MEHBOOn AHMAD, J.-We propose to dispose of Writ Petitions Nos. 3610 and 3611, both of 1977, by this single judgment since the facts involved are similar and the questions of law also are common.
2. The facts necessary for the disposal of these writ petitions, briefly stated, are as under : Writ Petition No. 3610 of 1977
3. This writ petition challenges the order of the learned Additional District Judge, Sheikhupura dated 9-10-1977, passed by him in a revision which arose out of a suit instituted by petitioners, Doctor Sajjad Ahmad and his brother Rashid Ahmad, against the respondents for declaration and possession of their share in the land in dispute. In this suit, the petitioners claimed to be the owners of 1441 kanals, 14 marlas of land, situate in village Bhattianwala, Tehsil Ferozewala, District Sheikhupura, jointly with their father (respondent No. 1), their brother (respondent No. 2? And their sister (the wife of respondent No. 7) in equal shares. It is alleged in the suit that respondent No. 7 who held the general power-of-attorney from all the owners in greed, with mala fide intention, without consideration, consent and knowledge of the petitioners got mutated Inter alia their 2/5 share in the land in dispute by a fraudulent and collusive measure ; that he first got a fictitious mutation entered as No. 22 on the basis of an oral sale in favour of respondent No. 8 and thereafter for finalizing that collusive manoeuvre got another fictitious Mutation No. 23 sanctioned in respect of the same land in his own favour, both of which mutations are factually incorrect. It is also alleged that the first mutation was entered on 12-8-1972 and sanctioned on 15-8-1972, whilst the second mutation was entered on 13,0'-1972 and sanctioned on 15-8-1972 and further that the sale-price of the ofmutation shown as Rs. 2,00,000 and of the second mutation as Its. 2,15,000 were wholly fictitious and no transaction actually took place and no money whatsoever had passed on to the petitioners and the whole series of transactions were intended to deprive the petitioners of their lawful ownership of the land in dispute and to harm them. These allegations are contained in para. 7 of 'the plaint, a copy of which has been filed with the writ petition as Annexure `B', The petitioners do not claim any relief against respondents Nos. 3 to 6, who are the children of their sister and in whose favour the share of their sister has been mutated. Respondents Nos. 3 to 7 controverted the allegations as detailed above in para. 7 of their written statement filed as Annexure `C' to the writ petition. Para. 7 of the said written statement i: reproduced hereunder "Contents of para. 7 are totally false and concocted story. It is incorrect to suggest that the defendant No. 7 got the suit land transferred to him without consideration, without consent of the plaintiffs or fictitiously.
It is also incorrect to suggest that the Mutations Nos. 22 and 23 are collusive and fictitious documents. The actual fact is that the children of the defendant No. 7 were co-sharers with the plaintiffs in the suit land. The plaintiffs intended to sell the land and the defendant No. 7 had the mind to purchase the same. On account of the relationship between the plaintiffs and the defendant No. 7 proper price could not be ascertained or agreed upon. The plaintiffs personally entered into an agreement with the defendant No. 8 to sell the suit land to him for Rs. 2,00,000. The defendant No. 7 had earlier acting as attorney for the plaintiffs had sold their lands. As usual the plaintiffs asked the defendant No. 7 to act as the attorney and complete the transaction by getting mutation sanctioned in favour of the vendee Qamar-ud-Din. The defendant No. 7 did as the attorney get mutation entered in favour of defendant No. 8. At this stage the -defendant No. 7 made it known to the defendant No. 8 that the children of defendant No. 7 were co-sharers in the joint holding ofwhich the suit land was a part and though the land had been sold to him, he would not let the land go to a stranger and would get back the land by bringing a pre-emption suit on behalf of his children.
Upon this a fresh agreement was made between the defendant No. 7 and defendant No. 8 whereby defendant No. 8 agreed to transfer the suit land to defendant No. 7 for which he was paid a profit - of Rs. 15,000. Consequently the defendant No. 8 got another mutation entered for the suit land transferring the same to the defendant No. 7. Both the mutations were attested and so the defendant No. 7 validly became the vendee of the suit land. There is no question of concealment or misrepresentation of any fact.
The plaintiffs fully knew the above-stated facts. They had guards as to why the defendant No. 7 got re-transferred the land to him and then the land appeared to them to be such valuable by passage of some time, they as an afterthought went up to challenge in appeal the mutation in favour of the defendant No. 7 more than a year after its sanction."
Writ Petition No. 3611 of 1977
4. This writ petition arises out of a suit instituted by the four petitioners against the respondents claiming that land, measuring 473 kanals, 13 marlus, situate in village Mandiali, Tehsil Ferozewala, District Sheikhupura was owned by all the four petitioners and Mst. Surraya lqbal the daughter of petitioner No. 1 and sister of petitioners Nos. 2 to 4 and wife of respondent No. 1 in equal shares, i.e. 1/5 each.
