned District Judge, the petitioner has now filed the present revision petition. It may be noticed that the learned Civil Judge relied on revenue record that petitioner was not in possession forgetting altogether that the description of the land was 'Banjar'. On the validity of gift he omitted to note that Ghulam Muhammad P. W. 7 was also a marginal witness to &h. P/1 and bad proved its contents. He also did not explain how P. W. 3 and P. W. 4 were interested witnesses. The learned District Judge also said that there were only two witnesses about possession but he omitted to note the evidence of P. W, 7 who also was a marginal witness to Exh. P/1. He too mostly relied on the revenue record and the conduct of the plaintiff, In omitting to take up the matter earlier and not getting a mutation effected. The learned trial Court further held that as Exh. P/I was compulsorily registrable it did not confer any title upon the plaintiff. The learned District Judge took the correct view that a memorandum of gift did not require registration but he observed that as the original gift had not been established it would be immaterial whether document P/1 required registration or not.
3. It is contended by the learned counsel that the Courts below erred in law to hold that an acknowledgment of a gift required registration. A perusal of the judgment of the learned Civil Judge does go to show that though he accepted the document Exh. P/1 as an acknowledgment of the gift, already made, yet held that it was compulsorily registrable, in order to confer any rights.
This view however, is erroneous. As a memorandum of gift only refers to a past transaction of a gift and does not itself create any right, it is not compulsorily registerable under section 17 of the Registration Act. The point was considered by a Full Bench of the Madras High in Court Jeevarathnammal v. Yarda Filial (1). The opinion of the Full Bench was as under :- "We think that the petition is not a document requiring registration under section 17, Registration Act. It refers to a gift on 8th October some days previously, and in spite of the concluding passage cannot, in our opinion, be considered as declaring the rights of the parties within the meaning of section 17 : See Sakharam Krishnajal v. Madan Krishanaji (1880.81) 5 Born, 232. It is therefore not rendered inadmissible by the terms of section 49, Registration Act."
The learned counsel also relied on Rahirn Bakhih v. Mt. Budhan (2) where a Division Bench of this Court told that where a document, which clearly professes to t e merely a memorandum (Yad Dasht) of a gift which has already been completed, it does not require registration. Our Supreme Court in Umar BIM v. Bashir Ahmad (3) ruled that a gift made under Muslim Law had been expressly excluded from operation of the Transfer of Property Act, 1882, by virtue of section 129 of that Act.
Once, therefore, it was held that a memorandum was genuine and was about a previous gift, the question that remained to be ascertained from the contents of that document was if the possession had been delivered an accepted and it was a transaction completed before the memorandum was executed.
4. The learned Judges in the Court below and before me the respondents; relied c n the Jamabandis D/2, D/3 and D/4, for the years 1961 to 1971, and a copy of the Khasra Girdawari D/6 for the yeas 1967-71 holding that as the original owner i,e, Major Shamasud Din, had throughout teen shown in occupation of the disputed land, the oral evidence could not have been used to rebut the same. He, however, admitted that the (1) AIR 1917 Mad. 859 (2) AIR 1914 Lah. 48 (3) 1977 SCM R 154 land in question remained, "Banjar' during the relevant period and comequently it cannot be said that entries about it were being regularly maintained.
' The contention of the learned counsel that the entries in Jamabandis have a presumption of correctness attached to it is sound but it is rebuttable and, the strength of the presumption depends on the circumstances surrounding it. The document Exh. P/1 not only acknowledges the making of an oral gift on 1st December 1959, to and in favour of Maulvi Noor Hassan son of Haji Allah Wasaya, plaintiff/petitioner but also shows that the donor had himself entrusted the work of construction and completion of the building for the "Talimul Quran' school to the petitioner and the same was done in accordance with his choice and instructions over the land in dispute. C Delivery of possession was also acknowledged. The reason for the gift was also Liven. This document was duly proved by P. W. 3 Makhdoom Siraj Din who was a General Manager of the donor. Chasm Muhammad son of Usman P. W. 7 who was a marginal witness also corroborated it. P. W. 1 and P. W.
