IN THE HIGH COURT OF SINDH AT KARACHI

IN THE HIGH COURT OF SINDH AT KARACHI

(Constitutional Jurisdiction)

C.P. No.D-1724 of 2008

Present:

1) Mr. Justice Mushir Alam and

2) Mr. Justice Safdar Ali Bhutto

Pakistan Post Office : Through Messrs. Muhammad Anwar

Employees Cooperative Tariq and Aziz-ur-Rehman Akhund,

Housing Society, Advocates.

Petitioner

Ali Akbar Gabole, : Through Messrs Abrar Hassain and

Respondent No.1 M. Ismail Memon, Advocates.

Ismail,: :} Through Messrs. Mushtaq A. Memon

Respondent No.2 :} and Shahid Ali Ansari, Advocates

Syed Ali, . :}

Respondent No.3 :}

Member, BoR (LU) Dept.: Not represented.

Respondent No.4

EDO (Revenue) CDGK, : Not represented.

Respondent No.5

DO (Revenue) CDGK, : Not represented.

Respondent No.6

Mukhtiarkar, Scheme-33: Not represented.

CDGK, Respondent No.7

Province of Sindh : Not represented.

Secretary (LU) Dept.,

Respondent No.8

Date of Hearing : 25/3/2009

Date of detailed reasons: 23/6/2009

JUDGEMENT

MUSHIR ALAM, J.- Petitioners have impugned the order of Member (Land Utilization) Board of Revenue Sindh, dated 28/8/2008 whereby the order passed by the Executive District Officer (Revenue) dated 28/9/2006 was set aside and consequently the order dated 13/2/2006 passed by Collector/ District Officer (Revenue) Karachi, whereby entry No. 222 ated 28.11.1975 made in favour of Pakistan Post Office Employees Cooperative Housing Society was held to be “inserted on misrepresentation of facts and is null and void ab-initio, fake, fabricated and bogus having no validity in the eyes of laws” and consequently ordered to be cancelled, was maintained.

2. It is the case of petitioners that they are the owners of Survey Nos.84, 85, 89, 90 and 91 in all measuring 80-27 acres situated in Deh and Tapo Songal, Scheme-33, Gulshan-e-Iqbal Town, Karachi. Petitioners claim to have purchased the land through Sale Agreement dated 8/7/1970 followed by registered Sale Deed dated 23/6/1975 from the predecessor of respondent No.1.

3. Further, the case of petitioners is that the mutation was affected in their name vide Entry No.222 dated 28/11/1975. According to the petitioners, the transaction was affirmed in a case reported as Agra Cooperative Housing Society Limited v. Syed Akhtar Ali and others, 1994 MLD 1747 and the subject property was converted into Sectors for residential and commercial use and the project was being planned on the subject property.

4. It appears that Ali Akbar Gabole, the respondent No.1, moved an application on 19/6/2004 before the District Officer (Revenue) CDGK, the respondent No.6, for cancellation of Entry No.222 dated 28.11.1075, which application was allowed and the said entry was cancelled vide order dated 13/2/2006 on the premise that the subject property was gifted by the deceased in his life time in 1973 in favour of respondent No.1, therefore, Entry No.222 which was found to be unauthenticated and fake, was ordered to be cancelled. (page 87)

5. The order in original was challenged by the petitioners in appeal before the District Officer (Revenue) CDGK, the respondent No.6. Appellate authority vide order dated 28.11.2006 on one hand observed that “From the above discussion it is evident that entry No. 222 dated 28.09.1975 exist in the record of Rights but without attestation/validation of competent authority hence deficient and not valid under law” and on the other observed that “Subject entry have been incorporated on the basis of registered Sale Deed. However, it has not been attested by competent authority. No legal bar has been that to effect the subject transaction on the basis of registered Sale Deed but the same entry is not hit be clear infirmity being unattested. Accordingly the appeal filed by the appellant merits no consideration and filed.

It was further held that “Since there is no existence of entry No. Nil dated 30.10.1973 in the relevant Record of Rights kept in favour of Respondent therefore its cancellation or otherwise is not warranted by law and the impugned order dated 13.02.2006 is setaside” (page 89).

