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caseName=2014S787

2014 S C M R 914

[Supreme Court of Pakistan]

Present: Mian Saqib Nisar and Ejaz Afzal Khan, JJ

MUHAMMAD NAWAZ alias NAWAZA and others---Appellants

Versus

MEMBER JUDICIAL BOARD OF REVENUE and others---Respondents

C.A. No.1209 of 2007, decided on 6th February, 2014.

(On appeal from the judgment dated 15-3-2007 passed by the Lahore High Court, Lahore in W.P. No.4803 of
1986)

(a) West Pakistan Land Revenue Act (XVII of 1967)---

----S. 42---Khasra Girdawari---Entries in Khasra Girdawari relate to state of affairs at the date (of preparation
of girdawari) and not to time of sowing of crop.

Ghulam Hassan and others v. Sarfraz Khan and others PLD 1956 SC 309 and Khadim Hussain and others v.
Muhammad Nawaz Khan 1981 SCMR 1183 ref.

(b) West Pakistan Land Revenue Act (XVII of 1967)---

----S. 42---Entry in Revenue record---Unlawful alteration---Where entries in the revenue record had not been
substituted lawfully, the original would hold the field.

Allah Dad v. Muhammad Ali PLD 1956 Lah. 245 and Azam Khan v. Azad Khan and 6 others PLD 1986 Lah.
275 ref.

(c) Civil Procedure Code (V of 1908)---

----O. VI, R.1---Pleadings---Evidence---Scope---Averments made in pleadings do not constitute evidence but

the evidence led in their support must be consistent therewith---Anything stated outside the scope of such
averments could not be looked into.

(d) Civil Procedure Code (V of 1908)---

----O. VI, Rr. 1 & 7---Pleadings---Scope---Secundum allegata et probata, rule of---Scope---Rule of secundum
allegata et probata precluded a party from proving what had not been alleged or pleaded---No party could be
allowed to lead evidence on a fact which had not been specifically pleaded nor could any evidence be looked
into which was outside the scope of the pleadings.

Government of West Pakistan (Now Punjab) through Collector, Bahawalpur v. Haji Muhammad PLD 1976
SC 469; Messrs Choudhary Brothers Ltd. Sialkot v. The Jaranwala Central Co-operative Bank Ltd., Jaranwal
1968 SCMR 804; Binyameen and 3 others v. Chaudhry Hakim and another 1996 SCMR 336 and Major
(Retd.) Barkat Ali and others v. Qaim Din and others 2006 SCMR 562 ref.

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(e) Constitution of Pakistan---

----Art. 199---West Pakistan Land Revenue Act (XVII of 1967), Preamble---Constitutional petition before
High Court---Interference in concurrent findings of fact recorded by fora functioning in the revenue
hierarchy---Scope---Any finding did not become sacrosanct (only) because it was concurrent---Finding
became sacrosanct only if it was based on proper appraisal of evidence---Where findings of fora functioning
in the revenue hierarchy were concurrent but not based on proper appraisal of evidence and due application
of law, the High Court was well within its jurisdiction to interfere therewith and could quash (such findings)
in exercise of its constitutional jurisdiction. [p. 920] F

Lord Denning on "the Discipline of law" and Utility Stores Corporation of Pakistan Limited v. Punjab Labour
Appellate Tribunal and others PLD 1987 SC 447 ref.

(f) Administration of justice---

----Courts of law were not supposed to perpetuate what was unjust and unfair by exploring an explanation
therefor---Courts should rather explore ways and means for undoing what was unjust and unfair.

Saeed-ur-Rehman Farrukh, Advocate Supreme Court for Appellants.

Ch. Khurshid Ahmed, Senior Advocate Supreme Court for Respondents Nos.3 - 13 and 15.

Ex parte: Respondents Nos.1, 2, 14 and legal heirs.

Date of hearing: 6th February, 2014.

