Mst. Motiyan Jan Vs Maqsood & others

Judgment Sheet

IN THE PESHAWAR HIGH COURT, ABBOTTABAD BENCH

JUDICIAL DEPARTMENT

Writ Petition No.344-A/2025

JUDGMENT

Date of hearing.............05.03.2026........................

Petitioner (Mst. Motiyan Jan) By Mr. Gul Shareen Khan Jadoon, Advocate.

Respondents (Maqsood & others) Respondents By Mr. Tahir Faraz Abbasi, Advocate.

AURANGZEB, J.- Through the instant writ petition filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, the petitioner has called in question the judgment dated 11.12.2024 passed by the learned Additional District Judge-VII, Abbottabad, whereby the revision petition preferred by respondents No. 1 to 6 against the order dated 15.11.2023 passed by the learned Civil Judge-V, Abbottabad was allowed.

2.In essence, the petitioner/plaintiff instituted a civil suit against the respondents/defendants seeking declaration, perpetual injunction, and possession, the particulars whereof are fully detailed in the headnote of the plaint. Upon issuance of notice, respondents No.1 to 6/defendants entered appearance before the learned trial Court and contested the suit by filing their written statement. During the pendency of the proceedings, the respondents No.1 to 6/defendants

moved an application under Order VII Rule 11 CPC for rejection of the plaint; however, the learned trial Court, after hearing the parties, dismissed the said application vide order dated 15.11.2023. Feeling aggrieved by the said order, respondents No.1 to 6 preferred a revision petition before the learned Revisional Court, which was allowed through judgment dated 11.12.2024. Hence, the petitioner has approached this Court through the instant constitutional petition.

3.Arguments of learned counsel for the parties heard and record perused.

4.A careful examination of the available record reveals that a dispute has arisen between the parties with regard to the title and ownership of the suit property. The petitioner/plaintiff instituted the present suit seeking relief in the nature of declaration for correction of the revenue record on the ground that the mutation attested in favour of the respondents was the result of fraud and misrepresentation, allegedly committed in collusion with the revenue officials.

The petitioner/plaintiff also sought the relief of permanent injunction in respect of the suit property, the detailed description whereof has been fully mentioned in the headnote of the plaint.

5.It was further pleaded by the petitioner/plaintiff that through the said suit he also sought the correction of the revenue record and cancellation of mutation No.504 dated

03.05.1998 as well as mutation Nos. 682 and 683 dated 21.11.2019, on the ground that the aforesaid mutations are bogus, fraudulent, illegal, and contrary to the settled principles of law and facts. According to the petitioner/plaintiff, the said mutations were incorporated in the revenue record through fraud and collusion with the revenue officials, and therefore the same do not confer any lawful right, title, or interest upon the respondents, nor do they have any legal effect upon the proprietary rights and interests of the petitioner/plaintiff.

6.The respondents, challenging the maintainability of the suit, filed an application under Order VII Rule 11, C.P.C, contending that the Civil Court had no jurisdiction to entertain a suit for correction of the revenue record and that the suit was, therefore, barred by law. The petitioner filed a reply to the said application. After hearing the learned counsel for both parties, the learned trial Court, vide order dated 15.11.2023, rejected the application filed by the respondents.

7.Aggrieved by this order, the respondents filed a revision petition before the learned Additional District Judge, Abbottabad, who, vide judgment dated 11.12.2024, allowed the revision petition. The learned revisional Court observed that, admittedly, in the record of rights, the name of Mst.Sesar Jan Bibi, daughter of Fazal Dad, had been recorded since 1978, along with possession of the suit property. In such circumstances, Section 172 (2) of the Land

Revenue Act, 1967 was held to be attracted, which enumerates matters in respect of which the Civil Courts have no jurisdiction. It was further held that the grievance of the petitioner was prima facie covered under clauses (v) and (vi) of sub-section (2) of Section 172 of the Land Revenue Act, 1967, and therefore, the Civil Court lacked jurisdiction under the said provisions.

