KHADIM HUSSAIN M. SHAIKH, J.---Through this petition petitioner Kaloo has called in question order dated 16.02.2012, passed by Member Board of Revenue (Judicial-I) Board of Revenue Sindh, Hyderabad the respondent No.3, whereby the subject land admeasuring 56-16 acres situated in Makan Amrio Tapo Juro, Taluka Mithi, District Tharparkar at Mithi, being government land has been declared as such.
2. It, is, inter-alia, contended by the learned counsel for the petitioner that disputed four pieces of Government land admeasuring 56-16 acres situated in Makan Amrio Tapo Juro, Taluka Mithi, District Tharparkar at Mithi, remained under the cultivation possession of the petitioner and afterwards the said land being Government land was allotted to the petitioner and entry in the record of rights was effected in favour of the petitioner; that the Executive District Officer (Revenue) Tharparkar at Mithi, vide order dated 03.08.2006 rejected the application moved by respondent No. 5 Muhammad Hanif; that Member (Judicial-I) Board of Revenue Sindh, Hyderabad vide impugned order dated 16.02.2012 has declared the subject land as a Government land; and, that the said order passed by the Member (Judicial-I) Board of Revenue Sindh, Hyderabad, is illegal, which may be declared as such and the entry in favour of the petitioner may be restored.
3. Learned counsel for the respondent No.1 has contended that the subject land is a Government land, which was reserved as an "Asaish/Goucher" where water pond is located, which is used by the villagers, but the petitioner has forged and manipulated entry in his favour in respect of the subject Government land; and, that the order passed by the Member (Judicial-I) Board of Revenue Sindh, Hyderabad, on 16.2.2012 is legal, which does not call, for any interference. He, therefore, prays that this petition may be dismissed.
4. Learned Additional Advocate General has mainly contended that the subject land measuring 56-16 acres is admittedly a Government land of the potential value located in residential area; that both the parties have no right or title over the subject land as the said Government land has neither been allotted to the petitioner and / or to any other person by any competent authority nor has it ever been reserved for "Asaish/Goucher" purpose by any competent authority; and, that the Member Board of Revenue being the Revenue Officer of the highest hierarchy in the revenue department being custodian of the record in exercise of his powers has passed the impugned order within his competence, which does not suffer from any illegality or jurisdictional defect. He, therefore, prays that the petition may be dismissed.
5. From a perusal of the record it would be seen that prior to this petition, petitioner Kaloo had contested the matter in F.C.S.No.43 of 2005, re: Khaliq Dino and another v. Kaloo and others in the Court of Senior Civil Judge Mithi, wherein in the wake of divergent pleadings of the parties, six issues were framed and after the evidence led by the parties for and against their respective claims, the learned Civil Court finally decided the subject suit vide judgment dated 30.09.2005 and decree dated 06.10.2005 and the relevant findings of the learned trial Court on the claim of petitioner Kaloo are reproduced here:- "I have evaluated the evidence of the parties, as well as the arguments advanced by their learned Advocates. I have also perused the documents and record produced on file by the plaintiff during evidence. It appears that the land in suit was all along Government land and subsequently in the year 2001-2002 'it has suddenly been changed in the names of defendants Nos. 1 and 2, for which there are only words of defendant Kaloo that this land was granted to them on 'Malkana'. Defendants have failed to produce any order of the authority concerned, on the basis of which Government land has been transferred in their names. Notwithstanding the defendants have utterly failed to produce any record or document in evidence to prove their rights over the suit land. These facts altogether give inference that Government land has been wrongly given 'Begoti' numbers and entries in the Revenue record in respect of the suit survey numbers have been manipulated by practicing fraud.
6. Being aggrieved by the aforesaid judgment and decree, passed by the learned Civil Court, petitioner Kaloo and one Taj Muhammad, the defendant No.2, filed appeal being Civil Appeal No.23 of 2005, re: Kaloo and another v. Khaliq Dino and others, which was ultimately decided by the learned Court of District Judge Tharparkar at Mithi, vide judgment dated 23.05.2006 and decree dated 26.05.2006, after reappraisal of the evidence adduced by the parties and the relevant pieces of the findings of the learned Appellate Court are reproduced here:- "So far entries in the name of appellants/defendants with regard to suit laud are concerned, from the documentary evidence it was proved that these entries were not genuine but were the result of fraud with collusion to revenue staff. It was the case of defendants/appellants before the trial court that they were initially granted the land on Yaksala lease and later-on were allotted the same on payment of Malkana. There was simple word of defendant/appellant Kaloo (in his deposition), neither any lease order was produced nor any allotment order or even no receipt of Malkana paid was produced before the trial court. Even no independent person of village or vicinity was examined by the defendants/appellants before the trial court.
As discussed above, from the documentary evidence produced before the trial court that the mutation entry in the name of appellants/defendants was based on no order of allotment, as such, it carries no weight. Even otherwise, it is settled principle of law and is held by our superior courts that mutation in the record of rights neither creates any title nor its absence negates it. Reliance may be placed on 1999 ALD P-627. It is further held in PLD 1984 (Pesh.) P-278 that record of rights is not an instrument devolving title: In PLD 1994 (SC) P- 245 it is held that entry in the record of rights could neither create any right nor extinguish title to property but are maintained for fiscal purpose only. In the case in hand, the entries in the record of rights in the name of appellants/defendants, which were apparently based on fraud, could not be termed as legal. The findings of trial court on issues Nos.1 to 3 are proper, as the alleged allotment in the name of defendants/appellants Nos. 1 and 2 in respect of Begoti Nos. 169 to 173 was not based on sufficient material evidence, as such, the trial court has rightly held so that this all is in collusion and based on fraud.
