Muhammad Saleem vs Province Of Pb. etc.

Stereo. H C J D A 38

Judgment Sheet

IN THE LAHORE HIGH COURT,

BAHAWALPUR BENCH, BAHAWALPUR

Judicial Department

W. P. No. 2112 / 2019 / BWP

Muhammad Saleem Versus

The Province of Punjab and three others

JUDGMENT

Date of Hearing: 08.09.2021 Petitioner(s) By: Rana Rizwan Ahmed, Advocate Mr. Nadeem Iqbal Chaudhary, Advocate Respondent(s) Mr. Muhammad Asif Usman Qureshi, By: Advocate Chaudhary Shahid Mehmood, Assistant Advocate General

ABID HUSSAIN CHATTHA, J: The precise facts necessary for decision of the instant constitutional Petition are that the Petitioner purchased a land measuring 9 Kanals and 9 Marlas from one Muhammad Ashiq son of Sardar Muhammad, situated in Mouza Pallah, Tehsil Hasilpur, District Bahawalpur (the “Property”) vide impugned mutation No. 1689 dated 23.11.2013 (the “Mutation”). It is important to note that the first names of the Petitioner and Respondent No. 4 (the “Respondent”) are common that is to say ‘Muhammad Saleem’, however, the Petitioner is son of Muhammad Iqbal, whereas, the Respondent is son of Jamal Din and the entire controversy revolves around their respective father’s name with respect to the impugned Mutation. The Respondent filed a suit for declaration and permanent injunction on 26.09.2014 to the effect that the

Respondent is and be declared as owner in possession of the Property and the Petitioner has no connection with the Property; and the Petitioner be permanently restrained from interfering with the Property and from claiming himself to be the owner of the Property on the basis of tempering in the Mutation. The said suit was unconditionally withdrawn by the Respondent on 25.10.2016. At the same time, the Respondent also filed an appeal on 16-04-2016 before the Assistant Commissioner / Collector, Sub-Division Hasilpur, District Bahawalpur under Section 161 of West Pakistan Land Revenue Act, 1967 (the “Act”) for correction of the Mutation by taking plea that the Halqa Patwari on account of certain grudge against him with respect to some other land transaction illegally replaced the father’s name of the Respondent with that of the Petitioner by tempering in the Revenue record. The said appeal was allowed vide order dated 19.11.2016. The Petitioner feeling aggrieved assailed the said order before the Additional Commissioner (Revenue), Bahawalpur Division, Bahawalpur, who allowed the said appeal of the Petitioner against the Respondent vide order dated 25.10.2017. The Respondent preferred revision under Section 164 of the Act before the Member (Judicial-II), Board of Revenue, Punjab, Lahore who accepted the appeal of the Respondent and restored the order of the Assistant Commissioner vide order dated 21.01.2019. Hence, this Petition.

2.Learned counsel for the Petitioner submitted that the proceedings initiated by the Respondent before the Revenue hierarchy were coram non-judice and without jurisdiction under the Act since the Revenue officials had no jurisdiction under the Act to determine any question of title of the Property and allegation of tempering or fraud which falls within the exclusive domain of the Civil Court under Section 53 of the Act. In this behalf, he placed reliance on cases titled, “Muhammad Asghar v.

