JUGMENT JAWAD HASSAN, J. This constitutional petition, under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (the "Constitution"), will decide the 12 years old dispute of the legal heirs of late Brig. (R)
Masood Salam, (the first Project Director of Islamabad International Airport, who was shot dead by a sniper in his office container at the site of the planned airport on 11.09.2007). After almost one year of his death, the litigation was started by Sohail Ahmad/Respondent No.1 to cancel the mutation in the name of late Brig. (R)
Masood Salam which continued for several years before the revenue hierarchy, including Respondents No. 9, 10 and 11. Now, the legal heirs of late Brig. (R) Masood Salam have called in question the orders dated 17.06.2010, 02.03.2013 and 23.07.2015 passed by the these official Respondents with the following prayer: "In view of the above circumstances, it is respectfully prayed that a declaration may kindly be made to the effect that order dated 17.06.10 passed by the Deputy District Officer (Revenue), Multan and the orders of Member (Judicial-III), Board of Revenue Punjab, Lahore dated 02.03.2013 passed in ROR No.145 of 2012 and order dated 23.07.2015 passed in review petition No.185 of 2015 are without lawful authority and of no legal consequence and not as such binding on the rights of the petitioners with consequent result that the order of Additional Commissioner (Consolidation), Multan dated 10.01.12 is restored."
I. BRIEF FACTS
2. Facts briefly for the disposal of this constitutional petition are that on 09.01.1992, Sohail Ahmad (Respondent No.1) purchased 100 kanals land situated in Chak No.6/F, District Multan (the "Land") from Altaf Hussain (Respondent No.8) through a sale deed on the basis of which Mutation No.194 was entered into on 29.08.1998 in his name. The litigation started inter-se the original owners Altaf Hussain (Respondent No.8) etc. and Sohail Ahmad (Respondent No.1) regarding authenticity of Mutation No.194 dated 29.08.1998 which was decided on 11.09.2008 by the Hon'ble Supreme Court of Pakistan, when CP No.304-L of 2003 filed by Altaf Hussain (Respondent No.8) etc. was dismissed and Mutation No. 194 was declared valid in favour of Sohail Ahmad (Respondent No.1).
3. Meanwhile, Sohail Ahmad (Respondent No.1) sold the Land to late Brig. (R) Masood Salam, predecessor-in- interest of the Petitioners for a consideration of Rs.25.00 lacs. The Suit Land was transferred after payment of loan of Rs.2,44,800/- vide Mutation No.347 dated 8.8.2003 (Annexures A/1 and A/2). The possession of the suit land was handed over to the vendees/Petitioners. Subsequently, after the death of Brig. (R) Masood Salam, Sohail Ahmad (Respondent No.1) challenged Mutation No.347 by filing an application before Executive District Officer (Revenue) on 20.10.2008, alleging that Mutation No.347 is outcome of fraud. An inquiry was conducted by Naib Tehsildar, who vide his report dated 17.11.2008, declared the said mutation as valid, but the Deputy District Officer (Revenue)/Collector, Multan (Respondent No. 10) (the "Collector") vide his order dated 17.06.2010 (Annexure B) (the "Collector Order"), cancelled the said mutation. The Petitioners being aggrieved from this order, filed an appeal under Section 161 of the Land Revenue Act, 1967 (the "Revenue Act") before the Additional Commissioner (Consolidation) Multan Division, Multan (Respondent No. 11) (the "Additional Commissioner"), which was accepted vide order dated 10.01.2012 (Annexure C)(the "AC Order") and the Collector Order was set aside. The Additional Commissioner held that the Revenue Court has no jurisdiction to interfere in the matters involving resolution of disputed question of facts. He declared that the proper forum is the Civil Court where parties are at liberty to produce their evidence in support of their respective claims/pleas.
