Mst. GHULAM FATIMA Versus GOVERNMENT OF PUNJAB through Collector, District Vehari

AMIN-UD-DIN KHAN, J.--- Through this single judgment I intend to decide the above captioned civil revision as well as Civil Revision No.705 of 2003, as both these civil revisions have arisen from the same suit.

2. Through this civil revision the petitioner/plaintiff has challenged the judgment and decree dated 14.04.2003 passed by the learned Additional District Judge, Vehari, whereby the appeal filed by respondent No.2/defendant was accepted, by way of which, the judgment and decree dated 18.06.2001 passed by the learned Civil Judge 1 Class, Vehari partially decreeing the suit of petitioner/plaintiff, were set aside and her suit was dismissed. In Civil Revision No.705 of 2003 the judgment and decree dated 14.04.2003 passed by the learned Additional District Judge, Vehari, whereby the appeal filed by the petitioner/plaintiff against the partial dismissal of his suit was dismissed, have been challenged.

3. The brief facts of the case are that on 15.07.1992 the petitioner/plaintiff filed a suit for recovery of possession of land measuring 80-kanals 01-Marla, as pauper. She challenged the order of District Collector, Vehari dated 28.12.1981 whereby the permission was granted under section 19 of the Colonization of Government Lands (Punjab) Act, 1912 for transfer of proprietary rights in the Suit property. She challenged the registered sale deed No.566 attested on 10.03.1982 in favour of defendant No.2 on behalf of Fazla, father of the plaintiff and challenged mutation No.114 attested on 26.04.1982 under the sale deed. It is pleaded that the father of plaintiff was allottee under the Criminal Tribes Scheme and in the year 1980-81 proprietary rights were conferred upon him. He died on 08.01.1992 and the plaintiff is his daughter and sole legal heir.

4. The written statement was filed and suit was contested. Learned trial Court framed the issues and invited the parties to produce their respective evidence. Both the parties produced oral as well as documentary evidence in support of their versions. After the completion of trial vide judgment and decree dated 18.06.2001 suit was partially decreed by the learned trial Court, holding that the plaintiff being sole daughter of deceased is entitled to 1/2 share in the suit property and other half of the suit property will go to legal heirs (if any) of Fazla, together with defendant No.2. Both the parties preferred their respective appeals. Vide consolidated judgment and decrees dated 14.04.2003 the appeal filed by the petitioner/plaintiff was dismissed, whereas of respondent No.2/defendant was accepted. Hence, both these civil revisions against the decree passed in each appeal.

5. Learned counsel for the petitioner/plaintiff argues that when Fazla passed away on 08.01.1992, the petitioner came to know about the transfer of property through sale deed in favour of defendant/respondent No.2 and permission of transfer granted by the Collector, therefore, she filed the suit without any delay and proved the case pleaded by her; that learned trial Court was required to decree full suit but the Court has partially decreed the suit, therefore, the plaintiff was forced to file the appeal and the other party also filed appeal; that the learned first appellate Court fell in error while accepting the appeal filed by the respondent No.2/defendant and dismissing the appeal of petitioner/plaintiff. Argues that the defendant was required to prove the valid execution of alleged sale deed in his favour in the light of judgments "2002 YLR 2772 ( Abdul Hameed v. Muhammad Iqbal and another ), 2011 CLC 309 ( Said Amin v. Mst. Nayas and others) and 2004 MLD 875 Shaukat Ali and others v. Muhammad Anwar and others )". While referring Condition No.27 of the Criminal Tribes Scheme prepared by the Colonies Department Government of Punjab through Notification No.11429 dated 28.04.1929 argues that transfer of land in favour of respondent No.2/defendant by the father of petitioner was in violation of this condition. Relies upon "1991 SCMR 2415 ( Retd. Group Capt. A.M. Morad v Muhammad Azmatullah Siddiqui and 3 others )". Further argues that the permission to transfer the property under section 19 of the Colonization of Government Lands (Punjab) Act, 1912 was to be sought from the Commissioner and not from the Deputy Commissioner. Relies upon "PLD 1958 (W.P.) Lahore 340 ( Masood Ali v. Ali Haibat Khan and 2 others ), 1978 RLR 44 ( Umer Mahmood v. Atta Mohammad ), 2008 CLC 795 ( Muhammad Yar and another v. Allah Ditta and others ), 2008 YLR 2651 ( Syed Roshan Ali Shah v. Mukhtiarkar Gadap and 6 others ) and PLD 1983 Rev. 53 ( Mst. Tufailan Bibi v. Punjab Province and others )". Learned counsel argues that when the petitioner/plaintiff appeared in the witness box as her own witness and made a statement on oath, burden of proof of valid transaction shifted upon the defendant/ respondent No.2 being beneficiary. Relies upon "2004 YLR 563 ( Muhammad Azam and 3 others v. Mst. Ayesha ) and 2002 YLR 96 ( Chaudhry Abdul Razzaq and others v. The State and others )". Prays for acceptance of this civil revision.

6. On the other hand, learned counsel for the respondent No.2/defendant argues that the defendant fully proved the valid execution of sale deed in his favour and produced Petition Writer as DW-1, Muhammad Akbar son of Lamberdar who identified the parties at the time of registration of sale deed as DW-2, Muhammad Iqbal as DW-3 the son of attesting witness Din Muhammad, who was no more in this world when the evidence was being recorded, Abdul Aziz as DW-4 and Umar Din as DW-5 to prove the valid sale in favour of defendant. Prays for dismissal of both the civil revisions.