Member Board of Revenue and others” (2009 MLD 1023); “Miss Maheen Begum through her father v. Senior Member, Board of Revenue, N.W.F.P. Peshawar and 8 others” (2009 CLC 672); “Amir Jamal and others v. Malik Zahoor-ul-Haq and others” (2011 SCMR 1023); “Abdul Aziz v. City District Government, Karachi through District Coordination Officer and another” (2005 YLR 163); “Abdul Hamid v. Sikandar Ali and 3 others” (2005 YLR 890); and “Mst. Maryam Bibi and another v. Senior Member, Board of Revenue, N.W.F.P. and 8 others” (2011 CLC 638). He added that Section 162 of the Act prescribes limitation of 30 days to file an appeal under Section 161 of the Act against the correction of a mutation in the Revenue record before the Assistant Commissioner / Collector. Learned counsel explained that the impugned Mutation was attested on 23.11.2013, whereas, the appeal against the same before the Assistant Commissioner was filed by the Respondent on 16.04.2016. Hence, the said appeal was hopelessly barred by limitation, which aspect of the matter has neither been considered nor decided by the Revenue officials despite being agitated by the Petitioner at every Revenue forum. He then submitted that even otherwise after the unconditional withdrawal of the suit for declaration and permanent injunction on 25.10.2016, the Respondent did not have any right to agitate the matter before the Revenue officials and the order of withdrawal attained finality. He further argued that the Member, Board of Revenue treated the matter as that of a simple correction of entry in Revenue record, whereas, the title of the Petitioner was disputed before him which fact was not adverted to in the impugned decision. The impugned order was passed merely on the basis of personal inspection and examination of the Mutation or other relevant record as is evident from the bare perusal of the impugned decision. It was imperative to determine as to whether the cutting in the Mutation is a result of tempering or otherwise

for which recording of evidence was a precondition without which it could not have been determined conclusively that cutting in record was bona fide or fraudulent. The Petitioner is in possession of the Property and this important aspect was also not taken into account or even discussed at all in the impugned order. Finally, learned counsel for the Petitioner asserted that the Respondent time and again agitated the matter in order to extort money from the Petitioner which is evident from the fact that not only he unconditionally withdrew his suit from the Civil Court but also executed an affidavit dated 23.01.2014 on record to the effect that he had no connection with the Mutation.

3.Learned counsel for the Respondent submitted that the impugned Order has been passed in accordance with law. The Respondent is owner in possession of the Property. The Mutation was fraudulently tempered by the Petitioner in connivance with the Revenue officials by taking advantage of the fact that the Petitioner had the same name as that of the Respondent. Hence, it was imperative for the Revenue officials to correct the entry of the Mutation which had lawfully and rightly been done. He further submitted that the version of the Respondent was proved from the copy of Challan dated 19.11.2013 regarding deposit of government dues regarding the Mutation which shows the name of purchaser of the Property as that of the Respondent. He stated that under Section 172(1) of the Act, jurisdiction of the Civil Court is ousted and the Revenue officials are fully empowered under Section 172(2)(vi) of the Act to correct any entry in the record of rights, periodical record or register of mutations. Reliance was placed on cases titled, “Ahmad Din v. Akbar Ali” (1992 CLC 608); “Zahid Hussain and 10 others v. Shamasuddin and 9 others” (2014 CLC 1334); and “Ghous Bux v. Altaf Hussain and others” (NLR 1993 Revenue 135).

4.Arguments heard and record perused.

5.The Respondent has not denied the filing of the suit for declaration and permanent injunction against the Petitioner which he later on unconditionally withdrew and switched to another remedy by filing an appeal under Section 161 of the Act against the Mutation based on same averments in violation of the doctrine of ‘election of remedies’ propounded by the Honorable Supreme Court of Pakistan in case titled, “Trading Corporation of Pakistan v. Devan Sugar Mills Limited and others” (PLD 2018 Supreme Court 828). In the said suit, the Respondent specifically levelled allegations of fraud and tempering regarding the Mutation upon the Petitioner in connivance with Revenue officials as is apparent from the bare reading of paragraphs No. 3 & 4 of the plaint which are reproduced as under:

From the above, it is quite evident that the alleged fact of over- writing or tempering regarding the Mutation was very well in the knowledge of the Respondent before the filing of the above referred suit. Furthermore, specific allegations of fraud and forgery were leveled by the Respondent against the Petitioner in the said suit.

