SHAUKAT IQBAL, MEMBER (JUDICIAL-II)- Muhammad Din son of Barkat Ali and others have filed this revision petition against Mst. Rashida Begum etc. Challenging the order dated 16.6.2001 passed by the Commissioner, Dera Ghazi Khan Division.
2. Barrister Ch. Abdus Salim, Advocate/counsel for petitioners argued that an order was passed on 21.8.1979 by which Mutation No. 309, dated 27.11.1 969 and Mutation No. 583, dated 1 2.6.1 968 of exchange were declared as fraudulent. The Deputy Land Commissioner also found these Mutations to be violative of MLR-1964. Similarly Mutation Nos. 318 and 356 were reviewed and cancelled.
Copies were sent to the Commissioner, Multan Division for information, It was also alleged that files of these cases were misplaced and order dated 21.8.1979 was not implemented.
3. Heirs of Nizam Din obtained copy of order dated 21.8.1979 and applied for implementation of said order. At that time Settlement Operation was going on in Dera Ghazi Khan District. The Settlement Officer cancelled all the four mutations mentioned earlier vide order dated 14.6.1988. The Commissioner decided the matter vide order dated 8.5.1990 and directed to implement order dated 21.8.1979 after determining genuineness and validity of the same. A Revision Petition No. 9791 of 1990 "Rashida Begum Vs. Muhammad Din etc." was filed which was accepted on 31.3.1992 and case was remanded to. The Commissioner for fresh decision after securing the. Report from the Deputy Land Commissioner. He held an enquiry to determine genuineness of order dated 21.8.1979.
After hearing the parties, he forwarded report to the Commissioner, who on 20.10.1 994 held alleged order dated 21.8.1979 as genuine and correct and appeal was dismissed. The case was remanded by the Member (Judicial-I), Board of Revenue on 1.8.2000 because of inadequate discussion of point of view of both parties in the impugned order.
4. The Commissioner decided the case again on 16.6.2001. The order dated 21.8.1979 was declared to be genuine to be acted upon. The disputed order was sent to Ch. Muhammad Siddique, then Deputy Land Commissioner, Dera Ghazi Khan, who declined to have delivered the judgment on said date. Therefore, it could not be considered to be a valid order, moreover opinion of handwriting expert was in negative, It was passed in absence of petitioners Nos. 1 to 4, therefore, this order is liable to be struck down on this score. Mutation of exchange could not be struck down retrospectively.
5. MLh-64 has been declared redundant being against Injunctions of Islam and is no more operative or applicable. Judgment of Federal Shariat Court is dated 3.3.1993. Since it is pending matter, the judgment will apply in this case. Petitioners are bona fide purchasers. Their rights cannot be snatched only because land become expensive. Matter relating to same land was sub judice before High Court in R.F.A. No. 232, which was decided on 2.3.1981 in a pre-emption suit, it has become final which cannot be changed, It was implemented in 1988-
6. In presence of sufficient evidence as to the genuineness or otherwise of said order, impugned order was passed on basis of surmises and conjectures and he misread evidence, It is not based on extraneous consideration and is not a speaking order. Rights have accrued on the basis of a private treaty which cannot be changed. Deputy Land Commissioner appeared before the Deputy Commissioner, D.G. Khail5 during enquiry on 6.6.1992 and denied his signatures. Petitioners are bona fide purchasers who may not be deprived of their rights.
7. Mr. Ahmed Nawaz Qaiserani, Advocate/counsel for Muhammad Ibrahim, petitioner No. 9 stated that Nizam Din exchanged 413k-17m with Muhammad against 212-kanals in Village Giamal.
Mutation of exchange was attested on 27.11.1967. Exchange Mutation No. 583 of Village Giamal is in dispute. Nizam Din applied for review of mutatrons on ground of violation of MLR-64. He claimed that he owned 630-kanal of land whereas Revenue staff had shown him to be owner of 818-kanals.
