AMIR JAMAL and others vs Malik ZAHOOR-UL-HAQ and others

' AMIR HANI MUSLIM, J.---Through this appeal, the appellants have impugned the judgment of the learned High Court of Balochistan, passed in Constitutional Petition No, 576 of 2007, filed by Malik Zahoor-ul-Haq, the respondent No, 1, who died during the intervening period.

2. The respondent No, 1 has impugned in the writ petition before the Balochistan High Court the sale-deed dated 25-8-2008, alleged to have been executed between him and the appellant No,1, in respect of the property bearing Khasra No,35, Khatooni No,127, Kliewat No,87 measuring 848 square feet situated at Mohal and Mouza Ward No,34 Tappa Urban Tehsil and District Quetta.

3. The respondent No,1 has claimed that the aforesaid sale-deed was got fraudulently executed for a meagre sale price of Rs,2,00,000 in favour of the appellants. The respondent No,1 has pleaded in the writ petition that the sale deed was procured by obtaining his signatures on it with the sole object to deprive him of the expensive' property. He has also denied his appearance before the Sub-Registrar. The learned High Court after notices to the appellants and the Sub-Registrar, Quetta, the respondents Nos.2 and 3 had heard the matter.

4. The Sub-Registrar has submitted his report before the learned High Court stating therein that price of the property was on the higher side and the sale price mentioned in the sale deed was incorrect and through such document the Government tax has been evaded. The learned High Court after hearing the parties, has cancelled the sale-deed and ordered restoration of the property in the name of the respondent No,1 with the observation to the parties to approach the Civil Court for redressal of their grievance, if any.

5. It is contended by Mr. Tariq Mehmood, learned Senior Advocate Supreme Court for the appellants that the learned High Court of Balochistan, in law, cannot order cancellation of a registered instrument in exercise of its constitutional jurisdiction. He next contended that the signatures of the respondent No,1 on the sale-deed have not been denied. The allegation that signatures were obtained by fraud or otherwise, is a question of fact and no finding can be recorded by the learned High Court unless the parties were allowed to lead evidence in support of their claims. He submitted that the issues raised in the petition were dependent on facts and unless such facts were proved by recording evidence, cancellation of registered sale deed could not have been ordered.

6. The learned counsel for the respondent No,1 has supported the impugned judgment.

7. We have heard the learned counsel and have also perused the record. In exercise of writ jurisdiction, question of title of a property cannot be gone into by the High Court. The scope of Article 199 is dependent on the questions which are devoid of factual controversy.. Registered instrument can only be cancelled by a civil court of competent jurisdiction on the ground of fraud or otherwise. Section 39 of the C Specific Relief Act provides that a party which seeks cancellation registered .Instrument has to file a civil suit by approaching the civil court of competent jurisdiction and writ jurisdiction in such matters barred.

8. The issues raised in the writ petition can only be answered by recording evidence of the parties, which the law does not permit to a High Court in writ jurisdiction. The learned High Court has travelled beyond its jurisdiction under Article 199 of the Constitution while giving findings on the authenticity of the sale deed, which admittedly was a registered instrument. The respondent No,1, in law, has the alternate remedy to approach the civil court of competent jurisdiction for redressal of his grievance.

9. The respondent No,1 has failed to avail alternate remedy instead has filed writ petition before the High Court of Balochistan. We, for the aforesaid reasons, hold that findings recorded by the High Court in the impugned judgment are not sustainable at law. As a result, the impugned judgment is set aside and the appeal is allowed with no order as to costs. The parties, however, would be at liberty to approach the civil Court of competent jurisdiction for redressal of their grievance.