Find a Lawyer

‑‑ S. 47‑Registration of document‑Operation of ‑ Document executed first in order of time, held, would have priority over the other though registered later‑Such document would operate from date of execution.

P L D 1.964 S C 254 and A J R 1946 Mad. 140 ref.

Para. 24(l) ‑Alienation of land‑Land owner, held, could either alienate whole of the holding or any part thereof, which would not affect economic holding.

‑‑ Para. 24(1)‑Constitution of Pakistan (1973), Art. 199‑Limita tion Act (IX of 1908), S. 5 ‑Constitutional jurisdiction, exercise of‑‑ Order violative of M. L. R. 115‑Appeal‑Limitation for‑No limitation, held, would run against order which was nullity in law or contravened mandatory provisions of M. L. R. 115‑Authori ties exercising jurisdiction over matter could condone delay‑Where. however, authorities competent and possessed of jurisdiction, after consideration of relevant material had condoned delay, unless such exercise of discretion found to be fanciful, perverse or arbitrary, would not be correctable in constitutional jurisdiction‑Sale transaction being altogether void, would not create any legal consequences‑Despite delay in challenging such transaction same would remain void and with passage of time could not be blessed with sanctity.

P L D 1977 Lah. 970 and P L D 1969 Lah. 1039 ref.

‑‑ Art. 199‑Constitutional jurisdiction, exercise of‑Party not raising objection to jurisdiction of Court/Tribunal and taking part in proceeding without objection, held, would not be allowed to raise such objection for first time in constitutional jurisdiction of High Court.

Muhammad Afzal v. Board of Revenue, West Pakistan P L D 1967 S C 314 ref.

‑‑ Ss. 100 & 115‑Appellate/revisional jurisdiction, exercise of Party taking part in proceeding without objection, held, could not turn round subsequently in revisional/appellate jurisdiction to object to such exercise of jurisdiction by Court/Tribunal.

---S. 151‑Discretionary jurisdiction, exercise of‑Objection not raised before Court/Tribunal, held, could not be allowed to be raised for first time in discretionary jurisdiction of High Court.

Muhammad Afzal v. Board of Revenue, West Pakistan P L D 1967 S C 314 ref.

‑‑ Objection to‑Government functionary duly authorized to per form certain duty, held, would have jurisdiction to perform that duty‑Party submitting to Jurisdiction of such functionary, could not turn round subsequently, to impeach decision of same on score of lack of competence, which otherwise was fully possessed by him.

Muhammad Munir Paracha for Petitioners.

Muhammad Nawaz Abbasi, A. A.‑G. for Respondents Nos. 1 to 3.

Kh. Muhammad Yousaf Saraf Respondents Nos. 4 to 6.

Syed Muhammad Ayub Shah Bokhari for Respondent No. 8.

Date of hearing : 18th March, 1986.