6.Before proceeding further, in order to resolve the issue of limitation and jurisdiction, a conjunctive reading of Sections 53, 161, 162, 166 and 172(1) & (2)(vi) of the Act is imperative to understand the scheme of the law stipulated under the Act. The aforesaid provisions of the Act are relevant, which in seriatim, are listed herein below for ready reference:

“53. If any person considers himself aggrieved by an entry in a Record of Rights or in a periodical record as to any right of which he is in possession, he may institute a suit for a declaration of his right under Chapter VI of the Specific Relief Act, 1877 (Act I of 1877). 161(1) Save as otherwise provided by this Act, an appeal shall lie from an original or appellate order of a Revenue Officer as follows, namely:-

(a)to the Collector, when the order is made by an Assistant Collector, of either grade;

(b)to the Commissioner, when the order is made by a Collector;

(c)to the Board of Revenue only on a point of law, when the order is made by a Commissioner; Provided that—

(i)when an original order is confirmed on first appeal, a further appeal shall not lie;

(ii)when any such order is modified or reversed on appeal by the Collector, the order made by the Commissioner on further appeal, if any, to him shall be final.

Explanation— (1) An order passed in review, modifying or reversing a previous order, shall be deemed to be an original order for the purposes of this section.

(2)An order shall not be confirmed, modified or reversed in appeal unless reasonable notice has been given to the parties affected thereby to appear and be heard in support of or against the order appealed from.

162.Save as otherwise provided by this Act, the period of limitation for an appeal under section 161 shall run from the date of the order appealed against and shall be—

(a)thirty days, where the appeal lies to the Collector;

(b)sixty days, where the appeal lies to the Commissioner;

(c)ninety days, where the appeal lies to the Board of Revenue.

166.Clerical or arithmetical mistakes in any decree or order made by any Revenue Officer, or errors therein from

any accidental slip or omission may, at any time, be corrected by such officer.

Explanation. In this section, “Officer” includes the successor-in-office of the officer.

172(1) Except as otherwise provided by this Act, no Civil Court shall have jurisdiction in any matter which Government, the Board of Revenue, or any Revenue Officer, is empowered by this Act to dispose of, or take cognizance of the manner in which Government, the Board of Revenue, or any Revenue Officer exercises any powers vested in it or him by or under this Act.

(2)Without prejudice to the generality of the provisions of sub-section (1), a Civil Court shall not exercise jurisdiction over any of the following matters, namely: —

(i)any question as to the limits of any land which has been defined by a Revenue Officer as land to which this Act does or does not apply;

(ii)any claim to compel the discharge of any duties imposed by this Act or any other enactment for the time being in force of any Revenue Officer as such;

(iii)any claim to the Office of a village officer, or in respect of any injury caused by exclusion from such office, or to compel the discharge of the duties or a division of the emoluments thereof;

(iv)any notification directing the making or revision of a record-of-rights;

(v)the framing of a record-of-rights or periodical record, or the preparation, signing or attestation of any of the documents included in such a record;

(vi)the correction of any entry in a record-of-rights, periodical record or register of mutations;

(vii)any notification of the undertaking of the general re-assessment of a District or Tehsil having been sanctioned by Government;

(viii)any objection to the amount or rate of any assessment of land revenue or the period thereof authorized by Government;

(ix)the claim of any person to be liable for an assessment of land revenue or of any other revenue as assessed under this Act;

(x)the amount of land revenue to be assessed on any estate or to be paid in respect of any holding under this Act;

(xi)the amount of, or the liability of any person to pay, any other revenue to be assessed under this Act, or any cess, charge or rate to be assessed on an estate or holding under this Act or any other enactment for the time being in force;

(xii)Any claim relating to the allowance to be received by a landowner who has given notice of his refusal to be liable for an assessment, or any claim connected with, or arising out of, any proceedings taken in consequence of the refusal of any person to be liable for an assessment under this Act;

(xiii)the formation of an estate or determination of its boundaries;

(xiv)Any claim to hold free of revenue any land, mills, fisheries or natural products of land or water;

(xv)any claim connected with, or arising out of the collection by Government, or the enforcement by Government of any process for the recovery of, land- revenue or any sum recoverable as an arrear of land-revenue;

(xvi)any claim to set aside, on any ground other than fraud, a sale for the recovery of an arrear of land revenue or any sum recoverable as an arrear of land revenue;