5. The suit is for declaration and` possession and repeats the same allegations as are contained in the suit out of which W. P. No. 3610/1977 has arisen, except that, here, the land in dispute is 4/5 share or the total and the allegations against respondent No. 1 are contained in para. 8 of the plaint. The number of the mutation purporting to be from the petitioners in favour of respondent No. 2 on the basis of the oral sale for a consideration of Rs. 1,00,000 is 213 entered on 12-8-1972 and sanctioned on 15-8-1972, whilst that from respondent No. 2 in favour of respondent No. 1 bears No. 214 and shows the sale price as Rs. 1,05,000. It is entered on 13-8-1972 and sanctioned on 15-8-1972. The written statement of respondents in almost identical terms controverts the allegations of para, 8 as was done in para. 7 of the other suit.
6. In both the suits, so far as the share of Mst. Ssrraya is concerned, that has since been alienated by her in favour of her children and the said children have only been made pro forma defendants.
The petitioners in both the writ petitions have claimed no relief against the said pro formadefendants.
7. In nutshell, the allegations in both the suits are that Doctor Muhammad Iqbal respondent No. 7 in W. P. No. 3610/1977 and respondent No. 1 in W. P. No. 3611/1977 (hereinafter referred to as the contesting respondent) is the son-in-law of Doctor Muhammad Bashir, brother-in-la>>f of petitioners and husband of Kist. Surraya and who was admittedly the holder of a general power- of-attorney from all the petitioners in both the cases, made two reports to the Patwari that land in villages Bhattianwala and Mandiali inter alla owned by the petitioners has been sold to one Qamarud-Din. The reports were to the following effect :
(1) Land measuring 1441 kanals and 14 marlas situate in village Bhattianwali has been sold by the petitioners and respondents Nos. 1 to 6 in Writ Petition No. 3610 of 1977 to respondent No. 8 therein for a consideration of Rs. 2,00,000.
(2) Land measuring 473 kanals and 3 marlas situate in village Mandialli has been sold by the petitioners and respondents Nos. 3 to 6 in Writ Petition No. 3611/1977 to respondent No. 2 therein for a consideration of Rs. 1,00,000.
The mutations pertaining to the aforementioned two oral transactions of sale respectively bear Nos. 22 and 213.
8. Again, on 13-8-1972, two reports from Qamar-ud-Din were made to the Patwari that he has sold the lands in dispute in both the villages to the contesting respondent for Rs. 2,15,000 and Rs. 1,05,000 respectively on which Mutations Nos. 23 and 214 were entered on 13-8-1972.
9. Both these sets of mutations were sanctioned on 15-8-1972. On the basis of these mutations Doctor Muhammad Iqbal claims to be the owner of the total share holding of the petitioners in both the villages.
10. The petitioners, sometime in 1973, agitated the matter before the Revenue authorities challenging the mutations in question. The Collector accepted the appeals filed by the petitioners and set aside the mutations aforementioned, The contesting respondent filed appeals before the Additional Commissioner. These appeals were accepted on the ground that the contesting respondent held a power-of-attorney and as such the Revenue Courts could not go into the validity of the mutations. It was stated at the bar by the learned counsel for the petitioners that the learned Additional Commissioner held that these are matters for the civil Courts to go into. The revisions filed by the petitioners before the Board of Revenue against the orders of the Additional Commissioner in respect of both sets of mutations also failed.
11. The petitioners thereupon filed the two suits out of which these writ petitions have arisen.
12. The learned Civil Judge, Ferozewala, on 11-2-1977, framed issues in both the suits which read as under : "(1) Whether the suit is bad for misjoinder of parties ? O. P. D.
(2) Whether the suit has been properly valued for purposes of court. Fees and jurisdiction, if not, what is the correct valuation ? 0. P. D.
(3) Whether the impugned transactions are valid and genuine in view of the explanation obtained in para. 7 of the written statement filed by the defendants Nos. 3 to 7 ? 0. P, D.
(4) Relief."
1 ' It may be mentioned that in issue No. 3 as reproduced above the only change in the suit out of which W. P. No. 3611/1977 has arisen is that instead of defendants Nos. 3 to 7 the words are defendants Nos. 1 and 3 to 6 and 7.
14. The contesting respondent filed applications before the learned Civil Judge in both the suits for amendment of issues and requested for striking off issue No. 3 and framing of certain additional issues. These applications were partly accepted and partly rejected by order dated 22-6-1977 of the learned Civil Judge.
