' SH. AZMAT SAEED,This order will dispose of Writ Petitions Nos.15167 of 2005, 15179 of 2005 and 15180 of 2005.
2. Brief facts leading to the filing of these constitutional petitions are that the property in question which is situated in two Mauzas namely Chore Kot and Rakh Dhala, Tebsil and District Kasur, was originally owned by Wali Muhammad who is stated to shave died issueless in 1906 leaving behind his only widow Raj Bibi who apparently inherited the land in dispute as a limited owner. Wali Muhammad apparently had a brother namely Abdullah who died in 1954 leaving behind two daughters namely Mukhtaran Bibi and Noor Bibi. The said Raj Bibi, the widow of Wali Muhammad the limited owner, died in 1956 and after her death Mutation No,1176, dated 22-10-1956 with regard to her inheritance was recorded in respect of the land situated in Mauza Chore Kot and Mutation No,686 dated 29-1-1974 in this behalf was recorded in respect of property situated in Mauza Rakh Dhala.
3. By virtue of Mutation No,1176 dated 22-10-1956 land situated in Chore Kot originally belonging to Wali Muhammad was mutated in favour of the legal heirs of his brother Abdullah only. No part of the land was mutated by way of inheritance to the legal heirs of his widow Raj Bibi.
4. By virtue of Mutation No,686'dated 29-1-1974 the land in Rakh Dhala was mutated in favour of Nabi Bakhsh, the brother of Raj Bibi and three step-brothers. No land was mutated in favour of the legal heirs- of Wali Muhammad i,e, his brother Abdullah and his legal heirs.
5. Mutation No,686 was challenged in appeal by persons claiming to be the legal heirs of the deceased Wali Muhammad including two daughters of Abdullah, the real brother of the deceased.
The said appeal was disposed of in terms of compromise dated 27-6-1974 whereby it was apparently agreed between the parties to the said appeal that Mutation No,686 would follow Mutation No,1176.
6. The present petitioners who were the heirs of Nabi Bakhsh apparently filed a civil suit challenging Mutation No,1176. An appeal was also filed against the compromise order, dated 1-8-1974, inter alia, on the ground that the said compromise had been effected through fraud and misrepresentation and the right of widow Raj Bibi has been omitted from the said mutations. The E.D.O. (Revenue), Kasur/respondent No,15 accepted the said appeal vide his order, dated 21-8-2003 and set aside the Mutations Nos.1176 and 686. Through the said order the respective rights of heirs of Wali Muhammad and Raj Bibi were determined and appropriate direction issued in this behalf.
Aggrieved three separate revision petitions were filed before the Board of Revenue and vide order, dated 18-6-2003 two revision petitions were accepted and the to the E.D.O. (Revenue) to decide the matter afresh and also to ascertain whether any civil litigation is pending between the parties. The third revision petition was disposed of as being infructuous as the order impugned therein had already been set aside. The said orders all dated 18-6-2005 have been challenged through these three connected constitutional petitions by the heirs of Nabi Bakhsh.
7.. The learned counsel for the' parties have been heard and the record appended with these petitions has been perused.
8. It is contended by the learned counsel for the petitioner that it is self-evident on the record that Raj Bibi the widow of Wali Muhammad had succeeded him as a limited owner and on her death the property in dispute would devolve upon the legal heirs of the last full owner i,e, Wali Muhammad. Such legal heirs would obviously include his widow Raj Bibi and on her death her legal heirs i,e,. The present petitioners would inherit her share.. The E.D.O. (Revenue) had done exactly that by way of his order, dated 21-8-2003. In the above circumstances it is contended that there was no ground available in law for remand of the case. It is further contended that a perusal of the impugned order, dated 18-6-2005 would reveal that no ground whatsoever is disclosed warranting remand of the case and subjecting the parties to another round of litigation. No fault 'or legal infirmity had been found in the order of E.D.O. (Revenue) or has been pointed or mentioned in the impugned order. Learned counsel adds that the remand is only permissible when further evidence and material is required for adjudication of the matter at hand. The instant case turns on admitted facts and there was no occasion for the remand of the case. In support of his contentions the learned counsel has relied upon the judgments reported as Muhammad Saleem Ullah and others v. Additional District Judge, Gujranwala and others PLD 2005 SC 511 and Anwar Ahmad v. Mst. Nafis Bano through Legal Heirs 2005 SCMR 152.
