WIQAR AHMAD, J.---My this order is directed to dispose of Petition No. 720-P of 2007 filed by the petitioners under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.
2. Respondents Nos. 5 to 7 and predecessor-in-interest of respondents Nos.8 to 12 filed an application before Tehsildar Babozai who was having powers of Assistant Collector Revenue of the first grade under the Land Revenue Act, 1967 (hereinafter referred to as 'Act'), with the prayer of entering Khasra Nos. 435, 486 and 531 recorded as such in the settlement record of the Moza Saidu Sharif Tehsil Babozai, District Swat for the year 1985- 86, in their names as owners on the basis of an order dated 07.01.1982 of Justice (R) Qaisar Khan, Worthy Chairman Land Disputes Inquiry Tribunal (hereinafter as the 'Tribunal') established under Martial Law Regulation 123 of 1972. The application was filed on 13.08.2003, wherein it was contended that the predecessor-in-interest of the applicants namely Amir Rahman had obtained an order in his favour from the Tribunal on 07.01.1982. The said Amir Rahman was stated to have been owner in the property described fully in the application, but same was stated to have been wrongly incorporated in the name of other people in the settlement record, as well as the subsequent periodical record. The applicants moved the application under section 45-B of the Land Revenue Act, 1967 (hereinafter referred to as 'Act' ) before the Tehsildar , Babozai for making necessary correction, which was disposed of vide order dated 13.08.2003 with advice to the applicants to approach the appropriate forum.
3. Respondents Nos. 5 to 7 and predec essor-in-interest of respondents Nos. 8 to 12 impugned the said order before the District Officer Revenue and Estate/District Collector , Swat by filing an appeal, which was also dismissed vide order dated 31.07.2004 and the appellants were advised to approach the competent civil Court for redressal of their grievance. They , then filed a revision petition before the Presiding Officer, Revenue Appellate Court Saidu Sharif, Swat which also met the same fate and was disposed of vide order dated 14.02.2005. A second revision was then filed under section 164 of the Act before the Board of Revenue Khyber Pakhtunkhwa, Peshawar which was allowed vide order dated 12.09.2006 of the Member Board of Revenue Khyber Pakhtunkhwa, Camp Court at Swat. The said order was impugned by the petitioners in this Court by filing the writ petition in hand with the following prayer; "It is, therefore, humbly prayed that by accepting this petition, the impugned order/judgment of respondent No. 1 dated 12.09.2006 with all proceedings may please be declared ultra-vires, without lawful authority and of no legal effect."
4. Learned counsel for the petitioners contended that the property in dispute had changed so many hands during the period before and after first settlement was conducted in District Swat and that the claim of respondents Nos. 5 to 12 was totally baseless. He further added that the said respondents had never raised any objection during the proceedings of settlement but awoke out of a deep slumber in the year 2003 and filed an application before the Tehsildar Babozai, requesting him to alter the revenue record to the disadvantage of all the recorded owners which powers was not available to the Tehsildar concerned.
5. Learned counsel for the contesting respondents i.e. respondents Nos. 5 to 12 submitted that rights of his clients got established as a result of the decree granted by the Tribunal which had not been incorporated in the settlement record.
6. I have heard arguments of learned counsel for the parties and perused the record.
7. The dispute not only involved a controv ersy inter-se the parties to the instant writ petition but was much larger in scope. The judgment dated 07.01.1982 has not been so simple and straightforward, that could be made the basis of alteration of revenue record by way of simple application to the Tehsildar concerned. The matter in issue in the proceedings in-fact involved a deep-rooted controversy which required, due notice to all the persons who were recorded as right-holders in the revenue record, and leading of proper evidence before a civil Court. The 'Tehsildar Babozai had rightly expressed his inability to alter the entries made in the settlemen t record finalized more than two decades before filing of the two pager simple application, wherein the names of respondents could not even be mentioned. The Member Board of Reve nue Khyber Pakhtunkhwa, Camp Court at Swat through the impugned order has set aside all the orders of the revenue hierarchy , without realizing that the application dated 13.08.2003 of respondents Nos. 5 to 12 was not at all maintainable and it was not feasible for the Tehsildar to have altered the long standing revenue record including entries made in the course of first settlement in District Swat.
8. The application has purportedly been filed under sections 44 and 45 of the Act. Recourse may be made by a Revenue Officer to the said provisions when such entries occur during the course of preparation of land record but same cannot be used for altering old entries, particularly when rights of other persons have also been created on the basis of such entries, The Hon'ble Supreme Court of Pakistan in the case of Mohammed Yousaf and 3 others v. Khan Bahadur through legal Heirs reported as 1992 SCMR 2334 held as follows; 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 recorde d 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 provid es 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 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.
A similar view was also expressed in the case of Waris Khan and 18 others v. Col. Humayun Shah and 41 others reported as PLD 1994 Supreme Court 336 as well as in the case of Rasta Mal Khan and others v. Nabi Sarwar Khan and others reported as 1996 SCMR 78 .
9. By filing the application before the Revenue Officer in the case in hand, the contesting respondents have sought changing of entries recorded in the first settlement more than two decades before filing of their application. The said jurisdiction was not available to the Revenue Officer because so many transactions had taken place and rights of so many people had been created through the entries made in the settlement record. The grievance of respondents Nos. 5 to 7 and predecessor-in-interest of respondents Nos. 8 to 12 if any can only be redressed by the civil Court, if they choose to file a suit under section 53 of the Act.
10. The contention of learned counsel for respondents that the entries were sought to have been made in execution of the decree of Tribunal is also misplaced for the reason that the effect of the order of Tribunal and the specification of the property , as well as the developments taking place since 07.01.1982, had to be adjudicated upon by a competent forum after issuance of notices to all the interested persons and providing them an opportunity' of being heard. It shall also be seen after recording of evidence as to how the said order has been given effect in the already prepared revenue record and whether any further compliance of the said order remains outstanding, and legally ef fective or not.
11. In light of what has been discussed above, the petition in hand is allowed and the impugned order dated 12.09.2006 passed by the Member Board of Revenue, Camp Court at Swat is found to have been illegal, ultra-vires and suf fering from jurisdictional defect. Same is therefore set aside.