REVENUE EMPLOYEES COOPERATIVE HOUSING SOCIETY LIMITED and 8 others

1. ' HAMID ALI MIRZA, J.---These two civil appeals by leave of this Court are directed against the judgment dated 13-12-1988 of the High Court of Sindh, whereby Constitutional Petition D-49 of 1985 (Mst. Bachoo and 6 others v. Muhammad Bachal and 15 others) was allowed and consequently it was declared that allotment of land bearing Survey Nos.113 and 192 of Deb Sari, Taluka Hyderabad, to the appellant was illegal and without lawful authority. The respondents in the Constitutional petition sought relief as follows:-- "(a) For declaration that respondents Nos.13 to 15 have no legal right or lawful authority to lease out any area of the lands of the petitioners and all orders/decisions of respondents Nos.13 to 15 for resuming and leasing out any area of lands of the petitioners are without lawful authority, mala fide, null and Void, bad in law and without any legal effect.

(b) Restraining/prohibiting the respondents Nos.13 to 15 from interfering, leasing, resuming and acquiring any area of the suit property of the petitioners for any purpose or purposes in any way directly, indirectly themselves or through their subordinates, agents, servants etc. In any matter whatsoever."

2. Leave was granted by this Court on the following points:-- "(A) Whether the Hon'ble High Court was justified in resolving disputed questions of fact relating to ownership of immovable agricultural property in the exercise of its Constitutional jurisdiction under Article 199 of the Constitution?

(B) Whether cancellation of allotment of Government land in favour of the petitioner could be questioned in a Constitutional petition preferred by persons who, claimed to have transferred the land in question to other persons and thereby lost title thereof?

(C) Whether the Hon'ble High Court was justified in cancelling the allotment of Government land lawfully effected in favour of the petitioner on the ground of some entries allegedly made in the record of rights, the veracity whereof could not even be established?

(D) Whether the decision of the Hon'ble High Court is based upon correct principles of exercise of jurisdiction under Article 199 of the Constitution?"

3. ' The brief facts of the case are that respondents 1 to 7 in the appeals claim that land bearing Survey Nos.299, 133, 113, 158, 326, 353, 190, 191 and 192 situated in Deh Sari, Taluka Hyderabad, District Hyderabad belonged to and was owned by their predecessors-in-interest named Muhammad Siddique son of Muhammad Bachal and Basur Khan alias Ahmed Khan son of Dino Khan in their sole and exclusive rights. The title to the aforesaid agricultural property was claimed on the basis of:

(i) Photostat copies of certified copies of the record of rights issued by Taluka Mukhtiarkar dated 5- 7-1973.

(ii) Photostat copy of a letter of the Taluka Mukhtiarkar, District Hyderabad, bearing No,Sett/772, dated 13-5-1981.

(iii) Photostat of letter of City Mukhtiarkar bearing No,Sett:481, dated 26-4-1981.

(iv) Photostat of unsigned Circular No . 1-88-79-Rev/1(iii)/1543 dated 18-3-1981 said to have been issued by Senior Member, Board of Revenue, and

(v) The judgment of the Second Senior Civil Judge passed in Suit No,126 of 1981 filed by one Muhammad Ramzan against the respondents 1 to 6 and 8 others.

4. ' The appellants' case was that the land in dispute was not at any time granted to the predecessors-in-interest of the respondents 1 to 7 and that all along it was a Government land and the claim of the respondents was fictitious, forged and fabricated. The appellants in the Constitution petition filed counter-affidavits and in support thereof filed certified true copies of the record of rights and other record. The Division Bench of the High Court mainly relied upon the letters dated 13-5-1981 and 20-5-1981 issued by the office of the Senior Member, Board of Revenue and the City Mukhtiarkar, which were said to have been obtained by collusion, .Fraud and were forged and fabricated.

5. ' We have heard the learned counsel for the parties and perused the record and proceedings of the case as well as the original old record and registers, which were summoned by us.

6. ' The admitted position in these appeals is that all the documents on the basis of which the claim of the respondents has been accepted were not admitted by the appellants-Government functionaries. All the documents filed in the Constitutional petition on the basis of which the declaration was granted to the respondents are disputed and that they were said to be forged and fabricated. So far the judgment in Suit No,126 of 1981 (Muhammad Ramzan v. Allah Dino and 12 others), plaintiff Muhammad Ramzan in the said suit sought declaration that the suit property was the ancestral and inherited property of Muhammad Siddique and Basur and after their death, respondents 1 to 7 became the owners of the suit land, the Khata Badal of which was to be made by the appellants-Government Functionaries and further that the respondents 1 to 7 or in the alternative the Nazir of the Court be directed to execute final sale-deed in favour of the plaintiff Muhammad Ramzan .Before the Sub-Registrar, Hyderabad on receiving the balance of Rs,1,000 and further the respondents be restrained from interfering with the possession and enjoyment of the suit land. It is the case 'of the appellants that the judgment and decree passed in the above suit was collusive one and further that the appellants were not party to the alleged agreement of sale or to the said suit. It might not be proper to express opinion about the admissibility, legality and authenticity of the documents produced by the respondents in support of their claim made in the Constitutional petition by the respondents at this stage as it might affect the case of the respondents at the subsequent stage before another forum, but it could be said that the question of title in respect of land in question could not have been decided by the High Court in the Constitutional jurisdiction in view of the disputed questions of fact and the documents alleged to be forged and fabricated. Reference may be made to Tanbir Ahmed Siddiky v. Province of East Pakistan (PLD 1968 SC 185 at 189(K)), Saghir Ali v. Mehar Din (1968 SCM R 145), Benedict F. D'Souza v.

7. Karachi Building Control Authority (1989 SCM R 918), Ehsanul Haq Kiani v. Allied Bank Limited, Karachi (1984 SCM R 963) and Min. Muhammad v. Municipal Committee (1983 SCM R 732). In the instant case the disputed questions of fact as to title are based on the documents which are said to be forged and fabricated, which would require evidence to arrive at a correct conclusion, therefore, the High Court could not have decided the same in exercise of its Constitutional jurisdiction. In the circumstances, the impugned judgment of the Division Bench of the High Court is set aside and the appeals are allowed. The respondents, if they desire, can seek their remedy before the competent forum in accordance with law.