The transaction should have been at least 400-kanals whereas it was reduced to 267-kanals. Land was taken to be 630- kanals in disputed order of 21.8.1979. Vide Mutation No. 318, dated 13.6.1968, petitioner No. 9 was sold 160-kanals. Nizam Din could not sell this land because if 160-kanals are subtracted from 630-kanals land in excess of 400-kanals is left behind. Petitioner No. 9 did not obtain land through mutation of exchange but it was an independent transaction. R.T.A, was decided by the High Court in respect of this land measuring 160- kanals. This aspect was over- looked by all Courts.
8. Syed Shamim Haider Zaidi, Advocate/counsel for respondents' and respondent No. 4 personally argued that Nizam Din owned about 1161-kanals of land according to Register Haqdaran Zamin 1965-66. He was illiterate. Petitioners who claim to be bona fide purchasers did not pay anything to Nizam Din or his successors. This case was remanded by Member (Judicial-Ill), Board of Revenue on 31.3.1992. It was directed to summon the officer, who passed the order and to show him the original order to ascertain whether he owns it having been passed by him. It was also directed to examine any documents and to furnish report. Deputy Land Commissioner examined the officer concerned,' he examined original record from Commissioner office 'and also examined Inspector, Anti- Corruption, He saw movement register. No document or oral evidence was produced by the petitioners before the Deputy Land Commissioner. He submitted report on 23.8.1993 to the Commissioner stating that Deputy Land Commissioner had passed an order on 21.8.1979 regarding Mutation No. 309 etc. However, page 4 of the photocopy of order available in the file of Assistant Commissioner, Rajanpur . Was found to have been changed and signatures of Deputy Land Commissioner on said page were forged. Copy attached with file of Commissioner's office Record Room (Goshwara 105/A/69) was genuine. Certified copy obtained on 8.2.2003 was produced. His genuine signatures can be seen on said certified copy.
9. Mutation of exchange was not witnessed by either of two Lambardars of the village but was identified by Lambardar of another village. Note about violation or otherwise of MLR-64-was not recorded by Girdawar Circle but by the Office Kanungo. Nizam Din applied for review of mutation which was declined by the Assistant Commissioner. Thereafter, he applied for review of mutations before the Deputy Commissioner/Deputy Land Commissioner in 1973. He obtained reports from the concerned field staff and- passed order dated 21.8.1979. Nizam Din died in 1974- 75 leaving behind an illiterate Baloch widow and an illiterate Baloch daughter. Both are Parda observing ladies. Nizam Din was 110 years old at the time of his death.
10. Mutation of exchange was between Nizam Din and Muhammad Hussain. The widow had a photo copy of order dated 21.8.1979 in which it was ordered to prosecute the staff, therefore, they conspired and stole the file containing original order. Movement Register shows that it was received by the Sadar Kanungo on 28.8.1979. Despatch No. 162. Sadar Kanungo sent it to Assistant Commissioner, Rajanput for cancellation of mutation at serial No. 2663 on 11.9.1979, Same was received in the office of Assistant Commissioner, Rajanpur at serial No. 1048 from where it was sent to Office Kanungo, Rajanpur where it was received, on 3.2.1980. He produced certified copies of movement registers. The widow sent an application to wife of the then President of Pakistan which was received in the office of Deputy Commissioner, Rajanpur. By then present petitioners had purchased land from Muhammad Hussain Chattha. The Deputy Commissioner ordered to hold an enquiry and to register a case.
Petitioners, who were in possession of original file got last page retyped with forged signatures. The General Assistant (Revenue) conspired with petitioners and sent the copy with forged signatures to Ch. Muhammad Siddique, Deputy Land Commissioner, who rightly replied that these were not his signatures. On receipt of his letter, the General Assistant (Revenue) submitted a note suggesting that further enquiry was not necessary and Deputy Commissioner filed the enquiry. Somehow Rashida Begum widow obtained a certified copy with original signatures and applied afresh before the Settlement Officer, who held the order to be genuine. His order was based on record. Lands of Nizam Din and Muhammad Hussain Chattha were returned to the respective owners after implementation of order in 1989. However, possession remained with petitioners.