4. Sohail Ahmad (Respondent No.1), being aggrieved assailed the AC Order and filed a Revision Petition before the Member (Judicial-III) Board of Revenue, Punjab (Respondent No. 9) (the "Member Judicial"), who vide order dated 02.03.2013 (Annexure C/2)(the "Member Judicial Order") allowed the same and set aside the AC Order and upheld the Collector Order. The Petitioners filed Review Petition before the Member Judicial, which was also dismissed vide order dated 23.07.2015 (the "Review Petition Order"). Hence, the Petitioners have filed this constitutional petition challenging the Collector Order, the Member Judicial Order and the Review Petition Order (the "Impugned Orders") and to restore the effect of the AC Order.
II. ARGUMENTS OF THE PETITIONERS
5. Mr. Mudassar Khalid Abbasi, ASC for the Petitioners, has argued that the Collector and the Member Judicial, while passing the Impugned Orders have not adverted to the question that the matter involving disputed question of facts cannot be resolved by the Revenue Courts where fraud is alleged. Section 53 read with Section 172(2)(vi) of the Revenue Act describes that where fraud is alleged, suit in terms of Section 42 of the Specific Relief Act, 1877 (the "Specific Relief Act") read with Section 9 of CPC has to be filed in the Civil Court and the Revenue Courts lacked jurisdiction. He further argued that if any person considers himself aggrieved by any 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 declaration of his right under Chapter VI of the Specific Relief Act.
6. Mr. Ch. Abdul Ghani ASC further argued that the Collector and the Member Judicial have also failed to appreciate the fact that the Hon'ble Supreme Court had decided the fate of Mutation No.194 dated 29.08.1998 executed by Altaf Husain (Respondent No.8) in favour of Respondent No.1; and it has nothing to do with Mutation No.347 dated 08.08.2003 which was executed afterwards, therefore, they have erroneously relied upon the said judgment while cancelling Mutation No.347, whereas the Additional Commissioner vide the AC Order had rightly restored the said mutation and observed that order of the Supreme Court has nothing to do with Mutation No.347, where fraud is alleged, it goes out of the domain of revenue authorities and falls within the jurisdiction of the Civil Courts. Lastly, he prayed for acceptance of the writ petition and setting aside of the Impugned Orders.
III. ARGUMENTS OF THE RESPONDENTS
7. On the other hand, Mr. Aftab Hussain Malik, counsel for the Respondents, has stated that Respondent No.1 purchased the Land through sale deed No.39 dated 09.01.1998 from Altaf Hussain. The said sale deed could not be implemented in revenue record because there was litigation of the disputed land pending in the Civil Court. He argued that under the orders of the High Court dated 21.08.1998, the sale deed No.39 was entered in the revenue record conditionally and thus Mutation No.194 was entered in the revenue record. The matter went up to the Hon'ble Supreme Court of Pakistan where Respondent No.1 was declared owner of the Land vide judgment dated 11.09.2008. He argued that Respondent No.1 remained embroiled in litigation and he had not transferred the Land through Mutation No. 347 dated 8.8.2003 in favour of predecessor-in-interest of the Petitioners. The Respondent No.1 challenged the Mutation No.347 before the revenue court through an appeal and during the pendency of the appeal interim order dated 28.1.2009 shows that predecessor-in-interest of the Petitioners attended the court and thereafter became absent. He argued that the writ petition is not maintainable. Lastly, he argued that the Impugned Orders have rightly been passed and prayed for dismissal of the Writ Petition.
8. Mr. Tariq Nadeem and Azhar Saleem Kamlana, AAG(s) submitted the para-wise comments of the Respondents No.10 and 11 and relied upon the same.
IV MOOT POINTS
9. In order to resolve controversy, the following moot points are engraved:
(1) Whether the instant Writ Petition is maintainable against the Impugned Orders passed by the revenue authorities, including the Collector and the Member Judicial?
(2) Whether the revenue authorities have jurisdiction to deal with the mutation where fraud is alleged to have been perpetrated?
V. DETERMINATION BY THE COURT UNDER ARTICLE 201 OF THE CONSTITUTION Moot Point No.1
10. A question with regard to the maintainability of the writ petition has been raised wherein the validity of the Impugned Orders of the revenue authorities is sub judice. The Honorable Supreme Court in Haji Noorwar Jan v. Senior Member, Board of Revenue, N.W.F.P. Peshawar and 4 others PLD 1991 SC 531 has already observed as follows: "Provincial Board of Revenue being at the apex of Revenue hierarchy was charged with the statutory duty of interpreting the laws applying the same to individual cases coming up before it and lying down the law for subordinates in the hierarchy to follow. 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." (emphasis added)
In view of this case law, referred above, the writ petition is maintainable against any error on part of the Board of Revenue in understanding, applying or laying down the law.