8.Regarding the contention based on a fresh cause of action arising from a fresh Jamabandi, the revisional Court held that the issue involved a question of limitation, which could not be examined once the question of jurisdiction arose. Consequently, it was held that the Civil Court had no jurisdiction in the matter; therefore, the merits of the case could not be examined or discussed. Resultantly, the impugned order dated 15.11.2023 passed by the trial Court was set aside, and the suit of the petitioner was returned, while converting the application under Order VII Rule 11 C.P.C into one under Order VII Rule 10 C.P.C. The petitioner was directed to approach the revenue hierarchy for correction of the entries in the record of rights or register of mutations.

9.The primary question that arises for consideration before this Court is whether a Revenue Officer is vested with the authority to cancel a mutation on the ground that the same was procured through misrepresentation or fraud. In the event that this question is answered in the negative, a further issue emerges as to whether a mutation, which is

alleged to have been attested on the basis of fraud or misrepresentation, would automatically become void and of no legal effect, and whether any subsequent structure of rights or transactions founded upon such mutation would likewise stand extinguished.

10.Another important aspect requiring determination is whether the proceedings conducted before Revenue Officers or Revenue Courts are essentially summary in nature. If that be so, the further question arises whether complicated questions of law and disputed questions of fact, particularly those involving allegations of fraud or misrepresentation, can be validly adjudicated within the revenue hierarchy, or whether such matters fall exclusively within the jurisdiction of the Civil Courts, which are competent to undertake a detailed inquiry after framing issues and recording evidence of the parties.

11.It is also necessary to examine the true scope and import of Section 172 of the Land Revenue Act, 1967, particularly as to whether the said provision creates a bar on the jurisdiction of the Civil Courts in respect of determining the genuineness or authority of an instrument. In this context, it requires consideration whether Section 172 merely empowers the revenue authorities to exercise certain administrative or limited inquiry powers for revenue purposes, and whether such proceedings lack the essential attributes of

a civil trial, which ordinarily involve the framing of issues and the recording and appreciation of evidence.

12.Consequently, this Court is also called upon to determine whether, in view of the above legal position, the dispute in question falls within the exclusive domain of the Civil Courts, thereby rendering the revenue hierarchy incompetent to adjudicate upon the matter. If such be the position, the further question would be whether the impugned order passed by the learned revisional Court can be sustained in law and on facts. It has further been contended that subsection (2) of Section 172 of the Act of 1967 envisages that questions relating to fraud are to be adjudicated exclusively by the Civil Courts.

13.In order to determine the effect of Section 172 of the Land Revenue Act, 1967 on the present controversy, it is necessary to consider its full text and purpose. Section 172 is a non-obstante provision which, by its language and legislative scheme, seeks to exclude the jurisdiction of Civil Courts in matters that are statutorily entrusted to the revenue hierarchy. The provision reads as follows:

“172. Exclusion of jurisdiction of Civil Courts in matters within the jurisdiction of Revenue Officers. (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, 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 duty imposed by this Act or any other enactment for the time being in force on 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;

... and other clauses relating to assessment, liability for land revenue, and allied matters.”

14.Clauses (v) and (vi) of sub-section (2) are of particular relevance in the present case. Clause (v) relates to the framing and attestation of revenue records, and clause

(vi)places the correction of entries in the Record of Rights, periodical record, or register of mutations outside the domain of Civil Courts. A plain reading of the statutory language shows that the scope of Section 172 is to exclude Civil Court jurisdiction where the subject matter falls within the administrative functions of the revenue hierarchy. The legislative intent appears to be to assign to Revenue Officers and Revenue Courts the maintenance, preparation, attestation, and administrative correction of revenue records, which are essential for efficient land revenue administration.

15.It must, however, be recognized that the statutory text, in its entirety, must be interpreted in light of its purpose and scope, and not in an isolated or literal vacuum. While Section 172 (1) bars Civil Court jurisdiction generally in matters entrusted to revenue authorities, and sub-section (2) lists specific subjects within that exclusion, the bar is qualified by the nature of the rights and remedies sought. The mere inclusion of “correction of entries” does not, by itself, confer on the revenue hierarchy the competence to adjudicate disputed civil rights or contested questions of law and fact, which go beyond mere administrative record-keeping.