7. I have heard the learned counsel for the parties at full length and also gone through the record appended with these revision petitions, the pleadings of parties, evidence led by the parties oral as well as documentary, the findings recorded by both the courts below and the case law referred to by both the learned counsel for the parties.

8. So far as the argument of learned counsel for the petitioner that the permission for transfer of proprietary rights by the father of petitioner/plaintiff in favour of defendant is in violation of Condition No.27 of Criminal Tribes Scheme referred supra, I have noticed that no violation has been shown that how the transfer is in violation of Condition No.27 of Criminal Tribes Scheme. Further I am of the considered view that when a violation has been alleged, that is attributed to the father of petitioner/plaintiff; a person responsible for violation of any provision of law cannot take the benefit of said violation. If there is any violation as alleged by the petitioner/plaintiff, that is attributed to the father of petitioner/plaintiff and on that ground the plaintiff wants to get the transaction be declared null and void and she wants to be the beneficiary of that violation, in this way, as I have noted supra that one cannot take the benefit of his own wrong. If the transaction is declared null and void on the basis of violation of any condition of the scheme, the plaintiff wants to be the beneficiary of said violation which is not permissible under the law.

9. Now comes the point that when the petitioner-plaintiff appeared as her own witness and made a statement on oath, whether the onus shifts on the other side, and whether the defendant/respondent No.2 being beneficiary of the sale deed by the father of petitioner/plaintiff in his favour which was registered on 10.03.1982, is bound to prove the execution of sale deed being beneficiary. I have a view that in case any transaction is alleged on behalf of the person challenging the same, in that case the argument of learned counsel for the petitioner has weight. If the transaction in hand would have been on behalf of the plaintiff herself, then the principle pressed by the plaintiff was valid one, on making a statement by the plaintiff on oath as her own witness appearing in the witness box, the principle of shifting of onus to prove the case, in that eventuality, the beneficiary has to prove the valid transaction. In case in hand when there is a registered sale deed by the father of plaintiff, who admittedly remained alive 10 years after the execution and registration of sale deed, he never disputed or challenged the said sale deed in his life time, when he was living in the area where the suit property is situated; the filing of suit by the plaintiff after the death of her father, the plaintiff is a third person who challenged the sale deed. In this eventuality, the principle of shifting of onus pressed by the learned counsel for the petitioner is not applicable. Even otherwise the defendant/respondent No.2 has proved the execution of sale deed by producing available witnesses and the presumptions attached with the registered sale deed are in favour of respondent No.2/defendant, though the same are rebutable but the petitioner/plaintiff remained unable to rebut the same. In this view of the matter, the argument of learned counsel for the petitioner has no weight.

10. So far as the argument of learned counsel for the petitioner that the defendant/respondent No.2 has, not been able to prove the existence of order dated 28.12.1981 passed by the Deputy Commissioner, whereby under section 19 of the Colonization of Government Lands (Punjab) Act, 1912 the permission to transfer the property was granted, I am unable to understand that how this argument is tenable, as the plaintiff- petitioner herself has challenged the order dated 28.12.1981 in suit in hand. If there was no order in existence, what was the fun to challenge that order in her suit. Even otherwise certified copy of Ex.D-2, which consists upon the application, statements of parties, proceedings conducted by the concerned officials and the order passed by the Deputy Commissioner granting permission, has been produced. If afterward the original file was misplaced, that cannot be attributed to the defendant/respondent No.2 and it has not been denied by the official witnesses with regard to issuance of certified copies of the said proceedings and the order, therefore, the argument of learned counsel for the petitioner that the defendant-respondent No.2 has not proved the permission granted under section 19 of the Colonization of Government Lands (Punjab) Act, 1912 has no weight.

11. Now comes the other limb of argument that under section 19 of the Act ibid the Commissioner was competent to grant permission and not the Deputy Commissioner. In this regard reliance can be placed upon the judgment reported as "PLD 1978 Rev. 15 ( Nabi Bakhsh v. Ali Bakhsh )", which clearly shows that for grant of permission under section 19 of the Colonization of Government Lands (Punjab) Act, 1912, the Commissioner delegated the powers to the Collector. In this judgment the Member (Colonies) Board of Revenue has taken the light from the judgment of august Supreme Court of Pakistan reported as "PLD 1965 Supreme Court 261 ( Jalal Din and others v. (1) Sheikh Muhammad Rafiq, Settlement Commissiner, with powers of Chief Settlement Commissioner, Sargodha Division at 3-Montgomery Road, Lahore (2) Settlement and Rehabilitation Commissioner, Sargodha Division, Headquarters at Rawalpindi and (3) Mst. Jannat Bibi )". In this view of the matter, the argument of learned counsel for the petitioner has also no weight.

12. In the light of what has been discussed above, I have noticed that none of the case law referred to by the learned counsel for the petitioner is helpful for the petitioner and the same is not applicable to the facts of this case, as after obtaining the permission under section 19 of the Colonization of Government Lands (Punjab) Act, 1912 the sale deed has been validly executed in favour of respondent No.2/defendant and further as I have noted supra that the registered sale deed challenged in the suit is not by the petitioner-plaintiff. Therefore, the case law is not applicable to the facts of this case and as such not helpful for the petitioner. In this view of the matter, I am unable to disagree with the findings recorded by the learned first appellate Court. Hence, no case for interference by this Court while exercising jurisdiction under section 115 of the C.P.C. has been made out. Resultantly, both the civil revisions stand dismissed.

ZC/G-37/L Revision dismissed.