JAMIA MAHMOODIA MASJID Versus ADDITIONAL COMMISSIONER (REVENUE), MULTAN DIVISION

ZIA MAHMOOD MIRZA, J .‑‑‑This judgment will also dispose of the connected appeal (CA‑248/92) as common questions of law and facts are involved in both the appeals, directed as they are against the same judgment of the High Court.

2. Dispute between the parties viz. the Jamia Mahmoodia Masjid, the appellant herein, and the respondents iii the two appeals‑relates to some small pieces of land measuring in all 3 Marlas and 7 Sarsahis comprised in Khasra Nos.210‑min, 211‑min and 212‑min situate in Basti Rao Sahib, Renala Khurd, District Okara. The area in dispute on which structures in the form of houses and shops have also been constructed adjoins the appellant Mosque which stands constructed in Khasra No. 210 measuring 1 Kanal, 13 Marlas and 8 Sarsahis. It is an admitted position that on an application by the Nazim of the Masjid, Settlement Authorities sold/transferred the area measuring 1 Kanal 13 Marlas and 8 Sarsahis to the Masjid in 1977. As regards the area in dispute, both the parties applied for its transfer under the Scheme For The Management And Disposal of Available Urban Properties (Scheme No.IX), each party claiming to be in possession thereof and to have raised construction thereon.

3. The matter was taken up by' the Deputy Administrator, Residual Properties, Sahiwal who after recording the statement of the Patwari Halqa and the evidence adduced by the parties found that the construction on the area in dispute was proved to have been raised by the Management of the mosque and it was integral part of the mosque and that the respondents were in occupation thereof as the tenants of the Mosque. Reliance was placed on the rent receipts produced by the management of the Mosque and reference was also made to the statement of Muhammad Sharif (respondent in the connected appeal) wherein he admitted that he was a tenant of the mosque and paid rent to it. The Deputy Administrator took the view that a tenant could not claim transfer of any property on the basis of his possession as a tenant. Reference was also, made to a provision in the relevant Scheme which laid down that an available building site may be transferred to a person in possession who has raised a permanent construction thereon and applied for its transfer. Having so held, the Deputy Administrator transferred the area in dispute to the mosque and rejected the forms submitted by the respondents vide his order dated 2‑7‑1978. Respondents preferred a revision petition but with no better result as the same was dismissed by the Additional Commissioner (Revenue) Administrator (RP) who upheld the findings of the Deputy Administrator by drawing further support for his conclusions from the excise record showing the respondents as tenants and also from the fact that "the shop‑keepers had obtained electric connection after getting no , objection from Jamia Mahmoodia".

4. Feeling aggrieved, the respondents approached the High Court in its Constitutional jurisdiction to assail the validity of the orders of the tribunals below contending that the evidence produced before the Deputy Administrator (RP) was either misread or not looked into by the lower tribunals. The learned Judge of the High Court who heard the Constitutional petitions held that receipts issued by the management of the mosque acknowledging receipt of rent from the respondents could not advance the case of the mosque as "the receipts were regarding payment of `attia`" and that the case of the respondents too was that "they had been paying donation to the mosque and not rent of the property". The learned Judge further observed that originally the mosque had claimed only the land measuring 1 Kanal 13 Marlas and 8 Sarsahis and it was subsequently that it started laying claim to the plots in dispute. It was also observed that the mosque had not produced any cogent evidence to show that the construction existing at the plots in dispute was raised by it. According to the learned Judge, if the construction was raised by the mosque, it would have been in possession of some entries in the account books for the purchase of the material and payment of wages to the labour employed for the construction but the same was not produced. The learned Judge observed that "mere assertion of the President of the Society that the constructions were raised by respondent No.3 were not sufficient proof'. Note was also taken of an observation of the Deputy Settlement Commissioner made in his report dated 23‑5‑1977 to the effect that "the construction of the tenements was of different kind and nature than that of the mosque and the shops built within the mosque situate on the north side thereof' and from this observation, inference was drawn by the learned Judge that the portion of the property occupied by the respondents was not constructed by the mosque. With respect to the admission of Muhammad Sharif respondent relied upon by the Tribunal below, the learned Judge held that the said respondent was not bound by his admission "as the same is wholly misconceived and erroneously made". With these findings/observations, the learned Judge accepted both the writ petitions and setting aside the orders of the Deputy Administrator and the Administrator (RP) impugned therein directed the Chief Settlement Commissioner to entrust the case to a notified officer who "shall transfer the portions of the plots to the petitioners in both the writ petitions according to their possession against the price to be determined in accordance with law and the scheme framed under the repealed laws".

