MUHAMMAD NAEEM ANW AR, J. Through this writ petition, the validity and correctness of order dated 11.12.2017 of learned Member-I, Board of Revenue, Khyber Pakhtunkhwa, was challenged, whereby the revision petition filed by the petitioner before SMBR was dismissed.
2. The admitted backdrop of the matter was that the petitioner had filed an application before Additional Deputy Commissioner , Peshawar , by alleging therein that entries in revenue papers in respect of khata Nos. 41 to 39, vide Jamabandi for the year, 2011-12 of the estate of Harzoni, Tehsil and District, Pesh awar , in favour of Ellahi Bakhsh and his legal heirs are wrong, against the facts as the said entries of revenue papers are the result of fraud by Ellahi Bakhash, thus, liable to be corrected. The said application was turned down by the Additional Deputy Commissioner through order dated 08.05.2017. The said order was assailed before learned Additional Commissioner through appeal which was also dismissed on 13.11.2017. The petitioner being not satisfied filed a revision petition before Board of Revenue, which was dismissed through the impugned order dated 11.12.2017, hence, this petition.
3. The petitioner while referring to the application dated 28.03.2016 dated 28.03.2 016, as submitted for correction of entries in the revenue record, contended that the wrong entries in the revenue papers are coming continuously since 1928-29 and to that effect he referred extract from the Jamabandi for the year, 1932-33 in respect of khasra No. 269 and 273 wherein Ellahi Bakhash was recorded as owner . According to him, Ellahi Bakhash was born on 05.03.2016, so how could he become owner of the property in the year, 1932-33. He also asserted that neither Ellahi Bakhash has inherited the propert y nor purchased it, thus, entries in his favour are wrong being without foundation. As per his contention, mutation No. 55 of the year, 1977, mutation No. 493 of the year, 1987 and mutation No. 503 dated 06.11.1988 were also wrong being inconsistent and contradictory to each other . In support of his plea he referred to section 172 (2) (vi) of the Land Revenue Act, 1967 and relied on 2009 CLC 542 and PLD 1991 Lahore 314.4. As against that Mr. Umar Farooq, learned AAG, pointed out that the petitioner is intending to get rectify the entries of the revenue papers but no one from the legal heirs of Ellahi Bakhash was impleaded as party being necessary or proper party . In continuation of his submission, he added that intricate question of law and facts is involved in the petition, which cannot be entertained in writ petition. Lastly , he contended that section 53 of the Land Revenue Act would come into play when such like controversy shall probe into the matter . He made reference to case laws as PLD 2009 Peshawar 28, 1992 SCMR 2334 , 2017 SCL 264, 1996 SCMR 78 and 2017 YLR 492.
5. I have listened the arguments and have perused the record.
6. Evidently , as erupted from the application submitted by the petitioner on 23.05.2016, he alleged that Ellahi Bakhsh and others have entered themselves in the revenue papers as owners which is the result of fraud.
Similarly , the learned counsel while referring to the extract from the Jamabandi argued that as Ellahi Bakhash was born on 05.3.2016, so, how he could be entered as owner in the year, 1933. It is not disputed that there are longstanding entries in the revenue papers since 1932-33 pertaining to almost eight decades. Thus, in such a scenario, Elahi Bakash himself or his legal heirs were necessary party for the reason that since 1933, he is shown to have been recorded as owner then without his impleadment neither the matter could be decided nor the issue could be resolved. Likewise, the said Ellahi Bakhash was also proper party because without his appearance no just decision is possible. Since 2016 till today , the petitioner has never opted to make him (Ellahi Bakhash) as party .
The petitioner , who is a civil practitioner , was confronted with the situation he simp ly stated that no sooner did, the revenue hierarchy assumes the jurisdiction he (Ellahi Bakhash) would be made party . This contention of the petitioner does not hold any weight because for the last more than three years, the petitioner is pressing his plea against Ellahi Bakhash without giving him an opportunity of being heard. Besides the above legal complication, it was also against the norms of justice being based on common law deriving its origin from the maxim "Audi alteram partem".
Secondly , the assertions of the petitioner when unfolded, the legal parameters divided into two issues:-
(i) It was alleged that Ellahi Bakhash had committed fraud for entering himself in the revenue papers as owner .
Now how the revenue officer could determine the factum of fraud. What would be the "touchstone" wherefrom the said fraud would be dragged to the surface of record.
(ii) The question formulated by the petitioner could be considered on the touchstone of evidence that too pro and contra in order to determine the controversy as per the thinking of the petitioner .
Thirdly , the question would be as to whet her the revenue officer was competent to enter into the intricate question of facts and law . For focusing the correctness of the entries of the revenue papers section 172 (2) (VI) reads as:-
172. (2) without prejudice to the generality 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 mutations; The above mentioned correctness could only be regarding the difference of calculations, plus minus, as defined in Osborne Concise Law Dictionary that:- "Correction: It is rectification of an error in a register or instrument, e.g. a conveyance or settlement, on the ground of mutual mistake, e.g. clerical mistake or an error in draftsmanship. The court may, in such a case, as its discretion, allow the instrument to be rectified"
Similarly , in accordance with legal dictionary , it is defined as:- "Correction; Generally , the act or an instance of making right what is wrong. A change in business activity or market price following and counteracting an increase or decrease in the activity or price"
7. As there was no clerical or arithmetica l error in the record of rights but the petitioner wants the deletion of the name from the longstanding entries, to which, according to the land Laws, strong presumption of truth is attached though rebuttable, but in order to rebut the same, there should be concrete, positive, tangible and convincing evidence which is lacking in the instant case. For longstanding entries of record of rights, reference can be made to PLD 2008 SC 571 wherein it has been observed that:- "Where a presumption of truth is attached to a document, it cannot be discarded unless proved otherwise by convincing and cogent evidence and the burden of proof that the entries in record of rights are wrong, is on the party who alleges it. Reliance can be placed in this context on the cases of Sundar Sing vs. Chhajoju Khan AIR 1934 (309) and the Evacuee Trust Property Board and others vs Haji Ghulam Rasul Khokhar and others 1990 SCMR 725 )."
