' IQBAL HAMEEDUR RAHMAN, J.---The instant appeal, by the leave of the Court, impugns the judgment dated 26-11-2008 passed by the Peshawar High Court, D.I. Khan Bench, D. I. Khan, in W. P.
No,343 of 2007, whereby the said writ petition, filed by respondent No,1, has been accepted while setting aside the impugned orders passed by the respondents Nos. 2 - 4 by holding them to be illegal, without lawful authority and of no legal effect and resultantly ordered restoration of gift Mutation No, 1395 attested on 16-8-1993 on behalf of Mst. Sandoor Bibi in favour of Mst. Maheen Begum/respondent No, 1.
2. The concise facts necessary for the adjudication of the instant appeal are that Mst. Sandoor Bibi was the owner of land measuring 1383 kanals 4 marlas situated in village Takwara Nalla Hussainzai, Tehsil Kulachi. She gifted the said land to her granddaughter, Ms. Maheen Begum/respondent No, 1, through Mutation No, 1395 attested on 16-8-1993. After the death of Mst. Sandoor Bibi, the appellants being her legal heirs challenged the said gift mutation by filing a review application before the Deputy Commissioner/Collector, D.I. Khan, with the allegation that respondent No, 1 was a minor girl, therefore, the gift made in lieu of services was not a valid gift and it was based on fraud, misrepresentation and collusion of Revenue officials. The said review application was referred by the Collector, D.I. Khan, to the EAC Revenue to conduct inquiry and report. The EAC Revenue conducted the inquiry and submitted his report to the Collector, D.I. Khan, on 30-5-1995 and recommended that the matter be reviewed under section 163 of West Pakistan Land Revenue Act, 1967. Consequently, the Collector, D.I. Khan, vide his order dated 27-5-1997 allowed the review application and Mutation No, 1628 was entered by the Patwari on 13-9-1997 referring to the order of Tehsildar, Kulachi, dated 12-9-1997, but the Revenue Officer, vide his order dated 20-9-1997, did not attest the same on the ground that the signatures of Mst. Sandoor Bibi could not be verified on account of her death. Being aggrieved of the same, the appellants filed an appeal before the Deputy Commissioner/Collector, D.I. Khan, which was allowed vide order dated 24-1-2001 and consequently R.O., Kulachi, was directed to attest the mutation in favour of the legal heirs of Mst.
Sandoor Bibi. Against this order, the respondent No, 1 filed a revision before the Additional Commissioner, D.I. Khan, which was forwarded to Presiding Officer, Revenue Appellate Court No, II, Mardan (Camp at Peshawar), who dismissed the said appeal vide order dated 6-5-2004 by upholding the order of Collector, D.I. Khan. Being dissatisfied of the decision of the Revenue Appellate Court, the respondent No, 1 filed an appeal before the Senior Member, Board of Revenue, Peshawar Camp, District D.I. Khan. The Member, Board of Revenue, N.-W.F.P. Camp Court, D. I. Khan, vide his order dated 19-9-2006 also dismissed the appeal and upheld the decisions of Deputy Commissioner/Collector, D.I. Khan and Revenue Appellate Court No, II, Mardan. Against the order of the Member, Board of Revenue, D.I. Khan, the respondent No, 1 then filed a writ petition before the Peshawar High Court, D.I. Khan Bench, D.I. Khan. The High Court after hearing the parties and scanning the record, accepted the writ petition vide impugned judgment dated 26-11-2008 and set aside the orders passed by respondents Nos. 2 - 4 as stated above. Feeling aggrieved of the judgment of the High Court, the appellants approached this Court by filing Civil Petition No,251 of 2009, wherein leave has been granted vide order dated 20-7-2009 to consider the following:-- "(a) The factum of gift can be maintained and set aside by the Civil Court; but who in the given circumstances is supposed to go to the Civil Court.
(b) Whether the revenue hierarchy had the jurisdiction vested in it to cancel a mutation. If so, what could be the grounds for such cancellation and what could be the effect thereof.
(c) What is the legal effect of a mutation cancelled by the revenue hierarchy.
(d) Whether review of mutation was within the purview of section 163 of the Land Revenue Act.
(e) Whether the review petition could be filed or not to challenge mutation proceedings.
(0 Whether a writ petition could be filed or not to challenge mutation proceedings."