Moot Point No.2
11. It is reflected from perusal of record that the issue involved in this petition is regarding the authenticity and validity of Mutation No.347 dated 08.08.2003 of the Land in the name of late Brig. (R) Masood Salam, predecessor-in-interest of the Petitioners. The matter in hand is not merely a question of mutation, but it directly relates to the title of the parties and validity of mutation entries. The Mutation No. 347 was first challenged and cancelled by the Collector, after which the appeal was filed before the Additional Commissioner. In the AC Order, he has held that the Respondent No.1 claimed that Mutation No.347 is result of fraud, but he has not claimed that his signatures and thumb impressions on the Mutation No. 347 are fictitious. He observed that the Collector while passing the Collector Order has held that the Mutation No. 347 is based on fraud and if an element of fraud is found in a case, the Collector has no jurisdiction to adjudicate upon such matters. He held that proper forum is the Civil Court where parties are at liberty to produce their evidence to establish the case.
This AC Order was challenged in Revision Petition and then in Review Petition before the Member Judicial, which both have set aside the AC Order and upheld the Collector Order.
12. At this juncture, it would be essential to reproduce the relevant Sections 45, 53 and 172(2) (vi) of the Punjab Land Revenue Act, 1967 "45. Restriction on variations of entries in records.- Entries in a record-of-rights or in a periodical record, except entries made in periodical records with respect to undisputed acquisition of interest under section 43, shall not be varied in subsequent records otherwise than by- --
(a) making entries in accordance with facts proved or admitted to have occurred;
(b) making such entries as are agreed to by all the parties interested therein or are supported by a decree or order binding on those parties; and
(c) making new maps where it is necessary to make them."
"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)."
"172.Exclusion of jurisdiction of Civil Courts in matters within the jurisdiction of Revenue Officers.
(2) Without prejudice to the generally of the provisions of sub-section (1), a Civil Court shall not exercise jurisdiction over any of the following matters namely:--....
(vi) the correction of any entry in a record of rights, periodical record or register of mutation;"
13. It is important to note that Section 45 of the Revenue Act clearly provides that entries in record of rights or periodical record (except entries made in periodical records with respect to undisputed acquisition of interest under Section 43) cannot be varied in subsequent records unless: (i) the facts are proved or admitted, (ii) entries are agreed by all the interested parties or supported by decree of order binding on those parties, and (iii) making new maps where it is necessary to make them. In other words, Section 45 of the Revenue Act provides that the variation in a periodical record could be made with respect to undisputed acquisition of interest in terms of Section 43(a) of the Act, on the basis of facts proved or admitted. Likewise, such corrections were permissible with the consent of all the parties or which are supported by a decree or order binding on parties and not otherwise. All this brings to hold that no disputed entry in a record-of-rights or periodical record could be altered, either on ground of mistake or a fraud, except on basis of obvious clerical error or patent facts, requiring no elaborate inquiry for their establishment, thus, the disputed entries having been incorporated in the Revenue Record could only be corrected through a decree of the competent court and not by the order of any of the official in the hierarchy of revenue authorities. This view has been supported by the judgments in case of Waris Khan v. Col. Humayun Shah (PLD 1994 SC 336), Rasta Mal Khan v. Nabi Sarwar Khan 1996 SCMR 78 and Nemat Ali v. Malik Habib Ullah (2004 SCMR 604).