6. The respondent Nos.1, who had in the mean time acquired the rights and interest in the land challenged the order in appeal through Revision numbered as SROR 30/2008.

Revisional Authority (Member BOR, (LU), the Respondent No.4 herein, vide order dated 28/8/2008 set aside the order of respondent No.5 while maintaining the order of respondent No.4.

7. It was contended by Mr. Muhammad Anwar Tariq, learned counsel appearing for the petitioners, that the order impugned is perverse and in ignorance of law and fact. According to the learned counsel, the respondent No.5 and so also the respondent No.4 failed to take into consideration that the sale transaction on the basis of which mutation entry No.222 dated 28/11/1975 was cancelled, was affirmed in the previous litigation reported as Agra Cooperative Housing Society Limited v. Akhtar Ali 1994 MLD 1747, while dealing with Issue No.14 subject the transaction was sanctified. It was further urged that the long standing entry cannot be cancelled in support of his contentions, he has placed reliance on the case reported as (i) Ghulam Ali v. Muhammad Nasir Khan, 2004 SCMR 1232, (ii) Ghulam Sakina v. Member (J) Board of Revenue, PLD 2004 Karachi 391, and (iii) Abdul Aziz v. CDGK, 2005 YLR 163.

8. Mr. Abrar Hassan, learned counsel appearing for the respondent No.1, contended that the said transaction on the basis of which alleged Entry No.222 was made, was itself a fraudulent transaction and the deceased had never executed any such deed. It was further urged that the entry was not authenticated and even otherwise, according to the learned counsel, deceased Muhamad Siddiq Gabole was owner of 50% share in the said land. The land was partitioned vide order dated 9/6/1973 and confirmed by the then Deputy Commissioner Karachi and the mutation was affected vide Entry No.194 dated 20/6/1973 for an area measuring 80 acres and 27 ghuntas in the said survey numbers in Village Form VII. The deceased entered into a sale agreement with one Syed Akhtar Ali, who filed two Suits bearing Nos.8/1972 and 11/1972 for specific performance; however, the said suits were dismissed by order dated 20/3/1993. It is stated that the petitioners were also represented in the said suits and no such plea was taken therein.

9. According to the learned counsel for respondent No.1, the moment legal heirs of late Muhammad Siddiq Gabole learnt about the fraudulent entries, the representation was made to District Officer (Revenue) CDGK, the respondent No.6, who after calling for the report from Mukhtiarkar concerned, passed the order annulling Entry No.222 dated 28.09.1975 which was kept on record without attestation and validation of the competent authority. He concedes that Suit No.1671/2006 was filed by the respondent No.1 challenging the illegal entry. It was stated that since the Revenue Authorities were already seized of the matter and in view of such legal position, he withdrew the suit. He has drawn our attention to page 193 of the court file whereby the withdrawal of Suit No.1671/2006 was prayed with permission to file Revenue Appeal before the Board of Revenue, Sindh, which application was allowed vide order dated 18/3/2008 and the said suit was “allowed to be withdrawn with no order as to costs. The plaintiff is at liberty to take any action in accordance with law”. Said order is available at page 203 of the court file.

10. It is stated that since the entry was cancelled in the revenue hierarchy, therefore, there was no necessity to take any other action. Mr. Abrar Hassan, learned counsel, contended that once a revenue hierarchy has decided the controversy this Court in constitutional petition cannot upset the findings unless found to be perverse. It was urged that where disputed question of facts are to be thrashed out writ jurisdiction is not to be exercise. He has placed reliance on Kaneez Fatima v. Muhammad Saleem, 2001 SCMR 1493.

11. Mr. Mushtaq A. Memon, learned counsel appearing for respondent Nos.2 and 3, contends that Entry No. Nil dated 30/10/1973 in the Village Form, which was made on the basis of declaration of gift made in favour of the legal heirs of deceased Siddiq Gabole, who was divested the ownership, had no right or interest left to be negotiated. He on the relevant date of registration of purported sale deed could not have entered into any transaction as alleged by the petitioners. According to him, the respondent No.3 having acquired the subject property from the respondent No.1 through a registered Indenture of Lease on 30^th November 2004 placed on record at page 363 of the court file along with his counter affidavit. It was stated that the possession of land throughout has remained with legal heirs of the deceased Siddiq Gabole. Nazir’s report dated 16/1/2009 available at page 453 of the court file affirms that Survey Nos.84, 85, 89, 90 and 91 are not in possession of the petitioners as alleged. It was urged that Entry No.222 was made without any notice to the actual owners, carries no weight and in support of his contentions, he has placed reliance on the case law reported as Kasim Kambar and others v. Chanderbhan Wadhumal, PLD 1962 Karachi 253.

