MUHAMMAD ISHAQ vs MUHAMMAD SHAFIQ and 9 others

' SARDAR MUHAMMAD RAZA KHAN, J.--- One Ali Muhammad being an owner of 85 Kanals in Mauza Bangla Kumbohan, Tehsil and District Kasur, vide registered sale-deed No,673, dated 22-2-1978, sold 29 Kanals of land comprising Khasras Nos.161, 170 and 171 in favour of Muhammad Ishaq, the present petitioner. The vendor once had challenged this transaction by filing a declaratory suit but the matter ended up when he withdrew the same on 12-9-1981.

2. On the basis of the above registered sale, a Mutation No,925 was also attested in favour of Muhammad Ishaq on 12-12-1978. This mutation was reviewed and cancelled by the Revenue Department, considering it to be violative of para.24 of Martial Law Regulation 115, for it had the effect of bringing the vendor below the subsistence holding. Now, when the sale became non- existent, Ali Muhammad out of Khasra No,161 sold 5 Kanals in favour of Muhammad Shafiq, the present respondent vide Mutation No,2168 dated 26-9-1990. Muhammad Ishaq challenged this sale of 5 Kanals through a civil suit which though dismissed by the trial Court on 20-9-1990, was decreed by the First Appellate Court on 30-11-2000. Muhammad Shafiq succeeded before the High Court in his civil revision which was accepted vide judgment dated 28-6-2006 by learned Lahore High Court, restoring the judgment of the trial Court. Muhammad Ishaq has been granted leave to appeal from the judgment aforesaid.

3. From the arguments of the learned counsel on either side, we have observed that the present scenario has three facets, firstly, whether the question of a transaction being violative of M.L.R. 115 can be determined by revenue authorities. We believe, it cannot. Even if, some Revenue Officer detected any irregularity, it was incumbent upon him to have referred the matter to Land Commission or the Deputy Land Commissioner, being the Principal Officer of the District in the given hierarchy. In the instant case, the order of Revenue Officer declaring the transaction void, was itself void. This Court has already taken this view in Mst. Aisha Bibi's case 1994 SCM R 1935.

4. The second aspect is with regard to the repugnancy of para.24 M.L.R. 115 to the Injunctions of Islam. This matter was discussed by learned High Court but we believe that such repugnancy, being retrospective or prospective, is not very relevant in the present case. Para.24 of M.L.R. 115 was declared repugnant to the Injunctions of Islam by Federal Shariat Court in Sajwara's case PLD 1989 FSC 80 but that repugnancy was declared to have effect from 1st January, 1990. It obviously cannot reopen the past and closed transactions and cannot have retrospective effect. At the time of present transaction dated 22-2-1978, the repugnancy did not exist. The only thing material was that no transaction could be declared void under para.24 M.L.R. 115 by the C Revenue Authorities, the exclusive jurisdiction being vested in the Land Commission.

5. Lastly, one may say, at the cost of repetition in every third civil D case, that mutation is not a deed of title. In the instant case, even if Mutation No 925 stood cancelled, the real and genuine deed of title existed in favour of Muhammad Ishaq in the shape of registered deed No,673 of 22-2- 1978. On the strength of such registered deed, Muhammad Ishaq remained owner of 29 Kanals and Ali Muhammad had no right to sell 5 Kanals therefrom in favour of Muhammad Shafiq.

6. Consequent upon what has been discussed above, the instant appeal is accepted, the impugned judgment dated 28-6-2006 of the learned High Court is set aside and that dated 30-11- 2001 of the learned Additional District Judge is hereby restored with costs.