GHULAM FATIM Versus MUHAMMAD HUSSAIN

1. DORAB PATEL, J .---The appellant is the widow of one Shahabuddin, deceased, who died in 1964. Shahabuddin was a claimant displaced person and on his migration to the country he settled down in Sahiwal District where agricultural land measuring 162 kanals and 2 marlas was confirmed in his name on 15-10-1953 against his verified claim. He died in September, 1964, and as, according to the appellant, she was his sole heir under the Customary Law she applied to the Revenue Authorities for the transfer of the land confirmed in her late husband's name. An Assistant Collector, IInd Grade sanctioned the mutation of the inheritance in her favour on 19-11-1964. But the respondents 1 to 5 (to whom 1 will refer as the respondents) claim to be the uterine brothers and sisters of Shahabuddin, deceased, therefore, they challenged this order of j9-11-1964 in an appeal before the Collector on the ground that the estate of the deceased had to be divided between them and the appellant according to the Shariat. As this appeal was ultimately allowed by the Collector on 25-3-1966 the appellant challenged the Collector's order in an appeal before the Additional Commissioner which was dismissed on 8-11-1966 therefore, she filed a revision before the Member. Board of Revenue and by his order dated 25-11-1967 the learned Member, Board of Revenue, who is the sixth respondent in this appeal. held that the Assistant- Collector's order way amply supported by evidence, therefore, he set aside the orders of the Collector and of the Additional Commissioner and restored the Assistant Collector's order with the observation that the Collector and the Additional Commissioner should have directed respondents 1 to 6 "to seek their redress in the civil Court" because mutation proceedings were of a summary nature. Accordingly, he allowed the revision with a direction that the respondents were free to seek their remedies in the civil Court. Now although the respondents had not contested the jurisdiction of the Member, Board of Revenue to hear the appellant's revision, they filed a review application before the learned Member, Board of Revenue on the ground that his jurisdiction to entertain the revision of the appellant was barred by section 25 of the Displaced Persons (Land Settlement) Act (hereinafter called the said Act). In support of the plea, they relied on the fact that the land in dispute had not been permanently settled on Shababuddin, deceased at the date of his death. But as the deceased was a confirmed allottee of the land in dispute, the learned Member held on the basis of this Court's judgment in Syea Abdur Rashid v. Pakistan through the Secretary. Ministry of Refugees and Rehabilitation, Karachi and others (P L D 1962 S C 42) and in Mst. Basso v. The Rehabilitation Commissioner (Land), West Pakistan, Lahore and others (P L D 1973 S C 347) that the land in dispute had vested in his favour at the date of his death and was, therefore, heritable according to the general law of the land governing inheritance. Accordingly, he dismissed the review application on 1-2-1968.

2. The respondents then filed a writ petition in the Lahore Seat of the West Pakistan High Court against the Member, Board of Revenue and against the appellant in which they challenged the orders of the learned Member, Board of Revenue, dated 25-i 1-1967 and 1-2-1968, and sought the restoration of the orders passed in their favour by the Collector on 25-3-1966 and by the Additional Commissioner on 8-11-1966. The Member, Board of Revenue did not contest the petition but the appellant did and she even advanced the claim that the land in dispute had been permanently settled upon her late husband. Further with reference to the contention that the learned Member, Board of Revenue had no jurisdiction the appellant expressly pleaded that the respondents had "themselves invoked the jurisdiction of the Revenue Authorities i. e. Collector and thereafter having willingly submitted to the jurisdiction of the higher Revenue Authorities i. e. Additional Commissioner (Revenue) and learned Member, Board of Revenue, are debarred from challenging the same at the stage of review application". The appellant, therefore, prayed for the dismissal of the petition with costs; but, in the events that happened, it was allowed by a Division Bench of the Lahore High Court on 28-6-1971.

3. The learned Judges of the Lahore High Court rejected the appellant's claim that the land in dispute had been permanently settled on her husband prior to his death, therefore, they further held that "the jurisdiction of civil Courts and other authorities is altogether barred and excluded to entertain any disputes both with respect to the property abandoned in India and the evacuee properties allotted in Pakistan to those eligible for them". In reaching this conclusion the learned Judges appear to have relied on judgment of this Court in Mst. Zainab v. Mst. Raji and others (P L D 1960 S C 229) and in Habib Khatoom v. Sardar Muhammad (P L, D )970 S C,144) and on judgments of their own High Court. The learned Judges were also of the view that this Court's judgment in Syed Abdur Rashid's case was distinguishable. Further, with reference to the appellant's contention that the respondents were barred by acquiescence from challeng ing in a writ petition the jurisdiction of the Revenue Authorities the learned Judges held that the rule laid down by this Court in Ghulam Mohi-ud-Din v. Chief Settlement Commissioner (P L D 1964 S C 829) was not applicable because the respondents had not themselves filed the revision before the Member, Board of Revenue and as to the appeal filed by them before the Collector the learned Judges were of the view that the appeals had been filed before the Collector in his capacity as an Additional Settlement Commissioner. Finally, on the facts the learned Judges were of the view that the orders of the Assistant Collector and of the Additional Commissioner in favour of the respondents were to be preferred to those of the learned Member, Board of Revenue. Accordingly, they allowed the writ petition, set aside the orders of the learned Member, Board of Revenue and restored the Additional Commissioner's order dated 8-1.1-1966.

4. The appellant therefore filed a petition for leave which was admitted by this Court in, order to consider whether the learned Member, Board of Revenue had validly exercised his revisional powers under the Land Revenue Act and whether the learned Judges of the High. Court had rightly distinguished this Court's judgment in Syed Abdur Rashid's case.