It was further claimed that the entry in the revenue record is not a conclusive proof of title and is merely for physical purpose. Reliance was placed on Ali Ahmed v. Government of Sindh PLD 1976 Karachi and Muhammad Munir v. Muhammad Saleem 2004 SCMR 1530.

12. We have heard the arguments of learned counsel for the parties, perused the record and thoroughly examined the case laws cited at bar.

13. Mr. Muhammad Anwar Tariq, learned counsel for petitioners, had empathetically placed reliance on the case of Agra Cooperative Housing Society Limited (supra) to assert that the title of the petitioners in the subject land on the basis of purported sale deed dated 23.6.1975 executed in favour of the petitioners by the deceased Siddiq Gabole was affirmed. We have carefully examined the reported judgments recorded in the case of Agra Cooperative Housing Society Limited (1994 MLD 1747). Suit Nos.8/1972 and 11/1972 appear to be for the specific performance of the purported agreement of sale dated 27.11.1964 and 5.1.1965. We have carefully examined the contentions of Mr. Anwar Tariq, sale agreement and sale deed as relied upon in the instant petition are dated 8/7/1970 and 23/6/1975 respectively was not subject matter of controvery in the reported case. The Issue No.14 and Additional Issue as empathetically relied upon by Mr. Muhamad Anwar Tariq, learned counsel for petitioners, reads as follows:

“Whether the defendant No.2 after rescinding the Agreement of Sale dated 27-11-1964 was competent to enter into an Agreement of Sale on 12-6-1970 with Muhammad Hanif son of Abdul Aziz? If so, whether the agreement so executed is valid?

Additional Issue:

“Whether sale of the land in suit by defendant No.2 to defendant No.6 and by defendant No.6 to defendant No.7 during pendency of the above suit is valid? If so, what is its effect on the claim of the plaintiff?”

14. Findings on Issue No.14 and Additional Issue were recorded in affirmative and it was held that “the said vendor Siddiq Gabole was competent to enter into the transaction with defendant No.6 and with defendant No.7 and the same is valid” However on merits the suits for specific performance were dismissed.

15. We could not find any sanctification of the agreement dated 8/7/1970 and/or the registered sale deed dated 23/6/1975 all that was observed was to the effect that Siddiq Gabole was competent to enter into an agreement but it does not imply that such would refer to an agreement relied upon by the petitioners. It is true that for the purpose of cancellation of any registered transaction, the competent authority is Civil Court under Section 39 of the Specific Relief Act as held in the case of Ghulam Sakina (PLD 2004 Karachi 391).

16. In the instant case, it may be observed that the revenue authority examined the Revenue Entry No.222 whether such entry was kept in accordance with Section 42 of the Land Revenue Act 1967 or otherwise. District Office (Revenue) CDGK appears to have called the report from the concerned Sub-Registrar, who had reported that the transaction of the registered conveyance is not recorded with them. He, therefore, concluded that the entry maintained in the revenue record is bogus, fabricated and managed one. It was also noted that possession is with the applicant (the respondent No.1 herein). Besides noting the discrepancy in the sale transaction the fact which found favour with the District Officer (Revenue) CDGK was that the deceased Siddiq Gabole had gifted subject property before Mukhtiarkar on 30/10/1973 and therefore, he was not competent to enter into any sale. Even otherwise, despite several notices, original sale deed, and original sale agreement and original receipt of the amount paid to Khatedar at the time of sale deed was not produced. The findings of District Officer (Revenue) CDGK dated 13/2/2006 are recorded as follows:

