' SADIQ HUSSAIN BHATTI, J.--- The petitioners being aggrieved and dissatisfied with the order dated 22-5-2012 passed by the Assistant Commissioner, Taluka Tangwani (respondent No,3) on the application of respondents No,5 and 6 without hearing the petitioners and other legal heirs of late Sardar Ghulam Mustafa Khan Bugti by cancelling the Entries of the Part of the gifted land in the name of late Sardar Ghulam Mustafa Khan Bugti.
2. Briefly the facts as enunciated in the petition, in hand, by Muhammad Yousuf Khan Bugti and Muhammad Baber Khan Bugti (petitioners) both sons of Late Sardar Ghulam Mustafa Khan Bugti against six respondents including Mst. Ittefaque Begum (respondent No,5) and Mst. Akhtar Shaheen (respondent No,6), who jointly moved an application to the Deputy Commissioner, Kashmore at Kandhkot, who forwarded the same to the Assistant Commissioner, Tangwani, directing him to pass an appropriate legal order after hearing the concerned Parties. The Assistant Commissioner passed the order dated 22-5-2012, which is impugned by the Petitioners above- named. Late Sardar Ghulam Mustafa Khan Bugti was the owner of agricultural land bearing Survey Nos.476, 477, 478, 479, 480, 443, 444, 445, 446, 447, 448, 449, 450, 451, 453, 454, 466, 467, 468, 469, 470, 471, 460, 474, 475, 455, 456, 457, 458, 459, 461, 462, 463, 464, 465, 472 and 473 total admeasuring 292-29 Acres in Deh Sanhri, Taluka Kandhkot, now Taluka Tangwani. Out of the above agricultural land, Late Sardar Ghulam Mustafa Khan Bugti by way of Oral Statement gifted 143-17 Acres and 100-22 Acres to the respondents Nos.5 and 6 respectively. Their names were affected in the Revenue Record vide Entry No,80 dated 24-5-1966. Thereafter, both the respondents Nos.5 and 6 gifted the same piece of land to Late Sardar Ghulam Mustafa Khan Bugti, father of the petitioners and thus his name was mutated in the Record of Rights vide Entry No,13 dated 23-3-1987 and they enjoyed the peaceful possession of the said land, till the death of their father Late Sardar Ghulam Mustafa Khan Bugti along with their brothers without any interference.
3. Subsequently, the respondents Nos.5 and 6 being daughters of Late Sardar Ghulam Mustafa Khan Bugti not only attempted to change the Khata of the said land in their favour but employed force to occupy the same.
4. Meanwhile, the petitioners along with their brothers and sisters approached the Revenue Authorities for the change of Foti Badal Khata after the demise of their father, but the Revenue Officials refused to change the Foti Badal Khata in the Revenue Record. Having failed in their efforts, the petitioners along with their brothers and sisters filed a First Class Suit bearing No,81 of 2011 in the Court of Senior Civil Judge, Kandhkot praying therein that the Revenue Officials be directed to mutate the Foti Badal Khata in their names. The above Civil Suit is pending decision before this Court.
5. Learned counsel for the petitioners mainly argued that the Assistant Commissioner, Tangwani is not competent to pass an order of cancellation of Entry from the Revenue Record merely on the application ignoring the Circular of the Board of Revenue, thus he has acted illegally with mala fide intention. He has further argued that the respondents Nos.5 and 6 filed the above said application before the Deputy Commissioner, Kashmore, after filing of the First Class Suit bearing No,81 of 2011 in the Court of Senior Civil Judge, Kandhkot, which is indicative that the respondents Nos.5 and 6 instead of defending the said Suit applied trickily and shortcut method to obtain illegal order. The present matter relates to old Entries in the Revenue Record and the Revenue Officials have no such powers to cancel long standing old Entries, as the same is within the powers of the Civil Courts.
