SHAMROOZ KHAN vs MUHABBAT KHAN and another

1. ' SHAFIUR RAHMAN, J.-- Leave to appeal was granted to one of the brothers in contest with the other to examine whether the High Court had correctly, after holding that the Tribunal had the jurisdiction to look into the question of alleged fraud, prevented it from doing so on its own view of the record.

2. ' Land measuring 3 Marlas out of Plot No,1760, Ward-G, Rawalpindi has been the bone of contention between the two brothers. The respondent claimed that it was reserved/transferred in his favour alongwith other portion of the plot in all measuring 10 marlas in the year 1964. Erroneously, the disputed portion was treated to be available property in 1971 and transferred to the appellant. The Settlement Authorities examined the dispute and after remand the Deputy Settlement Commissioner upheld the transfer in favour of Mohabbat respondent. The appellant thereupon moved an application dated 28-5-1980 complaining as hereunder:-- "That the Settlement file which was placed before this learned Court was got cooked up obviously at the instance of respondent No,1. The documents attached to the settlement file were constructed so as to prejudice the vested rights of the petitioner.

3. ' That this learned Court had based his judgment on the basis of documents which arc forged and non-existent in the eye of law."

4. ' On receiving this application the Deputy Settlement Commissioner served a notice on the respondent for examining the allegations. The respondent instituted a Constitution Petition in the High Court. The learned Judge on the question of jurisdiction of the Deputy Settlement Commissioner to deal with the matter observed as follows:-- "It is correct that when a fraud is committed on a Tribunal, in appropriate cases, it may undo such a fraud in exercise of its inherent powers. From the perusal of the record I do not consider that the instant case is of such a nature."

5. ' In coming to the conclusion on facts, the learned Judge observed as hereunder:-- "It is discernible from this record that Khasra No,1740 was reserved in the respondent's name by the Deputy Settlement Commissioner by his order dated 26-3-1964. It is to be noticed that the plot in dispute forms part of Khasra No,1760. There is an application of the respondent on the file requesting for substitution of Khasra No,1740 by 1760 but no specific order in this behalf allowing the amendment of Khasra number has been passed by any competent authority. It is correct that one or two notices issued to the respondent arc available on the file which bear Khasra No,1760. The record, however, does not suggest that these notices are based on any specific order allowing the amendment of the Khasra numbers. Furthermore, from the record produced before me, the payment of the transfer price by respondent No,2 has also not been proved. Respondent No,2 in his order dated 10-3-1980 cast serious doubt on the validity of the PTD, issued to respondent No,1."

6. ' The relief was granted in the following words:- "For all these reasons this writ petition is accepted, the notice Annexure `F' is declared to have been issued without lawful authority, leaving the parties to bear their own costs."

7. The jurisdiction of the Tribunal or the Deputy Settlement Commissioner in this case to examine the question of forgery and fabrication in his own record has been upheld by the learned Judge in the High. Court and it follows from our decision in the Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others (PLD 1975 SC 331). On no principle, known to the Constitutional jurisdiction, the power of the Tribunal to adjudicate a matter within its jurisdiction could be pre- empted by the High Court in the words in which it has been done. The Custodian of the record is the best judge in the first place to determine the veracity, the correctness and the genuineness of its own record. It should have been given an opportunity to discharge its duty in that respect. It is only then that a review of the adjudication could have taken place in the High Court.

8. ' We accept the appeal, set aside the judgment of High Court, recall the writ and allow the Deputy Settlement Commissioner to proceed with the determination of the allegations made in the Application in accordance with the law applicable. No order as to costs.