3. Mr. Gulzarin Kiani, learned counsel for the appellants, at the very outset argued that the High Court while exercising its constitutional jurisdiction could not have embarked upon an inquiry into disputed questions of fact. There are three concurrent decisions in favour of appellants, which could not have been set aside in constitutional jurisdiction of the High Court. It is further argued that the High Court has completely failed to take into consideration that gift mutation made by a paralytic lady of 80 years, who died 6 days after execution of the said gift mutation, in favour of a female minor aged about nine months only was based upon fraud, misrepresentation and collusion of Revenue officials, but the learned counsel reluctantly accepted that the question of determination of validity or otherwise of the gift mutation falls within the domain of Court of plenary jurisdiction. In support of his arguments, he relied upon the cases of Muhammad Iqbal v. S. A. M. Khan, Member, Board of Revenue, West Pakistan, Lahore and 3 others (PLD 1970 Lahore 614), Allah Dad v. Mst. Noor Bhari and others (1996 CLC 374), Khuda Bux v. Government of Sindh and others (PLD 1989 Kar. 85), Secretary to the Government of the Punjab, Forest Department, Punjab, Lahore through Divisional Forest Officer v. Ghulam Nabi and 3 others (PLD 2001 SC 415) and Dr. Sher Afgan Khan Niazi v. Ali S. Habib and others (2011 SCMR 1813).
4. On the other hand, Mr. Tanvir-ul-Islam, learned counsel for the respondent, submitted that appellants' review application before the Collector was time barred. Moreover, under section 163 of West Pakistan Land Revenue Act, 1967, the Collector could only review his own order and not that of the Revenue Officer. He further submitted that the Collector, while exercising review jurisdiction, could not probe into disputed questions of fact regarding the genuineness of the transaction, the validity of the gift and its proof, and stressed that the High Court has rightly held that the question of title can only be agitated before the competent Civil Court, therefore, the appellants, if were aggrieved of the gift mutation in favour of respondent No, 1, could invoke the jurisdiction of the Civil Court and the matter does not fall within the jurisdiction of the Revenue hierarchy, but it is in exclusive jurisdiction of Civil Court. In support of his arguments, the learned counsel for the respondent placed reliance upon the cases, of Ghulam Muhammad and others v. Manzoor Ahmad and others (2006 SCMR 1534), Syed Ghulam Ali Shah v. The Deputy Commissioner and Incharge, Settlement Cell, Sanghar and others (1984 CLC 1729), Noor Muhammad, Lambardar v. Member (Revenue), Board of Revenue, Punjab, Lahore and others (2003 SCMR 708), Syed Allah Dost v. Haji Muhammad Alam and 12 others (PLD 1987 Quetta 235) and Mst. Balqis Begum v. All Sher (1986 MLD 608).
5. Heard. With the able assistance of learned counsel for the parties, we have gone through the judgment and orders of the forums below and have perused the record.
6. Admittedly the appellants had called in question the gift mutation by virtue whereof title of mutated land owned by Mst. Sandoor Bibi had been transferred to respondent No, 1, as such it exclusively fell within the plenary jurisdiction of Civil Court and the High Court has rightly held so as under:-- "4. ..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."
' Moreover, the disputed questions of fact cannot be entertained by Revenue hierarchy, therefore, the High Court while exercising its constitutional jurisdiction has set aside impugned orders passed by respondents Nos. 2 - 4 as the same were passed without jurisdiction, illegal, having no lawful authority to adjudicate and determine the question of title which fell within the exclusive jurisdiction of the Civil Court, as such of no legal effect.
7. In the above perspective, we are of the considered opinion that the High Court has arrived at a right and just conclusion by accepting the writ petition and setting aside the orders passed by Revenue hierarchy being without jurisdiction. It is also a settled principle that where any orders or judgments passed by any Court or authority who has no jurisdiction or are barred to exercise such jurisdiction, such orders or judgments are deemed to have been passed illegally and in such circumstances the High Courts are justified in exercising its constitutional jurisdiction to rectify the same, thus, in the instant case the High Court has rightly exercised its Constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. In this regard, reliance can be placed upon the cases of Noor Muhammad, Lambardar v. Member (Revenue), Board of Revenue, Punjab, Lahore and others (2003 SCMR 708) and Haji Noorwar Jan v. Senior Member, Board of Revenue, N.-W.F.P. Peshawar and 4 others (PLD 1991 SC 131), the relevant portions therefrom are reproduced herein below:--
8. It was further observed by this Court that any error on the part of Board of Revenue in understanding the law, in applying it or in laying down the law can and must be corrected in the Constitutional jurisdiction. If it is left uncorrected, it will result in subverting the rule of law, .91 ..And, "19. The Board of Revenue at the apex of the Revenue hierarchy is charged with the statutory duty of interpreting the law, of applying it to individual cases coming up before it and laying down the law for the subordinates in the hierarchy to follow. Any error on its part in understanding the law, in applying it or in laying down the law can and must be corrected in the constitutional jurisdiction. If it is left uncorrected, it will result in subverting the rule of law
8. Resultantly, we do not find any merit in this appeal, therefore, it is dismissed, however, with the observations that any observations contained in the earlier round of litigation between the parties in the hierarchy of Revenue Court and the High Court shall not prejudice the case of either party in any future litigation. These are the detailed reasons of our short order of even date.