2 proved plaintiff's possession and stated that the land was Banjar and partly built upon. P. W. 4 Sardar Muhammad is a tenant of one of the shops built on the land in dispute. He proved gift and possession of the plaintiff. P. W. 5 Abdul Aziz is also a tenant of the plaintiff. Ghulam Muhammad son of Maula Bakhsh proved possession and stated that Ali Ahmad, respondent and others had come to take forcible possession of the disputed land from the petitioner. P. W. 3 and P. W. 7 proved session as well as construction. D. W. 1 and D. W. 2 deposed about sale made in favour of D. W.
3. There is no evidence other than defendant No, 3 himself, in rebuttal. Then how could the entire evidence and P/1 be ignored? However, D. W. 3 admitted, on the land in dispute before he purchased it the existence of a 'Jhuggi' of Sardar and shop vile his statement dated 3rd March 1977, Before the Local Commissioner. The fact that these constructions have not been shown or incorporated in the revenue record proves that the same cannot be relied upon for its contents or possession. D. W. 3 denied gift and tenancy of shops in favour of P. Ws. The plaintiff appeared as P.
W. 8 and proved gift and possession. He also admitted that memorandum of gift was neither produced before the Registrar nor registered. He conceded that the memorandum was neither shown to the Patwari nor was any request for mutation made. He appears to be a truthful man.
Nothing useful was gained by the respondents in the cross-examination. It is, therefore, quite clear that not only was the possession of gifted land given to the petitioner but he had raised certain construction thereon E during the lifetime of the done. It is to be noted that donor died or 14th March 1968 (Esh. D/5) but the petitioner had been enjoying its possession since 1959.
5. The learned counsel for the respondents then attacked the conduct of the petitioner for keeping quiet for so long particularly when a mutation of inheritance had been attested on the death of Major Shamsuddin and thereafter when the property in question had been sold and remained under litigation in pursuance to a pre-emption suit. He relied on the following cases. I Azizur Rehman Chowdhry v. Nasiruddln (1) which was a case of quo warrant and the principles of which cannot be applied to a civil revision. In S. M. Zahuruddin v. Muhammad Ghyasuddin Ahmad (2) the Court refused relief in a case under section 42 of the Specific Relief Act as the suit was brought with ulterior motives and bad faith. The view expressed in Muhammad Anwar Khan v. The Punjab Province (3) however, catered for a (1) PLD 1965 SC 236 (2) PLD 1967 Dacca 761 (3) PLD 1971 Lab.
989 different situation altogether. It is true that a declaratory relief is discretionary and can be refused if the suit was brought for ulterior motives or bad faith but that is not the case here. The principle laid down by the Supreme Court in Muhammad Hayat Khan v. Yar Muhammad (1) is that a person seeking relief should not be taking undue advantage over his adversary by trying to back out of a solemn contract into which he had entered. In the case in hand the petitioner is in possession of land. The school he had constructed is admittedly there. No bad faith or undue advantage is being taken by him. The fact that the vendors have at no stage contested the suit shows a different position. There is thus no merit in this plea.
6. The learned counsel then submitted that the delivery of possession as held in Muhammad Afzal Khan v. Mst. Kharshid Begum (2) was a question of fact and the findings of the lower Courts should not be interfered with in second appeal. As to mere mention of the delivery of possession in a document it was pleaded that the same was not sufficient to prove delivery of possession for the view expressed in Zeenat Bt v. Zaman Mehdi (3). There can be no dispute with the view expressed above but the situation prevailing in this case is different. The donor had not only gifted the land but got constructed under his instructions the school building and handed it over. The contents of the documents find a full support from the situation at site as deposed by the witnesses.
