Sale of Property During Continuation of Mortgage

Sale of Property During Continuation of Mortgage Board of Revenue Case Laws Civil Law Concurrent Findings Constitutional Law Coram non judice Knowledge - Civil Law Knowledge - Constitutional Law Lahore High Court Litigation & Arbitration Mortgage Power of Court Solutions - Civil Law Solutions - Constitutional Law Mr. Justice Shujaat Ali Khan in his judgment has decided the issue regarding sale of property during continuation of mortgage in Writ Petition No. 21277 of 2009.

1. By virtue of this petition, under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (the Constitution), the petitioners have assailed orders dated 20.09.2008, 07.07.2009 and 16.09.2009 passed by the District Officer (Revenue), Okara (respondent No.2), the Executive District Officer (Revenue), Okara (respondent No.3) and the Member (colonies), Board of Revenue, Punjab, Lahore (respondent No.1), respectively.

2. Succinct facts, necessary for the disposal of instant petition, are that Khan Muhammad, father of respondent No.5 (hereinafter to be referred as the original owner) availed loan facility amounting to Rs.4,18,500/- from Zarai Taraqiati Bank Ltd., Depalpur Branch, District Okara (respondent No.4), pledging his agricultural land measuring 71-Kanals & 18-Marlas, situated in revenue estate of Chak No.46-D, Tehsil Depalpur, District Okara. The factum of mortgage was incorporated in the revenue record by way of attestation of Mutation No.497, dated 25.11.1998. The original owner sold land measuring 16-Kanals to the petitioners through Mutation No.617, attested on 10.03.2001. After the death of the original owner, on 19.06.2007, respondent No.5 filed an application before respondent No.2 inter-alia challenging Mutation No.617, sanctioned in favour of the petitioners. Besides that respondent No.4 also filed an application before respondent No.2 for correction of revenue record according to mutation of mortgage. The said applications were accepted by respondent No.2 through order dated 02.09.2008 against which the petitioners filed an appeal before respondent No.3 but without success as the same was dismissed through order dated 07.07.2009. Then the petitioners filed ROR No.1225/2009 before respondent No.1 assailing orders of the subordinate fora which was dismissed through order dated 16.09.2009; hence this petition.

3. The legal submissions put forwarded by learned counsel for the petitioners can be summed up in the words that though the original owner remained alive for a considerable period after attestation of mutation in their favour but he did not opt to challenge the same seemingly for the reason that he transferred the property in the name of the petitioners against valid consideration; that in his application, respondent No.5 admitted his signatures on the mutation in question as an identifier, thus, no exception could be taken by the revenue authorities against the mutation attested in favour of the petitioners; that the mutation attested in favour of the petitioners was ordered to be cancelled by respondent No.2 while exercising his powers of review u/s 163 of the West Pakistan Land Revenue Act, 1967 (the Act, 1967) whereas no such power vests with the said authority, thus, his order was coram non judice; that the orders passed by respondents No.1 & 3 while affirming the findings of respondent No.2, being non-speaking in nature cannot be blessed with stamp of authenticity; that according to the provisions of Agricultural Development Bank Ordinance, 1961, charge or mortgage shifts with the title, thus, transfer of land in favour of the petitioners could not be held illegal; that mala fide and collusiveness of Bank authorities with the original owner and then his legal heirs is manifest from the fact that though the amount of loan availed by the original owner was not repaid but no proceedings have ever been initiated against them; that plea of respondent No.5 that during currency of mortgage between the land owner and respondent No.4 the land could not be transferred in the name of the petitioners stands negated from his own stance taken in the application that he was a witness of the said mutation;

That after having come to know about the outstanding loan the petitioners offered for more than once that they are ready to pay the loan against the land transferred in their name; that the petitioners purchased the land in question on the basis of valid revenue record thus their case is fully covered under section 43 of the Transfer of Property Act, 1882; that according to the revenue record provided by the Patwari there was no mention of any lien against the property in dispute, thus, no exception can be taken by the revenue authorities against the petitioners; that after transfer of title in the name of the petitioners revenue authorities became functus officio; that had there been any cause of action either with respondent No.4 or respondent No.5 they could approach the Civil Court for redressal of their grievances; that in case the impugned orders are not set aside respondent No.5 shall succeed to get benefit of fraud played by him with the petitioners as well as the Bank authorities. In support of his contentions, learned counsel has relied upon the cases reported as Kala Khan and others v. Rab Nawaz and others (2004 SCMR 517), Ghulam Muhammad alias Ghulamoon v. Maula Dad and 6 others (1980 SCMR 314), Chief Land Commissioner and another v. Maula Dad and others (1978 SCMR 264), Nazar Muhammad v. Deputy Commissioner, Bhakkar etc. (NLR 1999 Revenue 124) and Nur Muhammad and another v. Imam Sain and 2 others (1985 CLC 2256).

4. Learned Additional Advocate General, while defending the impugned orders, submits that as a matter of fact mutation attested in the name of the petitioners was not cancelled by respondent No.2 while exercising his power of review rather he did so as an appellate Court in terms of section 161 of the Act, 1967, thus, there is no question of review by respondent No.2; that recitals of the applications submitted by respondents No.4 & 5 shows that there is no mention of any provision of law, thus, respondent No.2 exercised his power vested under section 161 ibid to undo the mutation attested in favour of the petitioners for the reason that the land in dispute could not be transferred during the currency of mortgage and that after availing remedy of appeal/revision against orders passed by respondent No.2 before higher forums, the petitioners cannot claim that respondent No.2 passed impugned order while exercising his power of review in terms of section 163 ibid.

Further information regarding sale of property during continuation of mortgage can be solicited from AUJ LAWYERS. Feel free to contact us in case you need any clarification and/or require legal assistance regarding similar matters.