The present petition has been filed against the order dated 11.7.1994 passed by the BOR, through which, the order of review regarding the mutation in dispute passed by the District Collector dated 8.4.1986 was set aside. Hence this petition.
2. Brief facts of the case are:- that the land measuring 101 Kanals and 8 Marlas situated in village Fateh Garh, Tehsil and District Sialkot, was owned by Mst. Zainab Bibi; she died in the year 1962 and mutation of her Inheritance No, 1435 dated 24.11.1965 was attested in favour of her two daughters Mst. Hakoomat Bibi and Mst. Ulfat Bibi, latter never married and obviously was issueless while Mst.
Hakoomat Bibi had son namely Muhammad Rafique Respondent No, 4 two daughters Mst. Mumtaz Begum, Petitioner No, 1 and Mst. Irshad Begum, predecessor-in-interest of Petitioners No, 2 to 9.
Mutation No, 1635 dated 2.12.1965 was attested in favour of Muhammad Shafique Khan, Muhammad Attique Khan and Muhammad Latif Khan, Respondents No, 1 to 3, (sons of Muhammad Rafique), envisaging the gift of the land, in their favour by Mst. Hakoomat Bibi and Mst. Ulfat Bibi, the ladies had inherited from Mst. Zainab Bibi. On 4.7.1984, one Umaid Ali Khan, Respondent No, 19, filed a review petition challenging both the noted mutations, on the ground that Mst. Zainab Bibi was also survived by Gamoo, Atta Muhammad, Adalat Khan (father of Umaid Ali Khan), Eedo Khan and Natho Khan, her brothers but they have fraudulently been excluded from the inheritance. Likewise, Muhammad Anwar Respondent No, 8, who is the grandson of Gamoo brought another review application on 3.9.1985 to the same effect; besides on the same date, a review petition was filed by Mst. Mumtaz Begum (daughter of Mst. Zainab) challenging the said mutations on the grounds set out in the application; the matter was examined by the Extra Assistant Commissioner Sialkot, who recommended the review; the Assistant Commissioner vide order dated 9.12.1985 agreed with the above. The District Collector thus through its order dated 8,4.1986, directed for the review of the mutations. It may be relevant to mention here that in the orders for the recommendation of the review and for the review thereof for the reasons given therein, it is particularly held that the Mutation No, 1435 was bogus and fraudulent; this order was challenged in revision by Muhammad Shafique Respondent No, 1 before the Additional Commissioner, which was dismissed on 4.8.1987; the orders were further assailed before the Board of Revenue in revision, which has been accepted through the impugned order dated 11.7.1994. It may be pertinent to mention here that Umaid Ali Khan, Respondent No, 19 and Muhammad Anwar Respondent No, 8 in the meantime withdrew their review applications, as is envisaged by the impugned order and this fact has not been disputed by the contesting parties.
3. Learned counsel for the petitioners has argued that the Mutation No, 1435 was entered on the information of Muhammad Rafique, grandson of Mst. Zainab Bibi (son of Mst. Hakoomat Bibi) and he never disclosed that Mst. Zainab Bibi, was also survived by her brothers, this is a fraud flouting on the face of the record; besides, said mutation was entered on 12.10.1962 but was sanctioned on 24.11.1965 and no justification and explanation for this delay has been given; about the Mutation No, 1635, which was allegedly entered on 6.9.1965, it is submitted that on the date, India had attacked Pakistan and Sialkot was a battle field, therefore, it is inconceivable, improbable rather impossible that the gift mutation would be entered on a day when the people of the area in order to save their lives were running for a refuge; there is no entry in' the "Roznamcha Waqiati about the above mutation; Mst. Hakoomat Bibi and Mst. Ulfat Bibi are not shown to be present on the date of the entry or when the mutation is alleged to have been sanctioned; it is Muhammad Rafique (the real father of the alleged donees), who otherwise was not the attorney of the ladies, informed about the so-called gift and manoeuvred the mutation; no one had ever identified the ladies, such as the Lumberdar or any other respectable of the village before the Revenue Authorities, there is absolutely no evidence, if the two ladies made the gift and delivered the possession to the donees; the donees in the case are the real sons of Muhammad Rafique, who has played the entire fraud for them and it is settled law that no one can. be allowed to have the premium of its own fraud. It is also submitted that as per report of the Extra Assistant Commissioner, the order of the District Collector dated 8.4.1986 and the order of Additional Commissioner dated 4.8.1987, it is clear that there is no mention in the requisite record about the entry and also the sanction of the mutation, which are the mandatory requirements of Section 42 of the Land Revenue Act; thus this mutation had no sanctity in the eyes of the law and was rightly ordered to be reviewed; the BOR has illegally and erroneously interfered with the above in the revisional jurisdiction through the impugned order.