Now the person intending to rebut the aforementioned presumption before the court of competent jurisdiction, the required evidence would be placed then on the basis of preponderance of evidence the matter would be resolved.
Since the dispute in hand relates to the complicated question of law and facts which does not fall within the competence of revenue officer. Reference can be made to the case titled Mst. Khurshid Bibi and others vs. Liaqat Ali and others ( 2010 YLR 2729 ) wherein it has been held that:- "10. It has been repeatedly held by the superior Courts and similarly law itself provides that proceedings before the Revenue Officer or before the Revenue Court is of summary nature and whenever there is complicated question of law or fact is involved. The exclusive jurisdiction vests to the Civil Court to decide the same. The Revenue Authorities have exceeded from their jurisdiction and have erred while interfering in the complicated question of title. Longstanding entries qua the allegation of fraud should be dealt by the Civil Court because Revenue Authorities have no jurisdiction to interfere in such like matters. Mutation being summary proceedings Revenue authorities could not clinch complicated matter in summary proceedings. As at the time of attestation of mutation, no detailed evidence is recorded by Revenue Officer and it is the function of 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 1990 CLC 1968 , 1994 MLD 2254 . Another important aspect of the case is that Mst. Khurshid Bibi miserably failed to produce any corroborative evidence in support of her version, Even she herself did not appear as a witness. The impugned judgment passed by the learned Appellate Court is in accordance with law and facts. There is no illegality or infirmity in the impugned judgment. Resultantly , this Civil Revision is devoid of merit. No interference is called for . Hence same is dismissed. No order as to costs."
In a similar situation, Board of Revenue of KPK in a case titled Pakistan flour mills Peshawar vs. Mian Muhammad reported in 1989 CLC 1 16 has decided that:- Even on merit, the order of Additional Commissioner , Peshawar is not maintainable because kahsra No. 322 measuring 02 kanals 02 marlas mentioned above (disputed one) was already acquired long before but by an oversight, it was left over from the transfer proceedings which is rectified by Acquisition Collector vide his order dated 20.10.1986, on the basis of which revenue officer has sanctioned the mutation No. 5249. Admittedly , the Revenue Officer and the learned Addition al Commissioner could not go into the validity of the order of acquisition Collector which is the duty of civil court and the respondent has already filed a suit to this effect which is still pending before the competent civil court. The Revenue Officer could not go into the intricate question of law and fact which is the duty of civil court"
Reliance can also be placed on the case law i.e., PLD 1962 WP Board of Revenue iii, P 1963 WP Board of Revenue 68 , 1992 CLC 605 and 2006 CLC 1 182.
8. It is also of much significance that Land Revenue Act, 1967 in accordance with the provision of Section 53, has made the situation much clear which is reproduced as under:- "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)."
The apex Court while distinguishing the provisions of section 172(1) subsection (2) clause (vi) of Land Revenue Act and section 53 of the ibid Act, in similar circumstances, in case titled Rasta Mal Khan and others vs. Nabi Sarwar Khan and others ( 1996 SCMR 78 ) has held that: "10. Regarding bar of jurisdiction of the Civil Court under section 172,1 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 suit for pre-emption based on the impugned mutation. The suits were therefore rightly held triable by the civil court"
This principle was also enunciated by the apex Court in the case titled Muhammad Yousaf and three others vs. Khan Bahadur through legal heirs ( 1992 SCMR 2334 ) wherein it has been held that "The suit was admittedly of a civil nature and under section 9 of the Civil Proce dure Code Civil Courts had the jurisdiction to try the same as the jurisdic tion of the Civil Courts in respect of such suits is neither expressly or by implication barred by any law. The learned Appellate Court while returning the plaint for want of jurisdiction has referred to section 41 read with section 172 of the West Pakistan Land Revenue Act and came to the conclusion that the grievance of the appellants can be redressed by the revenue officers under section 44 of the Act ibid. 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 any 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 under section 42 of the Spec 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.".
Reference can also be made to the case law PLD 2019 P 208 and 2017 YLR 1492 .
9. Furthermore, the submissions made at the bar by the petitioner are also not in consonance with the application submitted by him before the Additional Deputy Commissioner dated 23.05.2016. As today , he referred to the extract form the Jamabandi for the year, 1929-30 and 1933-34 whereas in the application he has made a reference of the Fard Jamabandi for the year, 2011-2012 and that too with an assertion that the entries of revenue papers, as per his contention, requires investigation, which mean that petitioner himself was not clear about the situation or the true picture of revenue papers. It was for the petitioner to be aware with clarity of mind for the specific relief being prayed by him.
10. Lastly , before this court validity of order of respondent No.1 was under consideration, which reveals that the matter was left open for the petitioner to get the matter resolved from the compete nt forum. The petitioner has not been able to point out any jurisdictional defect, patent illegality or any infirmity in the impugned order , warrant no interference by this Court.
11. For the reasons discussed above, this petition being bereft of any merit is hereby dismissed leaving he parties to bear their own costs.