Facts of the litigation briefly put are : One Muhammad Sarfraz Khan was owner of agricultural land measuring 753 Kanals 7 Marlas in revenue estate Khunda, Tehsil Pindigheb. Through a deed of sale registered on 15‑6‑1978, property consisting of 159 Kanals 2 Marlas out of the afore noticed total holding, was sold to Ahmad Khan and Muhammad Ashraf petitioners. Muhammad Sarfraz Khan by a separate deed of sale also registered on 15‑6‑1978, sold land measuring 317 Kanals 6 Marlas to Behram Khan, Muzaffar Khan and Bari Khan. Saadullah as tenant‑at will, moved a petition before Deputy Land Commissioner (D. C.), Attock complaining that the sale made by Muhammad Sarfraz Khan to Behram Khan and two others, was in violation of para. 24(l) of the Land Reforms Regulation 115 of 1972 and. therefore, was void. On 22‑2‑1979, Deputy Land Commissioner found that the transaction violated the terms of Land Reforms Regulation. In pursuance of this order, Sale Mutation 1772 sanctioned on 31‑10‑1978 was cancelled on 29‑4‑1979 by Settlement Naib‑Tehsildar, Basal/Assistant Collector II Gr. Muzaffar Khan and others went in appeal (273/1979) before Settlement Officer /Collector, Attock District and disputed the correctness of order dated 29‑4‑1979. Learned Collector found that since the lower Court had acted in compliance with the directions of the lawful authority, therefore, his order could not be challenged by his Court. Appeal was dismissed on 24‑12‑1979. Revision filed before Additional Commissioner, Rawalpindi was also dismissed on 9‑7‑1980. It was observed "Since the order of D. L. C. dated 22‑2‑1979 had attained finality in the field, there is no illegality found in the impugned order of Collector, District Attock". No appeal or revision was filed against this order on the Revenue side. However, on 10‑8‑1980, vendees from Muhammad Sarfraz Khan, namely Muzaffar Khan, Behram Khan and Bari Khan preferred an appeal (Appeal No. 38/1980) to Land Commissioner, Rawalpindi Division, to question the order of Deputy Land Commissioner dated 20‑2‑1979 learned Commis sioner, in para. 7 of his order dated 25‑11‑1981, found "in view of above, I accept the revision petition to the extent that the transaction vide Registered Deed No. 1207 by which 317 Kanals 6 Marlas of land was conveyed, is upheld. The second transaction vide Registered Deed No. 1208 of tae same date involving transfer of 159 Kanals 2 Marlas of land is, however, struck down as it offended against the mandatory provisions of M. L. R. 115. The area of 159 Kanals 2 Marlas conveyed vide Registered Deed No. 1208 is, therefore, deemed to have been reverted to the vendor who agrees to return the consideration cited in the deed to the appellants‑vendees. The matter is disposed of accordingly." Out of two sale transactions, one in favour of Muzaffar Khan and others, was found prior in time as compared to the other sale‑transaction in favour of Ahmad Khan and Muhammad Ashraf. The result of the above determina tion was that sale in favour of Muzaffar Khan and others was upheld while that made in favour of Ahmad Khan and Muhammad Ashraf was struck down. in toto being in violation of Land Reforms Regulation, Ahmad Khan etc. vendees of 149 Kanals 2 Marlas preferred a further appeal (R. O. A. No. 660/1982) before Chief Land Commissioner, Punjab, Lahore. Appeal, however, was taken up for hearing and decision by Mr. Zahoor Ahmad Khan Tareen, learned Additional Chief Land Commissioner, Punjab, Lahore. It was found by him that sale transaction in favour of Ahmad Khan and Muhammad Ashraf though effected on 15‑6‑1978 by a registered deed of sale, was, later in point of time to the sale made in favour of Muzaffar Khan and others and after so finding dismissed the appeal on 7‑3‑1983 and maintained the order of Land Commissioner, Rawalpindi. It may be useful to reproduce an extract From the impugned order of learned Additional Chief Land Commissioner. It reads

"Admittedly both the transactions were registered on the same date on 15‑6‑1978. The sale‑deeds were registered on the same date on 15‑6‑1978. Now the question arises as to which sale had taken place prior to the other. I have examined both the docu ments. It is given in document (marked as C. 1.), which was executed in favour of Muzaffar Khan etc. respondents, that the document was entered at S. No. 1207 of Bahi No. 168 at pages 117 and 118 while the document (marked as C. 11) was entered at S. No. 1208 of Bahi No. 168 at pages 118 and 119. It clearly established that the sale‑deed in favour of respondents l to 3 was executed and registered earlier to the sale‑deed executed in favour of appellants.

It is also pertinent to point out that the sale‑deed in favour of respondents was entered at S. No. 3644 on 14‑6‑1978 in the scribe's Register while sale‑deed in favour of appellants was entered at S. No. 3653 on 15‑6‑1978. It leaves no doubt that the execution of document in favour of respondents took place earlier to the document executed in favour of appellants.