7. The lower Courts, therefore, acted clearly unlawfully and with material irregularity in holding that the document Exh. P/1 required registration and that it was not admissible in evidence. They omitted from consideration evidence of P. W. 7 Ghulam Muhammad, who was a marginal witness to Exh. P/1. They also omitted to note that the contents of Exh. P/1 corresponded to the facts at site as there was `Talimul Qur'an' School and it was run by the petitioner. Unfortunately its exact location was not established. Only the respondent No, 13 stated that it was situate in Killa No, 22 and not in the land in dispute. There was thus no evidence in rebuttal on any score whatever. The Courts below also misread the evidence on record by which the delivery of possession had been established. The objection about the conduct of the petitioner will also be of no avail to the respondents as no knowledge of the pre-emption suit has been imputed to him. He was not proved to have acted with any ulterior motive or bad faith and no undue advantage has been derived by him. In any case his title will not, be hit if he remained in possession and others erroneously or for lack of knowledge dealt with his land.
8. It is, therefore, quite clear from the above that the Courts below acted illegally and with material irregularity because of which there has been gross miscarriage of justice. It was held in Muhammad Swaleh's case (4) that if there be jurisdiction in a Court to act, the jurisdiction should be exercised, if the failure to exercise it will lead to injustice and there is no principles of public policy which forbid its exercise in the particular circumstances.
' For the reasons given above the revision petition is accepted and the judgments and decrees of the Courts below are set aside. The suit of the petitioner-plaintiff shall, therefore, be decreed with costs throughout.
Revision accepted.
(1)PLD 1966 SC 612
(2) PLD 1975 Pesb. 24
(3) PLD 1965 Lab. 760
(4) PLD 1964 SC 97 PLD 1978 Baghdad-ul-Jadid Before Gul Muhammad Khan, J Malik ABDULLAH KARIM-Appellant versus WEST PAKISTAN PROVINCE THROUGH COLLECTOR, RAHIMYARKHAN AND ANOTHER-Respondents Regular Second Appeal No, 67 of 1968/BWP, decided on 23rd October 1977.
(a) West Pakistan Land Revenue Act (XVII of 1967)- -- SS. 74, 113 & 114 read with S. 4(7)-Land revenue-CollectionResponsibility for payment to Government-Village Officer duly authorised by competent authority-Can collect land revenue- Such duly authorised officer failing to pay amount collected by him-Could be considered a defaulter-Appellant not authorised by competent authority to collect land revenue but collecting revenue as agent of Lambardar-Recovery by Government, held, could be made, in circumstances, from Lambardar and not from appellant, Lambardar's agent-Land-owners paying revenue to unauthorised person-Held, defaulters qua Government and Government could recover arrears of revenue from such land-owners, leaving land-owners to recover it themselves from intermeddler.- [Lambardar]. [pp. 23, 2414, B & C Jam Gul Muhammad v. West Pakistan Government PLD 1975 B J 1; Muhammad Jamil Asghar's ease PLD 1965 SC 698 and Hamid Hussain v. Government of West Pakistan 1974 SC MR 356 ref.
(b) West Pakistan Land Revenue Act (XVII of 1967)- -- S. 158-Land revenue, collection of-Civil Court, jurisdiction of-Demand raised against appellant not falling within four corners of Land Revenue Act, 1967-Civil suit by appellant without deposit of arrears of land revenue, held, competent.-[Jurisdiction] [p. 2510 Abdul Rauf v. Abdul Hamid Khan PLD 1965 SC 671 ref.
Sh. Lnyat All for Appellant.
G. M. Bodla for Respondent No,
1. Date of hearing : 9th October 1977.
'This appeal is directed against the judgment dated 6th May, 1968, of the District Judge Bahawalpur, by which he dismissed the First appeal of the appellant in limine and refused to interfere with the judgment of the trial Court dismissing his suit. The appellant had prayed for a declaration that he was a servant of Syed Mad Hussain Shah, Lambardar and was neither a Lambardar, a Sarbrah Lambardar nor a defaulter under the Land Revenue Act. In the circumstances it was stated that he could not be proceeded against for recovery of certain amounts as arrears of land revenue. As a consequential relief he requested for an injunction against the Collector and the Tchsildar restraining them perpetually from effecting any recovery from him.
