MUHAMMAD AFZAL and others vs Mst. SURRAYA BEGUM and others
The petitioners sought leave to appeal against the dismissal of their writ petition by the High Court, which had upheld the Commissioner's order directing the sanctioning of a land mutation based on a gift. The original owner, Sultan, had gifted land to respondents whom he described as his wife and son. After Sultan confessed judgment in a civil suit filed by the donees, a declaration was granted in their favor. Following Sultan's death, the local Revenue Officer attested a mutation of succession in favor of the petitioners who were collaterals, ignoring the gift. Litigation ensued through revenue forums up to the Board of Revenue and the High Court. The core legal question concerned the appropriateness of invoking constitutional jurisdiction when an alternate remedy was available and the validity of a gift already decreed by a civil court. The Supreme Court held that the writ petition was misconceived because the validity of the gift was a matter for the Civil Court and the petitioners had an adequate alternate remedy. The petition for leave to appeal was dismissed.
- Whether constitutional jurisdiction can be invoked when an alternate adequate remedy is available?
- Can the validity of a gift decreed by a civil court be challenged through revenue proceedings and writ petitions?
ORDER
' SAAD SAOOD JAN, J.--Sultan alias Thana owned some agricultural land. He made a gift of a part of his land in favour of Mst. Surraya Begum and Adalat Hussain whom he described to be his wife and son. The local Revenue Officer declined to attest the mutation of gift on the ground that his relationship with the donees had not been established. The donees filed a civil suit for a declaration on the basis of the said gift. Sultan appeared before the Court and confessed judgment whereupon the declaration sought by the donees was granted to them. The local Revenue Officer once again refused to attest the mutation with the objection that the gift did not cover the entire holding of the donor. Sultan once again appeared before the Revenue Officer and stated that in order to remove the objection he had gifted his entire land to his wife and son. However he died before the mutation could be attested. On his death a mutation of succession was entered and attested by the local Revenue Officer in favour of the petitioners who were his collaterals. Surraya Begum and Adalat Hussain filed an appeal before the Collector who remanded the case back to the local Revenue Officer for a fresh inquiry. Once again the local Revenue Officers declined to give effect to the gift and insisted on sanctioning a mutation of inheritance. The Collector upheld the order of the Revenue Officer. On revision the Commissioner set aside the orders of the Collector and the Revenue Officer and directed that a mutation on the basis of the gift be sanctioned in favour of the respondents. The petitioners moved the Board of Revenue against the order of the Commissioner but failed. They then invoked the constitutional jurisdiction of the High Court to call in question the legality of the mutation. The writ petition was dismissed by a learned Single Judge.
The petitioners now seek leave to appeal from this Court.
2. It may be mentioned that the case of the petitioners before the Revenue Officer was that Mst.
Surraya was not the wife but zar kharid (that is, a slave) of Sultan and that Adalat Hussain was not his son.
3. The writ petition was clearly misconceived. The question whether the gift was valid or not was a matter which could only be decided by a Civil Court. The petitioners had an alternate adequate remedy available to them. It was therefore not a fit case where the constitutional jurisdiction of the High Court should have been invoked. We would therefore dismiss this petition.