' MUHAMMAD AYUB SHAIKH, MEMBER (JUDICIAL-I).--This is an appeal under section 161 of Sindh Land Revenue Act, 1967 challenging the order dated 2-8-2006 passed by the defunct Executive District Officer (Revenue), Tharparkar @ Mithi whereby he has set aside the mutation regarding fotikhatabadal of Chatoon further directing the Mukhtiarkar to effect fotikhata of disputed land viz. S.No,6(21-08) acres in makan sayansar tapo Jorou taluka Mithi in open katchery.
' Brief facts of the case are that the land in question was originally owned by late Turcho son of Nibho Menghwar who had married with Shrimati Moolan who had son namely Chatoon from her ex-husband Dahio. Turcho had one daughter Shrimati Jian from wedlock of Shrimati Moolan. She also died before the death of Turcho. After the death of Turcho a mutation was effected in 1919- 1920 in favour of stepson Chatoon. After the death of Chatoon the land in question was inherited by his legal heirs and such khata was mutated in 1961. In year 1962 Misri son of Deepchand and Khamiso son of Bhano Menghwar filed an appeal before Deputy Commissioner Tharparkar challenging the mutation in 1919-1920. The Deputy Commissioner Tharparkar passed an order dated 12-6-1962 which is reproduced hereunder for the sake of convenience:--- "The S.No,6 was mutated in the name of Chatoon son of Dahio in 1919-1920 on the death of Turcho.
The S.No, in question remained on the khata of Chatoon up to 1959-60. On the death of Chatoon the S.No, in question has been inherited by his descendants in 1960-61. The appellants disputed the inheritance of Turcho in 1960-61 i,e, after a lapse of 42 years. It is not the function of Revenue Department to interfere at this stage. The appeal is therefore rejected and appellants may seek redress in Civil Court if they so desire".
3. An appeal was filed by present respondent (legal heirs of Turcho in third generation) before Deputy District Officer (Revenue) Mithi for removal of illegal cultivation on the disputed S.No,6. This miscellaneous application was disposed of. The following order dated 30-3-2006 passed by Deputy District Officer (Revenue) Tharparkar @ Mithi:--- "Going through the relevant record it reveals that, obviously above named applicants have nothing sort of an iota of right title or interest in S.No, 6 or in the adjoining sanctioned Yaksala pieces. While they have no locus standi even otherwise made out a fictitious and frivolous conjecture through their counsel and thereby involved respondents under uncalled for litigation, unnecessarily, entailing in wastage of Court time.
' Accordingly, he alleged fake and void application is hereby struck down in limine."
' The above same persons (legal heirs of Turcho) filed another record of rights appeal before District Officer (Revenue) in the year 2004 claiming right of inheritance after 84 years as the original mutation had taken place in the year 1919-1920. This appeal was rejected being not maintainable and the appellant in this appeal were advised to seek remedy from the competent court of civil jurisdiction if they chose to. The above said order of District Officer (Revenue) was challenged before Executive. District Officer (Revenue) Tharparkar @ Mithi by the same legal heirs of Turcho wherein Executive District Officer (Revenue) Tharparkar @ Mithi passed an order as under:--- "Accordingly the Revision Petition is upheld. Thereby the alleged illegal, void mutation under fotikhatabadal of deceased Tulhho son of Nirbho Menghwar respecting S.No,6 in favour of Chatoon under order of Mukhtiarkar Mithi dated 4-9-1919, and subsequent mutation regarding fotikhatabadal of Chatoon in favour of respondents (vide Entry No,60 of V.F.VII dated 17-8-1961 respecting S.No,6 Makan Sanyasar) is hereby set aside.
' The Mukhtiarkar is required to effect fotikhatabadal of deceased Turcho son of Nirbho respecting S.No,6(21-08) acres afresh in favour of the descendants of his legal heirs (3 nephews) Bhano, Missri and Meho in open katchery. Whereas B.No,42(2-23 acres) allegedly acquired by Chatoon himself may be allowed to the respondent. While other yaksala land on the Mohaga and panidhor rights of S.No,6 being still State land shall be granted to the concerned successors of deceased Tulchho under the Government Land Grant Policy 2000 as being preferably entitled."
5. The above said order has been assailed through appeal in hand.
6. At the outset the respondent challenged the maintainability of this appeal mainly on the ground that second revision cannot be entertained by this court. The objections on maintainability were heard and a separate order dated 16-2-2012 was passed treating the order of Executive District Officer (Revenue) Tharparkar @ Mithi who reversed the order of District Officer (Revenue) as an original order thus the appeal in hand was termed as maintainable and it was decided to be heard on merits.
7. The counsel for the appellant and respondents Nos.1 to 4 were heard at length. The orders passed by the Executive District Officer (Revenue) Tharparkar @ Mithi dated 2-8-2006, District Officer (Revenue) dated 15-9-2005 and that of order of Deputy District Officer (Revenue) dated 30- 3-2006 and that Deputy Commissioner Tharparkar dated 12-6-1962 were pursed and case-law cited by the parties was also taken into consideration.