JUDGMENT

EJAZ AFZAL KHAN, J.---This appeal, filed as of right under Article 185(2)(d) of the Constitution of
Islamic Republic of Pakistan, has arisen out of the judgment dated 15-3-2007 of the Lahore High Court,
whereby the learned Judge in its Chambers allowed the writ petition filed by the respondents and set aside the
judgment and decree of the fora functioning in the hierarchy of Board of Revenue, Punjab.

2. Facts leading to the institution of the present appeal, in brief, are that property measuring 1175 Kanals and
15 Marlas was ownership of Munir Ahmed and others. They agreed to sell it to the vendees. When the former
did not do the needful, the later instituted a suit for specific performance of contract in the Court of learned
Civil Judge, Bhakkar. The vendors appeared in the Court and consented to the judgment. The learned Civil
Judge, in this view of the matter decreed the suit of the vendees vide judgment dated 10-10-1979. The
respondents alleging themselves to be the tenants in the property in dispute instituted a suit for enforcement
of right of pre-emption in view of the provisions contained in paragraph 25(2)(d) of the Land Reforms
Regulation, 1972 {Martial Law Regulation 115}. The suit of the respondents was decreed by the Collector,
Bhakkar vide judgment dated 23-9-1981. Respondents' appeal against the said judgment and decree was
dismissed by the Additional Commissioner, Bhakkar vide judgment dated 25-1-1982. Respondents preferred
a Revision Petition before the Member Board of Revenue but that too met the same fate. They, then assailed
the finding of the Member Board of Revenue before the High Court through a Constitutional Petition, which
was allowed vide judgment dated 29-9-1999. The respondents Nos. 4 to 6 in the said Constitutional petition
filed a petition for leave to appeal before this Court which was allowed vide order dated 15-11-2006 in the
terms as follows:--

"(1) Learned counsel stated that the impugned judgment has been pronounced without providing opportunity

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of hearing to the appellants.

(2) On the other hand, learned counsel for the respondents contended that there are certain points which
require reconsideration including the one, about status of Sikandar to whom appellants claimed to be the
tenant. On this both the learned counsel agreed for the remand of the case to the learned High Court for
disposal of the writ petition afresh on merits touching all the questions involved in the case after providing
opportunity of hearing to all concerned. Order accordingly".

The said Constitutional petition was accordingly re-heard and allowed vide judgment dated 15-3-2007 and
the order passed by the Member Board of Revenue was set aside. The learned Judge of the High Court in its
Chambers while setting aside the order of the Member Board of Revenue held as under:--

"(9) In Kharif, 1980, a note was made of the said sale in favour of the petitioners and the entries continued.
The said document was made the basis for decreeing the suit of the plaintiffs/respondents by the Collector
and consequently the other official respondents. It would show that for the first time the plaintiffs were
entered as tenants under said Sikandar son of Allah Ditta, a lessee for three years on 22-10-1979. The sale
admittedly had taken place by means of said decree dated 10-10-1979. The suit was filed on 10-11-1979. I,
therefore, find that Allah Yar, plaintiff was entered as non-occupancy tenant under the said lessee on
22-10-1979 i.e. after the date of said sale while Nawaz and Noora, respondents were entered as such on
2-3-1980 i.e. even after filing the suit. Needless to state that it is now well settled that an entry made in khasra
girdawari is relatable to the date on which it is made. No presumption or assumption can be drawn or
attached for period preceding and these cannot be related back. Reference be made to the judgment of
Hon'ble Supreme Court of Pakistan in the case of "Khadam Hussain, etc. v. Muhammad Nawaz Khan" (1981
SCMR 1183) with reference to case "Ghulam Hussain and others v. Sarfraz Khan and others" (PLD 1956 SC
309). The plaintiffs themselves have produced Register Haqdaran Zamin which enjoys presumption of
correctness i.e. Exh.P.3. What to speak of producing said Sikandar, there is not an iota of evidence on record
that the land was ever leased out to Sikandar for any period of time by the vendors. Oral evidence itself is
totally inconsistent with the plaint. I, therefore, hold that there is no evidence on record that Allah Yar,
respondent was a tenant at the time of date of sale and Noora and Muhammad Nawaz, respondents were
tenant at the time of sale or at the time of filing of the suit.