According to the learned counsel for the petitioners, the remedy available to the, respondents Nos.5 and 6 was only to approach the Civil Court to redress their grievance. Learned counsel for the petitioners has further contended that delay in filing the said application by the respondents Nos.5 and 6 before the Deputy Commissioner, Kashmore creates doubt as to why they remained silent for a period of 23 years. Learned counsel for the petitioners has next urged that, according to law, when any order is passed without having jurisdiction, then such order being illegal can be quashed. The respondents Nos.2 to 4 being Government Officials are bound to perform their duties according to law and rules without harassing the common people. He has further urged that as the present case is of mala fide and in excess of jurisdiction, the same is required to be declared as null and void by exercising of powers of Extraordinary Constitutional Jurisdiction by this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. In support of his case, learned counsel for the petitioners has placed reliance upon the case-law reported in 2004 SCM R 400, PLD 1972 SC 279, PLD 1987 SC 447, 1999 SCM R 1881, 2005 YLR 252, 2006 CLC 1902 and 2009 CLC 990.
6. On the other hand, learned counsel for the respondents Nos.5 and 6 by rebutting the above arguments has contended that the present petition is misconceived and non-maintainable, as the matter relates to resolving the factual controversy and thus this Court cannot make factual enquiries by invoking its Extraordinary Constitutional Jurisdiction, hence the same may be dismissed with exemplary cost upon the petitioners. According to the learned counsel for the respondents Nos.5 and 6, the Extraordinary Constitutional Jurisdiction of this Court cannot be used as a substitute of time barred appeal under the West Pakistan Land Revenue Act, 1967. Learned counsel for the respondents Nos.5 and 6 has further argued that the Mst. Mumtaz Begum is not the legal heir of Late Sardar Ghulam Mustafa Khan Bugti, as she was divorced by Late Sardar Ghulam Mustafa Khan Bugti in his lifetime. He has further urged that the averments made in the Petition by the petitioners are false, frivolous and misleading. Finally, he has argued that the respondents have also filed a First Class Suit bearing No,43 of 2012, which is also pending adjudication. According to the learned counsel for the respondents Nos.5 and 6, the Form-VII wherein it has been alleged that both the respondents Nos.5 and 6 had returned the gift and transferred the gifted land in the name of their father Late Sardar Ghulam Mustafa Khan Bugti is fake, bogus, fictitious and concocted one.
7. On behalf of the Official respondents Nos.1 to 4, Mr. Miran Muhammad Shah, learned Addl.
Advocate-General, Sindh has adopted the arguments of the learned counsel for the respondents Nos.5 and 6 and has also filed Parawise Comments on behalf of the Official respondents Nos.1 to 4 wherein he has categorically denied all the allegations leveled by petitioners against the Official respondents Nos.1 to 4. He has also contended that this Court cannot bypass hierarchy under the Land Revenue Authority, as adequate and alternate remedy is available to the petitioners, therefore, this petition is not maintainable. He also prays for dismissal of this petition being non- maintainable.
8. We have heard the learned counsel for the parties and perused the available records before us.
9. Prima facie, it appears that the petitioners have mainly challenged the impugned order dated 22-5-2012 bearing No,AC/Tangwani 1173/2012 passed by the Assistant Commissioner, Tangwani, the respondent No,3 wherein Entry No,13 dated 23-3-1987, challenged by the respondents No,5 and 6 that they gifted the land in question to Late Sardar Ghulam Mustafa Khan Bugti on oral statement, was cancelled. After thorough investigation, Assistant Commissioner, Tangwani held that Entry No,13 dated 23-3-1987 seems to be managed, suspicious and bogus and the Mukhtiarkar was directed to maintain original Entry.