16.The power to correct an entry in the revenue record is inherently an administrative function, designed to ensure that the revenue register accurately reflects the factual circumstances of land holdings, ownership, assessments, and related particulars. Administrative correction typically extends to clerical mistakes, inadvertent errors, or omissions that do not affect substantive civil rights, and it serves the purpose of keeping the revenue records in conformity with the true state of affairs as per statutory rules and inscriptions.

17.In contrast, where the correctness of an entry is challenged on the basis that it was obtained through fraud, misrepresentation, or collusion, and where such entry has a direct impact on the proprietary rights and title of a party, the controversy ceases to be a question of mere administrative adjustment. Such disputes involve substantive legal rights,

require resolution of contested facts, and necessitate procedural safeguards such as framing of issues, recording of evidence, examination and cross-examination of witnesses, and evaluation of legal arguments, powers that are exclusively vested in Civil Courts.

18.It is also relevant to observe that the language of Section 172 does not expressly oust the inherent jurisdiction of Civil Courts where civil rights, title, and proprietary interests are affected by an entered mutation. To interpret the provision as empowering Revenue Officers or Revenue Courts to finally determine allegations of fraud or to extinguish civil remedies arising from such allegations would be to substantially enlarge their statutory mandate beyond its legislative design. The statute clearly contemplates that the revenue hierarchy will deal with questions of law that are incidental to revenue administration, but not with civil controversies that require comprehensive judicial determination.

19.Thus, the statutory bar on Civil Court jurisdiction under clauses (v) and (vi) of Section 172 (2) applies only in respect of administrative functions of preparing, attesting, and correcting records. When, as in the present case, the correctness of a mutation is challenged on the ground that it was obtained through fraud and misrepresentation, and such challenge goes to the very basis of the title and proprietary rights of the parties, the controversy cannot be resolved

within the limited framework of revenue proceedings. The exclusive domain of Civil Courts to adjudicate civil rights must be recognised and preserved, and Section 172 must be interpreted accordingly to ensure that administrative efficiency does not override substantive justice or civil rights protection.

20.It is by now settled that the proceedings before a Revenue Officer or a Revenue Court are summary in nature;

therefore, a dispute involving a question of fact or a complicated question of law cannot be decided by a Revenue Officer or a Revenue Court. The parties, in such cases, ought to be directed to approach the Civil Court for proper adjudication. In this behalf, reference may be made to the case of apex court reported as follows Sardar Muhammad and others Versus Imam Bakhsh (Deceased) through LRs and others (2021 S C M R 391), wherein it was held that:- “The provisions of section 172 of the West Pakistan Land Revenue Act, 1967 allocate certain matters to the sole competence of the Revenue authorities, to the exclusion of civil courts. However, it must be noted that section 172 only empowers Revenue authorities to exercise administrative powers; the raison d'etre for the same is that the proceedings conducted by a Revenue Officer or a Revenue Court are summary in nature; they possess a limited scope of enquiry and do not possess the characteristics of a civil suit that necessitates framing of the issues or recording evidence of the parties, as such matters fall within the sole domain of the civil courts. Besides, section 172(2)(xvi) of the Act, 1967 leaves the adjudication of plea of fraud to the competence of the civil courts. Resultantly, once the appellants have successfully proved that the sale mutation in their favour was struck off by DDO (R) illegally without jurisdiction and