5. Mr. Abdur Razzaq submitted that the burden of proving that the jurisdiction of the Courts was barred under section 25 of the said Act was upon the respondents. That is correct. But according to Mr. Bilal, after the property in dispute had ceased to be evacuee, it had vested in the compensation pool, and as it had not been settled permanently on the deceased, it has remained in the compensation pool, therefore, the jurisdiction of the civil and revenue Courts was barred under section 25 of the said Act. This section reads;----

6. "25. Bar of jurisdiction.--Save as otherwise provided in this Act, no civil or revenue Court shall have jurisdiction in respect of any matter which the Central , Government or an officer appointed under this Act is empowered by or under this Act to determine, and no injunction or process or order shall be granted by any Court or other authority in respect of any action taken or to be taken in exercise of any power conferred by or under this Act."

7. According to Mr. Bilal this section was a complete ouster of the jurisdiction of the civil and revenue Courts but as the submission is contrary to the plain language of the section learned counsel submitted that agricultural land which had not been permanently settled on an allottee remained in the compensation pool, and as long as it remained in the compensation pool, it was on par with evacuee property, therefore, all disputes about such land could only be decided by the authorities under the said Act, and as the learned Member, Board of Revenue was admittedly not an authority under the said Act, his orders of 25-11-1967 and 1-2-1968 were ultra vires as held by the learned Judges of the High Court.

8. It is common ground between the parties that the land in dispute had bean acquired by the Central Government under section 4 of the said Act but this means that the property thereby ceased to be evacuee. There an observation to the contrary by Hamoodur Rahman, J., as he then was, in Syed Abdur Rashid's case but the observation is obiter only and in view of this Court's judgments in Rahim Bakhsh v Ahmad Bakhsh (P L D 1964 S C 189) and in Devanchand Muljimal v. Deputy Settlement and Rehabilitation Commissioner (P L D 1965 S C 356) Mr. Bilal very properly did not rely on this obiter. Nonetheless he submitted that the land which had not been permanently settled on an allottee was on par with evacuee property. 1n my opinion, this attempt to draw an analogy from evacuee property not only begs the question but it is also misguiding because the provision excluding the jurisdiction of the civil Courts in respect of evacuee property is far wider under the evacuee law than the provision for the ouster of the jurisdiction of the Courts contained in section 25 of the said Act. Section 41 of the Pakistan (Administration of Evacuee Property) Act XII of 1957, which bars the jurisdiction of civil Courts reads:-----

9. "41. Jurisdiction of Courts barred.-(1) Save as expressly provided in this Act no civil or revenue Court or any other authority shall have jurisdiction-----

(a) to entertain or adjudicate upon any question arising in any Suit, A appeal, application or other proceedings as to whether any person is or is not evacuee or whether any property is or is not evacuee property or what right or interest, if any, an evacuee has in any such property;

(b) to question the legality of anything done under this Act by or at the instance of the Custodian, or

(c) in respect of any matter which the Custodian is empowered by or under this Act to determine.

(2) Whenever any question such as is referred to in clause (a) of sub section (1) arises in any Court, or before any other authority, the Court or authority shall state the question with relevant particulars and remit it to the Custodian for decision, and shall adjourn the proceedings in which the question arises until the decision of the Custodian is given, and the decision of the Custodian on the question stated shall be conclusive.

(3) . . . . . . . . . . . . . . . . . . . . . . .

(4) . . . . . . . . . . . . . . . . . . . . . . .

(5) . . . . . . . . . . . . . . . . . . . . . . .

10. The contrast between this section and section 25 pf the said Act is too obvious to require any analysis and the difference between the two provisions manifests in my humble opinion the anxiety of the Legislature not to oust the jurisdiction of the civil and revenue Courts to a greater extent than was necessary for completing settlement operations. Therefore, section 25 has to be construed strictly and to widen its scope by analogy would be to defeat the intention of the Legislature.

11. The jurisdiction of the civil and revenue Courts is barred under section 25 of the said Act in only two situations. It is excluded firstly "in respect of any action taken or to be taken . . . . under this Act . . . ." and it is excluded secondly in respect of any matter which a settlement authority "is empowered by or under this Act to determine". There is no ambiguity about the bar in the first of these two situations. If an order has been passed by a settlement authority, that is the end of the matter provided it is "in exercise of any power conferred by or under this Act". What is important is that such an order cannot be challenged in the civil or revenue Courts on the ground that it is erroneous, and a declaratory suit to challenge it on the ground of error is barred. Next, as to the other bar to the jurisdiction of the civil and revenue Courts, it is confined to matters "which the Central Government or an officer appointed under this Act is empowered by or under this Act to determine". There is no ambiguity about these words, which mean and imply that the civil and revenue Courts are not divested of their jurisdiction to decide a claim merely because it relates to proper which has not been permanently settled on an allottee under the said Act. Therefore, as the respondents were the petitioners in the High Court, they bad to show that the mutation sought by the appellant was an attempt to challenge an order of the settlement authorities, or that the question of the succession to the estate of Shahabuddin deceased was a matter which the settlement authorities were empowered to decide under the said Act.

12. The learned Judges of the High Court accepted the plea of the respondents that the orders passed on the mutation proceedings instituted by the appellant bad been passed by the officers concerned in their capacity as officers under the said Act even though each and every one of these orders had been signed by the officers concerned in their capacity as officers under the Punjab Land Revenue Act, 1887. This finding had reference to the orders of the Assistant Collector, IInd Grade, Montgomery, the orders of the Collector Montgomery and the order of the Additional Commissioner (Revenue dismissing the appellant's appeal. Now, the burden of proving that these orders had been passed by the officers concerned in their capacity as officers under the said Act was heavily on the respondents, both because this plea was contrary to the manner in which these orders had been signed and because the respondents were the petitioners in the High Court.. Further, as they had not impleaded these officers in their writ petition it is difficult to see how they could establish in a writ petition that these orders meant something contrary to what was stated in them. Be that as it may, I would recapitulate the facts here.

