MUHAMMAD BUX vs MUHAMMAD ALI

ORDER

' MUSHTAQ HUSSAIN, J.--Pathana and Aliya two brothers came to Pakistan as refugees. They filed a claim for land in lieu of that which was abandoned by that in India. Alm died after some time and on 5-9-1959 Mutation No, 20 was sanctioned in favour of his brother Pathana in respect of his entitlement. Muhammad Bakhsh who was Lambardar in the village claimed that Pathana had executed a power-of-attorney in his favour. He got the claim of Aliya transferred to village Soeraj Ganj on the basis of this power-of-attorney where he obtained the allotment of 71 Kanals of land on that basis. This area was ultimately reduced to 55 Kanals and is the land in dispute.

2. It is said that this Lambardar on the basis of the same power-ofattorney had the same land transferred in favour of his brother and nephew surreptitiously and did not pay any consideration to Pakistan. This Mutation was No, 173 and was sanctioned on 17-3-1966. The beneficiaries were the present petitioners.

3. A suit was filed by Muhammad Ali, Ahmed Din, Sajwara, Abdus Sattar, Hussain, Mst. Bibi Sain, Mst.

Ilahi Sain, Mst. Zohra and Mst. Noor Bakhsh successors of Fattu another brother of Bahadur father of Patbana. The plaintiffs other than. Muhammad Ali, Ahmed Din and Sajwara entered into a compromise with the petitioners and, therefore, the suit was continued only by the respondents Nos. 1, 2 and 3.

4. The present petitioners contested the suit and the following issues were framed:-

(1) Whether this Court is competent to entertain the suit? 0. P.

(2) Whether the suit has been instituted with mala fide intention? O. P. D.

(3) Whether Pathana deceased validly disposed of the suit land to defendants Nos. 1 to 4.

(4) Whether the transaction is hit by section 54 of the Transfer of Property Act ? If so, with what effect? 0. P. P.

5. The suit was decreed by the learned trial Court on 20-7-1973 after Issues Nos. I, 4 and 4(a) were found in favour of the plaintiffs and Nos. 2 and 3 against the defendants. The decree was, of course, in respect of only half of the suit land in view of the compromise referred to above.

6. An appeal filed by the petitioners was dismissed by the District Judge, Bahawalnagar on 9-3- 1974. A revision petition presented to the High Court was dismissed on 17-2-1979. Hence this civil petition for special leave to appeal.

7. The learned Judge of the, High Court after hearing both the parties dismissed the revision petition with costs.

8. We asked the learned counsel to state under which particular part of section 115 of the C. P. C. Did his petition before the High Court fall. He was of the view that it falls under clause (c). He submitted that the principle of estoppel as enshrined in section 115 of the Evidence Act should have been applied by the Courts below to estop Pathana's successors-in-interest from challenging the power-of-attorney in favour of respondent No, 4, since Pathana himself had failed to challenge the same and also participated in the alleged fraud of obtaining confirmation of the land through a bogus powerof-attorney. He considered it to be an illegality which attracted the mischief of section 115(c) of the C. P. C.

9. The argument of the learned counsel has in itself the germs of its own destruction. There is no estoppel against law; and the law is that fraud vitiates the most solemn transactions. To say that the principle of estoppel would not be supervened by the principle of vitiation by fraud, is not in accordance with the law of the land. All of them having participated in the fraud, nobody could be estopped.

10. Be that as it may, the fact remains that section 115(c) of the Code of Civil Procedure is applicable only to the commission of an illegality or material B irregularity relatable to the exercise of jurisdiction by a subordinate Court. Nothing has been alleged before us which could demonstrate that in exercising the jurisdiction vested in it by law the civil Courts had in any manner committed an illegality or material irregularity. The mere fact that the findings of these Courts may be wrong on a point of fact or on a point of law unrelatable to the exercise of jurisdiction, would not bring the case within the four corners of section 115 of the C. P. C. The Privy Council in its judgment in Amir Hasan Khan v. Sheo Baksh Singh (1), held that: - "the question then is, did the Judges of the lower Courts in this case, in the exercise of their jurisdiction, act illegally or with material irregularity. It appears that they had perfect jurisdiction to decide {{FOOT NOTE}}

(I) 11 I A 237 {{FOOT NOTE}} ' the question which was before them and they did decide it. Whether they decided it rightly or wrongly, they had jurisdiction to decide the case, and even if they decided wrongly they did not exercise their jurisdiction illegally or with material irregularities."

10. In Balakrishna Vdayar v. Vasudeva Aiyar (I), the Board observed:- "It will be observed that the section applies to jurisdiction alone, the irregular exercise or non- exercise of it or the illegal assumption of it. The section is not directed against conclusions of law or fact in which the question of jurisdiction is not involved."

11. In these circumstances the Revision Petition filed before the High Court was incompetent and we have no option but to dismiss the petition for special leave to appeal.

12.

(1) AIR 1917 P C 71