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Name Seat/ Enrolment No. Course title: Contract Act

Course code: BA/Law (411-L)
BASMAH JAWAID H1964029 Class: 3rd Semester (1st
Year)
Assignment no: 01
Submission date: 24-05-2021
Word count: 1422
Due date: 24-05-2021
Name of course Ma’am Rabia
instructor
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Signed……….BASMAH ……………. Date…..24-.05-2021…………

Teacher’s Feedback: For details, refer to the marking rubric. Additional Comments:
 1993 S C M R 618
[Supreme Court of Pakistan]
MUHAMMAD YOUNUS KHAN and 12 others---Appellants
versus
GOVERNMENT OF N.W.F.P. through Secretary, Forest and Agriculture,
Peshawar and others---Respondents
Civil Appeal No.360 of 1990, decided on 10th January, 1993.
(On appeal from the judgment/order dated 23-5-1989 of the Peshawar High Court, Circuit
Bench, Abbottabad passed in Writ Petition No.15 of 1980). Per Wali Muhammad Khan, J.---
Date of hearing: 25th March, 1992

RELEVANT CASE LAWS:

 Abdul Wahid v. Mst, Zamrut PLD 1967 SC 153
 PLD 1958 PC 48; Ahsan Ali v District Judge PLD 1969 SC 167
 Mst. Bhani v. Mian A. M. Saeed 1969 SCMR 299
 Begun Shams-un-Nisa v. Said Akbar Abbasi PLD 1982 SC 413

FIRAC METHOD FOR BRIEFING THE CASE

PARTIES
The lawsuit was filed by Muhammad Younas Khan and 12 others (appellants) against the
Government of N.W.F.P through Secretary, Forest and Agriculture, Peshawar and others
(respondents). By majority view, the appeal was dismissed.

FACTS OF THE CASE:

1. The land bearing Khasra Nos. 801, 812, 813, 911, 661 and 922/1 measuring 917 Kanals 2
Marlas situated in the estate of village Naryala, District Mansehra (hereinafter to be
referred as the suit land) previously formed part of Amb State which was ruled by Nawab
of Amb.

2. The commotion supervened in 1950, the Government of West Pakistan took over the
control and administration of the state and the Government was recorded as owner in the
ownership column of Record-of Rights.
3. Vide letter dated 16-4-1959 the then Secretary to Government of West Pakistan
informed Nawab Muhammad Farid Khan of Amb that as per decision of the Government
of West Pakistan he has been recognized as the owner of lands claimed by him.

4. The Guzara Khors and Seri Khors, and such other persons who were paying rent at the
land revenue rates, lists of which reportedly maintained by the District Office, were also
recognized as proprietors of the area held by them.

5. The Commissioner of the Peshawar Division directed the Deputy Commissioner, that the
Guzara Khors and Seri Khors having been declared as owners, may be recorded as
owners in the Revenue Records through attestation of proper mutations.

6. In consequence, Mutation No.36 was attested in the names of Nawab Muhammad Farid
Khan 52 shares; Muhammad Mir Ashraf Khan, Muhammad Younas Khan and other
appellants 86 shares in respect of the entire land measuring 2,452 Kanals 12 Marlas and
were declared as joint owners

7. Faqir Muhammad and others, who apparently had no abrupt interest in the suit land, filed
a suit in the Court of Civil Judge against the appellants claiming that orders issued by the
Land Commission and the Divisional Commissioner and the partition proceedings are
wrong, based on fraud and collusion. They later withdrew from the suit and the same was
dismissed.

8. Faqir Muhammad and others also alleged that Muhammad Mir Ashraf Khan and others
appellants in collusion with the staff of the Land Reform Authorities had deprived the
Government of the valuable forest standing on these khasra numbers by committing
fraud.

9. The Forest Department supported the contention of the applicants and the learned Deputy
Land Commissioner held that fraud had been practiced in the attestation of the partition
Mutation No.41.

10. The Chief Land Commissioner in the exercise of his revisional powers, vide his order
dated 28-11-1979, set aside the orders of the Land Commissioner and restored that of the
Deputy Land Commissioner.

