IN THE SUPREME COURT OF PAKISTAN

(Appellate Jurisdiction)

PRESENT:
Mr. Justice Umar Atta Bandial
Mr. Justice Sajjad Ali Shah
Mr. Justice Sayyed Mazahar Ali Akbar Naqvi

Civil Appeal No. 346 of 2020.

Sardar Muhammad and others.

Imam Bakhsh (decd) thr. LRs and others. … Respondents

For the Appellant (s) : Mr. Ghulam Nabi, ASC.

For the Respondents 3-9: : Malik Javed Akhtar Wains, ASC.

For the LRs of Respondents : Ex parte.

Date of Hearing : 15.12.2020

Judgment

Sajjad Ali Shah, J. This appeal arises from the judgment of the

Lahore High Court whereby the said Court while reversing the concurrent

findings of the Courts below, dismissed the suit filed by the appellant

against the respondents seeking setting aside of orders dated 26.3.2002

and 19.8.2003 passed by the Deputy District Officer (DDO) & Executive

District Offer (Revenue) (EDO) respectively. Cancellation of registered sale

deed dated 29.3.2002 executed by one Imam Bakhsh predecessor in

interest of respondent No.1, in favour of predecessor in interest of

respondents No. 2 to 9 was also sought.

2. We are informed that the legal heirs of respondent No.1 and

Respondent No. 2, in person, have refused to receive the notices. As a

result, they are proceeded against ex parte.

3. Briefly, on 8.3.2002 Imam Bakhsh filed an appeal before the

Deputy District Officer (Revenue) Lodhran seeking cancellation of sale

mutation No. 4855 dated 28.2.2002 effected in favour of appellants on the

ground that it was procured through misrepresentation and fraud. The

DDO (R) Lodhran, after hearing the parties, vide order dated 26.3.2002

cancelled the mutation by holding that Imam Bakhsh was an old and sick

man from whom lying was not expected and, therefore, his contention that

the mutation was obtained through misrepresentation and fraud is to be

given due weight. The record further reflects that on 29.3.2002, merely

three days after the cancellation of sale mutation in favour of appellant, the

said Imam Bakhsh, through registered sale deed, conveyed the same

property to respondents No. 2 to 9. The appellant on 30.3.2002 challenged

the said order of the DDO (R) before the Executive District Officer (Revenue)

who vide order dated 19.8.2003 rejected the appeal on the ground that a

registered sale deed could only be cancelled by a Court of competent

jurisdiction. This gave rise to the present appellant to file a suit against the

respondents challenging the order dated 26.3.2002 of DDO (R) and order

dated 19.8.2003 of the EDO (R) alongwith seeking cancellation of the

registered sale deed. The trial Court on 28.10.2008 decreed the suit as

prayed for. Respondents No. 2 to 9 filed appeal which did not find favour

with the appellate Court and was dismissed on 4.9.2009. The respondents

thereafter filed a revision petition before the Lahore High Court which after

hearing the parties, was allowed through the impugned judgment by setting

aside the concurrent findings of the Courts below.

4. Learned counsel for the appellants while inviting our attention

to mutation No. 4855 (at page 83) contended that the said mutation was

carried out in jalsa-e-aam in presence of two witnesses viz. Muhammad

Akmal and Muhammad Nawaz which records unequivocal sale of the

subject land in favour of the appellant by the respondent Imam Bakhsh

against the sale consideration of Rs.1,20,000/- and such mutation could

not have been cancelled by the DDO(R) on assumptions and presumptions.

Per counsel, since the record did not require any rectification, therefore, the

jurisdiction of the DDO (R) was not attracted. It was contended that the

plea of fraud requires adjudication through evidence, a process which could

not be adopted by the DDO (R) as proceedings before him are summary in

nature. It was next contended that the findings of the learned High Court

that the mutation was not effected in jalsa-e-aam are contrary to record. It

was further contended that Imam Bakhsh never disputed the mutation

entry but challenged it on the ground of fraud, therefore, the burden was

upon Imam Bakhsh to prove the fraud, consequently, the appellants could

not be non-suited by placing burden to prove the sale mutation. It was also

contended that it is a settled law that the concurrent findings of fact are not

to be interfered with by the High Court while exercising revisional

jurisdiction and such principle was totally ignored.

5. On the other hand, learned counsel for the respondents

contends that the findings of the DDO (R) declaring the mutation entry No.

