Khair Muhammad etc Vs Hayat Khan etc

JUDGEMENT SHEET

IN THE PESHAWAR HIGH COURT PESHAWAR

(Judicial Department)

W.P No. 1738/2020 with IR, with CMs Nos.932/21(M),

1690/21(M), 1053/22(M), 662/24(M).

“Khair Muhammad and others Vs Hayat Khan and others”

For petitioners: Mian Asif Aman, Advocate.

For respondents: Mr. Muhammad Ibrar Khan, Advocate.

Date of hearing: 24.02.2025

JUDGMENT

SYED MUDASSER AMEER, J.- Aggrieved of the orders dated 25.04.2018, 09.10.2018 and 30.10.2019 passed by the respondents No. 23, 24 & 25, respectively, petitioners have filed the instant petition under Article 199 of the Constitution of Islamic Republic of Pakistan 1973, praying to set aside the impugned orders and remand the case back to respondent No.23 for decision afresh on merits after affording proper opportunity of hearing to all parties.

2.Facts constituting background of the case are that initially, the petitioners filed an Application bearing No.2/4 of 2017 titled “Khair Muhammad etc Vs. Haya Khan etc” before the Deputy

Commissioner/District Collector, Mardan against Mutation No.3507 attested on 10.03.2012 and inheritance Mutation No.3553 attested on 07.07.2012. The said mutations were entered and attested on the basis of LC-9 dated 21.10.1959 and LC-11 dated nil. Petitioner’s application No.2/4 of 2017 was rejected by respondent No.23 as being barred by limitation and thus not maintainable vide Order dated 25.04.2018.

3.Aggrieved, the petitioners filed a revision petition bearing No./4RMC of 2018, before the Additional Commissioner Mardan Division, Mardan (respondent No.24). The Revisional Court upheld the order dated 25.04.2018 and dismissed the said revision petition vide Order dated 09.10.2018.

4.Still aggrieved, the petitioners filed second Revision Petition bearing No.01/MBR-I/2019 of 2018, against the order dated 09.10.2018 before the Member Board of Revenue, Peshawar (respondent No.25). The same was also dismissed vide order dated 30.10.2019, hence, the instant Writ Petition.

5.Arguments of learned counsels for the parties heard and record perused.

6.In essence petitioners are aggrieved of the Mutations No.3507 and 3553 entered and attested on 10.03.2012 and 07.04.2012, respectively. It is their case that the longstanding entries in their names consistently coming from 1929/30 have been

altered on the basis of fake and fraudulent documents in the shape of LC-9 dated 21.10.1959 and LC-11 dated nil; that these attestations in the revenue record were made behind their back in the year 2012; that they acquired knowledge about the said alteration of their longstanding entries in the year 2017 and immediately challenged the same, through their application under Section 12(2) C.P.C, having been affected through fraud and misrepresentation.

7.The respondents case, as also reflected in the impugned orders is that the change in status of the property in question came about back in the year 1959 when provisional allotment Form LC- 9 was issued in favour of their predecessor and any challenge to the same in the year 2017 was hopelessly time barred, wherefore the impugned orders are correct.

8.From perusal of record it is clear that entries in favour of the petitioners were being consistently reflected in the revenue record since 1929-30. Admittedly these longstanding entries in their favour were altered in the year 2012 on the basis of provisional allotment Form LC-9 dated 21.10.1959 and LC-11 dated nil. In fact, the respondents first entered and attested Mutation No.3507 on 10.03.2012 in favour of their predecessor namely Zafar s/o Sultan and then through inheritance mutation No.3553 dated 07.04.2012 became owners themselves. There is nothing on record to establish that before altering their

longstanding entries, petitioners were put on notice. As such it is only natural that petitioners would learn about the said change only when any interference was made in their possession or they were informed by someone. In absence of any evidence to the contrary, there is no reason to disbelieve the petitioners when the assert knowledge from 2017 when the immediately challenged the altering/disputed mutations before the revenue hierarchy.

9.It is settled that longstanding entries in the revenue record, particularly those reflected in successive Jamabandis, cannot be altered by revenue authorities in summary manner. No such power was vested in the revenue authorities. The correction of entries envisaged under Section 45 of the Land Revenue Act, 1967 has very limited scope and can be invoked only in cases where all the parties consented or where it was supported by a decree or order of the Court binding on all parties. Reference in this regard can be made to the judgments in cases of Waris Khan v. Col. Humayun Shah (PLD 1994 SC 336), Rasta Mal Khan v. Nabi Sarwar Khan (1996 SCMR 78), Nemat Ali v. Malik Habib Ullah (2004 SCMR

604)and Muhammad Naeem v. Siraj-ud-Din and 6 others (215

CLC 1084).

10.It is also settled law that longstanding entries in revenue record reflected in successive Jamabandis have a presumption of truth and correctness attached to them, which cannot be dislodged lightly in summary manner. Reference in this regard can be made

to the judgments in Muhammad Khaliq v. Gul Afzal Khan (PLD 2015 SC 247), Inayat Khan and others v. Allah Ditta (2007 SCMR

655)and Abdul Rasheed v. Manzoor Ahmad (PLD 2007 SC 287).

11.Then there is the element of acquiescence. In the case of Sultan v. Abdullah Khan (1992 SCMR 1457) the apex Court dismissed the suit of vendees for rectification of record after about fifty years for having acquiesced in the longstanding entries in revenue record and having taken no steps for rectification of record. It is quite astonishing that the respondents’ predecessor kept the LC-9 dated 21.10.1959 and LC-11 dated nil to himself and never sought to give effect to them during his lifetime and the respondents after his death gave effect to it in the year 2012. This clearly suggests that, regardless of the genuineness/veracity of the documents in his favour, the predecessor of respondents had acquiesced to the entries in favour of the petitioners for as along he was alive. This aspect also needs consideration and, in such circumstances, the grievance of the petitioners is valid and needs to be properly addressed after affording the proper opportunity of hearing as required by Article 10-A of the Constitution.

12.The respondents No.23 to 25 have ignored all these aspects of the case and have simply rejected petitioners’ application on the ground of limitation, holding that they could not challenge the LC- 9 dated 21.10.1959 and LC-11 dated nil in the year 2017. As discussed above, petitioners had challenged the alteration of their

longstanding entries made by respondents in the year 2012, that too immediately upon acquiring knowledge. Therefore, the impugned orders dated 25.04.2018, 09.10.2018 and 30.10.2019 passed by the respondents No. 23, 24 & 25, respectively are against the law and have resulted in grave miscarriage of justice.

13.In view of the above discussion, this petition is admitted and allowed, the impugned orders dated 25.04.2018, 09.10.2018 & 03.10.2019 are hereby set aside and the matter is remanded back to respondent No.23 to decide the matter afresh on merits after affording proper opportunity of hearing to the parties and, if needed, recording of evidence, strictly in accordance with law.

JUDGE

Announced

Imran Khan, Steno:

(S.B)

Hon’ble Mr. Justice Syed Mudasser Ameer