13. The proceedings began with the appellant's application to the Assistant Collector for a mutation and as the respondents did not produce any evidence to rebut the appellant's claim that she had filed this application before the Assistant Collector in his capacity as a Revenue Officer, Mr. Abdur Razzaq submitted that this plea by the appellant stood proved. The learned Judges of the High Court however rejected it because all Tehsildars had been "invested with the powers of Assistant Settlement Commissioner in the dis posal of mutation work". Therefore, they observed: "(the Assistant Collec tor) was invested with the powers of the Assistant Settlement . . . . " With respect, this presumption is based on the assumption that the Assistant Collector in the instant case was also a Tehsildar, but as the respondents did not produce any notification to prove their plea that the Assistant Collector was also a Tehsildar, the view taken by the learned Judges is contrary to the evidence. In any case as the Assistant Collector had allowed the appellant's application, the respondents had filed an appeal against it, but Mr. Bilal did not know whether the respondents had contended in this appeal that the Assistant Collector had been invested with the powers of a Tehsildar and, therefore, of an Assistant Settlement Commissioner. Once again the failure of the respondents to file a copy of their appeal leads to an adverse inference against them but it is not merely a matter of drawing adverse inferences. The evidence on the record belies their plea. Thus, the heading of the order allowing the appeal of the respondents reads: "In the Court of Ch. Ghulam Murtaza Khan Bajwa, M. A., P. C. S., Collector, Montgomery". The order has been signed by Mr. Bajwa as Collector, Montgomery, and not as Addi tional Settlement Commissioner. Further, this order reads: "the appellants had claimed before the Revenue Officer that they are the uterine brothers and sisters . . . . " Thus, the respondents' own case was that the proceedings which they challenged were proceedings under the Punjab Land Revenue Act, and not under the said Act. But to revert to the litigation between the parties, the case was remanded to the Assistant Collector by his order of 2-4-1965 and as the Assistant Collector again reaffirmed his earlier order, the respondents again went in appeal to the Collector. This appeal was allowed on 25-3-1966 but the respondents have not filed a copy of their memorandum of appeal. It is however, clear from the order dated 25-3-1966 that the Collector had allowed the appeal in his capacity as tae appellate authority under section 6 of the Punjab Land Revenue Act. Aggrieved by this order, the appellant had filed an appeal before the Commissioner, which was dismissed by an Additional Commissioner (Revenue) on 8-11-1966. The heading of this order reads t "In the Court of Mr. A. H. Khan Niazi, P. C. S., Additional Commissioner (Revenue), Multan Division." In signing this order Mr. Niazi has described himself as the Additional Commissioner (Revenue), Multan Division. It is clear from these circumstances as well as the contents of the order that the appellant's appeal was dismissed under section 6 of the Punjab Land Revenue Act and not under the said Act. Finally, as I pointed out earlier, the plea that the jurisdiction of the revenue Courts was barred had been raised for the first time by the respondents in their review application, but even in this application it was not their case that the orders passed by the Assistant Collector, the- Collector and the Additional Commissioner (Revenue had been passed by these officers in their capacity as officers under the said Act. Therefore. I am not able to understand how it can be said that these orders C were passed under the said Act. The learned Judges of the High Court were aware of this difficulty and they pointed out that these officers had "purported to act merely as Revenue Officers." But, according to the learned Judges, these orders should have been passed on the settlement side under the said Act, therefore, they accepted, the plea of the respondents and held on the basis of the maxim falsa demonstratio non nocet that these orders had been or should be treated as having been passed under the said Act and in support of this conclusion the learned Judges relied on this Court's judgment in Piao Gul v. The State (P L D 1960 S C 307).

14. Mr. Razzaq submitted that the learned Judges had totally misread the maxim falsa demonstratio non nocet and this Court's judgment in P4ao Gul's case. Now, as this Court had merely extended this maxim in Piao Gulls case to an order of a Tribunal a more careful examination of the maxim was required. Halsbury states in paragraph 685 of the 11th Vol. of the Laws of England (Third Edition):

15. "The property comprised in a deed . . . . or the 'parcels' . . . is described by terms having either a general or specific meaning, and usually by two or more of such terms . . . . . It is always a question of fact for the jury whether a particular parcel of land is or is not contained in the description of the land conveyed.

16. It may be, however, that, of the various terms used, some are sufficient to define the property with certainty, and the rest add a description which is not true ; if, for example, there is a grant of a specified house, with words sufficient to ascertain it with certainty, and then there is added 'now in the occupation of 'A' when the house is in fact in the occupation of B. In this case the additional words cannot be treated as words restricting the previous description. They are simply untrue, or, in the usual phrase they constitute a falsa demonstratio. Since, however, the rest of the description defines the property intended to be disposed of; and the deed must, if possible, be supported, the error is not allowed to prejudice the grant, and the erroneous addition is rejected."

17. Similarly Broom in his Legal Maxims (Tenth Edition) observes at page 426 ;

18. "Falsa demonstratio means an erroneous description of a person or a thing in a written instrument ; and the above rule respecting it signifies that where the description is made up of more than one part, and one part is true but the other false, there, if the part which is true describes the subject with sufficient legal certainty, the untrue part will be rejected and will not vitiate the devise the characteristic of cases within the rule being that the description, so far as it is false, applies to no subject at all, and, so far as it is true, applies to one only. Thus, where a testator devised 'his freehold farm situate at E. and now in the occupation of J. B,' it was held that the whole farm passed under the devise, although a part of it was copyhold . . . . . .

19. The rule as to falsa demonstraolo has sometimes been stated to be that 'if there be an adequate and sufficient description, with convenient certainty of that was meant to pass, a subsequent erroneous addition will not vitiate it'."