9. The learned counsel for the respondents has controverted the contentions raised on behalf of the petitioners. He has further raised a preliminary objection as to the maintainability of this petition. It is contended on behalf of the respondents that the impugned order on the face of it is a remand order and no constitutional petition lies against a remand order as it does not finally determine the matter in issue between the parties. In support of his contention the learned counsel has relied upon the judgments reported as Mst. Kaniz Fatima and 3 others v. Member (Revenue)
Board of Revenue Punjab Lahore and 5 others PLD 1973 Lah. 495, Jafar Hussain v. Member Judicial- IV, Board of Revenue Punjab, Lahore and 3 others 2004 MLD 2024, Ghulam Rasul and others v.
Khud'a Dad and others PLD 1986 Quetta 130, Muhammad Ilyas Khan v. Muhammad and others 1986 SCMR 251 and Ramzan v. Rehabilitation Commissioner (Legal) Sargodha and others PLD 1963 Lah.
461.
10. It is further contended by the learned counsel for the respondents that in pith and substance the lis inter se the parties pertains to the matter of inheritance involving complicated questions of fact which can only be determined by the Civil Court and the Revenue Courts have no jurisdiction to adjudicate upon .The matter. In support of his contention the learned counsel has relied upon the judgments reported as Siraj Din through L.Rs, and 2 others v. Akbar Ali and others 2005 SCMR 921.
11. In pith and substance the contention of the learned counsel for the petitioner is that it is the scheme of law that a Court or Judicial Tribunal seized of the matter in its appellate or revisional jurisdiction must adjudicate upon the same and only in exceptional cases should the matter be remanded to a lower forum thereby avoiding the dispatch of parties to a further round of litigation.
And that such order of remand should only be passed where the material on record is not sufficient for adjudicating upon the lis at hand. In the instant case, the conditions necessary to warrant a remand order were not satisfied, hence, the impugned order is liable to be set aside. It is also the case of the petitioner that tendency to unnecessary remand case has been deprecated by the Honourable Supreme Court and in this behalf learned counsel relied on the judgments referred to hereinabove.
12. There can be no cavil with the general principle of law being canvassed by the learned counsel for the petitioner. However, nature of jurisdiction being exercised while examining the order of remand must be taken into account. The judgment reported as Anwar Ahmad v. Mst. Nafis Bano through Legal Heirs 2005 SCMR 152 pertain to Order XLI, rule 23 of the C.P.C. With all its prescribed limitations, while in the instant case constitutional jurisdiction of this Court has been invoked to challenge the impugned order of remand. This distinction/difference in the nature of jurisdiction being exercised cannot be ignored. Where the constitutional jurisdiction of this Court was invoked to challenge the order of remand a Division bench of this Court in its judgment reported as Ramzan v. Rehabilitation Commissioner (Legal) Sargodha and others PLD 1963 (W.P.) Lah. 461 held as under:- "That point is this; he says that the order of remand was illegal and, unwarranted for various reasons which he has explained and most of which are set out in his petition. We are of the opinion that even if it is assumed that his complaint is well-founded (without deciding that it is so) since the error, if any, has not resulted in a final order, but in an order of remand, it is not appropriate that we should interfere with the order in writ jurisdiction."
13. Said principle of law was followed by another Division Bench of this Court in its judgment reported as Mst. Kaniz Fatima and 3 others v. Member (Revenue) Board of Revenue Punjab Lahore and 5 others PLD 1973 Lah.
495. The said judgment was also followed by a Division Bench of Balochistan High Court in the case reported as Ghulam Rasul and others v. Khuda Dad and others PLD 1986 Quetta 130. Honourable Supreme Court of Pakistan in its judgment reported as Muhammad Ilyas Khan v. Muhammad and others 1986 SCMR 251 also reiterated the aforesaid principle that a, constitutional petition is not an appropriate remedy against a remand order. Learned single Bench of this Court in the judgment reported as Jafar Hussain v. Member Judicial-IV, Board of Revenue Punjab, Lahore and 3 others 2004 MLD 2024 by relying on the aforementioned judgments held "it is settled law that constitutional petition was not maintainable against the remand order".
14. It is settled law as has been held by the Honourable Supreme Court as well as this Court and other High Courts from time to time that it would not be appropriate to exercise constitutional jurisdiction to interfere with an order of remand. This principle has been followed consistently for the last several decades and this Court is not persuaded A to deviate therefrom.
15. For the above resume of facts, this Court is constrained to hold that these constitutional petitions which are directed against a remand order are not maintainable as no final order has been passed and therefore, these petitions must fail and are dismissed accordingly. However, since the matter has been lingering on for the last. Several decades, it would be in the interest of justice to direct the E:D.O. (Revenue) Kasur to whom the case has been remanded to expeditiously decide the same preferably within four months of the receipt of this order.