' MUHAMMAD NAWAZ ABBASI, J.--- This petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, has been directed against the judgment, dated 18-4-2005, passed by a learned Division Bench of the Lahore High Court, Lahore, in an Intra-Court Appeal arising out of a Writ Petition bearing No,6329 of 2000, which was disposed of by a learned Single Judge in Chamber vide judgment, dated 22-12-2004, with the observation that in the light of nature of dispute raised therein, writ petition was not maintainable and petitioner may avail the remedy of civil suit.
2. The brief facts giving rise to this petition in the background are that the petitioners filed a writ petition seeking direction to the concerned Revenue Officer exercising the power of Consolidation Officer, for the correction of the entries in respect of land subject-matter of dispute in the Revenue Record of Village Rai, Tehsil and District Lahore. The High Court vide order, dated 22-12-2004 disposed of the writ petition with direction that writ petitioners may approach the appropriate forum for redressal of their grievance. The petitioners being aggrieved of this order, assailed the same in an I.C.A. Before a learned Division Bench of the Lahore High Court which was dismissed being not maintainable as well as on merits.
3. The subject-matter of dispute is an evacuee land situated in two villages namely Rai and Rakh Rai which was purchased by the predecessor-in-interest of the petitioners from a non-muslim vide registered sale-deed, on the basis of which a decree in a civil suit titled "Nawab Din v. Inder Singh" was passed on 26-11-1948. The sale was confirmed by the Deputy Custodian vide order, dated 17-1- 1951 and on reconfirmation of the sale by the Custodian vide order, dated 23-12-1951, it was given effect in the Jamabandi for the year 1959-60. The consolidation proceedings started in these two villages in 1960 and meanwhile Revenue Record of the said village was burnt as a result of which the entries relating to the ownership of the predecessor-in-interest of the petitioners were not traceable, therefore, petitioners on failure to get appropriate relief from the Consolidation Officer, filed a constitutional petition in the High Court which was dismissed on the sole ground that the factual controversy involved therein, could not be resolved without recording the evidence and since such an exercise could not be possibility undertaken in the constitutional jurisdiction, therefore, the petitioners should avail the remedy of civil suit. The I.C.A. Was dismissed firstly on the ground that it was not maintainable in terms of section 3 of the Law Reforms Ordinance, 1972 and secondly the order passed by the High Court in writ petition was not suffering from any legal infirmity.
4. The learned counsel for the petitioners has contended that the relief sought in the writ petition was in respect of sanction of mutation of inheritance and incorporation of the names of the petitioners in the Revenue Record on the basis of mutation of sale and the entries in the Jamabandi, for the year 1959-60 but the learned Single Judge as well as the learned Division Bench in the High Court for misconception of law dismissed the writ petition and I.C.A. With the observation that the matter involving factual controversy and also relating to the consolidation, was not challengeable in the constitutional jurisdiction of High Court. Learned counsel submitted that dispute in respect of the right, title and interest of the petitioners in the property was not as such in issue and the High Court without going into such questions could conveniently direct the Revenue Authorities for incorporation of entries in the name of petitioners on the basis of existing entries in the Jarnabandi as well as the sale-deed and mutation of sale in question. The learned counsel submitted that the petitioners on the basis of documents of title, sought incorporation of their names in the Revenue Record and non- performance of the duty by the Revenue Authorities in accordance with law, would be questionable before the High Court in its constitutional jurisdiction.
5. Learned counsel for the respondents, on the other hand, has contended that initially the constitutional petition filed by the petitioners was allowed and a direction was issued to the Revenue Authorities for correction of entries in the Revenue Record but subsequently on an application, moved by the respondents under section 12(2), C.P.C., the order passed in writ petition was recalled and since petitioner had no case on merits, therefore, the writ petition as well as I.C.A.
Was rightly dismissed. Learned counsel submitted that some of the respondents in the present petition, died before the filing of writ petition in the High Court and some during the pendency of writ petition and I.C.A., but their legal heirs were not brought on record and consequently, no relief can be claimed or granted against them.
6. The subject-matter of controversy between the parties relates to a property of an evacuee origin and as per claim of petitioners evacuee sold it in favour of their predecessor-in-interest. The sale at the first instance was confirmed by the Deputy Custodian later was reconfirmed by the Custodian. The petitioners in support of their claim also relied upon the decree of the Civil Court and a mutation of sale as well as the entries in the Jamabandi for the year 1959-60. The main assertion raised in support of this petition before us is that evacuee land would continue to have its separate character and could not be mixed with the non-evacuee land for the purposes of consolidation, therefore, refusal of Revenue Officer exercising the power of Consolidation Officer to incorporate the entries in the name of petitioners in the column of ownership on the ground that during the consolidation proceedings no new entry could be made in the Revenue Record, was not legal.
7. Learned counsel for the respondents has not been able to show us the order of the confirmation of consolidation scheme in the village or that land in dispute was also subject-matter of such scheme. The learned counsel also has not been able to satisfy us that an order passed by the Revenue Officer is immune from challenging during the consolidation and no Court including the High Court can exercise jurisdiction in respect of the right of a person pending finalization of the consolidation scheme and also has not been able to satisfy us that how in the present case, an I.C.A. Against the order of learned Single Judge in the High Court was not competent or that without confirmation of consolidation scheme, the right of appeal would accrue in favour of an aggrieved party under Consolidation of Holding Act, 1960. These fundamental questions involved in the present case were neither answered by die High Court nor learned counsel for the parties have been able to give satisfactory answer with reference to the record and law on the subject. The learned counsel for the respondent also has not been able to satisfy us that for what reason the case would fall within the ambit of section 12(2), C.P.C. And in What manner, the order was obtained from the High Court in the writ petition through fraud and misrepresentation to attract the provision of section 12(2), C.P.C. Which is invokeable only in case in which an order is obtained through fraud or misrepresentation or if an order is passed without jurisdiction whereas in the present case, nothing has been brought on record to show that the first order passed in the writ petition was questionable under section 12(2), C.P.C. Be that as it may, we without commenting upon the merits of the case in either way, having come to the conclusion that writ petition was dismissed in perfunctory manner without proper appreciation of the questions raised therein and similarly I.C.A.
Was decided on wrong premises, are inclined to dispose of this petition in the following manner:-- ' This petition to the extent of respondents Nos.9 to 12 and 63 is disposed of in terms of the compromise effected by the petitioners with these respondents whereas to the extent of remaining respondents, the judgment of the High Court in writ petition as well as in the I.C.A. Is set aside and the case is sent back to the High Court for decision of the writ petition afresh in terms of the short order passed on 12-2-2008 as under:-- "This petition to the extent of respondents Nos.9 to 12 and 63 in the light of statement made by Syed Sharif-ud-Din Pirzada, learned Senior Advocate Supreme Court, counsel for the petitioner and Mr. S.M. Masood learned Senior Advocate Supreme Court, counsel for the respondents Nos.9 to 12 and 63 that the petitioner and said respondents, having compromised, have settled the matter out of the Court, stands disposed of in terms of the compromise, whereas the remaining petition for the reasons to be recorded later, is converted into an appeal and subject to all just exceptions, is allowed. The impugned B judgment is set aside and case is remanded to the High Court for decision afresh of the writ petition on all questions involved therein."
8. The parties shall be at liberty to raise all questions of facts and law relevant for the just decision of writ petition and the High Court after providing the proper opportunity of hearing to the parties shall decide the writ petition as early as possible. In consequence to the above, this petition is converted into an appeal and is disposed of accordingly with no order as to costs.