So far question if suit land was a Gaucher/Asaish land reserved for the village, the plaintiffs/ respondents were claiming the land as Gaucher and for Asaish purpose of general public. For this there was simple word of plaintiff/respondent Khaliqdino that the suit land is declared as Gaucher land for Asaish of general public and is situated at a distance of 1-1/2 acre from the village. A photo-copy of sketch was produced which in no way proves that this land was within prohibited limits of village and is reserved for Asaish and is a Gaucher land. The oral evidence adduced by plaintiffs respondents was of P.W. Punhoon. Throughout examination-in-chief, he has not said, if the suit land is a Gaucher land. He simply stated that a Tarai has been excavated in the Asaish land in survey No.172, for which defendants/ appellants have no right. He has not specifically stated that the entire suit land was reserved for Asaish and is a Gaucher land. The burden was upon the plaintiffs/respondents which they had not discharged properly and finding of trial court on this issue seems to be improper."
7. On a query, learned counsel for the petitioner has submitted that the petitioner and/or any other person has not called in question the aforesaid findings in the judgments and decrees, passed by the learned Civil Court and the learned Appellate Court, which, in our humble view, have attained finality.
8. Record further reflects that the subject land being Government land has been declared as such by the Member Board of Revenue (Judicial-I) Board of Revenue Sindh, Hyderabad, vide impugned order dated 16.02.2006, after verifying the revenue record finding that there was no record on the basis whereof the petitioner claimed to be the allottee of the subject Government land. It needs no reiteration that it is the sole function of the revenue officers being custodian of the revenue record to maintain the record and make corrections therein and to act in view of the state of the record. It is worthwhile to mention here that it is incumbent upon the petitioner exhausting remedy under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, to establish that he has legal right over the subject property and that such right is so clear that leaves no room of doubt or any controversy, and, the matter involving the disputed and unclear title over the subject property cannot be entertained and/or allowed to be agitated in writ jurisdiction, for, the exercise of extra ordinary Constitutional Jurisdiction under Article 199 ibid is intended primarily for providing an expeditious remedy in a case where the illegality of the impugned action of an executive or other authority is floating on the surface, which can be established without any elaborate enquiry into the questions involved in the matter.
Manifestly, in the matter in hand, the petitioner has no clear or undisputed title over the subject land, which is a Government land, for, the petitioner claims himself to be the allottee of the subject Government land, but he has miserably failed to substantiate his claim of allotment of the subject Government land to him; and, thus, this petition is not maintainable. Reliance is placed on the case of Dr. Sher Afgan Khan Niazi v. Ali S.Habib and others (2011 SCMR 1813), wherein, the Hon'ble Supreme Court of Pakistan has held that:- "10. Besides that what has been discussed herein above there are certain disputed questions of facts which cannot be investigated while exercising Constitutional jurisdiction. "It is incumbent upon party seeking constitutional remedy to show that such party has a clear legal right and that such right is so clear as not to admit of a reasonable doubt or controversy... High Court will not go into disputed questions of fact in Constitutional jurisdiction... In constitutional jurisdiction Court does not go into a question involving minute details nor can it decide facts of which no foundation is laid, unless it is shown that such controversy is devoid of supporting record, or perverse." (M.H. Abidi v. State Life Insurance Corporation 1990 MLD 563 and Muhammad Nazim v. Rehana Parveen Begum 1990 MLD 344).
In the case of N.W.F.P. Public Service Commission and others v. Muhammad Arif and others (2011 SCMR 848), wherein, the Hon'ble Supreme Court of Pakistan has held that:-- "9. ...lt is well settled by now that "the right which is the foundation of an application under Article 199 is a personal and individual right. The legal right may be a statutory right or a right recognized by the law. A person can be said to be aggrieved only when a person is denied a legal right by someone who has a legal duty to perform relating to the right. There must not only be a right but a justiciable right in existence, to give jurisdiction to the High Court in the matter. Unless whatever right, personal or otherwise, on which the application is based is established, no order can issue under Art. 199." (Muntizma Committee v. Director K.A. PLD 1992 Kar. 54, Mahmoona v. Ilam Din PLD 1984 Lah. 223, A.F. Farms and Industries v. Development Commr. AIR 1953 Assam 155, Mahboob Khan v. Deputy Commissioner AIR 1953 Assam 145 and Dineshcharan v. State of MB AIR 1953 Madh-B 165)."
9. In view of what has been discussed above, we are of the considered view that the Member Board of Revenue being Revenue Officer and custodian of the revenue record, has passed the impugned order within his competence. The learned counsel for the petitioner has not been able to point out any illegality or any jurisdictional defect in the impugned order passed by the Member Board of Revenue Sindh, attracting exercise of jurisdiction by this Court under Article 199 of Constitution of Islamic Republic of Pakistan, 1973. Accordingly, this petition being devoid of merit is dismissed with no order as to costs. However, the petitioner may avail remedy, if any, available to him in accordance with the law, if he chooses so.