that the respondents Nos. 2 to 9 before purchasing the subject property had notice of such fact, then the sale deed in their favour automatically has to give way to the subject mutation no sooner it is revived. Reference can be made to the case of Noor Muhammad v. Allah Ditta (PLD 2009 Supreme Court 198), Fida Hussain v. Abdul Aziz (PLD 2005 Supreme Court 343), Abad Muhammad (through LRs) v. Mst. Sakina and another (PLD 1987 Rev. 25) and Mst. Surraiya Bano v. Nazia Bano (1996 CLC Further reliance is placed on the judgment of august court rendered in case titled Muhammad Yousaf & 03 others versus Khan Bahadur through Legal Heirs (1992 SCMR 2334), wherein it was held that:- “In the normal course we might have remanded the case to the High Court for decision of the revision petition on merit but since the only point involved is legal, relatable to the jurisdiction of the Civil Court to entertain the suit filed by the appellants, we have heard arguments on this point as well, of the learned counsel for the parties, in order to save the parties from financial loss and mental agony, and have decided to dispose of this question. The appellants sued the deceased/defendant Khan gahadur for declaration of title and challenged the entries of the Revenue Record whereby he was recorded in possession as "bila-lagan-batasawar-e- malkiet", and prayer for possession was also sought. The suits for declaration are provided for under section 42 of the Specific Relief Act and for possession under section 8 of the same Act. The suit was admittedly of a civil nature and under section 9 of the Civil Procedure Code Civil Courts had the jurisdiction to try the same as the jurisdiction of the Civil Courts in respect of such suits is neither expressly or by implication barred by any law. The learned Appellate Court while returning the plaint for want of jurisdiction has referred to section 41 read with section 172 of the West Pakistan Land Revenue Act and came to the conclusion that the grievance of the appellants can be redressed by the revenue officers under section 44 of the Act ibid. We have

anxiously considered the relevant provisions of West Pakistan Land Revenue Act. Section 172 barred the jurisdiction of the Civil Courts in certain matters exclusively within the competence of the revenue officers which have been enumerated in subsection (2). Section 44 relates. to the determination of disputes arising during the course of making, revision or preparation of record or in the course of any inquiry under Chapter VI relating to record-of-rights and periodical record. But once the inquiry is made or the entries recorded in the Revenue Record, a presumption of truth is attached to it under section 52 of .the Act ibid until the contrary is proved or the new entries are substituted therefor. To dislodge this presumption a remedy is provided under section 53 of the said Act which provides that if any person considers himself aggrieved by an entry in a record-of-rights or in periodical record as to any right of which he is in possession, he may institute a suit for declaration of his rights under section 42 of the Spec Relief Act, 1877 Act (I of 1877). Apparently, the jurisdiction of the Civil Courts is not ousted to question the correctness of the entries of revenue record, or declaration of title under the Specific Relief Act, or claiming relief of possession of immovable property, rather aggrieved party has been invested with a right to challenge the entries made in the Land Revenue Act through a suit for declaration in Civil Court. The learned appellate Court not only misinterpreted the provisions of West Pakistan Land Revenue Act but omitted to take into consideration the provision of section 53 of the Act ibid and legally erred in holding that the Civil Court had no jurisdiction in the matter and, in consequence, ordered the return of plaint.”

This Court in case titled Mst. Gul Pari alias Gul Baro versus Zarin Khan and others (PLD 1994 Peshawar

249)has held that:-

“The thirst contention raised by the learned counsel hardly needs much discussion as in the suit in hand the respondents, besides seeking correction of the revenue record, and bringing challenge to the impugned 'Fard Badr' and the impugned mutation, have claimed a decree for declaration as to their title to and confirmation of