(10) I, therefore, reverse the findings recorded by the Collector, the appellate Court and the Court of revision
on the said issue and do hold that the plaintiffs have failed to prove that the suit land was comprised in their
non-occupancy tenancy under vendors/vendees or under said Sikandar at the time of sale or the suit".

3. The learned Advocate Supreme Court appearing on behalf of the appellants contended that when all the
fora functioning in the revenue hierarchy concurrently held that the appellants were occupying the land in
dispute in their capacity as tenants, such finding being one of fact could not have been interfered with by the
High Court under Article 199 of the Constitution of Islamic Republic of Pakistan. The learned Advocate
Supreme Court next contended that even the entries in the Khasra Girdaweri have not been interpreted by the
learned Judge of the High Court in Chambers, in conformity with the dicta laid down by this Court in the
cases of "Ghulam Hassan and others v. Sarfraz Khan and others" (PLD 1956 SC (Pak) 309 and "Khadim
Hussain, etc. v. Muhammad Nawaz Khan" (1981 SCMR 1183). If these entries, the learned Advocate
Supreme Court maintained, are interpreted in the light of the dicta cited above, the appellants could not be
non-suited, therefore, the judgment rendered against the dicta of this Court cannot be maintained.

4. As against that the learned Advocate Supreme Court appearing on behalf of the respondents contended,
that the appellants could not establish on the record what they pleaded in their plaint, therefore, even if the
entries made in Khasra Girdaweri are interpreted in the light of the dicta of this Court cited above, the
appellants cannot succeed in their suit for enforcement of right of pre-emption on the ground of tenancy.

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5. We have gone through the entire record with the assistance of the learned ASCs for the parties, the
judgments cited at the bar and considered the arguments addressed at the bar.

6. We agree with the learned Advocate Supreme Court for the appellants that entries in Khasra Girdaweri
relate to the state of affairs prevailing at the date and not to the one the crop in question was sown as it was
laid down in the cases of "Ghulam Hassan and others v. Sarfraz Khan and others" and "Khadim Hussain, etc.
v. Muhammad Nawaz Khan" (supra). But what is the basis for change of previous entries, has not been
explained anywhere. No evidence much less credible has been brought on the record to justify this abrupt and
overnight change. If the appellants have been tenants under the vendors, their names should have figured
somewhere in at least one of the perioidical records. When neither the basis for change of the entries in
Khasra Girdaweri has been explained nor the factum of tenancy has been supported by any periodical record,
no credence could be given to such change. It was held in the cases of "Allah Dad v. Muhammad Ali" (PLD
1956 Lahore 245) and "Azam Khan v. Azad Khan and 6 others" (PLD 1986 Lahore 275) that where entries in
the revenue record have not been substituted lawfully, the original will hold the field. The finding of the
learned Judge of the High Court in its Chambers, thus appears to be free from error of law and fact.

7. The next question emerging for the consideration of this Court is whether the appellants have proved what
they have pleaded in their plaint? The answer to the aforesaid question is a simple no. In para-3 of the plaint,
the appellants have averred that they are tenants of the vendors and now of the vendees, but one of them who
appeared in the Court for himself and on behalf of others stated that the suit property was let out to one
Sikandar on contract, therefore, they had been paying share of the produce to him. This statement, so to
speak, is not consistent with what has been pleaded by the appellants in their plaint. It is, indeed, a clear drift
rather an outright departure from what has been pleaded in the plaint. Granted that averments made in
pleadings do not constitute evidence but the evidence led in their support must be consistent therewith.
Anything stated outside the scope of such averments cannot be looked into. The rule of secundum allegata et
probata, not only excludes the element of surprise, but also precludes the party from proving what has not
been alleged or pleaded. This Court, in the cases of "Government of West Pakistan (Now Punjab) through
Collector, Bahawalpur v. Hail Muhammad) (PLD 1976 SC 469), "Messrs Choudhary Brothers Ltd., Sialkot v.
The Jaranwala Central Co-operative Bank Ltd., Jaranwala" (1968 SCMR 804), "Binyameen and 3 others v.
Chaudhry Hakim and another" (1996 SCMR 336) and "Major (Retd.) Barkat Ali and others v. Qaim Din and
others" (2006 SCMR 562), held that no party can be allowed to lead evidence on a fact which has not been
specifically pleaded nor can any evidence be looked into which is outside the scope of pleadings.