“Keeping above facts in view and after hearing both the Advocates it become very clear to me that entry No.222 dated 28.11.1975 is bogus and managed one, on the grounds that it was inserted in the record of rights during pendency of Civil Suits No.8 and 11 of 1972, pending in the Honourable High Court which were decided in the year 1993. It is settled law that till decision of any case pending in any Court of law, title of land under dispute cannot be changed. Moreover, from the foregoing facts / reports it also appears that possession of the subject land lied with the legal heirs of deceased Siddiq Gabol i.e. the applicant till 1996, as reported by Mukhtiarkar / ACSO Scheme No.33, Karachi in his report. Therefore, in view of the position / grounds stated above, there appears sufficient cause that entry No.222 dated 28.11.1975, made in favour of Pakistan Post Office Employees Cooperative Housing Society, is inserted on misrepresentation of facts and is null and void ab-initio, fake, fabricated and bogus one, having no legality / validity in the eyes of law on further grounds that gift was made by deceased Muhammad Siddiq in the year 1973, and sale transaction is effected in 1975 which also open the door of doubt. Therefore, I order to cancel entry No.222 dated 28.11.1975, made in favour of Pakistan Post Office Employees Cooperative Housing Society. Dispute is accordingly stands disposed of from this Court.”

17. Above order was appealed before the EDO (Revenue) CDGK by the petitioners. Findings recorded on 28/9/2006 by the said EDO appearing at page 107 reads as follows:

“From above discussion it is evidence that entry No.222 dated 28-11-1975 exists in Record of Rights but without attestation / validation of competent authority hence deficient and not valid under the eyes of law.

The impugned order of District Officer (Revenue) City District Government, Karachi declaring the entry No.222 dated 28-11-1975 as forged / fabricated / bogus has not dealt with the matter considering all the relevant facts and legal issues. Subject entry, appears to have been incorporated on the basis of registered Sale Deed. However, it has not been attested by competent authority. No legal bar has been that to effect the subject transaction on the basis of registered Sale Deed but the same entry is not hit by clear infirmity being unattested. Accordingly the appeal filed by the appellant merits no consideration and filed.

Since there is no existence of entry No.Nil dated 30-10-1973 in the relevant Record of Rights kept in favour of Respondent therefore its cancellation or otherwise is not warranted by law and the impugned order dated 13-02-2006 is set-asided.”

18. Finding dated 28/8/2008 recorded in Revision by Member (Land Utilization) Board of Revenue Sindh, after recapitulating the facts recorded in the above two orders appearing at page 261 is as follows:

“3. In view of above the application is allowed, the sale deed was made on 26-03-1975 and mutation entry was kept after eight months without notice to deceased during sub-judice of the matter even not authenticated by competent authority, therefore the order passed by the Executive District Officer (Revenue) dated 28-09-2006 is set-a-side and maintained the order dated 13-02-2006 of Collector / District Officer (Revenue) Karachi.”

19. Section 42 of the Land Revenue Act 1967 lays down the procedure for making record and in terms of subsection (3) thereof any person acquiring any right or interest in the property otherwise then by easement or charge not amounting to mortgage in terms of section 100 of Transfer of Property Act is required to inform the Mukhtiarkar or the authorized officer of such acquisition within three months. In case where the right or interest acquired is through a registered instrument the Sub-Registrar concerned is also obligated to inform Mukhtiarkar concerned or the authorized officer within three months of the registration of such documents. In terms of subsection (5) thereof, Mukhtiarkar or the authorized officer, as the case may be, are required to certify the information whereupon the mutation is affected. Fact that entry No.222 dated 28.11.1975 made in favour of the Petitioner remained unattested up to 2006 raises serious doubt as to its authenticity and was rightly struck down. Beside the authenticity of the purported sale deed was not verified by the sub-registrar as noted by the District Officer (Revenue) (typed page 3 of the order dated 13.02.2006) avail able at page 89 (93) of the file.

20. In the wake of such doubtful claim of the petitioner, which has been thrashed out by the fact finding hierarchy under the Sindh Land Revenue Act 1967, we were not persuaded to exercise extraordinary constitutional jurisdiction in the instant matter consequently constitutional Petition.

21. By a short order dated 25/3/2009, we had dismissed the instant petition coupled with the listed applications and above are the reasons for the same.

J U D G E