4. Rana Muhammad Sarwar, learned counsel for the petitioners, has vehemently argued that the fraud vitiates the most solemn proceedings and the same forum on which, the fraud has been practiced in procuring the order, has the inherent power and jurisdiction to undo/set aside the same. In this regard; reference has been made on the case reported as Chief Settlement Commissioner Lahore. Vs. Raja Muhammad Fazil Khan and others (PLD 1975 SC 331); there is no limitation for setting aside an order having been procured through the fraud and no sanctity to such order can be attached; no date of making of the oral gift, in whose presence, it was made, the essential requisites of declaration, acceptance and delivery of possession, which are sine qua non for the validity thereof, have been established on the record; he submits that the so called mutation is absolutely fictitious and bogus and it does not pass the test laid down in Azizullah Vs Ghulaman & others (1941 ILT 54), therefore, the said judgment as argued by the respondents' counsel has no application to the case in hand; the wrong mutation confers no right in property as revenue record is maintained only for purposes of ensuring realization of land revenue. Reliance in this behalf, has been placed upon the record on Ghulam Muhammad vs. Mst. Ghulam Sarwar Naqvi (PLD 1990 SC 1) and Aswar Muhammad and others Vs. Sharif-ud-Din and others (PLD 1983 SCMR 626) and the Tribunal of a limited do special jurisdiction, has the power to suo motu recall or review an order obtained from it by fraud. Support is drawn from the case reported as Chief Settlement Commissioner Lahore. Vs. Raja Muhammad Fazil Khan and others (PLD 1975 SC 331). It is also argued that according to the judgment reported as Ch. Fateh Khan vs. Mst. Shehzad Begum (PLD 1967 W.P (Rev) 9), while interpreting Para No, 7.30 of the Land Record Manual, it has been held that the correction of entries of mutations made wrongfully and procured through fraud or collusion of revenue authorities can be made under the following circumstances:--
(a) Being either themselves duped by fraudulent misrepresentation of facts by the parties interested in acquiring unlawfully gain.
(b) Where revenue authorities are proved to have acted fraudulently or in collusion with parties who have thereby been conferred rights, in revenue .record, which they have not infact acquired at all In support of his case, he has also relied upon the judgment of the Hon'ble Supreme Court of Pakistan reported as Nawab Ronaq Ali, vs. Chief Settlement Commissioner and others (PLD 1973 SC 236).
5. Conversely, learned counsel for the respondents has argued that in the instant case, mutation has been challenged after a lapse of about 19 years, which already has been given effect in about four jama bandis; no opportunity has been provided to the contesting respondents to rebut the allegations of fraud leveled against them or to prove that the gift was validly, made; they were not associated with what ever inquiry was conducted by the Assistant Commissioner, etc, which was on the administrative side; if the application of the petitioner (Mumtaz Bibi) is considered to be a review application, -it was hopelessly barred by time, admittedly, there is a dispute between the parties about the validity of the gift, which could only be determined by the Court of a plenary civil jurisdiction; that the Mutation No, 1435 has not been challenged by any other alleged legal heir of Mst. Zainab Bibi; those who had filed the application to assail the same, such as' Umaid Ali and Anwar, withdrew from the contest and consequently, there was no reason for setting aside the Mutation No, 1435.
6. Heard. There is no cavil with the proposition that the fraud vitiates even the most solemn proceedings and that the forum upon which the fraud has been practiced in obtaining the order has the inherent jurisdiction to set aside the same and undo what has been obtained from it through such an act; however, at the same time, the rule of limitation and the law in the specific field under which the review of a mutation is being sought cannot be ignored, furthermore, like a contract, which is the product of fraud and order procured through fraudulent means is voidable and not void, therefore a person aggrieved of such an order cannot sit back for indefinite period of time and challenge it at his own choice and convenience -on the ground of the general rules that such orders are vitiated. The challenge has to he subject to the law of limitation, if the case falls within the purview of Section 18 of the Limitation Act 1908, its requirements should be specified in the plaint/petition and if a matter is governed by some special law which prescribes its own period of limitation, such law should be followed. Now considering this case to be one falling under Section 163 of the Land Revenue Act, the application on behalf of the petitioner could be filed within 90 days from the date of the order under review and if not, the applicant has to satisfy that Revenue Officer that he has sufficient cause for not making the application within that period. In the present matter though general allegation about the concealment of the mutation and fraud has been mentioned in the application, but there is no prove on the record to establish the "sufficient cause", moreover, the question of limitation has not at all been adverted to and decided by the Collector in his order dated 8.4.1986, which is against the settled law that if a cause is not propounded within the prescribed limitation, a vested right is created in favour of the opposite side, this glaring error in the order of the District Collector was noticed by the Board of Revenue and his order was set aside.