their possession over the disputed land. The contention of the learned counsel that the order of the learned Civil Judge to the effect that section 172 of the West Pakistan Land Revenue Act, 1967, created no bar to the filing of suits to challenge the action of the revenue authorities was hardly maintainable is untenable. Section 53 of the West Pakistan Land Revenue Act, 1967, itself creates a right in favour of an aggrieved person to approach the Civil Court for declaration of his right under section 42 of the Specific Relief Act, 1877. On the other hand, as held by a Division Bench of Baloch1stan High Court in Mir Rehman Khan and another v. Sardar Asadullah Khan and 14 others (PLD 1983 Quetta 52) and to which I respectfully subscribe, that "the scope of section 172 of the West Pakistan Land Revenue Act, 1967 is entirely different. It only excludes the Civil Courts from taking in hand the functions assigned to the Revenue Courts as also the questioning of H their methodology adopted for the discharge of such functions". I have, therefore, no doubt in my mind that the function of Revenue Courts is to prepare the revenue records in the light of the evidence with regard to one's title or interest, but the finality is attached to the orders of the Civil Courts who shall determine civil rights such as the claim of the petitioner being daughter of Said Khan deceased by leading cogent and reliable evidence before them. The view of the learned Civil Judge does not, therefore, suffer from any legal infirmity. Section 42 of the Specific Relief Act, 1877, confers a right upon an aggrieved person to seek declaration from a Civil Court with regard to his/her status (i.e. her claim of being -daughter of Said Khan deceased in this case), right or title to a character both in rein and in personam.”

Reliance is also placed on the judgment of Balochistan High Court rendered in case titled Muhammad Saleem versus The Assistant Commissioner & another (2024 CLC Balochistan 1797), wherein it was held that:- “8. The Superior Courts have repeatedly held it, and similarly, the law itself provides, that proceedings before the Revenue Courts are of a summary nature. Whenever the complicated question of fact is involved, the exclusive

jurisdiction vests in the Civil Court to decide the same. The Revenue Court has exceeded from its jurisdiction and has erred while interfering in the complicated question of the title. The factual controversies qua the allegation of fraud should be dealt with by the Civil Court because Revenue Courts have no jurisdiction to interfere in such like matters. The mutation being summary proceedings Revenue authorities could not clinch such a complicated matter in summary proceedings. At the time of the decision, no detailed evidence is recorded by the Revenue Officer, and it is otherwise the function of the Civil Court to decide matters after framing of issues and recording of evidence of both the parties. In this context, reliance can be placed on the case reported as Muhammad Jameel Asghar v. The Improvement Trust Rawalpindi (PLD 1965 SC 698), wherein it was held that where the question of fraud, misrepresentation, or want of jurisdiction is raised, the civil court has jurisdiction to adjudicate upon the same. Reliance is also placed on Hafiz Kalu and others v. Muhammad Bakhsh and others (2019 YLR 1523).”

21.The provisions of Section 53 of the West Pakistan Land Revenue Act, 1967 clearly stipulate that any person aggrieved by an entry in the record of rights may institute a suit for declaration under Section 42 of the Specific Relief Act, 1877 before a competent Civil Court. The determination of complicated questions of law and fact falls within the exclusive jurisdiction of the Civil Court, which has plenary jurisdiction under Section 9 of the Civil Procedure Code to adjudicate upon the controversy between the parties.

22.A perusal of the suit filed by the petitioner reveals that he has challenged the mutations on the ground of fraud and misrepresentation, allegedly committed in collusion with the revenue officials by the respondents. On the basis of

such allegations of fraud, the petitioner has sought correction of the revenue record, which can only be challenged before the competent Civil Court by invoking the provisions of Sections 39 and 42 of the Specific Relief Act, 1877, through a suit for declaration and cancellation of the instrument, declaring the same to be void or voidable.

23.A mutation cannot be cancelled without the intervention of a Civil Court of competent jurisdiction. A Revenue Officer or Revenue Court, in law, cannot examine the authenticity of a registered instrument while exercising powers under the provisions of the West Pakistan Land Revenue Act, 1967, particularly in view of the provisions contained in Section 39 of the Specific Relief Act, 1877.

24.In my humble view, the scope and object of Section 172 of the West Pakistan Land Revenue Act, 1967 is entirely different in nature and purpose. The said provision merely excludes the jurisdiction of the Civil Court in respect of matters which fall within the exclusive domain of the Revenue Officers or Revenue Courts under the Act. In other words, where the statute assigns a specific function or authority to the Revenue Officers or Revenue Courts, the Civil Court is precluded from assuming such functions. These functions include, inter alia, the preparation, maintenance and correction of entries in the record of rights, periodical record or register of mutations in terms of Section 172(2)(vi), as well as questions relating to the manner or methodology adopted

by the revenue authorities in the discharge of such functions.

