JUDGMENT ABDUL SAMAD KHAN, J.---Petitioners Mst. Miaryam Bibi etc. Have called in question judgments and Orders dated 24-4-2004, 21-8-2004, 7-7-2005 and 28-11-2006 passed by respondents 2-5 thereby praying for issuance of writ in the following terms:- "(a) Declaring the decisions made by the respondents 2 to 5 as without lawful authority and of no legal effect.
(b) To set at naught the impugned orders passed by respondents 2 to 5.
(c) Prohibiting respondents 1 to 5 from transferring the property of the petitioners in any manner in favour of any person.
(d) To cancel the Mutation No.7365 and restore the entries of the revenue record and possession in favour of petitioners."
2. The background of the case in brief is that Mast Qalam Jan Khan etc., respondents were substituted in her stead being her legal heirs. Yet another suit for recovery of produce in respect of the same property was filed by Faqir Khan etc., and both the suits numbered as 74/TM and 76/TM were decreed on, 31-7-1990.
3. Petitioners being dissatisfied with the judgments and orders referred to above, filed an appeal thereagainst before Revenue EAC Mansehra which was accepted vide judgment and order dated 25-3-1991 thereby remanding the case back to the trial court with certain directions which order was assailed by respondents Faqir Khan etc., before Additional Commissioner, however, interference therewith was declined.
4. The trial Court/Tehsildar Mansehra again decreed suits of respondents to the extent of one third share amounting to Rs. 11725.52 and Rs .23191.00 whereafter execution petition was filed by them on 4-1-1993 and an objection petition filed by the petitioners was dismissed on 20-10-1994, however, execution petition was filed with the observation that decree holders would be at liberty to get the same restored.
5. Appeal preferred against the aforementioned order by the petitioners was dismissed on 29-3- 1995 whereas Revision Petitions Nos.4 and 45 of 1995 were also dismissed by Additional Commissioner Hazara Division vide order dated 20-11-1995 but yet another controversy emerged when respondent No.1 submitted an application dated 14-6-2004 to the Deputy District Officer (Revenue and Estate) Mansehra, respondent No.5 wherein it was averred that since suit of plaintiff/respondent No.1 was decreed by Tehsildar and appeals thereagainst were dismissed coupled with the fact that the civil suit filed by the petitioners regarding the same was dismissed and appeal before the District Judge Mansehra also failed, therefore, prayer was sought therein for attestation of mutation in his favour in lieu of the decrees pertaining to produce. It would not be out of place to mention that during the course of execution, an order for auction of the property of petitioners was passed on 13-9-1992, however, but it could not be materialised due to dropping of proceedings for execution on 13-11-1994.
6. Application for attestation of mutation submitted by respondent No 4 was accordingly processed and vide order dated 24-6-2004, order for attestation of mutation was passed which was challenged by the petitioners in appeal before District Officer Revenue and Estate/Collector Mansehra but was dismissed on 21-8-2004 where-against appeal/revision was preferred to Presiding Officer Revenue Appellate Court No.IV Hazara Division Abbottabad but interference therewith was declined and the matter went upto Member Board of Revenue which also met the same consequences hence the instant writ petition.
7. We have heard the learned counsel for the parties and have gone through the available material with their valuable assistance.
8: There is no denial of the fact that decree for a specified amount pertaining to produce was passed in favour of Faqir Khan etc., respondents and the executing court while consigning proceedings had passed an order qua revival thereof but no application for restoration of execution petition was ever submitted rather application for attestation of mutation in their favour was moved which did not fall within the ambit of powers of Deputy District Officer Revenue and Estate Mansehra hence were range jurisdiction exercised by him rendered his judgment/ order along with superstructures built thereon to be infected with abuse of power. Other forums in revenue hierarchy including Member Board of Revenue despite being approached by the petitioners did not relieve them of the effects of illegal action. It appears that the revenue courts did not exercise their powers bona fide for the purpose contemplated by the law but were influenced by extraneous and irrelevant considerations thereby passing orders in a partial, unjust and oppressive manner hence necessitate interference by this court.
9. Non filing of application for revival of execution proceedings so as to satisfy the decrees regarding amount of produce can be very well understood from the conduct of respondents Faqir Khan etc., that it was actually greed on their part to grab the property instead of getting the decrees satisfied. Application for attestation 10. Of mutation in favour of respondents ought B to have been rejected out rightly by calling upon them to ask for execution of decree of produce.
10. Apparently impugned acts and orders of public functionaries are in excess of jurisdiction and this court besides being a court of law is a court of equity also hence whenever excess being committed by any authority is noticed, bounden duty is cast upon it to get the sufferers rescued.
Viewing the matter from each and every angle, we are of the considered view that entertaining application dated 14-6-2004 together with orders thereupon respecting attestation of mutation in favour of respondent No.1 and others which culminated into order of Member Board of Revenue are illegal, without jurisdiction and lawful authority hence of no legal effect.
Instant petition is therefore, allowed in consequence whereto Judgment/Orders of respondents 2-5 are set aside.