Muhammad Alam Khan, J.--Through the instant Constitutional petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan 1973, the petitioner, Miss Maheen Begum has challenged the judgment/order dated 19/9/2006 of the learned Member, Board of Revenue N.W.F.P.
Camp Court D.I.Khan, whereby her revision petition against the order dated 6/5/2004 passed by the Presiding Officer, Revenue Appellate Court No, II Camp Peshawar maintaining the order dated 24/1/2001 of Collector D.I.Khan was dismissed and has prayed for its setting aside.
2. Precisely stated facts of the case are that one Mst. Sandoor Bibi was owner of landed property measuring 1383 kanals 4 marlas situated in village Takwara Nulla Hussainzai, Tehsil Kulachi who vide Mutation No, 1395 attested on 16/8/1993 had gifted the same to Mst. Maheen Begum, petitioner herein. Subsequently, Abdul Majeed etc; the legal heirs of the donor Mst. Sandoor Bibi challenged the said gift Mutation No, 1395 before the Revenue Officer/Collector in review being based on fraud, misrepresentation and collusion. It was also alleged in review petition that the petitioner was a minor girl and the gift in lieu of services was not a valid gift as she could not do any service to the donor. It was also averred in the review petition that the attesting witnesses of the mutation of gift were closely related to the donee and the gift was just to deprive the legal heirs of the deceased from inheritance. The learned Collector referred the application for review to the EAC D.I.Khan for enquiry and report on 19/4/1994 and after the enquiry by EAC, the learned Enquiry Officer recommended the matter to be reviewed under Section 163 of the West Pakistan Land Revenue Act 1967 and consequently the learned Collector passed the impugned order dated 24/1/2001 vide which the Revenue Officer Kulachi was directed to enter and attest the inheritance v. mutation of Mst. Sandoor Bibi in favour of Abdul Majeed etc; her legal heirs. Mst. Maheen Begum being aggrieved of the said order dated 24/1/2001 of the Collector challenged the same in revision before the Additional Commissioner D.I.Khan but remained unsuccessful as it was dismissed by the Presiding Officer Revenue Appellate Court-II D.I.Khan vide order dated 6/5/2005. Not contented therefrom, the petitioner agitated her grievances second revision before the Senior Member, Board of Revenue N.W.F.P. but could not succeed vide order dated 15/9/2006. Still not satisfied, the petitioner has filed the present constitutional petition.
3. Malik Muhammad Bashir, learned counsel for the petitioner, argued that the review petition filed before the Collector firstly time barred as it was filed beyond the purview of limitation of ninety days, secondly under Section 163 of the West Pakistan Land Revenue Act 1970, the Collector could review his own order and not that of Revenue Officer/Tehsildar, thirdly that disputed questions of facts regarding the genuineness of the transaction, the validity of the gift, its proof cannot be gone into in review jurisdiction and fourthly the Enquiry Officer recorded the statements of some witnesses but no opportunity of cross-examination was afforded to the petitioner. It was also submitted that mutation proceedings are summary in nature and detailed enquiry or question of title can only be agitated before the competent Civil Court. It was lastly submitted that the remedy of appeal was available to the Respondents Nos, 6 to 9 which they did not avail and instead filed a time barred review petition. Reliance in this respect was placed on Abdul Majeed Vs. Director Excise and Taxation Department, Farid Kot House Lahore and 4 others (2007 MID 1664), Abid Hussain Vs. Mst. Kalsum (2003 CLC 110) and Muhammad Ali Sabtain and 4 others Vs. Mst. Shah Jahan Bibi and others (PLJ 2004 Lahore 958).
4. Mr. Gauhar Zaman Kundi, learned counsel appearing for Respondents No, 6 to 9 argued that the learned Collector was empowered to hear the review petition. During the enquiry the petitioner has neither proved the mutation nor the transaction of gift in itself. The, ingredients of gift were missing in this case and neither declaration of gift nor its acceptance nor the delivery of possession had been proved and thus the mutation of gift was rightly set aside by the learned Collector in his review jurisdiction. Reliance was placed on the cases of Secretary to the Government of Punjab., Forest Department Punjab Lahore through Divisional Forest Officer Vs. Ghulam Nabi and 3 others (PLD 2001 Supreme Court 415), Abdur Rauf Khan Government of N.W.F.P. through Chief Secretary and 3 others (PLD 1991 Supreme Court K 236) and Ali Nawaz Chowhan Government of the Punjab through Chief Secretary SG&D and 16 others (PLD 1992 Supreme Court 413).
5. We have scanned the entire record of the case there adbarely and minutely considered the valuable arguments of learned counsel for, the parties.
6. Perusal of the record makes it crystal clear that the impugned orders of the fora below are not based on correct appreciation of evidence brought on record and thus, liable to be set aside.
Mutation No, 1395 attested on 16/8/1993 which is the bone of contention between the parties was entered and attested by the donor Mst. Sandoor Bibi with her own free will during her life time and it was after her death, almost after nine months that Respondents No, 6 and 7 submitted a hopelessly time barred review application and liable to dismissal on the ground of limitation alone.
Besides, the question of validity or otherwise of a gift is not the domain of the revenue hierarchy but it is the exclusive jurisdiction of Civil Court to dilate upon according to law. The question with respect to the validity of gift is essentially an intricate question of title which cannot be decided without recording of pro and contra evidence. The scope of review is very limited and only mistakes apparent on record in the order of attestation of mutation can be rectified therein. The question whether a gift was or was not made by the donor particularly when she/he is/was dead will not fall within the scope of review. Besides, the respondents Abdul Majeed etc.; have challenged the mutation in question on the grounds of fraud, collusion and mis-representation for which only the Civil Courts are competent to dilate and adjudicate thereupon and that too, after recording of pro and contra evidence of the parties in the light of record and not by officers of the revenue hierarchy under the provisions of The West Pakistan Land Revenue Act, 1967.
7. Consequently, we accept this writ petition, set aside the impugned orders of Respondents No, 1 to 3 being illegal, without lawful authority and with no legal effect and resultantly restore the gift Mutation No, 1395 attested on 16.8.1993 on behalf of Mst. Sandoor Bibi in favour of Mst. Maheen Begum petitioner.
Above are the reasons for our short order dated 26/11/2008.