The object of Section 172 is to avoid parallel proceedings before Civil Courts in matters which the legislature has specifically entrusted to the revenue hierarchy for administrative or summary determination. Thus, matters relating purely to the correction of entries in the revenue record or the procedure adopted by the revenue authorities in maintaining such record ordinarily fall within the exclusive competence of the Revenue Officers and Revenue Courts under the Act.

25.However, the bar contained in Section 172 of the Act, 1967 is not absolute in its application. Where allegations of fraud or misrepresentation, as discussed in the preceding paragraph, are attributed to a transaction or instrument forming the basis of a mutation, and where the cancellation of such instrument is sought on the basis of those allegations, the matter ceases to remain a simple question relating to correction of entries in the revenue record. Instead, it becomes a dispute concerning the validity and legality of the underlying transaction or instrument, which necessarily requires detailed examination of evidence and determination of complex questions of law and fact.

26.In such circumstances, the jurisdiction of the Civil Court cannot be ousted. This position is also evident from clause (xvi) of sub section (2) of Section 172 of the West Pakistan Land Revenue Act, 1967, which provides as follows:

“Any claim to set aside, on any ground other than fraud, a sale for the recovery of an arrear of land revenue or of any sum recoverable as an arrear of land revenue.”

27.A plain reading of the above provision clearly demonstrates that the statutory bar created under Section 172 does not extend to cases where allegations of fraud are raised. By specifically excluding fraud from the scope of the jurisdictional bar, the legislature has recognized that disputes involving fraud require a thorough judicial inquiry, including the recording of evidence and detailed adjudication, which fall within the exclusive competence of the Civil Court.

28.Therefore, where a party alleges that a mutation or transaction has been procured through fraud, misrepresentation or collusion with revenue officials, the controversy involves complicated questions of law and fact which cannot be effectively adjudicated in summary proceedings before Revenue Officers or Revenue Courts.

Such disputes must necessarily be examined by a competent Civil Court, whose jurisdiction remains intact notwithstanding the bar contained in Section 172 of the West Pakistan Land Revenue Act, 1967.

29.Adverting to the judgments relied upon by the learned counsel for the respondents, I find that the judgment reported as “Zahid Hussain and 10 others v. Shamasuddin and 9 others” (2014 CLC 1334) and “Muhammad Farooq etc.

v. Wajid etc.” (Civil Revision No. 31-A/2024, decided on 21- 10-2024) are out of context. The facts and circumstances of the said cases are totally different from those of the present case. Therefore, these case laws are of no help to the respondents.

30.Upon cumulative consideration of the material available on record, it is evident that the learned trial Court had correctly appreciated the nature and scope of the controversy and had rightly concluded that the plaint did not attract the bar contained in the provisions of Order VII Rule 11 C.P.C, hence, the same was not liable to be rejected at the threshold. However, the learned Revisional Court, while exercising its limited revisional jurisdiction, fell into a patent error of law and jurisdiction by interfering with the well- reasoned and legally sound order passed by the learned trial Court. The revisional Court appears to have overlooked the settled principles governing the rejection of a plaint and ventured into an assessment of questions which could only be properly determined after the parties had been afforded an opportunity to lead their respective evidence during the course of trial. Such premature adjudication, at a stage where only the averments contained in the plaint were required to be examined, was not warranted under the law.

31.For the foregoing reasons, the impugned judgment passed by the learned Revisional Court cannot be sustained in the eyes of law. Consequently, the instant writ petition is

allowed, the impugned judgment passed by the learned Revisional Court is set aside, and the order passed by the learned trial Court is restored, thereby directing that the suit shall proceed in accordance with law so that the controversy between the parties may be decided on merits after recording the evidence of the parties.

Announced

JUDGE

Aftab PS/* (S.B) Hon’ble Mr. Justice Aurangzeb