(xvii)the amount of, or the liability of any person to pay, any cess, fees, fines, costs or other charge imposed under this Act;

(xviii)any claim for partition of an estate or holding, or any question connected with or arising out of, proceedings for partition, not being a question as to title in any of the property of which partition is sought;

(xix)any question as to the allotment of land on the partition of an estate or holding, or as to the distribution of land subject by established custom to periodical re-distribution or as to the distribution of land-revenue on the partition of an estate or holding or on a periodical re-distribution of land;

(xx)any question connected with or arising out of or relating to any proceedings for the determination of boundaries of estates subject to river action under the provision of this Act;

(xxi)any claim regarding boundaries fixed under any of the enactments hereby repealed or any other law for the time being in force, or to set aside any order passed by a competent officer under any such law with regard to boundary marks.”

7.It is crystal clear from the plain, general and bare reading of Section 162 of the Act that limitation for filing appeal for correction of a mutation under Section 161 of the Act before the Assistant Commissioner / Collector is 30 days which runs

from the date of the order appealed against. The Mutation was sanctioned on 23-11-2013. Admittedly in the referred suit for declaration and permanent injunction, the alleged tempering was in the knowledge of the Respondent on the date of filing of the said suit on 26-09-2014. The assertion of the Respondent that the Respondent filed the appeal immediately after gaining knowledge of tempering is negated from the admitted fact of filing of the suit and the contents of the plaint. The contents of the appeal reveal that even condonation was not sought by the Respondent and no reason of delay was explained therein or through any application appended therewith. Implied condonation is not acceptable. As such, the appeal filed by the Petitioner before the Assistant Commissioner against the impugned Mutation on 16.04.2016 was barred by time.

8.The conjunctive construction and reading of Sections 53, 166 and 172(1) & (2)(vi) of the Act unequivocally establish that jurisdiction to determine questions of title, possession and rights fall within the exclusive jurisdiction of the Civil Court. Section 53 of the Act is unqualified and exclusive. Conversely, the ouster clause regarding jurisdiction of Civil Court contained in Section 172(1) of the Act is qualified and specifically made subservient to other stipulations in the Act through the opening phrase, “Except as otherwise provided by this Act...”. Therefore, the powers of correction of any entry in a record of rights, periodical rights or register of mutations vested in the Revenue officials is limited in nature and is excluded in cases that fall within the purview of Section 53 of the Act. The latter category of cases falls within the exclusive jurisdiction vested in the Civil Court. The powers of correction of a mutation vested with Revenue officials under Section 172(2)(vi) of the Act are required to be exercised within the scope and ambit of Section 166 of the Act by following the procedure stipulated in

the Land Record Manual. For clarity, paragraph 7.6 of Chapter VII of the Land Record Manual is reproduced below:

“Correction of clerical or arithmetical mistakes inadvertently made in the order passed on mutation:

(1)(i) Section 166 of the West Pakistan Land Revenue Act, 1967, provides that clerical or arithmetical mistakes in any order made by any revenue officer, or errors therein from any accidental slip or omission may, at any time, be corrected by such officer (which also includes the successor-in-office of the revenue officer).

(ii)No permission, no proceedings for review under section 163 of the West Pakistan Land Revenue Act, will be necessary for the purpose of making the aforesaid alterations, and any revenue officer before whom the mutations, in which such corrections are needed, are produced, will be at liberty to correct the mistakes provided that it does not affect the rights of the parties.

(iii)It will not be necessary to hear the parties concerned in connection with such corrections.

(iv)In making such corrections the original order should not be altered, but a separate note briefly describing the mistakes under correction, should be recorded in red ink, signed and dated by the revenue officer.

(2)Correction of entries in columns 8 to 12 of the mutation: (i) The entries in columns 8 to 12 should correspond in every case with the order passed on the mutation. Where owing to a mistake or otherwise they do not correspond, they should be altered so as to bring them to correspond with that order.