14. On the other hand, Section 53 of the Revenue Act clearly stipulates that if any person is aggrieved of an entry in a Record of Rights or in a periodical record, he may institute a suit for declaration of his right under Chapter VI of the Specific Relief Act. The effect of Section 53 of the Revenue Act was not considered by the Member Judicial or for that matter by the Collector, though they have noted the contentions of the parties but did not give findings and decided the matter themselves. Similarly, Section 172(2)(vi) of the Revenue Act has ousted the jurisdiction of the Civil Court only for "correction" of any entry in a record of rights, periodical record or register of mutation
15. It is an established principle of law that the mutation proceedings are of summary nature under the Revenue Act. A Civil Court is a court of plenary jurisdiction and fraud can always be challenged before the Civil Court because it requires to be proved through evidence of the parties. Reliance is placed on Jan Muhammad through Mubarik Ali and others v. Nazir Ahmad and others (2004 SCMR 612). It has also been held that rights of parties qua disputed property require determination after giving them fair opportunity to adduce evidence. Factual controversies can only be resolved by the Civil Court having plenary jurisdiction. Reliance in this respect is placed upon Nemat Ali and another v. Malik Habib Ullah and others (2004 SCMR 604). The Revenue Courts have no power to correct the longstanding entries in the revenue record in summary manner.
Reliance in this respect is placed upon Muhammad Naeem v. Siraj-Ud-Din and 6 others (2015 CLC 1084). It has been settled that the Civil Court being the court of plenary jurisdiction, is competent to inquire into the question, whether impugned mutation is attested by practicing fraud and if it is so, it has the jurisdiction to declare the same to be void. The Civil Court under Section 9 of C.P.C. can try all suits of civil nature except those of which their jurisdiction is barred either expressly or by necessary implication. In this context reliance can be placed on the case reported as Muhammad Jameel Asghar v. The Improvement Trust Rawalpindi (PLD 1965 SC 698) wherein it was held that where the question of fraud, misrepresentation or want of jurisdiction is raised, the civil court has jurisdiction to adjudicate upon the same. Reliance is also placed on Hafiz Kalu and others v. Muhammad Bakhsh and others (2019 YLR 1523).
16. It has been repeatedly held by the Superior Courts, and similarly law itself provides, that proceedings before the Revenue Courts are of summary nature. Whenever complicated question of fact is involved, the exclusive jurisdiction vests in the Civil Court to decide the same. The Revenue Courts have exceeded from their jurisdiction and have erred while interfering in the complicated question of title based on alleged fraud. The longstanding entries qua the allegation of fraud should be dealt by the Civil Court because Revenue Courts have no jurisdiction to interfere in such like matters. The mutation being summary proceedings Revenue authorities could not clinch such complicated matter in summary proceedings. At the time of attestation of mutation, no detailed evidence is recorded by the Revenue Officers and it is otherwise the function of the Civil Court to decide matters after framing of issues and recording of evidence of both the parties. Reference is placed on case-law reported as Muhammad Naeem v. Siraj-U-Din and 6 others (2015 CLC 1084), Mst.
Khurshid Bibi and others v. Liaqat Ali and others (2010 YLR 2729), Muhammad Nawaz and others v. Pir Bakhsh and others (1990 CLC 1968) and Muhammad Ishaq v. Member (R), Board of Revenue, Punjab, Lahore and 18 others (1994 MLD 2254).
17. This Court in number of earlier cases has already declared the exercise of jurisdiction by the Revenue Courts highly unwarranted and uncalled for because when a person questions the vires of a mutation or long standing entries in the revenue record on the ground of fraud, he has to file a suit for declaration before the Civil Court as is required under Section 53 of the Revenue Act. The Revenue Courts/Authorities are thus only competent to make the correction of any entry in a record of rights, periodical record or register of mutations, if the wrong entry is the outcome of any correction, omission or inadvertence, as is envisaged in Section 172(2)
(vi) of the Act. If a person considers himself aggrieved by any entry in a records of rights or in a periodical record and he is of the view that such entries are the product of fraud, which are even longstanding, then his remedy lies in filing a Civil Suit as per mandate of Section 53 of the Revenue Act. Reference in this respect can be made to Rasta Mal Khan and others v. Nabi Sarwar Khan and others (1996 SCMR 78) wherein the Hon'ble Supreme Court of Pakistan held as under "10. Regarding bar of jurisdiction of the Civil Court under section 172, subsection (2), clause VI of the West Pakistan Land Revenue Act, 1967 it may be pointed out that exclusion of jurisdiction of Civil Court relates to the correction of the entries made by the Revenue Officer in performance of his duty without touching the right of the persons in the land, but whenever such entries interferes with the rights of a person in the land record in the Record of Rights, and such person feels aggrieved, for correction of such entries he has to approach Civil Court for declaration under section 53 of the Act or in other words under section 42 of the Specific Relief Act both the relief available being of the same nature and identical. The dispute herein pertained to the nature of the transactions in the suits for pre-emption based on the impugned mutation. The suits were therefore rightly held triable by the Civil Court."