2. Briefly, the facts leading to this appeal are that the appellant, who claims to be a personal servant of Syed Asad Hussain Shah, Lambardar, Moni Thal, Tehsil Khanpur, District Rahimyarkhan, allegedly received sum of Rs, 17,500 from person who owed arrears of land revenue to the Government and issued receipts. The Tehsildar Khanpur, acting as a Revenue Officer issued warrants of arrest not against the Lambardar but the appellant. He therefore, filed a suit for a declaration as stated above. It was contested by the respondent on the ground that the appellant having received the 'dhal bachh' from the Government, was responsible for payment of all the amounts that he received from the defaulters. The trial Court, on the pleadings of the parties, framed the following issues:-
(1) Whether this Court is not competent to try this suit by virtue of section 158 of the Land Revenue Act?
(2) Whether the plaintiff's suit without the previous deposit of sum in question is not competent?
(3) Whether the plaintiff is liable to pay the sum in question outstanding against Syed Asad Hussain Shah, Lambardar?
(4) Relief.
3. The learned trial Court found all the issues against the appellant and dismissed his suit with costs. An appeal before the learned District Judge also failed though it was observed that a sum of 1(8. 9,368.26 can be safely held to be outstanding against him which can be recovered. He has now come to this Court in this second appeal.
4. It is contended by the learned counsel for the appellant that he being neither a land-owner, nor a Lambardar, or a Sarbrah Lambardar, was not liable to any coercive process regarding recovery of the arrears of land revenue. Observations of the learned trial Court in its judgment on issue No, 3 are that the Government had conceded that the appellant was neither Lambardar nor a Sarbrah Lambardar but he used to get "dhal bachh' against his signatures as a representative of Syed Mad Hussain Shah Lambardar. Mr. Rashid Abmad, Wasil Baqi Nawis of Tehsil Khanpur appeared as D. W.
1 and deposed that the appellant had been receiving 'dhal bachh' from Kharif 1961 to Rabi b65 and a sum of Rs, 17,568.26 was outstanding against him out of which he deposited some amounts mentioned therein, after the institution of the suit.
5. The liability for payment of land revenue of the land owners is contained in section 74 of the Land Revenue Act. The appellant, however, is not covered thereunder. He is neither a defaulter, as defined in section 4(7) of the Land Revenue Act, nor Revenue Recovery Act, 1890. The statement made by Rashid Ahmed, Wasil Baqi Nawis was that the appellant used too collect lard revenue on behalf of Syed Asad Hussain Shah, Lambardar as Sarbrah Lambardar. In cross-examination, he admitted that the appellant was not an appointed Sarbrah Lambardar, 'dhal bachh' was received by him from the Patwari and Girdawar. The learned counsel also relied on Jam Gul Muhammad v.
West Pakistan Government (I) to support his contention that the appellant cannot be proceeded against for recovery of such amounts. He also submitted that the civil Court did have the jurisdiction in spite of the ban contained in section 158 of the previous Land Revenue Act, as the order of recovery was palpably without jurisdiction. He referred to Muhammad Aura Asghar's case
(2) and Hamid Hussain v. Government of West Pakistan (3) in support of his proposition.
(1) PLD 1975 B J 1
(2) PLD 1965 SC 698
(3) 11974 SCMR. 356
6. I have given my anxious consideration to the case before me and find force in the arguments raised by the learned counsel for the appellant. If the appellant was never appointed as Sarbrah Lambardar by any competent authority, as conceded before the trial Court, how could he be a defaulter? Liability to pay land revenue arises under sections 74, 113 and 114 of the Land Revenue Act. The person authorised to collect such amounts is either a Lambardar, a Sarbrah Lambardar or a temporary Lambardar who is allowed to receive 'di; al bachh under the orders of the Government. A defaulter as defined under section 4(7) of the Land Revenue Act means "a person liable for arrears of land revenue, and includes a person who is responsible as surety for payment."