(ii)Any alterations required for the above-said purpose should be made as far as possible at the time of passing the order, but if not then made, such alterations, corrections, etc., can be subsequently made at any time before the original copy of the Record-of-Rights/Periodical Record, in which the respective mutations are incorporated, is sent to the district office for consignment under sub-rule (7) of rule 31 of the West Pakistan Land Revenue Rules,

(iii)All such alterations will be made in red ink and will be signed and dated by the officer making them.

(3)Correction of certain entries of mutations of inheritance by fard badar: The fard badar procedure described in paragraph 7.44-F infra may be used for the purpose of avoiding the entry of a further mutation of inheritance in cases where in entering the mutation, some of the holdings of the deceased were inadvertently omitted. In such cases the Patwari / Tapedar will merely state in his report in the fard badar that such and such holdings have been omitted from such and such mutation and the revenue officer’s order upon this report will merely state that the order already passed upon the mutation in question should be considered applicable to these holdings.”

9.It follows that the jurisdiction or powers reserved for Revenue officials under Section 172 of the Act including the power pertaining to correction of any entry in a record of rights, periodical record or register of mutations as specifically conferred through Section 172(2)(vi) of the Act are limited or confined to instances which do not fall within the scope of Section 53 of the Act and in nature relate to such inadvertent clerical or arithmetical mistakes or errors which arise from any accidental slip or omission as envisaged in Section 66 of the Act. Such corrections are made in accordance with the procedure stipulated in paragraph No. 7.6 of Chapter-7 of the Land Record Manual. Where two or more persons allege rival claims of ownership or possession or any right pertaining to the same property on the basis of a mutation, the matter in substance is not regarding correction of mutation or entry in Revenue record but its real nature and character is that of determination of title, possession or rights between adversaries which would squarely fall within the ambit of Section 53 of the Act excluding the provisions of Sections 172(1) & 172(2)(vi) read with Section 166 of the Act. The rationale of the scheme of law envisaged and articulated in the Act is that all functions akin to the

administration of Revenue matters under the Act will be exclusively performed by Revenue officials to the exclusion of the Civil Court or any other forum so that smooth and effective functioning of the system of Revenue is achieved under the Act without any undue interference giving rise to multiple proceedings. However, the legislature was conscious of the fact that Civil Court under the general law is the competent forum for the determination of mutual rights and liabilities of the parties under the applicable civil law through free and fair trial. Hence, to settle and adjudicate rights of title, possession and rights requiring recording of evidence through a fair trial, the institution of a suit for a declaration of rights under Chapter IV of the Specific Relief Act, 1877 was recognized under Section 53 of the Act. Thus, only such cases of correction of mutations which are undisputed not involving adversarial claims or which happen due to inadvertent typographical or arithmetical mistakes of Revenue officials and are not long-standing entries can be corrected under Section 172(1) & (2)(vi) of the Act. The simple test to determine as to whether the issue falls under Section 53 or Section 172(2)(vi) of the Act is as to whether the claimed correction affects the rights or interests of the other party and if so whether the other party concedes or objects to the correction of such mutation under Section 172(1) & (2)(vi) of the Act. If the right or interest of the other party is affected through correction and such person objects to such correction, the Revenue officials are duty bound to refer the matter to the Civil Court under Section 53 of the Act.

10.The perusal of record clearly indicates that the title of the Property was in dispute between the Petitioner and the Respondent which could not be conclusively determined without recording of evidence. The following are the instances gathered

from the record relied upon by the parties to this lis and argued before this Court which necessitate the recording of evidence:-

(i)The specific allegation was levelled by the Respondent as recorded by the Assistant Commissioner in its order to the effect that the deceased Patwari had undertaken the alleged tempering. This specific allegation of fraud could not be proved without recording of evidence;

(ii)The documents on record relied upon by the Petitioner and the Respondent regarding the Mutation and ancillary Revenue documents are conspicuously different from each other and are photocopies which are required to be proved and exhibited in accordance with law;

(iii)There are conflicting reports of Revenue officials relied upon by adjudicating Revenue Officials which cannot be reconciled without a free and fair trial;