8. The argument that when all the fora functioning in the revenue hierarchy concurrently held that the
appellants were occupying the land in dispute in their capacity as tenants, such finding being one of fact
could not have been interfered with by the High Court under Article 199 of the Constitution of Islamic
Republic of Pakistan, has not impressed us as a finding does not become sacrosanct because it is concurrent.
It becomes sacrosanct only if it is based on proper appraisal of evidence. The finding of the fora functioning
in the revenue hierarchy despite being concurrent was not based on proper appraisal of evidence and due
application of law, therefore, the High Court was well within its jurisdiction to interfere therewith. For the
very condition for conferment of jurisdiction on a Court of law is to render a finding on proper appraisal of
evidence and due application of law. If and when it would do otherwise, it would go outside its jurisdiction.
Such order can well be quashed in exercise of Constitutional jurisdiction of the High Court. An order thus
passed cannot be protected because the repository of such jurisdiction has the jurisdiction to pass it. Lord
Denning in his well known book "the Discipline of law", while commenting on orders of this nature at page
74, observed as under:--

"This brings me to the latest case. In it I ventured to suggest that whenever a tribunal goes wrong in law, it
goes outside the jurisdiction conferred on it and its decision is void, because Parliament only conferred
jurisdiction on the tribunal on condition that it decided in accordance with the law".

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Another paragraph of this book at page 76 also merits a keen look which reads as under:--

"I would suggest that this distinction should now be discarded. The High Court has, and should have,
jurisdiction to control the proceedings of inferior courts and tribunals by way of judicial review. When they
go wrong in law, the High Court should have power to put them right. Not only in the instant case to do
justice to the complainant. But also so as to secure that all courts and tribunals, when faced with the same
point of law, should decide it in the same way. It is intolerable that a citizen's rights in point of law should
depend on which judge tries his case, or in what court it is heard. The way to get things right is to hold thus:
No court or tribunal has any jurisdiction to make an error of law on which the decision of the case depends. If
it makes such an error, it goes outside its jurisdiction and certiorari will lie to correct it."

In the case of Utility Stores Corporation of Pakistan Limited v. Punjab Labour Appellate Tribunal and others
(PLD 1987 SC 447), the Hon'ble Supreme Court held as under:--

"It is not right to say that the Tribunal, which is invested with the jurisdiction to decide a particular matter,
has the jurisdiction to decide it "rightly or wrongly" because the condition of the grant of jurisdiction is that it
should decide the matter in accordance with the law. When the Tribunal goes wrong in law, it goes outside
the jurisdiction conferred on it because the Tribunal has the jurisdiction to decide rightly but not the
jurisdiction to decide wrongly. Accordingly, when the tribunal makes an error of law in deciding the matter
before it, it goes outside its jurisdiction and, therefore, a determination of the Tribunal which is shown to be
erroneous on a point of law can be quashed under the writ jurisdiction on the ground that it is in excess of its
jurisdiction."

Even otherwise, the Courts of law are not supposed to perpetuate what is unjust and unfair by exploring
explanation therefor. They should rather explore ways and means for undoing what is unjust and unfair. In
this view of the matter, the impugned judgment which is based on proper appraisal of evidence and due
application of law merits no interference.

9. For the reasons discussed above, this appeal being without merit is dismissed.

MWA/M-9/SC Appeal dismissed.

;

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