15. The contesting respondents then filed revisions against the aforesaid orders of the learned Civil Judge before the Additional District Judge, Sheikhupura who accepted the same by his two separate orders both dated 9-10-1977. He observed, inter alia, as under : "The issues which were suggested by the plaintiffs-petitioners in their petition do arise from the parties' pleadings. The learned trial Judge has framed in place of these suggested five issues, the consolidated issue as issue No. 3. The wording of this issue is not clear enough to suggest anything with clarity. In not framing the five issues suggested above by the plaintiffs-petitioners and in framing the loosely worded issue No. 3 the learned trial Judge has in fact made a material irregularity. The framing of issue No. 3 and the omission to frame the suggested issues has resulted in mis-guidance of the trial."
The learned Additional District Judge struck off issue No. 3 as framed by the learned Civil Judge in both the suits and in its place framed the following issues in each of the suits : Suit giving rise to W. P. No. 3610 of 1977:
(i) Whether defendant No. 7 as general attorney of the plaintiffs had no power to transfer the suit land through a mutation without getting a sale deed registered ? 0. P. P.
(ii) If the above issue is held against the plaintiffs, then whether transfer of suit land by defendant No. 7 to the defendant No. 8 through the Mutation No. 122 (in fact 22) is without consideration, and fictitious, if so, what is its effect ?0. P. P.
(iii) Whether transfer of suit land by defendant No. 8 to defendant No. 7 through the Mutation No. 123 (in fact 23) is fictitious and without consideration, if so, what is its effect ? 0. P. P.
(iv) Whether ultimate transfer of the suit land to defendant No. 7 is not bona fide and legal in view of the circumstances shown by the defendants in their reply to para. No. 8 of the plaint 7 0. P. P.
Suit giving rise to W. P. No. 3611 of 1977
(i) Whether the general Power-of-Attorney executed by the plaintiffs in favour of defendant No. 1 had been cancelled or withdrawn ? O. P. P.
(ii) Whether defendant No. 1 as general attorney of the plaintiffs had no power to transfer of the suit land through a mutation without getting a sale-deed registered ? O. P. P.
(iii) If the above issues are held against the plaintiffs then whether the transfer of the suit land by defendant No. 1 to defendant No. 2 through the Mutation No. 213 is without consideration and fictitious ? If so what is its effect ? O. P. P.
(iv) Whether transfer of suit land by defendant No. 2 to defendant No. 1 through the Mutation No. 214 is fictitious and without consideration, if so, what is its effect ? O. P. P.
( V) Whether ultimate transfer of the suit land to defendant No. I is not bona fide and legal in view of the circumstances shown by the defendants in their reply to para. No. 8 of the plaint ? O. P. P.
16 , In these writ petition, orders both dated 9-10-1977 of the learned .Additional District Judge, Sheikhupura passed in the two revisions aforementioned have been challenged.
17. The learned counsel for the petitioners made the one and the only submission that the order of the learned Additional District Judge passed in revision is amenable to challenge in the writ jurisdiction of this Court under Article 199 of the Constitution inasmuch as the issues which had been framed by the learned Civil Judge were in accordance with law and the framing of additional issues by the Additional District Judge being against the spirit of the decisions in precedent cases, and, in particular against the principle laid down in the case titled Muhammad acrd another v.
Sardul (1) shall be deemed to be an order against law as the pronouncements of superior Courts have the force of law in the same manner as the statutory provisions made by the Legislature.
When asked as to which of the issues as framed by the Additional District Judge the petitioners have objection in particular the learned counsel replied that the petitioners have objection to issue No. (ii) in the suit out of which Writ Petition No. 3610/1977 and to issue No. (iii) out of which Writ Petition No, 3611/1977 have arisen.
18. On a query made by the Court whether revision was competent before the Additional District Judge when the value of the subject-matter was more than Rs. 2,000. The learned counsel for the petitioners, on the first day of bearing, conceded that the revision was competent and categorically stated that be would not plead to the contrary. On the next day of hearing, however, the learned counsel made an attempt to submit that the revision was not competent before the Additional District Judge as the value of the subject-matter of the suit and not value for purposes of jurisdiction has to be taken into consideration for determining the forum where the revision would lie. The value of the subject matter in both the suits being more than Rs. 2 000, he submitted that the District Judge had no jurisdiction in the matter.,
19. The learned counsel for the respondents in response to the argument as to whether the Additional District :fudge had the jurisdiction in the matter submitted that the subject-matter is given a fictional value by the deeming clause so far as the suits pertaining to lands in dispute are concerned by virtue of Finance Act of 1973. It may be of use to reproduce clause (v) of section 7 of Court Fees Act as amended by section 8 of the Punjab Finance Act of 1973 : "S. 7(v).-In suits for the possession of land, houses and gardens-according to the value of subject- matter ; and such value shall be deemed to be .-
(a) where the subject-matter is land and where net profits have arisen from such land during the year next before the date of presenting the plaint-fifteen times such net profits ;
(b) where the subject-matter is land and where no such profits have arisen therefrom-market value of such lanes The learned counsel contended that the "value of the subject-matter" as used in section 115(2) of C.