8. The counsel for the appellants argued that mutation in favour of ancestors of present appellants (Chatoon) was effected in year 1921. After death of Chatoon khata was mutated in favour of legal heirs in 1959-60. That after 42 years of mutation having taken place in 19191920 an appeal was filed before Deputy Commissioner Tharparkar. He argued that the order passed by the then Deputy Commissioner Tharparkar in the year 1962 clearly says that it was not the function of Revenue Authorities to interfere with khata after 42 years. This order was passed in 1962 and was never challenged and had attained finality. He further argued that the respondent filed an appeal before Deputy District Officer (Revenue). The Deputy District Officer (Revenue) also held that the present respondent Pirbho and others did not have any locus standi. He said that the District Officer (Revenue) also held that the order of the then Deputy Commissioner Tharparkar cannot be challenged at such belated stage. He also argued that the order of Executive District Officer (Revenue) Tharparkar @ Mithi is illegal and relied on PLD 1986 Rev. 22, wherein it is held that long- standing entries in a Record of Rights should not be interfered with by Revenue Authorities.
Aggrieved party might have recourse to civil court. He also relied on PLD 1986 Rev. 131 wherein it is held that the Revenue Officers were not competent to go into intricate question of facts in mutation proceedings. Such questions were to be left for determination by the civil courts. He also cited 2005 YLR 890 which says that no disputed entry in a jamabandi can be altered whether on ground of mistake or of fraud except on basis of obvious clerical error or a patent fact requiring no elaborate enquiry for their establishment. The entries of crop Kharif 1976 having been incorporated in jamabandis could only be corrected through a decree of court and not by an order of Collector through summary proceedings under S.42 passed after lapse of 24 years. One more citation was placed of 1994 MLD 2254 which says that ordinarily constitutional petition was not competent to challenge the orders passed by Revenue Authorities which related to correction of revenue entries, yet the order passed by Revenue Authorities which caused extinguishment of title in the property and which had been passed in pursuance of a provisions of S.53, West Pakistan Land Revenue Act, 1967, and were patently illegal and without jurisdiction were liable to be declared as without lawful authority in exercise of constitutional jurisdiction of High Court. He also relied on PLD 1986 Rev. 150 wherein it is held that long-standing entries in Revenue Record, were not to be altered on ground of fraud by Revenue Authorities. Aggrieved party might seek remedy in competent civil court.
9. He prayed that in view of facts and clearly laid down case-law by the Superior Courts the appeal may be allowed.
10. The counsel for respondent in his arguments said that the order of the Deputy District Officer (Revenue) dated 30-3-2006 is alleged not to have been challenged whereas the para one of the said order says that this is purely a miscellaneous application for removal of illegal cultivation of S.No,6 therefore the miscellaneous application had no concern with present appeal. He said that the dispute is present case concerns inheritance of property. He then referred to para 2 of the present appeal wherein it is stated that Shrimati Molan is the only legal heir of deceased Turcho who had one son Chatoon from her ex-husband Dahio. Then he referred to para 3 of the appeal and highlighted that whether a female legal heir can make a further will according to. Hindu Law.
He referred to section 26 of the General Principles of Inheritance that a female according to Hindu Law is a limited owner and can only seek income and cannot pass on the property in form of will or as legal inheritance on her death. He relied on 2001 SCMR (sic) wherein it is held that no question of limitation could arise in the cases of inheritance. He referred to page 2 of the impugned order and said that this legal finding recorded by the Executive District Officer (Revenue) Tharparkar Mithi in para 4 have not been rebutted rather it amounts to admission by the appellant. It is an admitted position that Chatoon was step-son of Turcho whereas in appeal at page 3 (respondent No,4) has been mentioned son/legal heirs which is not correct. He argued that the counsel for appellant has failed to quote any law that whether step-son can inherit. He prayed that genuine legal heirs i,e, three nephews, Bhano, Misri and Mevo who have also died and now there legal -heirs were the owners therefore, the order of Executive District Officer (Revenue) Tharparkar @ Mithi being in accordance with law may be maintained.
11. I have carefully considered the arguments as well as whole case-law placed before me. The immediate question involved in this case is that of jurisdiction as whether the revenue courts have the jurisdiction to interfere in such long-standing entries. If such jurisdiction is not available to revenue authorities then to deliberate on other merits of the case was inappropriate. The order of Executive District Officer (Revenue) Tharparkar @ Mithi was passed in 2006 interfering in the entries for the first time which were made 86 years ago in 1920. The Deputy. Commissioner Tharparkar as back as in were as year 1962 held that even at that point of time the Revenue Authorities did not have the jurisdiction to interfere with the entries after 42 years when the same cause of action was challenged by the ancestors of present respondents. The Executive District Officer (Revenue)
Tharparkar @ Mithi has passed the order in respect of mutation/entries which were as said earlier challenged by ancestors of the respondents who did not choose to further challenge the order of Deputy Commissioner and thus that order had attained the finality as far as the Revenue Authorities are concerned. The Executive District Officer (Revenue) Tharparkar @ Mithi did not possess such jurisdiction to set aside the order passed in 1962 after 42 years in year 2006. The appropriate course open to respondents was to approach the court of civil jurisdiction but I am afraid that at this belated stage when several decades have passed even recourse to civil jurisdiction would be subject to strict scrutiny of limitation however if the respondent choose as such then it is for the competent court of civil jurisdiction to decide thereon.
12. Accordingly I am of the considered view that the matter at the most falls within the civil jurisdiction and Revenue Authorities are not competent to interfere at such belated stage to undo long-standing entries and push the parties to an unending litigation. The appeal is allowed and the order of Executive District Officer (Revenue) Tharparkar @ Mithi dated 2-8-2006 is hereby set aside in terms observation in preceding para regarding recourse to civil jurisdiction if chosen.