20. Thus, it will be seen that the maxim is a rule for the construction of deeds. And for example if in a conveyance there is no doubt about the identity of the property conveyed but the deed somewhere contains an erroneous descrip tion of the property this erroneous description will be rejected as falsa demonstratio because the clumsiness of the draftsmen should not be permitted to defeat the-intention of the maker of the deed. As the object of the maxim is to give effect to the Intention of the maker of the deed it is available only to correct indvertent errors and it cannot be resorted to in order to alter the intention expressed in the deed whether on the ground that that intention is not according to law or any other ground. There are obvious difficulties in extending this rule of construction to quasi-judicial orders but the common law has grown by analogies and in extending the rule to the orders of Tribu nals it must be borne in mind that the rule is available only to correct inadver tent errors. Now, in the instant case, there in not an iota of evidence to support the view that the Assistant Collector, the Collector and the Additional Com missioner had intended to pass the orders which they did in their capacity as officers of the settlement department, therefore, with respect, the learned Judges erred in holding that these orders could be treated as orders and the said Act on the basis of this maxim. There was absolutely no question of any falsa demonstratio but as the learned Judges were of the view that they were supported in their conclusion by this Court's judgment in Piao Gul's case, I would now examine it.

21. The facts in Plao Gul's case were that Piao Gut had been convicted and sentenced to 14 years' rigorous imprisonment by one Mr. Shah, who was the District Magistrate and - Political Agent for the area concerned. Now, unless a District Magistrate is invested with powers under section 30 of the Criminal Procedure Code, he cannot award a sentence of more than two years' rigorous imprisonment and it would appear that Mr. Shah had not been invested with jurisdiction under section 30 of the Criminal Proce dure Code. However, as Political Agent he was competent to pass a sentence of 14 years under the Frontier Crimes Regulations. The charge against the appellant Piao Gut had been signed by Mr. Shah only as District Magistrate, therefore, the appellant challenged his conviction on the ground that Mr. Shah as District Magistrate was not competent to pass a sentence of more than two years' rigorous imprisonment. On the other hand, the contention of the State was that the appellant had been convicted under the Frontier Crimes Regulation by Mr. Shah in his capacity as Political Agent and the submission was that Mr. Shah's description of himself in the charge as District Magisrate was a case of falia demonstrado which could in the circumstances be ignored. Cornelius, C. J , who pronounced the judgment of the Court observes : "throughout the record, except in the charge, the designation in Mr. Shah's signature was invariably P. A. and D. M." Cornelius, C. J. also observed that the record of the case proved that the trial of the appellant had been conducted by Mr. Shah as Political Agent under the Frontier Crimes Regulation. Therefore, the appeal was dismissed and Cornelius, C. J., observed "the solitary mis-description in the charge i.e. where the Court described himself as District Magistrate would be without effect upon the legality of the trial. It would be a misdescription which was demonstrably incorrect, falling within the maxim falsa demonstratio non nocet. It would therefore be without effect . . . . . . "

22. The maxim falsa demonstratio non nocet was thus applied to correct an inadvertent error by Mr. Shah in his signature and not in order to correct Mr. Shah's opinion of the capacity in which he had conducted the trial of the appellant. But in the instant case, there is no question of any inadvertent error and the officers concerned had deliberately exercised their jurisdiction under the Punjab Land Revenue Act. Whether they had erred in so doing was another matter but on the footing that they had erred the purport of their orders could not be altered by reference to this rule of construction, and in my humble opinion the learned Judges erred in thinking that the conclusion reached by them was supported by the ratio of Piao Gul's case.

23. In the result, as the orders which I have examined were passed under the Punjab Land Revenue Act, it is clear that the appellant did not seek relief from the revenue Courts against any order of the settlement authorities, therefore, her claim would be hit by section 25 of the said .Act only if it related to a matter which the settlement authorities were empowered under the said Act, to determine. As the burden of proving the ouster of the civil and reve nue Courts under section 25 of the said Act was on the respondents, Mr. Bilal submitted that the settlement authorities were empowered to decide the appel lant's claim and the dispute between her and the respondents under paragraphs 46, 46-A and 67 of the Rehabilitation Settlement Scheme. These paragraphs deal with the question of inheritance, and if learned counsel's submission be correct the appeal must be dismissed. However, these paragraphs as well as paragraphs 67-A and 67-B refer only to "the cases of inheritance of refugee right-holders" and the learned Member, Board of Revenue had rejected this very submission advanced by Mr. Bilal on the basis of this Court's judgment in Syed Abdur Rashid's case. But as the learned Judges of the High Court held that this judgment was distinguishable, it is necessary to examine it in some detail.

24. The dispute in this case related to heirs of one Yaqub Khan who had filed his claim as a displaced person and had been allotted agricultural land under the Rehabilitation Settlement Scheme of the Punjab and as, in the instant case, this land had been confirmed in Yaqub Khan's name before his death. Yaqub Khan died in 1951 very soon after the confirmation of the land in his favour and a question arose as to who should be substituted in his place in the revenue records. The Naib-Tehsildar acting in his capacity as the Assistant Rehabilitation Commissioner substituted the names of the appellants, who were the children of the deceased and also the names of Afst. Hajran and Muhammad Afzal, the children of a pre-deceased daugh ter of the deceased. The appellants challenged the mutation in favour of the children of their own sister but as they were unsuccessful before the Rehabilitation Authorities, they filed a writ petition in the Lahore Seat of the West Pakistan High Court. The plea of the respondents was that the mutation in their favour was supported by the provisions of paragraphs 46 and 46-A of the Rehabilitation Settlement S-heme of the Punjab and as the High Court accepted this submission it dismissed the writ petition of the appellants. Therefore, the appellants filed an appeal in this Court and one of the principal questions in this appeal was whether the heirs of a confirmed allottee were right holders within the meaning of the Rehabilitation Settlement Scheme of the Punjab.