P. C. Is a phrase which is to be used in such cases
(1) PLD 1965 Lah. 472 with relevance to section 7, clause (v) of Court Fees Act, 1870 as amended by section 8 of Punjab Finance Act of 1973. To support his contention he placed reliance on Muqarrab Khan v. Muhammad Anwar Khan and 10 others (PLD 1964 Pesh.228
20. He also submitted that the point of jurisdiction having not been admittedly raised before the Additional District Judge, the petitioners cannot now be permitted to raise this question in writ petition. He in this regard relied on Sardar Muhammad Ayub v. Pakistan and others (1969 SCMR 96), Begum Wazir Ahmad Industrial Home v. Mst. Niaz Begum and 3 others (PLD 1976 SC 214) and Abdul Qayyum v. The State and another (1976 SCMR 321).
21. It was next contended by the learned counsel for the respondents that the impugned orders of the learned Additional District Judge passed in revisional jurisdiction were not open to challenge by way of petition under Article 199 in the Constitutional jurisdiction of this Court. He argued that the orders and judgments in civil suits can be broadly divided into two categories-one in which orders made in civil suits would not be at all amenable to writ jurisdiction whilst there may be orders though made in civil suits which could be challenged in this jurisdiction. Elaborating his contention the learned counsel submitted that only such orders which become final and there is no remedy available under the Code of Civil Procedure even in the ultimate are the only orders which can be challenged through a petition under Article 199. Continuing he submitted that if, on the other hand, there is a remedy available may be in the ultimate under the Code of Civil Procedure itself against an order sought to be reversed, the said order will not be open to question in the Constitutional jurisdiction of this Court. He further submitted that the orders now impugned in these writ petitions are such as fall in the second category and are not open to question in the present petitions.
22. The last contention raised by the learned counsel for the respondents was that apart from the above position the impugned orders otherwise also are perfectly legal and passed with jurisdiction and as such are not assailable on merits as well. He submitted that issues are to be framed on the basis of the pleadings and in accordance with the provisions contained in Order XIV. C. P. C. These impugned orders, he argued in fact, have remedied and removed the material irregularity committed by the learned Civil Judge in framing the issues. The exercise of jurisdiction in revision by the learned Additional District Judge according to him is, thus, not open to any criticism both on legal as well as factual planes.
23. The learned Single Judge while referring the matter to a larger Bench made the following observations : "This writ petition is directed against the order passed by an Additional District Judge in revision.
The main question for consideration in this case is whether the High Court should exercise its Constitutional jurisdiction in such cases ?
I am of the view that this jurisdiction has not been conferred upon the High Court as supplementary to the powers given in the Civil Procedure Code. The provisions of the Code are supposed too take care of every eventuality arising from a civil litigation. If, as in this case, an ircumstances the petitioners may well be treated as having waived the objection and acquiesced in the jurisdiction of the Court below even if it be assumed that the objection was available to them. They are, thus, not' entitled to impugn the orders passed by the learned Additional District Judge Sheikhupura
30. Having regard to the view we have taken above we do not feel called upon to record a finding on the question whether the Additional District Judge was, in fact, possessed of the jurisdiction or not ?
31. As regards the contention of the petitioners on merits, we find the orders passed by the learned Additional District Judge impugned in these writ petitions as unexceptionable. It is provided in Order XIV, rule 1(1), (2) and (3) of the Code of Civil Procedure that issues arise when a material proposition of fact and law is affirmed by one party and denied by the other : t that material propositions are those propositions of law or fact which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute his defence and that each material proposition affirmed by one party and denied by the other shall form the subject of a distinct issue.
The order of the Additional District Judge framing separate issues on each controversial point instead of a joint issue as framed by the trial Court is clearly intended to carry out the intendment of the express provisions of law on the subject.
32. Moreover, if the petitioners are aggrieved of the issues as framed by the Additional District Judge in the cases in question, they have an alternative remedy in that they can agitate the matter in the ultimate appeal if decrees are passed against them. The fact that it may take a long time for the ultimate appeals to be decided will is no manner change the position G of availability of the alternative remedy in cases of the nature which are under discussion in this judgment.
33. In the light of the above discussion we find no merit in these writ petitions which are dismissed with costs.