11. Petitioners filed an appeal without citing Muhammad Hussain Chattha, vendor as party. On 8.5.1990, Commissioner took cognizance of the matter and decided the case. He recorded the order stating that order be implemented after verifying its veracity.
12. Order of 1979 has attained finality, it cannot be re-opened now. Index of file shows that certified copy was available in the file of Commissioner. During enquiry by the Inspector, Anti-Corruption, original file of Commissioner (Goshwara 105-Altaf/69) was taken to confront the then Deputy Land Commissioner, whose statement was recorded. He admitted that it was his order and his previous report was incorrect and somebody had forged his signatures on page 4. Type of last page and numbers differed from other pages. He showed various discrepancies of type.
13. Case was remanded by the Board of Revenue and was decided once again in favour of respondents. Orders are in favour, of respondents on the basis of documentary evidence.
Petitioners never adduced documentary evidence or got their statements recorded. Petitioner No. 9 was proceeded against ex parte before the lower Courts, In the impugned ocular accounts, documentary evidence and demonstrative evidence were considered and order in favour of respondents was passed. Land was sold in Village Giarnal by Muhammad Hussain Chattha, thus it is proved that no money was received by Nizam Din (deceased). Respondents are suffering since 1976. Respondents were not arrayed party in litigation in the High Court. None of the petitioners was condemned unheard in the impugned order. Petitioners have no locus standi to file this revision petition which may be dismissed.
14. I have considered the arguments of both sides in the light of various orders passed by different Courts from time to time. The case of Rashida Begum hinges on movement registers of different Courts and a copy of order dated 21.8.1979 available in the file of Commissioner. She placed reliance upon the statement of the then Deputy Land Commissioner recorded by the Inspector, Anti-Corruption. The mutations of exchange were attested in years 1968 and 1969 and order for review/cancellation of these mutations was allegedly passed for the. First time on 21.8.1979 after expiry of ten years. The Settlement Officer, Rajanpur passed order for. Implementation of , disputed order of the then Deputy Land Commissioner on 14.6.1988 after expiry of another eight years. Even if order dated 21 ..8.1979 is taken to be genuine, the transaction in favour of petitioner No. 9 is not hit by MLR-64 because if the land purchased by him is subtracted from the holding of respondents in area, more than 400-kanals left behind as has been explained in the arguments. The superior Courts have declared MLR-115 and MLR-64 to be repugnant to the Injunctions of Islam and the law itself was declared to be piratal in nature. The validity or otherwise of transaction has been in question much before the crucial date of 31.3.1992. Therefore, the transaction in favour of respondent No. 9 cannot be struck down under the provisions of MLR-64. Bona fide purchasers cannot be made to suffer on account of old age of Nizam Din or illiteracy of Rashida Begum or her daughter, who were stated to be Rarda observing women. The fact that alleged order dated 21.8.1979 is genuine or otherwise is not ' really important. The important facts are the time lag of ten years between attestation of mutation and passing of order of review on 21.8.1979 and it is not non- implementation for another eight years. Over all effect of delay and inaction by the respondents is that various persons have purchased the land for valuable consideration. They cannot be made to suffer on account of filmsy assertions about validity or otherwise of order dated 21.8.1979.
15. Outcome of above discussion is that photo copies of order dated 21.8.1979 cannot be considered to be reliable documents and were non-implementable after lapse of about two decades. Even otherwise, provisions of MlR-64 are not available for application in this case. The; revision petition is accepted, impugned order is set aside and it is declared that mutations of Exchange No. 309 and 583 and subsequent alienations will remain intact. The order was kept reserved - on 8.5.2004 and is being announced today. Parties be informed accordingly through their counsel.