25. Hamoodur Rehman, J. as he then was examined the Scheme and observed at page 57;----

26. "It thus appears that under this Scheme itself lands may be allotted to temporary allottees as well as non-allottees in accordance with the instructions contained therein after drawing up a programme, prepar ing a proposal, notifying the same, hearing objections, if any made to the said proposals, and provisionally finalising the proposals. After the allotment has been made the allottee, if not already in possession, is put into possession and then only after the Rehabilitation fees and other Government dues have been paid in the allotment confirmed in favour of the allottee. Until such an allotment, in accordance with the Scheme, has been made in favour of a person, he is referred to in the Scheme as a `right-holder'. With regard to succession to deceased right-holders it has been provided by paragraph 67 of Chapter II, Part 11, as follows;-----

27. From an examination of these provisions of the Scheme it would appear that an allotment, although essentially a grant from the Government, does, when it has once been confirmed, create certain rights or interest in the land allotted which the allottee may in accordance with clause 14 of Chapter II, Part I of the Scheme transfer by sale, exchange, gift, will, mortgage or other private contract but even so the land continues to remain evacuee property throughout and has to be utilised only for purposes approved by the Rehabilitation Authorities, and may be resumed if the conditions of allotment are not fulfilled by the allottee. Them conditions of allotment thus, in our opinion, are in the nature of restrictive covenants running with the land but subject to these covenants and the right of resumption or re-entry reserved under the Scheme the allottee, it appears to us, becomes clothed with all the other usual incidents of at least an occupancy tenant in the lands so allotted. Thus he may, subject to those conditions or covenants, deal with the same as any other such tenant would have been entitled and may even dispose of them or alienate them either by an instrument Inter vivos or by will. It is difficult, in the circumstance, to imagine how it can be said that the interest acquired by the allottee in the property is merely a personal interest which cannot be inherited. In our view, having regard to the rights expressly conferred upon him by the Scheme itself an allottee, in whose favour an allotment has been confirmed, acquires a right which is in every sense of the term a `real property' in its true juristic concept--an interest in land."

28. Accordingly, as a confirmed allottee is not a right-holder under the Settlement Scheme, the finding of the High Court that succession to the estate of a confirmed allottee is governed by the Settlement Scheme was set aside, and because the Scheme does not contain any provision for determining succes sion to the estate of a confirmed allottee, it eras held that succession had to be determined by the Shariat, and the Revenue Authorities, not the Settlement Authorities, were directed "to correct the mutation register in accordance with law".

29. The learned Judges of the High Court distinguished this judgment on the ground that this Court did not have occasion to examine whether the jurisdiction of tire revenue Courts was barred under section 25 of the said Act. Now it is true that the respondents, who were the petitioners in the High Court, had not challenged any order of the revenue Courts. But the construction of section 25 was relevant to the question whether the direction for the correction of the mutation had to be given to the settlement authorities or to the revenue authorities, and the fact that this direction was given to the settlement authorities supports the case of the appellant. Second ly the ratio of the case is relevant to the construction of the section, and both the learned counsel submitted that it supported their respective contentions. This only means that it is necessary to be clear about what was decided in the case. What was held was firstly that the settlement Scheme does not contain any provision for regulating succession to the estate of a confirmed allottee and, therefore, the question was to be determined by the Shariat. Secondly, it was held that land allotted to a confirmed allottee has all the incidents of an occupancy tensacy and in my humble opinion these two propositions are fatal to the case of the respondents.

30. Taking first the provisions of the Settlement Scheme, the learned Judges of the High Court have not referred to any provision in the Scheme or to any other statutory provision under which the settlement authorities can determine questions of succession to the estate of a confirmed allottee. Nor could Mr. Bilal refer us to any such provision, and that for the simple reason that there is no such provision. Does this mean that the settlement authorities have to decide the question of succession according to the Shariat? Or does it mean that the question has to be decided by the Courts because it is a matter which is beyond the purview of the settlement authorities? In my humble opinion, the latter view would be the correct view. There is a presumption in favour of the jurisdiction of the regular Courts the more so, in respect of subordinate legislation. Secondly, the Settlement Scheme is a very comprehensive Scheme and as it contains provisions for determining disputes about succession to persons whose rights have not matured into that of confirmed allottees, prima facie the absence of similar provision about confirmed allottees would mean that the question of succession to the estate of a confirmed allottee was beyond the purview of the Settlement Scheme and was therefore, not a matter which was to be determined by or under the said Act within the meaning of section 25 of the said Act.

31. It would however appear from the observations to which Mr. Bilal referred us that the learned Judges were apprehensive that such a view would be inconsistent with the objects of the said Act. With respect, this apprehen sion was misconceived, but in view of the judgments relied upon I would emphasise that the objects of the said Act are not identical to those of the earlier statutes on the question of rehabilitation. This is appearent even from a comparison between preamble to the said Act and that of the Pakistan Rehabilitation Ordinance, 1948 or the Pakistan Rehabilitation Act, 1956. The preamble to the statutes of 1948 and 1956 refer to the necessity of making provision "for the restoration and maintenance of the social and economic life of Pakistan and the orderly settlement of persons who have taken refuge therein", whilst the preamble to the said Act reads: "whereas it is expedient to provide for the permanent settlement of displaced persons of land in order to compensate them for the losses suffered by them . . . . ." The said Act was the last in a series of statutes in respect of settlement of refugees and was enacted in order to wind up settlement operations, therefore, the provisions for the ouster of the jurisdiction of the regular Courts are not as wide as in the earlier legislation, and further the said Act contains express provision for the acquisition of evacuee property and for its permanent transfer, by stages, to claimants. Now as the stage of a confirmed allottee is the penultimate stage in this process of transfer, extensive, but not complete rights, of ownership have been conferred on confirmed allottees, and to the extent to which rights of ownership are thus conferred, there was no reason to confer jurisdiction on special tribunals, namely the settlement authorities, with regard to disputes about such rights.