11. The appellants then invoked the Constitutional jurisdiction of the High Court through
writ petition which too was dismissed through the impugned order.
ISSUE OF THE CASE:

The main issue raised from the facts stated above: Whether the order of the Deputy Land
Commissioner and Chief Land Commissioner was legitimate or not? Through leave of the Court,
Muhammad Younus Khan and others, appellants herein call in question the judgment of the
Peshawar High Court dated 23-5-1989, whereby their writ petition No.15 of 1980 challenging
the legality and correctness of the order of the Deputy Land Commissioner, Mansehra dated
3-1-1978 and that of the Chief Land Commissioner, N.W.F.P. dated 28-11-1979, was
dismissed. The appeal was filed in order to prove that the Khasra No.661 (measuring 153 Kanals
17 Marlas) which was purchased in auction by the them (present petitioners) from the Land
Commission Authorities in 1970 and has been treated wrongly as belonging to the Forest
Department.

RULE APPLIED IN THE CASE:

Rule (a): S.17 of Contract Act (IX of 1872)

 “Fraud---Definition---Allegation of fraud---Burden of proof---Fraud vitiates all
solemn acts and any instrument, deed or judgment, or decree obtained through fraud is a
nullity in the eye of law and can be questioned at any time and can be ignored altogether
by any Court of law before whom they are produced in any proceeding---Duty of Court
in such a case stated.- [Fraud--Burden of proof].

APPLICATION OF RULE APPLIED IN THE CASE:

Application of Section 17 of the Contract Act (IX of 1872)

The appellants in this case have approached the court to challenge the judgment of the Peshawar
High Court through their writ petition in virtue of the incorrectness of the order of the Deputy
Land Commissioner. The appeal here is dismissed by the honorable Supreme Court because
fraud has been carried out by the petitioners in acquiring the suit land vide Mutation No. 36
(involving the transfer of land of 2,456 Kanals 12 Marlas). The appellants had failed to establish
their entitlement to be recorded as co-sharer with the Nawab of Amb.

It is pertinent to note that there was nothing on record to show that at that time anyone was
recorded co-owner with the Nawab in the disputed area. So, it proves that fraud had been
committed and the entries in the mutation record are fiscal in nature and provide merely a
rebuttable material. The entry of the appellants has been recorded in the Revenue List on the
grounds of fraud and such entry can hardly prove ownership. It, eventually, alludes to the point
that transaction through Mutations Nos.36 and 41 were nothing more but a fraud in as much as,
firstly this land in dispute was surrendered by the Nawab of Amb and thereafter he did not have
the right to recognize the respondents as co-sharers with him and secondly they could not claim
to be declared proprietors for the area which was not in their possession and for which they were
not paying any rent equal to land revenue.

CONCLUSION:

In a large number of the instances of fraud, it is exceptionally technical to resolve such cases on
the grounds that a question of fraud is never purely a question of law as it involves firstly a
finding with regard to actuality, that is to say conduct on the part of the party alleged to consider
whether such demonstrated conduct sums in the circumstances of the case to fraud. This finding
of such cases is based on facts, documents and substantial reasoning. In such cases, each side
claims that the other side has ulterior motives, ranging from the vast desire for personal gains
while the burden of proof lies on the party alleging fraud. The nature of controversy particularly
the legality and correctness of Mutation No.36 is essentially a factual controversy. It is relevant
to make reference to that fraud debauches all demonstrations, deeds, and any instrument,
pronouncement or judgment, accomplished through fraud is unmistakably a nullity in the eye of
law and furthermore helps in uncovering for this situation that when the mutation is ill-advised
and illegal, the entire structure built on it shall crumble. In light of factual controversies cases,
fortuitous evidence is the solitary asset in dealing with questions of fraud. In view of proving or
disproving the fraudulence involved in the mutation of the suit land, the disentitlement of
Nawab’s right to recognize the respondents as co-sharers has also showed up as a contributing
factor in proving that mutation partition was based on the grounds of fraud. Hence, the absence
of the relevant, material, and competent evidence in this case also resulted as an icing on the
cake to arrive on the decision to declare the acquisition of the said land fraudulent.