7. The contesting respondents are not shown to have ever been associated with the inquiry or given any chance to produce evidence to show that the mutations are valid and not based upon the fraud. It is quite easy to allege fraud but it must be established through evidence. The petitioners produced no evidence in this behalf and the respondents have not been provided with any opportunity, which violates the rules of natural justice. Rather the entire edifice of the order dated 8.4.1986 is structured upon certain assumptions, which were rebuttable in nature if a chance was given to the respondents. Above all, according to Para 7.30 of the Land Record Manual, it is clearly mentioned:-- 7.30. Mutation of correction not to be made.--When an entry has been incorporated in the jamabandi a mutation should not be entered up or sanctioned for the purpose of correcting it, except to correct a clerical error (where this cannot be done by a fard badar) or in consequence of a patent fact. The party aggrieved by such an entry must seek his remedy by suit.
It is now settled that no disputed entry in a [jamabandi] should be altered whether on the ground of mistake or of fraud except on the basis of an obvious clerical error or a patent fact. A fact that needs an elaborate enquiry to establish, is not a "patent fact".
When a mutation entry has been incorporated in a [jamabandi] it should not be altered except on the basis of an obvious clerical error or a patent fact. Thus where a mutation was effected several years ago and was incorporated in subsequent [jamabandis] it should not be reversed or reviewed on the ground that it was effected as a result of fraud in collusion with the subordinate revenue staff.
The Land Records Manual are the statutory instructions haying force of law and are binding upon all the Revenue Authorities. The legal status of such instructions can be evaluated from the following dictums of the Superior Courts:-- PLD 1974 SC 291 (Khan Faizullah khan vs. Govt. of Pakistan through the Establishment Secretary, Cabinet Secretariat and another)
PLD 1976 SC 435 (Sub. Muhammad Asghar. Vs. Mst. Safia Begum and another)
PLD 1975 Lahore 445 (Muhammad Ayyub and another vs. , Muhammad Yagoob and another)
1984 CLC 1308 (Altaf Ahmad Asmat. Vs. Sarfraz Hnssain and 2 others)
1980 CLC 1551 (Muhammad Aslam, etc. vs. Muhammad Ali) and PLD 2000 Lahore 1 (Lever Brothers Ltd and another vs. Government of Punjab through Secretary Health pepartment and 3 others)
Thus in the circumstances of the case, when the mutations had taken due effect in the successive jamabandis and the entire case of the petitioners is not set out on the basis of any clerical error etc but on the foundation of the fraud, such intricate questions (of fraud, etc) could not be determined by the Revenue Authorities after lapse of 19 years time in a summary manner and in summary proceedings and that too without enabling the effected party to produce any evidence. The Member BOR while passing the impugned order has given following reasons which too my mind are quite apt and cogent:--
1. The application is hopelessly barred by time
2. No application for the condonation giving reasons for the delay;
3. No determination by the District Collector as to why the time was being condoned;
4. After 20 years mutation has been incorporated in successive jamabandis and it is settled law that long standing entry in the revenue record should not be changed by the revenue officers and for such cases the appropriate forum is the civil Courts.
No exception can be taken to the above order and I am of the candid view that the issues involved in the matter can only be resolved by the Civil Court, where the parties shall have full chance of proving and disproving their respective pleas.
It may not be out of place to mention here that during the course of hearing, CM No, 892 of 2009 has been filed by Munir Ahmad son of Muhammad Ishaque Khan, to be arrayed as party, which was accordingly allowed vide order dated 9.3.2009 and his counsel has been heard in the matter and the judgment was reserved, when on 13.4.2009 another CM No, 1359 of 2009 was filed by Mahmooda Begum and 9 others and the following order was passed: "The judgment in this case is reserved and I shall consider at the final disposal of the matter, if the applicants are necessary or proper party."
Considering the contents of the above application, I do not find them either necessary or proper party as both the interveners at no stage have assailed the mutation in the present matter, thus CM No, 135/2009 is dismissed. However, this decision shall cause no prejudice to them if they seek any other remedy available under the law.
In the light of what has been stated above, this petition has no merits and the same is hereby dismissed.