4855 as procured through fraud and misrepresentation has attained

finality and, therefore, at this juncture could not be interfered with. It was

next contended that the respondents have purchased the subject land with

clear title through a registered conveyance deed after the earlier sale

mutation was cancelled and being bona fide purchasers, their sale deed

was rightly restored by the High Court and such findings do not require

any interference. It was lastly contended that the appellants have totally

failed to prove the oral sale agreement which resulted mutation No. 4855

and has further failed to bring into the witness box one of the attesting

witness and the concerned Tehsildar who recorded the mutation entry.

6. We have heard the learned counsel for the respective parties

and have minutely perused the record. The primary question which
CA 346 of 2020 4

requires our attention is as to whether the DDO (R) had the power to strike

off a sale mutation carried out in a jalsa-e-aam in the presence of witnesses

on the ground that such sale was procured through misrepresentation and

fraud and if the answer is in the negative, whether the subsequent sale

deed in the peculiar circumstances of this case would fall to the ground. It

has been repeatedly held, and the law itself provides that the proceedings

before the Revenue Officer or before the Revenue Courts are summary in

nature and, therefore, complicated questions of law and disputed question

of fact are not to be adjudicated in the hierarchy. The determination of

complicated questions of law and disputed questions of fact fall within the

sole domain of the civil Court. The plea of the respondents that the

mutation entry No. 4855 was procured through fraud, in our opinion, could

not have been decided in proceedings which are summary in nature as

such controversy requires adjudication by allowing the parties to adduce

evidence in support of their respective claims. There is no doubt in our

minds that the DDO (R) transgressed his limits by declaring mutation No.

4855 as having been obtained through fraud and misrepresentation.

7. The provisions of Section 172 of the West Pakistan Land

Revenue Act, 1967 allocate certain matters to the sole competence of the

Revenue authorities, to the exclusion of civil courts. However, it must be

noted that Section 172 only empowers Revenue authorities to exercise

administrative powers; the raison d’etre for the same is that the

proceedings conducted by a Revenue Officer or a Revenue Court are

summary in nature; they possess a limited scope of enquiry and do not

possess the characteristics of a civil suit that necessitates framing of the

issues or recording evidence of the parties, as such matters fall within the

sole domain of the civil courts. Besides, Section 172(2)(xvi) of the Act, 1967

leaves the adjudication of plea of fraud to the competence of the civil

courts. Resultantly, once the appellants have successfully proved that the
CA 346 of 2020 5

sale mutation in their favour was struck off by DDO (R) illegally without

jurisdiction and that the respondents No. 2 to 9 before purchasing the

subject property had notice of such fact, then the sale deed in their favour

automatically has to give way to the subject mutation no sooner it is

revived. Reference can be made to the case of Noor Muhammad vs. Allah

Ditta (PLD 2009 Supreme Court 198), Fida Hussain vs. Abdul Aziz (PLD

2005 Supreme Court 343), Abad Muhammad (thr. LRs) vs. Mst. Sakina and

another (PLJ 1987 (d) Revenue 22) and Mst. Surraiya Bano vs. Nazia Bano

(1996 CLC 1690).

8. Additionally, the High Court against all the settled principles of

law, has very lightly brushed aside the concurrent findings of the Courts

below where it was specifically taken note of the fact that after three days of

the cancellation of such mutation, the respondent Imam Bakhsh has sold

out the property to the respondents coupled with the statement of DW-1

who categorically stated that when they purchased the subject land from

Imam Bakhsh on 29.3.2002 through sale deed, he was hardly of 65 years,

mentally fit, with the addition that his father in whose name the sale deed

was executed by Imam Bakhsh had helped Imam Bakhsh in pursuing the

appeal before the DDO (R) seeking cancellation of subject mutations in

favour of appellants. Thus, the two concurrent findings of fact not only

negate the facts on the basis whereof DDO (R) had cancelled the subject

mutation but also destroyed the plea of the respondents that they were

bona fide purchasers for valuable consideration without notice. Our perusal

of the record further clearly demonstrates that the appellant, though it was

not required of him, had not only produced one of the witnesses of the sale

mutation but also produced Muhammad Ajmal and Wahid Bakhsh

Patwaris who had not only supported the sale but also deposed that at the

relevant time Imam Bakhsh was perfectly in good physical and mental

health. Consequently, once the appellants have successfully proved that

the sale mutation in their favour was struck off by DDO (R) illegally without

jurisdiction and that the respondents No. 2 to 9 had notice of such fact,

then the sale deed in their favour automatically has to give way to the

subject mutation. However, it was open for Imam Bakhsh to question such

mutation on the stated ground before a Court of original civil jurisdiction

which could have competently decided such lis.

9. For what has been discussed above, this appeal is allowed by

setting aside the impugned judgment of the High Court and restoring the

judgments of the Courts below. No orders as to costs.

Judge

Judge

Islamabad, the Judge

Approved for Reporting.