In this regard reference is made to P L D 1964 S C 254, which discharged the rule that a registered document would be operative from the time of its execution. The same principle was observed in A J R (33) 1946 Mad. 140 (D. B.) that the document executed first in order of time hat priority over the other though registered latter.

The learned Land Commissioner had held in his finding that the enquiry offices (A. D. C. Attock) had reported in his report dated 20‑2‑1979 that the holding of vendor prior to first sale (vide deed No. 1207) was 753 Kanals, 7 Marlas of land and it was reduced to 436 Kanals, 1 Marla of land. As it was more than an economic holding (400 Kanals), hence it was not hit by the provisions of M L. R. 115. He further held that the holding of vendor was reduced to 276 Kanals 19 Marlas after the second sale (vide deed No. 1208). The second sale was violative of para. No. 24 of M. L. R. 115. I have no reasons to differ with the finding of Land Commissioner and also hold accordingly."

" Mr. Muhammad Munir Paracha, Advocate for petitioners raises three points in support of the petition: (I) Additional Chief Land Commissioner was not competent to hear the appeal, (2) appeal before the Land Commis sioner was barred by time and the delay in preferment of the appeal could not justifiably have been condoned, (3) after excluding the land sold in favour of Muzaffar Khan and others, holding of Muhammad Sarfraz Khan was reduced to 436 Kanals 1 Marla. This being above economic holding, by an area of 36 Kanals 1 Marla sale transaction, in torn, could not have been declared void and the petitioners could be allowed to retain land measuring 36 Kanals I Marla. In support referred to para. 24(5) of Land Reforms Regulation as amended by Act XLVIII of 1976.

On facts, there is not much dispute. Sale‑deed in favour of Muzaffar Khan and others was executed on 14‑6‑1978, whereas deed of sale in favour of the writ petitioners was executed on 15‑6‑1978. Though both the deeds were presented for registration on the same day, from the endorsements, appearing on the deeds, it appears that petitioners' sale‑decd was registered subsequently. Apart from the above, in terms of section 47 of the Registration Act, a registered document operates from the date of its execution. Counsel, therefore, did not dispute this proposition that sale in favour of petitioners was subsequent to the one in favour of respon dents Nos. 4 to 6. This fact having been conceded, sale of land measuring 159 Kanals 2 Marlas out of a holding of 436 Kanals 1 Marla in view of positive prohibition contained in para. 24(1) read with its sub‑paragraph (5) could not be allowed to stand. Paragraph 24(1) reads :

"Restrictions on alienation of holdings.‑No person owning more than the area of an economic holding shall be allowed to alienate by sale, mortgage, gift or otherwise in operation of his holding which may reduce the size of his holding to an area below the limit of an economic holding :, Provided that such a person may alienate his entire holding."

Sub‑paragraph (5) reads :

"Any alienation made in contravention of the provisions of this paragraph, shall be void, to the extent by which the economic holding or area as the case may be, subsistence holding is reduced."