5. Leave to appeal against the judgment of the High Court was granted by this Court to examine the following contentions raised by the appellants:‑‑---

(i) That the question whether the shops (constructed on the area in dispute) were being occupied by the contesting respondents as tenants under the petitioner mosque was one of fact and it was thus not open to the High Court to interfere, in exercise of its Constitutional jurisdiction, with the findings of the Deputy Administrator which was affirmed by the Administrator.

(ii) Whether the learned Single Judge in the High Court misread the rent receipts in holding that these merely related to voluntary donations.

The leave‑granting order also directed the respondents to produce at the time of the hearing of the appeals the original receipts received by them from the appellant.

6. We have heard the learned counsel for the parties and have also examined the relevant documents available on the present record. Question whether the respondents were occupying the premises in dispute in their own right or as tenants of the appellant mosque is undoubtedly one of fact which the tribunals below decided in favour of the appellant holding on the basis of the material placed before them that the respondents were the tenants under the appellant. This finding as noted above was based on the rent receipts produced on behalf of the appellant, the entries in the Excise Record, the factum of the respondents having obtained `no objection' from the appellant for the purpose of getting electricity connection and last but not least, the admission of Muhammad Sharif respondent to the effect that he was tenant of the mosque and had been paying rent to it. It is settled law that a finding of fact recorded by the tribunals of exclusive jurisdiction is not open to interference by the High Court in exercise of Constitutional jurisdiction unless the finding is based on no evidence or is the result of misreading or non‑reading of evidence. In the instant case, the findings of the lower tribunals did not suffer from any of these defects. The learned Judge in the High Court, it may be stated with respect, was not right in excluding from consideration the rent receipts issued by the Management of the Mosque to the respondents on the ground that those were regarding the payment of `attic`. We have examined the photo copies of the receipts placed on the present record as also numerous counterfoils of receipts shown to us by the learned counsel for the appellant during the hearing of the appeals. The receipts are no doubt captioned as (Raseed Attia)` but where the payment has been received as rent for a shop or a house, it has' been shown as such in the relevant column stating therein `(Baabat karaya dokan/makan)`. In our view, the lower tribunals rightly relied upon these receipts as evidence of payment of rent by the respondents to the appellant and the High Court was in error in holding that the receipts merely related to voluntary donations. It is significant that despite the direction of this Court in the leave‑granting order, the respondents have failed to produce any receipt and the plea taken by their learned counsel is that no receipts were ever issued to them. Similarly, the view of the learned Judge in the High Court regarding the construction on the area in dispute cannot be sustained. The question as to who had raised the construction being purely one of fact stood concluded by the findings recorded by the Deputy Administrator (RP) on the basis of evidence produced before him. The mere fact that a particular type of evidence which should have been produced but was not produced or that the finding was not based on cogent and sufficient. evidence is no ground for interference in writ jurisdiction. This approach is relatable to examination/scrutiny of evidence which can be undertaken only in an appeal. Needless to observe that when exercising the powers of judicial review, High Court is not to act as a Court of appeal.

7. With respect to the observation of the leaned Judge that the Mosque had originally claimed only 1 Kanal, 13 Marlas and 8 Sarsahis, our attention has been drawn to a letter of the Secretary (Acquisition), dated 23‑8‑1977 addressed to the Deputy Settlement Commissioner, Sahiwal (available at page 33 of the paper‑book) which shows that the management of the mosque had claimed not only Khasra No.210 measuring 1 Kanal,

13. Marlas and 8 Sarsahis but also some other Khasra numbers though their request was allowed only for Khasra No. 210 and not for other Khasra numbers. It appears that this document was not brought to the notice of the learned Judge.

8. The learned Judge has also wrongly discarded the admission of Muhammad Sharif respondent by holding that it was "wholly misconceived and erroneously made". It may be pointed out that Muhammad Sharif respondent in his petition before the High Court (Writ Petition No.513‑R‑79) took no exception to his admission. He neither disowned it nor sought to explain it away on any premises. That being so, the finding recorded by the learned Judge qua the admission in question was wholly uncalled for. We have also noticed that the learned Judge has not adverted to and/or questioned the entries in the excise record and the factum of `no‑objection certificate` obtained by the respondents from the appellant though both these items of evidence were heavily relied upon by the tribunals below in support of their findings.

9. Upshot of the above discussion is that there was no valid and unlawful basis/justification for the High Court to interfere with the orders of the tribunals below, based as they were on findings of fact which were duly supported by oral and documentary evidence on record. Both the appeals are, therefore, allowed with the result that the impugned judgment of the High Court is set aside and the orders of the lower tribunals are restored.

AA/J‑121/S Appeal accepted.