32. On the other hand, if, as held by the learned Judges of the High Court, the jurisdiction of the civil and revenue Courts is ousted until the permanent settlement of the land this would prejudice the rights of third parties because clause 14 of the Settlement Scheme expressly empowers confirmed allottees to transfer their rights in the land allotted to them "by sale, exchange, gift, will, mortgage or other private contract". Hence the observation of Hamoodur Rahman, J., as he then was, in Abdul Rashid's case that a confirmed allottee was, "clothed with all the other usual incidents of at least an occupancy tenant in the lands so allotted". Now a transfer of land by an occupancy tenant may lead to complicated litigation whether the transfer be by a confirm ed allottee or by an occupancy tenant as defined in the revenue laws. But if an occupancy tenant other than a confirmed allottee transfers hi rights, any claim by the transferee or by subsequent transferee would be adjudicated in the civil and revenue Courts. However, on the view taken in the judgment under appeal, if a confirmed allottee transfers the land allotted to him, any claim by thetransferee or by the transferees from such a transferee could only be decided by the settlement authorities and this would mean that transferees of land from a confirmed allottee would be at a disadvantage because they would be deprived of their remedies in the civil and revenue Courts. But if the Legislature had intended to deprive transferees of land from confirmed allottees of their right to prosecute their remedies in the civil and revenue Courts, it would have made express provisions in this respect, the moreso, as such provisions were to be found in the Rehabilitation Acts. Thus, for example, like section 25 of the said Act, section 18 of the Pakistan Rehabilita tion Act, 1956 ousts the jurisdiction of the civil Courts in respect of orders passed by the rehabilitation authorities. But, unlike section 25, it further, prohibits the civil Courts from attaching or selling in execution proceedings land taken over by any rehabilitation authority, and it also prohibits civil Courts from evicting any person to whom land was leased or allotted by a rehabilitation authority, and if these provisions had been continued in the said Act, they would have been an effective deterrent to litigation in the civil and revenue Courts by transferees of land from confirmed allottees apart from any express bar to the jurisdiction of the Courts. That is obvious, yet these provisions have been omitted from the said Act. This omission has enlarged the jurisdiction of the civil and revenue Courts and at the same time this is a circumstance which indicates that the Legislature intended to restore the jurisdiction of the civil and revenue Courts in respect of land which allottees were permitted to disposes of by transfer inter vivos.

33. It is true that the heirs of a confirmed allottee cannot be put on par with transferees for valuable consideration from an allottee. But, on the other hand, the confirmed allottee is completely free to bequeath the land allotted to him subject of course to the restrictions contained in the law of succession applicable to him. As a confirmed allottee can thus dispose of his interest in the land without any control by the settlement authorities, it would be incon gruous to exclude the jurisdiction of the regular Courts in respect of disputes about the testamantary disposition of a confirmed allottee. Therefore, as I said, the complete absence of provisions in the Settlement Scheme about succession to the estate of a confirmed allottee is prima facie inconsistent with the view that the settlement authorities alone have the jurisdiction to decide disputes about succession to the estate of a confirmed allottee. But the question is entirely of the intention of the Legislature, and, in my humble opinion, there are indications of that intention to which the attention of the learned Judges was not drawn. In the first place, unlike, for example, the Pakistan Administration of Evacuee Property Act or the Rehabilitation Act, 1956, the said Act does not prescribe that its provisions shall have effect notwithstanding any thing inconsistent in any other statute. As the Legislature is presumed to be aware of the laws, this is very significant, because it means that the said Act has to be read with the Succession Act, 1925. Then, as to the Succession Act, whilst there are communities which are required to obtain probate or letters of administration, a Muslim, who is entitled to the whole or any part of he estate of a deceased, is entitled under section 218 to apply for probate or letters of administration, but it is not obligatory upon him to do so. Now it is not infrequent in Karachi for Muslims to obtain probate or letters of administration of an estate which includes immovable property, because such a grant removes all doubt about who are the heirs of the deceased and thereby improves the marketability of immovable property, therefore, as a confirmed allottee has an interest in the land allotted to him, his heirs would be entitled under the Succession Act to obtain probate or letters of administration from the District Court. This means, in the instant case, that the appellant could have applied for letters of administration under section 218 of the Succession Act in the District Court. But on the view taken in the judgment under appeal, she was prohibited from applying for letters of administration, because the jurisdiction of the Civil Courts was barred as the land in dispute had not been permanently settled on her husband at the date of his death. With respect, as the said Act does not prescribe that its provisions shall override the provisions of the Succession Act, the right of the appellant to seek relief in the Civil Courts could only have been taken away by a provision in this respect in the said Act and as there is no such provision, the jurisdiction o the Courts under the Succession Act cannot be ousted by the mere fact that the Settlement Scheme does not contain any provisions in respect of succes sion to the estate of a confirmed allottee. Therefore, in my humble opinion the absence of these provisions in the Settlement Scheme does not mean that the settlement authorities have to decide the question of succession according to the general law but it means that the question of succession to the estate of a confirmed allottee is beyond the purview of the Settlement Scheme. As it is this not a matter which can be determined by or under the said Act, the jurisdiction of the civil and revenue Courts is not barred under section 25 of the said Act. I cannot, therefore, agree with the view taken by the learned Judges and in my humble opinion the writ should not have been allowed.