(iv)The discovery of fact as to whether the overwriting or cutting in the Revenue record was bona fide as a result of some genuine or inadvertent mistake or mala fide on account of fraud and forgery cannot be determined on the basis of conjectures, surmises and imaginary conclusions;

(v)The Challans of payment of government dues regarding the Mutation are also photocopies and ought to be proved through trial;

(vi)The affidavit provided by the Respondent conceding the claim of the Petitioner and relied

upon by the Petitioner was neither proved nor admissible under the law without trial;

(vii)Both the Petitioner and the Respondent claim owners-in-possession of the Property. As such, a declaratory decree is required to conclusively determine the ownership and possession regarding the Property;

(viii)The material witnesses including the admitted seller of the Property, the attesting witnesses and the Revenue Officials accused of tempering the Mutation were not parties or witnesses to the lis and are required to be examined and cross-examined in accordance with law; and

(ix)Last but not the least, the impugned Order is based on inferences drawn on personal inspection of record which is alien to our jurisprudence regarding the determination of civil rights between the parties.

11.The above instances clearly and explicitly make out a case of disputed title and possession regarding the Property between the Petitioner and the Respondent based on allegations of fraud which undoubtedly falls within the parameters and scope of Section 53 of the Act to the exclusion of Section 172(1) & (2)(vi) read with Section 166 of the Act. The afore quoted instances unequivocally and irrefutably lead to the conclusion that the disputed title and possession regarding the Property between the Petitioner and the Respondent cannot be resolved without recording of evidence. The cases cited by the Respondent are distinguishable and not applicable to the facts and circumstances of the case. In Ahmed Din case (supra), the shares of two co-shares were transposed and erroneously share of A went to B and vice versa. The mistake was termed clerical

and correction of mutation was ordered in terms of paragraph 7.30 of the Land Records Manual. In the case of Zahid Hussain (supra), the issue emanated from the passing of a mutation between family members by a Revenue officer. In this context, it was held that the nature and character of the suit filed was not permissible under Section 53 of the Act by making a distinction between grievance regarding some entry in the record of rights and questioning an order of a Revenue officer through a suit. In the Ghous Bux case (supra), the plaint was held to be not in accordance with the stipulations of Section 42 of the Specific Relief Act, 1877 in terms of Section 53 of the Act and the matter was remanded to the trial Court. In contrast, cases of Miss Maheen Begum; Abdul Hamid; and Mst. Maryam Bibi (Supra) have been rightly relied upon by the Petitioner.

12.The controversy between the parties cannot be finally and conclusively resolved on the basis of contradictory record through personal examination and inferences drawn by revenue hierarchy without providing an opportunity to lead their respective evidence in accordance with law and confronting the same to each other as ordained by law. It is settled law that jurisdiction not conferred by law cannot be assumed, conferred or exercised even by the consent of the parties to the lis and the issue of jurisdiction must be resolved at the earliest. Reliance is placed on case tiled, “Administrator, Thal Development through EACO Bhakkar and others v. Ali Muhammad” (2012 SCMR 730). This Court in the exercise of its constitutional jurisdiction is also constrained to decide factual controversies. However, this Court is empowered to correct the errors of jurisdiction resulting from misunderstanding of law or incorrect application of law or laying down the law. Reliance is placed on cases titled, “Noor Muhammad, Lambardar v. Member (Revenue), Board of Revenue, Punjab, Lahore and others” (2003 SCMR 708); and

“Haji Noorwar Jan v. Senior Member, Board of Revenue, N.W.F.P. Peshawar and 4 others” (PLD 1991 Supreme Court 531). Therefore, the assumption of jurisdiction by the Revenue officials was coram non judice, illegal and unlawful. The impugned Order is not sustainable in the eyes of law.

13.In view of the above discussion, this Petition is allowed as prayed for. However, both the parties are at liberty to approach appropriate forum for resolution of the dispute, if so advised, subject to all just and legal exceptions.

(ABID HUSSAIN CHATTHA)

JUDGE

*WaqaR*

Approved for reporting.

JUDGE