On a clear reading of these provisions of law, Muhammad Sarfraz Khan, on 15‑6‑1978, could not alienate land measuring 159 Kanals 2 Marlas by which his "economic holding" was reduced considerably. he could either alienate the whole of his holding or such part thereof which did not affect the economic holding. Viewing thus, an area of 36 Kanals 1 Marla alone was available to him to sell. In the circumstances, counsel is right in saying that entire sale transaction could not be voided. Here, I agree with him and his contention is also amply supported by provisions aforenoticed. At this stage, it may also be appropriate to advert to the plea of limitation. Learned Land Commissioner in para. 5 of his order dated 25‑11‑1981 has addressed himself to this part of the controversy and found that since the appellants before him, were not properly served, orders passed by the D. L. C. were a nullity and no question of limitation arose as the impugned orders were void ab initio. Ahmad Khan etc., in appeal before learned Additional Chief Land Commissioner reagitated the issue of limitation. However, it did not find favour with him who has dealt with this plea in‑para. 7 of his order and observed : "The learned counsel for the appellants vehemently contested that the respondents had filed the appeal before the Land Commissioner beyond the period of limitation. I have heard the arguments of learned counsel on either side and have arrived at the conclusion that the above plea of appellants was not tenable. The plea has been discussed at length by learned Land Commissioner and I also concur with his finding. It has been held in P L D 1977 Lah. 970 that a void order remains void even if confirmed by a higher authority. The same principle was discharged in P L D 1969 Lah. 1039/104() that a void order was void for all purposes. I agree with the finding of Land' Commissioner that the order passed by the Deputy Land Commissioner was ex parte and the transaction in favour of the appellants was violative oft M. L. R. 115 and no limitation runs against such an order which is a nullity in the eye of law or contravenes the mandatory provisions of M. L. R.I 115." It is not disputed that it was in the discretion of the authorities tot condone delay. This being so, when the authorities competent and possessed of jurisdiction, have after consideration of the relevant material condoned the delay, unless it was found that exercise of discretion was o fanciful, perverse or arbitrary, the same is not correctable in constitutional jurisdiction by this Court. To my mind, it was open to the authorities to consider the question of delay and when they have decided to condone it, it cannot be said that they have acted either without lawful authority or in excess of their jurisdiction. Additionally, on facts found, impugned sale transaction was altogether void and as such did not create any legal consequences. Despite delay. it remained void and with passage of time could not be blessed with sanctity.

Now comes the question of competency of the Additional Chief Land Commissioner to entertain, hear and decide the appeal. Admittedly, question of jurisdiction was neither urged nor argued before the Court below. It is perfectly true that jurisdiction is conferred on a Court or a Tribunal by Statute and acquiescence on the part of parties will not confer jurisdiction where none exists. It has been observed in Muhammad Afzal v. Board of Revenue, West Pakistan (P L D 1967 S C 314) that mere fact of a party submit ting to authority of Tribunal without raising objection, neither confers jurisdiction on the Tribunal nor deprives petitioner of his right to challenge order in constitutional jurisdiction. . But, where a party does not raise any objection to the jurisdiction of the Court of Tribunal, and takes part in the proceedings without objection, High Court may not allow him to raise objection for the first time in proceedings under section 115, C. P. C. or in constitutional jurisdiction, High Court can, in its discretion, refuse relief to a party who by leis own conduct has disentitled himself to it. The inherent powers of the Court to refuse to interfere in the interests of justice, is applicable in every case regardless of whether it is brought to its notice under section 100 or section 115, C. P. C. or in constitutional jurisdiction. Section 151 expressly provides that nothing in the Code shall affect the powers of the Court tot pass any order in the interests of justice or to prevent the abuse of the proof Court. The Court will regard as not done what is done too late. A party shall not be allowed to take advantage of its own delay and thus pro long dispute by simple device of raising question of jurisdiction. That apart, the plea otherwise has no merit. Pursuant to Notification No. SI‑2‑2/82, dated 2-12‑1982 of the Government of Punjab, S. G. A. D. & Information Department (Annexure 'M'), Mr. Zahoor Ahmad Khan Tareen (Gr. 20) took over as Additional Chief Land Commissioner, Punjab on 7‑12‑19821 (forenoon). As Additional Chief Land Commissioner, he could hear the case under Punjab Land Reforms Rules, 1972 as amended. No exception,) in these circumstances, can be taken to his competence to heart the appeal. It may also not go unnoticed that it was the petitioners themselves who submitted to his jurisdiction and after having so submitted to the jurisdiction without demur, it does not lie with the petitioners tot turn out and impeach his decision ors the score of lack of competence, which otherwise was fully possessed by him. Accordingly I find and hold that the sale of land in favour of petitioners is valid to the extent of 36 Kanals I Marla only and the rest is void altogether. Impugned order of Additional Chief Land Commissioner, therefore, is void to this extent and is declared as such. No order as to costs.

A. A. Petition partly accepted.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.