34. Mr. Bilal, however, submitted that the case of the respondents was support ed by this Court's judgment in Mst. Habib Khatoon v. Sardar Mohammad whilst Mr. Razzaq submitted that the case of the appellant was supported by the view taken in Muhammad Yaqub v. Member, Board of Revenue (P L D 1973 S C 304) I may, therefore, explain here that both these appeals arose out of suits filed in the civil Courts to challange mutations of inheritance, and in Mst. Habib Khatoon's case the mutation had been made by the settlement authorities on the death of one Allah Bakhsh and had later been corrected by the settle ment authorites on the application of the appellant, who was a daughter of Allah Bakhsh deceased. This correction of the mutation was challenged by the respondents, but as they were unsuccessful before the Settlement Commissioner, they filed a suit to challenge the legality of the mutation in favour of the appellant. Together with the suit they sought interim relief. The trial Court had granted an interim injunction, but this order was reversed in appeal by the District Court on the ground that section 25 of the said Act was a bar to the suit. The order of the District Court was reversed by the High Court on the ground that the land in dispute had been perma nently settled under section 16 of the said Act as amended in 1964. It was only this finding which was challenged in an appeal in this Court. The appeal was allowed on the ground that section 16 of the said Act was not attracted because of the pendency at the relevant date of the revision before the Settlement Commissioner. Therefore, Muhammad Yaqub Ali, J. as he then was, now the Chief Justice, who pronounced the judgment of the Court, expressly pointed out that it was unnecessary to examine "the bar contained in section 25" of the said Act. In these circumstances, the judgment is distinguishable on the facts and is not relevant to the construction of sec tion 25. On the other hand, in Muhammad Yaqub's case on which Mr. Razzaq relied, the appeal had arisen out of a suit filed to challege the mutation by the revenue authorities. The appeal was allowed because the revenue authorities had misconstrued the provisions of the Punjab Muslim Personal Law (Shariat) Application (Removal of Doubts) Ordinance. As the Court did not hold that the revenue authorities had usurped jurisdiction in effecting the mutation of inheritance, Mr. Razzaq submitted that the judgment supported his contention that a mutation of inheritance to the estate of a confirmed allottee could only be made by the revenue authorities. The judgment is not of much assistance to learned counsel's submission, because the respondents do not appear to have challenged the jurisdiction of the revenue authorities to decide question of succession to the estate of a confir med allottee.

35. Mr. Biial then referred us to a judgment of S. A. Rahman, J. as he then was, in Mst. Zuinab v. Mst. Raji and others, but this appeal arose out of a suit filed to challenge the orders of the settlement authorities, and it was held that the suit was not competent. This judgment is not relevant, because the appellant does not challenge any order of the settlement authorities, and indeed there is no order by the settlement authorities in the instant case. And for the same reason, the other reported judgments of the West Pakistan High Court to which the learned Judges have referred in their judgment, are also not relevant.

36. There was also another ground on which the writ petition of the respon dents merited dismissal. This was their conduct. They had twice challenged the orders of the Assistant Collector in appeals before the Collector under section 6 of the Punjab Land Revenue Act. They had also appeared without protest before the Member, Board of Revenue and even in their review application, in which they challenged for the first time the jurisdiction of the revenue authorities, they did not explain why they had not taken this objec tion earlier. Therefore, the petition merited dismissal on the short ground that the discretionary remedy of a constitutional petition was not fit to be exercised in their favour in accordance with the rule laid down by this Court in Ghulum Mohi-ud-Din v. Chief Settlement Commissioner. However, largely because the respondents were also the respondents before the Member, Board of Revenue, the learned Judges of the High Court were of the view that their claim was not hit by the rule laid down in Ghulam Mohi-ud-Din's case, and in reaching this conclusion they relied upon this Court's judgment in Muhammad Afzal v. Member, Board of Revenue (PLD1967SC 314).

37. It is, therefore, necessary to examine both these judgments, and in Ghulam Mnhi-ud-Did's case the relevant facts were that the Settlement Commissioner had passed an order partially allowing the revision of the appellant Ghulam Mohi-ud-Din. Later, as the Settlement Commissioner decided to review his order, he issued a notice to the appellant for a suo moto review whilst, the appellant in turn had filed a second revision before the Chief Settlement Commissioner as his revision had not been wholly showed. Now, in view of the pendency of this second revision the suo mote review by the Settlement Commissioner was barred under section 21 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 as it then stood. However, the appellant appeared without any objection before the Settlement Commissioner and the Settlement Commissioner after hearing the appellant reviewed his earlier order and cancelled the partial transfer of the property in dispute in favour of the appellant. The appellant's second revision was also dismissed by the Chief Settlement Commissioner and in these circumstances be filed a writ petition in the High Court in which he challenged the orders passed against him by the Settlement Commissioner and the Chief Settlement Commissioner. The obvious question with regard to the Settlement Commissioner's order was whether the appellant could be permitted to challenge it in a writ petition as he had appeared without protest before the Settlement Commissioner and Hamoodur Rahman, J as he then was, observed:

38. "The appellant, therefore, knowing the true, legal position deliberately allowed the Settlement Commissioner to commit an illegality. In these circumstances, it cannot be said that he was a mere passive spectator having no power to prevent the commission of the illegality. If he had succeeded in the review in getting the entire house trans ferred to himself he would, the feel certain, have made no grievance on account of that illegality. Tire principle upon which the writ is refused in such cares is not that jurisdiction has been conferred on the Tribunal concerned by waiver and acquiescence but that even though the impugned order is without jurisdiction the person seeking to have it quashed should not be granted that discretionary relief as he had stood by and allowed the Tribunal to usurp a jurisdiction which it did not possess knowing that the Tribunal concerned was committing such an illegality in consequence of something done by that person himself."

39. As according to Mr. Bilal these observations are inconsistent with the view taken in Muhammad Afzal's case, I would explain here that the Court which was a full Court did not hold that a writ would be barred in every case in which the petitioner had failed to challenge the jurisdiction of the tribunal at the relevant time. What the Court held was that in order to invoke the discretionary remedy of writ petition the petitioner had to prove that "he was a mere passive spectator having no power to prevent the commission of the illegality". Now, a petitioner does not become a passive spectator before a tribunal merely because he was the defendant before that tribunal nor can he be said to be a passive spectator merely because the proceedings against him were by the Government. In order to succeed the petitioner has to show that he had "no power to prevent the commission of the illegality", namely. the usurpation of jurisdiction by the tribunal and it is difficult to see how be could show this if he took the chance of succeeding before the tribunal. However, the question would always be of the facts and circumstances of the case and because our laws lean in favour of the liberty of the subject it should be presumed that a person facing a criminal prosecu tion whether in the regular Courts or before any tribunal is in the words of Hamoodur Rehman, J. "a passive spectator having no power to prevent the commission of the illegality". I would also recall here that according to the common law writ of certiorari was a discretionary writ whilst a writ of habeas corpus issued as of right because it affected the liberty of the subject. Thus at one extreme are the cases affecting the liberty of the subject and I am not aware of any decision in which a petition of this nature has been dismissed on the ground of waiver or acquiescence. Then there will be cases in which the petitioner may be able to make out a case for invoking the Court's discretion because of the problems that had confronted him in challenging the legality of the tribunal before which he had to appear. Finally, at the other extreme will be the cases in which a petitioner has appeared before the illegally constituted tribunal at various stages of the case, and in such cases it would be very difficult, if not impossible, for him to invoke the Court's discretion in a writ petition.

