ALI BAQAR NAJAFI, J.---Through this constitutional petition, the petitioner has challenged the order dated 26.12.2007 passed by respondent No. 1/Member Board of Revenue-II and the order dated 07.06.1990 passed by respondent No.3/Deputy Commissioner/ Collector Rahim Yar Khan with a further prayer to restore the order dated 25.10.1994 passed by respondent No.2/Commissioner Bahawalpur Division Bahawalpur.
2. Brief facts giving rise to the filing of this constitutional petition are that the predecessor of the petitioners purchased agricultural land measuring 16 kanals situated in Mauza Ghazi Pur Tehsil Liaqatpur District Rahim Yar Khan through an agreement to sell from one Hukam Din, the then owner on 22.10.1979. However, on account of some disputes, the suit for specific performance of agreement was filed by the predecessor of the petitioners against said Hukam Din on 08.11.1979 which was decreed on 29.01.1980 on the basis of consenting statement of Hukam Din.
Consequently, mutation No.1155 was sanctioned in favour of predecessor of the petitioners on 06.04.1980. Meanwhile, respondent No.4 and others challenged the said judgment and decree dated 29.01.1980 by filing an application under section 12(2), C.P.C. on 14.11.1982 which was initially dismissed on 04.06.1990 after recording of evidence and hearing all the parties. Aggrieved of the said order, respondent No.4 and others filed a revision petition before the Additional District Judge who vide order dated 28.02.1996 accepted it and restored the application under section 12(2), C.P.C. for further evidence and decision. Later, the learned Civil Judge received further evidence and allowed application under section 12(2), C.P.C. on 27.09.2000. Now the petitioner aggrieved of the above said order filed a revision petition before the Additional District Judge who vide his order dated 22.03.2006 allowed the revision petition and dismissed the application under section 12(2), C.P.C. Now it was respondent No.4 who assailed the order before this Court in W.P. No.1416-2006/ BWP in which the status quo was ordered to be maintained but it was finally dismissed on 29.06.2015. The respondent filed CPLA No.2292-L/2015 before the Hon'ble Supreme Court of Pakistan which is statedly pending but no leave to appeal was granted so far.
3. In the other round of litigation, respondent No.4 also filed an application before respondent No.3/Deputy Commissioner/Collector Rahim Yar Khan on 01.08.1999 for cancellation of mutation No.1155 dated 04.06.1980 passed in favour of the petitioner which was accepted on 07.06.1990 and the said mutation was reviewed. The petitioner aggrieved of the said order preferred a revision petition before the Commissioner Bahawalpur/respondent No.2 who allowed it on 25.10.1994 and set-aside the order dated 07.06.1990. Respondent No.4 filed ROR No.2718-94 before the Member Board of Revenue/respondent No.1 who vide order dated 26.12.2007 allowed it and set-aside the order dated 25.10.1994 passed by respondent No.2, consequent of which mutation No.1155 dated 04.06.1980 was cancelled. The petitioners assailed the order dated 26.12.2007 and 07.06.1990 and prays for restoration of order dated 25.10.1994 passed by respondents Nos.1 and 3 respectively by invoking the constitutional jurisdiction of this Court.
4. Learned counsel for the petitioners submits that the impugned order dated 26.12.2007 is not a speaking order and the mutation No.1155 was sanctione&on the basis of a decree passed by the Civil Court, therefore, the revenue Court cannot determine the question of title by extending the jurisdiction beyond the scope of said decree. Adds that respondent No.1 had not given any finding on five raised questions and that the document in possession of respondent No.4 was brought to the notice of the Court first time on 27.11.2007 which shows its lack of authenticity. Submits that Mst.
Kaniz Mai shown as original owner of the disputed property had no concern with the disputed khata and, therefore, prays for setting-aside the impugned order.
5. Conversely, learned counsel for respondent No.4 submits that the decree was passed after the death of Hukam Din as reflected from entry in the death register (Exh.P-2) and that in register Haqdaran-e-Zamin (Exh.P-3) the owner is the Central Government and that Taj Ali, the predecessor of the respondent came in possession of the property on the basis of the document (Exh.P-4). Adds that on the basis of RL-II (Exh.P-11) the ownership was confirmed in the name of Hukam Din. It was also submitted on behalf of respondent that a suit is also pending and therefore prays for dismissal of the civil revision.
6. In rebuttal, learned counsel for the petitioners points out that all the grounds argued before this Court have already been incorporated in the writ petition already decided by this Court against which CPLA No.2292-L/2015 is pending before the Hon'ble Supreme Court and therefore, the relief may be granted.
7. Arguments heard. File perused.
8. After hearing the learned counsel for the parties and perusing the record, it has come on surface that mutation No.1155 dated 04.06.1980 sanctioned on the basis of consenting judgment and decree dated 29.01.1980 could sustain as long as the supportive decree remained intact.
Admittedly, the W.P.No.1416- 2006 filed by the respondent Ghazanfar Ali has been dismissed by this Court and as per instructions of the respondent's counsel, the leave has not been granted so far in CPLA No.2292-L/2015. Meaning thereby, that the decree has not been set-aside and still holds the field.
