1. ' The admitted facts appear to be that a plot of land was leased out to the respondent No,2 by the erstwhile Karachi Development Authority and subsequently lease was also executed in his favour on 1-9-1973. However, according to the petitioner the respondent No,2 had gifted his allotment rights in favour of the petitioner, who is his younger brother, and thereafter a mutation entry in favour of the petitioner was effected in the record of rights on 12-1-1994. It is however interesting to note that the alleged oral gift was made on 1-6-1973 (before a lease was executed in favour of the respondent No,2) and there was nothing to indicate that ownership rights, having been acquired through lease, were ever gifted.
2. ' Apparently some differences developed between the brothers and the respondent No,2 approached the respondent No,1 for cancellation of mutation entries in favour of the petitioner and the petitioner was called upon to bring all original documents of the property and his own national identity card. Eventually by order dated 6-8-2003 the petitioner was informed by the Assistant District Officer I, (Director Land Management) of the respondent No,1, that the mutation dated 12-1- 1974 in his favour had been cancelled as the same had been obtained fraudulently as the lessee i.e, respondent No,2 had denied the execution of gift. The original possession of the plot was consequently restored.
3. ' Aggrieved by the aforesaid order, the petitioner moved this Court under Article 199 of the Constitution and the principal contention on his behalf appeared to be that the Assistant District Officer had ab initio no jurisdiction to cancel mutation entries after 29 years and the only remedy available to the respondent No,2 was to approach a Civil Court. This contention is stoutly contested by Mr. Manzoor Ahmed and Mr. Muhammad Habib Jalib, representing .The respondents.
4. ' Mr. Manzoor Ahmed emphatically asserted that the Assistant District Officer was competent to cancel the mutation. He initially referred to section 44 of the Sindh Land Revenue Act, 1967 which may be reproduced as under:-- "44. Determination of disputes.
(1) If during the making, revision or preparation of any record, or in the course of any inquiry under this Chapter, a dispute arises as to any matter of which any entry is to be Made in a record or in a register of mutations a Revenue Officer may of his own motion, or on the application of any party interested, but subject to the provisions of section 45, and after such inquiry- as he thinks fit, determine the entry to be made as to that matter and record his reasons thereof.
(2) If in any such dispute, the Revenue Officer is unable to satisfy himself as to which of the parties thereto is in possession of any property to which the disputes relates, he shall:--
(a) if he be not below the rank of Assistant Collector of the first grade, ascertain, after an inquiry in which an opportunity shall be given to all the parties to the dispute of being heard and adducing evidence in support of their claims, who is' the person best entitled to the property, and shall be written order and that entry in accordance with that order be made in the record or register; and
(b) if he be below the rank of Assistant Collector of the first grade, report the matter to the Assistant Collector of the first grade, who shall thereupon proceed in the manner provided in Clause (a).
(3) A direction under subsection (2) shall be subject to any decree or order which may be subsequently passed by any Court of competent jurisdiction."
5. ' Granting that the functions of Revenue Officers under the aforesaid Act stand devolved upon officers of City District Government, we are of the clear opinion that section 44 does not apply. In the first instance the powers to determine entries in a register of mutation is exercisable either during the making, revision or preparation of a record or in the D course of an inquiry under Chapter VI. Evidently, neither of these two preconditions applied.
6. ' In any event the powers under section 44, are hedged by the requirements of section 45 which clearly stipulates restrictions upon the powers of Revenue Officers and enables amendments only in accordance with the facts proved or admitted to have occurred, or upon agreement of all the parties interested in the land or through making new maps, where it is necessary to do so.
7. Admittedly the petitioner had asserted the genuineness of the oral gift in his favour and entry contrary to the position taken up by him could not be made.
8. ' On the other hand learned counsel completely overlooked the provisions of section 53 of the Land Revenue Act which clearly stipulates that any person aggrieved by any entry in a record of rights could institute a suit for declaration under the Specific Relief Act before a competent Civil Court.
9. ' Indeed learned counsel stated that the powers of different Revenue Officers have been delegated to the officer of City Government through appropriate notifications but he could not produce the same today. Indeed we have no cavil with his assertions to above extent, but in view of what has been discussed above, it must be held that the officers of the respondent No,1 acted in a manner ultra vires their lawful powers and arrogated to themselves jurisdiction which the law only vested in Civil Courts. The order must therefore be declared to be without lawful authority.
10. ' Mr. Manzoor Ahmed eventually suggested that the petitioner should have invoked appellate or revisional jurisdiction under the Land Revenue Act but it is well settled that when the initial order itself is without jurisdiction, the question of alternate remedy looses significance. One may refer to the case of The Murree Brewery Co. Ltd. v. Pakistan through the Secretary to Government of Pakistan, Works Division and 2 others PLD 1972 SC 279.
11. ' For the foregoing reasons, we are constrained to set aside the impugned order of the respondent No,1 but would leave open to the respondent No,2 to file an appropriate suit to question the entry made in the record of rights. Since he has been approached other fora apparently in good faith and appear to be misled by the approach of Revenue Officials, a Court might sympathetically consider granting him the benefit of section 14 of the Limitation Act.
12. ' Petition stands disposed of along with listed application.