40. I now turn to this Court's judgment in Muhammad Afzal v. Board of Revenue. The appellant in this case was aggrieved by an order passed against him under the Sind Irrigation Act by the Board of Revenue on a revision filed by the respondent. The appellant challenged this order in the High Court on the ground that it was without jurisdiction because the Board of Revenue had no power whatsoever to entertain the revision under the Sind Irrigation Act and the further contention of the appellant in the High Court was that he had raised his objection to the jurisdiction of the Board of Revenue before that tribunal. The High Court disbelieved this plea and dismissed the petition on the ground that he had waived his objection to the jurisdiction of the Board of Revenue. The appellant came in an appeal to this -Court, and it was held that the Board of Revenue had no jurisdiction to entertain a revision against an order under the Sind Irrigation Act. Next, as to the view of the High Court that the appellant's writ was barred by waiver, Cornelius, C. J. Who pronounced the judgment of the Court, observed ; "if that were to be accepted as a good ground for denying to the subject the benefit of Article 98 actions in excess or perversion of public powers would gain enormous access of immunity. Like the law-and-order administration, the revenue administration, in its impact on the cultivator has all pervading authority which the individual cannot be expected to confront, on allegations of illegality on his own strength. The usual and the wise course that he takes is to submit for the time being, and seek his redress through the more powerful agency of the Superior Courts. These Courts have now beers specially empowered to provide such relief. They cannot be permitted to diminish that authority by the imposition of such a condition as that which the learned Judges have applied in this case."

41. Then, after painting out that the impugned order suffered from a patent jurisdictional defect, Cornelius, C. J. allowed the appeal and further observed:

42. "By mere submission, in the capacity of a respondent, to the authority of the Member, the appellants could not be thought to have conferred a jurisdiction on the Member which he did not possess, or to have waived his right to challenge the Member's power to interfere with the order of the Commissioner."

43. The learned Judges of the High Court were naturally disturbed by the observation of Cornelius, C. J. about the orders which are "in excess or perversion of public powers". But this Court has laid down in innumerable decisions that a constitutional petition is a discretionary remedy, therefore, the reference by Cornelius, C. J. to the obligation of the superior Courts under Article 98 of the then Constitution was only intended to stress an aspect of the case which had not been given proper attention by the High Court. But Mr. Bilal relied on the further observation that the appellant had not waived his right to challenge the order of the Board of Revenue merely because of his submission "in the capacity of a respondent to the authority of the Member." At first sight, these observations appear to be inconsistent with the view of the full Court in Ghulam Mohi-ud-Din's case. This impression, however, is not correct because the observations in a case have always to be construed with reference to the facts of that case. And the observation that the appellant had not waived his right to file a writ petition had reference to the earlier observation of Cornelius, C. J. that like the law-and-order administration "the revenue administration, in its impact on the cultivator had all-pervading authority which the individual cannot be expected to confront, on allegations of illegality on his own strength". This passage, in my humble opinion, make3 it clear that the observation of the Court on the question of waiver and acquiescence had reference only to the plea of the appellant that in the particular circumstances of the case he was entitled to invoke the exercise of the Court's discretion despite his conduct before the tribunal. And this means that be had made out a case for invoking the Court's discretion within the rule laid down by the full Court in Ghulam Mohi-ud-Din's case.

44. I now turn to the instant case. As in Muhammad Afzal's case the respondents in this appeal were the respondents before the learned Member Board of Revenue. But, unlike that case the dispute in this appeal relates to a claim under the said, Act, and litigation about claim under the said Act is so common and so frequent that in the absence of some very strong and cogent evidence, it is not possible to believe that the respondents were not able to assert their claims properly before the learned Member, Board of Revenue because they were overawed by his authority. Now, not only is there no evidence in this respect, but the plea that they were overawed by the authority of the learned Member has not been raised by the respondents either in their review application or in their writ petition in- the High Court. Secondly, the respondents had carried on protracted litigation with the appellant and had themselves filed appeals twice before, the Collector. Muhammad Afzal's case is therefore distinguishable on both these grounds and in my humble opinion the writ petition of the respondents should be dismissed on the further ground that it is barred by waiver and acquiescence.

45. Before parting with this judgment I would point out that according to Mr. Razzaq the respondents were imposters and have falsely claimed to be the uterine brothers and sisters of the deceased. This submission relates to the merits of the dispute between the parties but as I would allow the appeal and restore the orders of the learned Member. Board of Revenue, the respondents are entitled in accordance with those orders to agitate their claim in the civil Courts. Accordingly as the respondents are entitled to file a suit in the civil Courts, the civil Courts should decide the suit, if filed, in accordance with the law without being influenced in any way by the observations of the High Court or of this Court, therefore. I would refrain from making any comments on Mr. Razzaq's submission.

46. In the result I would allow the appeal, set aside the judgment of the High Court and restore the orders of the learned Member, Board of Revenue dated 25-11-1967 and 1-2-1968. However, as the appeal turned on questions of law I would not make any order as to costs.

47. S. A. H. Appeal allowed.