10. Perusal of record reveals that Late Sardar Ghulam Mustafa Khan Bugti, father of the respondents Nos.5 and 6 gifted his Agricultural Land of 162.12 Acres and 107.28 Acres to his daughters respondents Nos.5 and 6 on the oral statement vide Entry No,80 dated 24-5-1966 in Deh Sanhri, Taluka Kandhkot, now Taluka Tangwani, which has subsequently been fraudulently changed in the name of their father Late Sardar Ghulam Mustafa Khan Bugti vide Entry No,13 dated 23-3-1987. The record further reveals that the Entry was recorded in the Record of Rights after death of father of the respondents Nos.5 and 6, which is evident from the fact that after death of their father, the respondents Nos.5 and 6 got Zarai Passbook on 16-7-2011 in respect of said land and the same was issued on the basis of Entry No,80 dated 24-5-1966. Main grievance of the petitioners appears to be change of Entry in the Record of Rights by the Assistant Commissioner, Tangwani without issuing of notice to the petitioners.
11. The petitioners did not avail the opportunity as provided in the Land Revenue Act, as has been held in the case of Mumtaz Ahmed and another v. The Assistant Commissioner and another, reported in PLD 1990 SC 1195. Their lordships held that:--- 'Petitioners should not have approached the High Court without exhausting other remedies provided in law in the hierarchy of the Revenue Forums. Constitutional Petition being premature thus could be dismissed on that ground alone. Proper procedure to be followed by the petitioners.
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12. It is also very strange that leaving the Revenue Forum where the entire record of the subject- matter was lying, both the Parties preferred to file the Civil Suits which are also pending adjudication, though under section 172(2)(vi) of the Land Revenue Act, 1967, the jurisdiction of the Civil Courts was exclusively barred, which reads as under:--- "172. Exclusion of jurisdiction of Civil Courts in matters within the jurisdiction of Revenue Officers.---
(1) Except as otherwise provided by this Act, no Civil Court shall have jurisdiction in any matter which Government, the Board of Revenue, or any Revenue Officer, is empowered by this Act to dispose of or take cognizance of matter in which Government, the Board of Revenue, or any Revenuer Officer exercises any powers vested in it or him by or under this Act.
(2) Without prejudice to the generality of the provisions of subsection (1), a Civil Court shall not exercise jurisdiction over any of the following matters namely:-
(3) The correction of any entry in a record of rights, periodical record or register of mutations; "
13. Perusal of the Form-VII, wherein it has been alleged that both the respondents Nos.5 and 6 had returned the gift and transferred the gifted land in the name of their father Late Sardar Ghulam Mustafa Khan Bugti, reveals that in the said Form VII Entry Number has been mentioned as 13 dated 23-3-1987 whereas 23rd March is declared Gazetted Holiday and the same seems to be fake and bogus one and the same cannot be taken into consideration.
14. The petitioners categorically denied that the respondents Nos.5 and 6 are daughters of Late Sardar Ghulam Mustafa Khan Bugti, as they have mentioned at Paragraph No,6 of the petition that "they alleged them as the daughters of Late Sardar Ghulam Mustafa Khan Bugti" whereas perusal of the Record of Rights, Deh Form-VII and even the statement of Late Sardar Ghulam Mustafa Khan Bugti, wherein it is mentioned that the respondents Nos.5 and 6 are his daughters. It appears from the record that the names of the respondents Nos.5 and 6 do not appear in the list of legal heirs.
The case-law cited by the learned counsel for the petitioners in support of his case, are distinguishable with the facts and circumstances of the case, in hand, and not applicable at all.
15. It may be observed that in this case unfortunately the petitioners instead of following proper remedies and going before the next higher forums where all this exercise, it could be hoped and expected, would have been thoroughly done, hurriedly approached the High Court in its Writ Jurisdiction. It appears that the petitioners were wrongly advised to do so.
16. Accordingly, without going into the validity of the order passed by the Assistant Commissioner, Tangwani, we consider it fit to dismiss this petition on alternate ground that the petitioners should not have approached this Court without exhausting other remedies provided in law to them in the hierarchy of Revenue Forum as has been held in the case of Mumtaz Ahmed and another v. The Assistant Commissioner and another reported in PLD 1990 SC 1190 (supra). Thus this petition being premature is dismissed.
17. This constitutional petition was dismissed by a short order dated 22-1-2013. These are the reasons for the same.