18. Even this Court in the case of Allah Rakha and another v. Member (Revenue), Board of Revenue, Punjab, Lahore and 22 others (2004 MLD 597) and Muhammad Munawar v. Abdul Razaq and 6 others (2018 CLC 1227) has also adopted the same principles. Further, if any person considers himself aggrieved by any 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 declaration of his right under Chapter VI of the Specific Relief Act. Reliance in this respect is placed upon Muhammad Yousaf and 3 others v. Khan Bahadur through Legal Heirs (1992 SCMR 2334).
19. From the perusal of the record, it further reveals that the Collector and Member Judicial have not adverted to the question pertaining to the resolution of disputed question of facts because the same could not have been resolved by them specially where fraud is alleged. In view of the contention raised by the learned counsel for the Respondents, a query was posed to him that whether the facts and circumstances of this case and submissions made by him do not relate to the factual controversy and whether the longstanding and alleged fraudulent revenue entries can be changed in summary manner. He responded that under Section 42 of the Revenue Act, the Revenue Officers are empowered to correct the mistake in the Record of Rights. When his attention was invited to the provision of Sections 45 and 53 of the Revenue Act, which clearly envisage that variation of entry in record and correction thereof can only be made with respect to undisputed acquisitions of interest, he again reiterated his earlier stance and stated that in case of disputed entry no such restriction can be imposed, therefore, the Impugned Orders were correctly passed. I am afraid, if this contention of the learned counsel is accepted, it will not only amount to diminish the whole scheme of law by offending the provisions of Section 53 of the Revenue Act, but the provision of Section 42 of the Specific Relief Act will also become inapplicable in all cases of disputed and controversial entries in the Record of Rights or in the periodical record.
VI. ANALYSIS BY THE COURT
20. The above said provisions and the case law describe that where fraud is alleged, Civil suit in terms of Section 42 of the Specific Relief Act read with Section 9 of CPC is to be filed and the Revenue Courts lack jurisdiction. Dispute with regard to entry in the record of rights or in periodical record has to be taken to the court of competent civil jurisdiction. Further, the Respondents No.9 & 10 while passing the Impugned Orders have failed to appreciate the fact that the Hon'ble Supreme Court of Pakistan vide its order dated 11.09.2008 passed in CP No.3041-L of 2003 had decided the fate of Mutation No.194 dated 29.08.1998 executed by the Respondent No.8 (Altaf Husain) in favour of Respondent No.1 and it has nothing to do with Mutation No.347 dated 08.08.2003 which was executed afterwards, therefore, they have erroneously relied upon Supreme Court order while cancelling Mutation No.347, whereas Additional Commissioner vide AC had rightly restored the mutation and observed that order of Supreme Court has nothing to do with the said Mutation No. 347, where fraud is alleged, it goes out of the domain of Revenue Courts and falls within the jurisdiction of the Civil Courts.
21. In view of provisions supra as well as the case law of the superior courts, this Court is of the considered view that the disputed question of facts and allegation of fraud regarding cancellation of Mutation No. 347 cannot be decided by the Revenue Courts, including the Collector and the Member Judicial, proceedings before whom are summary in nature, and in such-like cases, the parties ought to have approached the Civil Courts under the above provisions of law. Therefore, the Impugned Orders of the Member Judicial and the Collector are not sustainable in the eye of law having been passed in utter violation of the mandatory provision of the Revenue Act.
22. In view of the above, this writ petition is allowed, and the Impugned Orders passed by Respondents No.9 and 10 are set aside and that of Respondent No.11 dated 10.01.2012 is upheld.