9. The revenue authorities cannot go against the decree passed by the Civil Court and that sanction of mutation in pursuance of the said decree is a formality B and was not an independent act and therefore, had not created any independent right. A reference may be given to case titled "Shahra and others v. M.B.R., Punjab and others" reported as 2004 SCM R 117 the relevant extract of para 4 is reproduced as under:--- "Sanction of mutation in pursuance of decree of a Civil Court was merely a formality and was not independent act and according to law did not by itself independently had the effect of creating any right. According to law, the revenue authorities were bound to make changes in the revenue record according to the decree of the Civil Court and in this case, admittedly decree passed in the pre-emption suit related to whole of the land about which mutation was sanctioned, therefore, no objection could be raised that in fact whole of the land had not been sold."
10. A reference may also be given from judgment of Single Bench of this Court titled "Muhammad Aslam v. Collector and another" reported as 1992 CLC 851 wherein it was held that the revenue authorities could not review the mutation sanctioned on the basis of a decree passed by the Civil Court, particularly, when the said judgment and decree has been challenged and its final decision is yet to be made.
11. Under Section 42 of the West Pakistan Land Revenue Act, the title cannot be determined by the Revenue Authorities and under section 53 of the said Act, it is within the jurisdiction of the Civil Court to finally adjudicate about the question of title. Sections 42 and 53 of the West Pakistan Land Revenue Act are reproduced as under:-- "42. Making of that part of periodical records which relates to land-owners.---(1) [34] [Subject to the other provisions of this Chapter, a person] acquiring by inheritance, purchase,mortgage, gift, or otherwise, any right in an estate as a landowner, or a tenant for a fixed term exceeding one year, shall, within three months from the date of such acquisition, report his acquisition of right to the Patwari of the estate, who shall-
(a) record such report in the Roznamacha to be maintained in the prescribed manner; (b)furnish a copy of the report so recorded, free of cost, to the person making the report; and (c)send a copy of the report, within a week of its receipt by him, to the [35] [office of the Union Administration) within which the estate is situated.
36. [ * * * * * * 1 (2)
(6)A Revenue Officer shall, from time to time, inquire into the correctness of all entries in the register of mutations and into all such acquisitions as aforesaid coming to his knowledge of which, under the foregoing sub-sections, report should have been made to the Patwari and entries made in that register, and, shall in each case make such order as he thinks fit with respect to any entry in the periodical record of the right acquired.
(7)Except in cases of inheritance or where the acquisition of the right is by a registered deed or by or under an order or decree of a Court, the Revenue Officer shall make the order under subsection (6) in the presence of the person whose right has been acquired, after such person has been identified by two respectable persons, preferably from Lambardars or members of the
401. Zila Council, Tehsil Council or Town Council] concerned whose signatures or thumb- impressions shall be obtained by the Revenue Officer on the register of mutations.
53. Suit for declaratory decrees by persons aggrieved by an entry in a record. ---If any person considers himself aggrieved by an entry in a record-of-rights or in a periodical record as to any right of which he is in possession, he may institute a suit for a declaration of his right. under Chapter VI of the Specific Relief Act, 1877 (Act I of 1877)."
12. In somewhat similar circumstances, the guidance can be sought from the case titled "Ataur Rehman Khan v. Dost Muhammad and others" reported as 1986 SCM R 598, wherein till the pendency of application under section 12(2), C.P.C., the mutation was ordered not to be disturbed.
In the case titled "Muhammad Yousaf and 3 others v. Khan Bahadar through L.Rs." reported as 1992 SCM R 2334, the Hon'ble Supreme Court of Pakistan has drawn a line of distinction between the matters to be determined by the Civil Court and the Revenue Court. Relevant extract is reproduced as under:-- "We have anxiously considered the relevant provisions of West Pakistan Land Revenue Act. Section 172 barred the jurisdiction of the Civil Courts in certain matters exclusively within the competence of the revenue officers which have been enumerated in subsection (2). Section 44 relates to the determination of disputes arising during the course of making, revision or preparation of record or in the course of any inquiry under Chapter VI relating to record-of-rights and periodical record.
But once the inquiry is made or the entries recorded in the Revenue Record, a presumption of truth is attached to it under section 52 of the Act ibid until the contrary is proved or the new entries are substituted therefor. To dislodge this presumption a remedy is provided under section 53 of the said Act which provides that if person considers himself aggrieved by an entry in a record-of- rights or in periodical record as to any right of which he is in possession, he may institute a suit for declaration of his rights on in periodical record as to any right of which he is in possession, he may institute a suit for declaration of is rights under section 42 of the Specific Relief Act, 1877 Act (I of 1877). Apparently, the jurisdiction of the Civil Courts is not ousted to question the correctness of the entries of revenue record, or declaration of title under the Specific Relief Act, or claiming relief of possession of immovable property, rather aggrieved party has been invested with a right to challenge the entries made in the Land Revenue Act through a suit for declaration in Civil Court.
The learned appellate Court not only misinterpreted the provisions of West Pakistan Land Revenue Act but omitted to take into consideration the provision of section 53 of the Act ibid and legally erred in holding that the Civil Court had no jurisdiction in the matter and, in consequence, ordered the return of plaint. "
13. For what has been discussed above, this petition succeeds and therefore allowed since the mutation No.1155 dated 06.04.1980 was cancelled without following the mandate of law and the view taken by the superior courts.