Sections 74 to 76 deal with liability and payment of land revenue. Sections 78 to 83 deal with recovery. Section 77 confers powers on the Board of Revenue to make rules for collection, remission and suspension of land revenue. Section 36 empowers the Board of Revenue to make rules to regulate the appointment etc. Of village officers. Rule 22 lays down the duties of 'Headmen' one of which is to collect the land revenue. Section 113 provides for recovery of certain arrears through revenue officers instead of by suit. The Act speaks of Lambardar, Sarbrah Lambardar, Lambardar, officiating Lambardar, or a substitute Lambardar but all of those can be appointed by the Collector. Section 113 reads as follows:- "113.-We en a village officer required by rules under section 36 to collect any land revenue or sum recoverable as an areas of land revenue-
(a) satisfies a Revenue Officer that the revenue or the sum has fallen due and has not been paid to him, or
(6) has collected such revenue or sum, but has not credited the same to Government in the manner provided in the rules, ' The Revenue Officer may, subject to rules which the Board of Revenue may make in this behalf, recover such revenue or sum, from the person from whom it is duo or the village officer by whom it was collected, as the case may be, as arrears of land revenue."
7. It is therefore, quite cleat from the above that a Village Officer duly authorised by a competent authority can collect the land revenue and he may be considered a defaulter if he failed to pay the amount collected by him. In the case in hand Syed Mad Hussain Shah was the Lambardar and the appellant recovered the amounts in question as his agent. The recovery, therefore, should have been made from the Lambardar and not his agent. If on the other band these amounts bad been paid by the land-owners to an unauthorised person, land-owners shall be considered to be defaulters so far as the Government is concerned. The Government in that case would recover the amounts from them leaving them to recover it themselves from the intermeddler. A case of a similar nature reported as Jan Gul Muhammad v. West Pakistan Government came up before this Court. The following observations made therein may be reproduced below:- "Section 103 of the Act is in relation to Village Officer only appointed by competent Revenue Authority and no other person, who has otherwise collected some revenue or any other sum from any person due from him. If in the present case the petitioner was never appointed as Village Officer as contemplated by the relevant provision of the Land Revenue Act, then it may be difficult to hold whether any amount collected by him, if not deposited into the treasury, can be realized from him as arrears of land revenue."
' Thus the appellant can in no case be held liable. It is sad that some clever revenue officer diverted the proceedings in the blind alley to save the real defaulter.
8. As regards issues Nos. 1 and 2 it is quite clear that if the demand raised against the appellant did not fall within the four corners of the Land Revenue Act, the suit filed by the appellant without deposit of the arear of land revenue could have been competent. Therefore, in order to jurisdiction it must be shown that the revenue officer did have t jurisdiction with regard to the person against whom demand had been raid and that the same demand was an arrear of land revenue. The two judgments of the Supreme Court as referred to in para. 5 above, therefore, apply and can be relied upon in support of the appellant's plea. However, a clear view is to be found in Abdul Rauf v. Abdul Hamid khan (i). The relevant observations are as under:- "But whatever the phraseology employed, any provision in an enactment saying that orders passed under the enactment or by virtue of the powers conferred by the enactment would not be liable to challenge in a Court of law bas reference only to orders passed with jurisdiction. It can be stated as a general rule, without reference to the language used in an enactment, that barring provisions like those with which we are here concerned apply only to orders passed with jurisdiction. Of course it is open to the Legislature to provide that not only acts done under an enactment, but even acts which purport to be done under an enactment will be immune from challenge. Such a provision will however be a very exceptional one, a provision which we are likely to come across only during a national emergency."
' I am, therefore, of the view that the civil Court did have the jurisdiction to try the suit without first requiring the plaintiff-appellant to deposit the arrears of land revenue.
' For the reasons given above the appeal is accepted and the judgments and decrees of the Court below are set aside. The suit of the appellant plaintiff shall be decreed with costs throughout.
(1) PLD 1965 SC 671