' Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan 1973, the petitioner has challenged the order, dated 11-12-2002 passed by learned Member Board of Revenue through which he has accepted the revision petition filed by respondent No,3 and has remanded the appeal filed by respondent No,3 to Revenue Officer for fresh decision on merits.
2. The brief facts of the case are that Mst. Karam Mai mother of respondent No,3 died on 15-6-1994 and Mst. Amiran Elahi respondent No,3 was her sole legal heir while the petitioner was residuary.
Through Mutation No,172 sanctioned on 24-10-1995 half of the land was mutated in favour of the petitioner and respondents Nos.5 to 8 brothers of the petitioner while remaining half of the land was mutated in favour of respondent No,3. Against the said mutation an appeal was filed by respondent No,3 on 28-1-1996 which was accepted on 6-5-1996 and the appeal against the said order filed by the petitioner was accepted by the learned Additional Commissioner vide his order, dated 28-8-1996. Then respondent No,3 filed revision petition before the Member, Board of Revenue which has been accepted through impugned order, dated 11-12-2002 and the matter has been referred back for fresh decision, hence, this petition.
3. Learned counsel for the petitioner contends that the appeal filed by respondent No,3 was barred by 2 months and 7 days and although respondent No,3 filed an application under section 5 of the Limitation Act but the provisions of Limitation Act did not apply. It is further contended that under Rule 6-A of West Pakistan Land Revenue Rules, 1968 the case could not be remanded by the Collector and only Board of Revenue is empowered to remand the case.
4. Learned counsel for respondent No,3 contends that it was a factual controversy as to whether Mst. Karam Mai was 'Shia' or 'Sunni', but only on the basis of affidavits of the witnesses the Revenue Officer had sanctioned the mutation and respondent No,3 was also not present at the relevant time, hence, mutation was got sanctioned on the back of respondent No,3 whereas factual controversies could only be resolved after affording opportunity of producing evidence to both the parties and as such the impugned order has rightly been passed.
5. I have heard the learned counsel for the parties and also perused the impugned orders. The only dispute in the present case is that as to whether Mst. Karam Mai mother of respondent No,3 was 'Sunni' or `Shia' by sect. Admittedly the mutation of her inheritance was sanctioned on 24-10-1996 only on the basis of affidavits sworn by some persons alleging that Mst. Karam Mai was 'Sunni', which was challenged by respondent No,3 claiming her to be not present at the time of acceptance of affidavits and that her mother belonged to 'Shia' sect wherefore, she was entitled to inherit whole property and the case was remanded back to Revenue Officer for decision afresh after affording opportunity of hearing to both the parties vide order, dated 6-5-1996 by the A.C./Collector, Multan. Though the petitioner challenged the said order in appeal before the learned Additional. Commissioner and raised the objection that the appeal filed by respondent No,3 was barred by time yet the decision was not made on this score and the appeal was accepted by the Additional Commissioner (R) vide order dated 28-8-1996 on merits but the petitioner did not challenge any further that appeal should be accepted as appeal filed by respondent No,3 was barred by time and said order to the extent of limitation having attained finality cannot be considered at this forum. However, respondent No,3 filed revision petition before the Member, Board of Revenue which has been accepted and the case has been remanded to the Revenue Officer vide order, dated 11-12-2002 with the following observations:-- "(5) I have considered the arguments of both parties. I have also seen the impugned order passed by the Revenue Officer on Mutation No,172. It was attested at the instance of Amir Ahmed behind the back of Amiran Mai. Her point of view was not considered by the Revenue Officer. Mutation of inheritance have to be decided by the Revenue Officer, if need be after proper enquiry, impugned order of Additional Commissioner (Revenue) virtually denies the petitioner/her right of being heard; therefore, it is set aside. Revenue Officer will decide the mutation afresh after listening to the parties."
6. As far as contention of the learned counsel for the petitioner that under Rule 6-A of West Pakistan Land Revenue Rules, 1968 case could not be remanded by the Assistant Commissioner is concerned, suffice it to say that the orders of Assistant Commissioner and Additional Commissioner have been merged in the orders of Member, Board of Revenue who admittedly is empowered to remand the case to Revenue Officer. I do not find any illegality, perversity or arbitrariness in the findings arrived at by the learned Member, Board of Revenue and he has remanded the case on good reasoning. I am also of the view that factual controversies were involved and respondent No,3 could not be denied her valuable right in the inheritance of her real mother without affording her opportunity to prove her version that her mother was belonging to Shia sect, whereas the Mutation was sanctioned at her back only on the basis of affidavits sworn by few persons that she was Sunni by. Sect. It is well-settled principle of law that no one should be condemned unheard while deciding about his/her legal rights. Moreover, only the case has been remanded and both the parties shall be at liberty to produce evidence in support of their respective claims before the Revenue, Officer, who will pass fresh decision regarding sanction of mutation according to the sect of the predecessor-in-interest of the parties. No prejudice has been caused to the petitioner as law always favours decisions of cases on merits. Hence, the impugned order is maintained.
7. For the foregoing reasons, this writ petition have no merits is dismissed.