ROZI KHAN BARRECH, J.----The petitioners have invoked the Cons titutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 with the following prayer:- "a) To declare that the impugned order/judgment dated 18.07.2019 passed by the respondent No.8/learned Senior Member Board of Revenue Balochistan at Quetta, is without jurisdiction, such is null and void. b) To declare that the present petitioners was unheard condemned, on the basis whereof the impugned order/judgment dated 18.07.2019 passe d by the respondent No.8/learned Senior Member Board of Revenue Balochistan at Quetta, is set aside.
To declare that the respondents Nos.1 to 4 revision under section 164 of the Land Revenue Act, 1967 was not competent against the present petitioners. d) To declare that the respondents Nos.1 to 4 revision under section 164 of the Land Revenue Act, 1967 was/is hopelessly time barred. e) To declare that the respondent No. /8/learned Senior Member Board of Revenue Balochistan at Quetta, has no suo motu jurisdiction in subject matter in hand, as well as to be careful in future rather then this matter . f) Further pleased directs the responde nts Nos.1 to 4 to pay the costs of litigation afforded by the present petitioners. g) Any other relief as seems or deemed and properly fit by this Hon'ble Court, may graciously be pleased awarded in present petition, in the interest of justice, equity and fair play".
2. Brief facts of the case are that the private respondents filed revision petition under section 164 of the Land Revenue Act, 1967 ("the Act") for deleting names of the petitioner (who is respondent in the revision) as lathband buzgars having a record without verific ation by respondents Nos.5 to 7 by taking suo motu action with the averments that the petitioners (respondents in the present petition) were recorded owner of the properties bearing Khasra No.158, measuring 22 Rod, 19 Poles in Mahal and Mouza Khushkaba Saadat, Tappa Shadinzai, Tehsil and District Quetta since time in memorial and were presently in cultivating possession of the above property and from the adjacent to the above property the predecessor-in-interest of the petitioners also owned possession of Shamilat Land bearing Khasra Nos.165, 166, 167, 168 and 169 total measuring 24 Rods 17 Poles in same Mouza and Mahal and were also cultivated by the petitioners. It is further averred in the said revision petition that the settlement operation started in Quetta District in 1985 regarding unsettled lands wherein several illegal entries in record of rights were carried out. The settlement was carried out for the properties which were not included in the settlement operations carried out in 1901-1905 and 1941-1945. At the time of settlement the predecessor-in- interest of the petitioners being out of Quetta, thus, father of respondents Nos.1 to 7 taking benefit of their absence got recorded properties of the petitioners in his name as lathband buzgars of the predecessor in interest of petitioners and petitioners whereas he never I remained lathband buzgars over the properties of petitioners nor ever remained in possession. Lastly , prayed that all concerned revenue record pertain ing to the year 1901-1908 and 1941-1945 may be called for and after perusal of the same and conducting thorough inquiry suo motu action as contemplated under the law may be taken by directing removal of name of fathe r of respondents Nos. 1 to 7 and respondents Nos. 1 to 7 from revenue record and names of petitioners may be ordered to be entered as owners with possession in revenue record, in the interest of justice.
3. The Senior Member Board of Revenue Balochistan, Quetta, on 18.07.2019 accepted the revision, petition with the following manners:- "In view of the above circumstances, I am inclined to remand the subject case under section 64 of the Land Revenue Act, 1967 to the Deputy Commissioner/Collector , Quetta, to dispose of on merit under section 161 of the Land Revenue Act, 1967" .
4. Being aggrieved from the order dated 18.07.2019 the petitioner filed the instant constitution petition.
5. We have heard the learned counsel for the parties and have gone through the available record with their able assistance.
6. The order sheets of the learned Senior Member Board of Revenue Balochistan, Quetta, reveals that the revenue revision under section 164 of the Act has been registered on dated 08.03.2019 on even date the Presiding Officer of the office of Senior Member Board of Revenue Balochistan, Quetta, directs to issue notices to the parties on the same date. The case was fixed on 18.03 .2019. The record is absolutely silent whether the processes have been served or otherwise? From the order sheets of the learned Senior Member Board. of Revenue Baloehistan, Quetta, dated 08.03.2019 to date 18.07.2019 reveals that neither any summon was served upon present petitioner , nor ex- parte proceeding has been initiated, and without hearing the petitioners the learned Senior Member Board of Revenue Balochistan, Quetta, passed the impugned order . Even otherwise, the learned Senior Member Board of Revenue Balochistan, Quetta, was the result of mis-exercise of jurisdiction becau se the learned Senior Member Board of Revenue Balochistan, Quetta, has no jurisdiction to directly entertain any revision after the lapse of longstanding entries i.e. 34 years.
The said revision petition under section 164 of the Act was not competent before the learned Senior Member Board of Revenue Balochistan, Quetta, because no order was passed by any subordinate G Commissioner/Deputy Commissioner . As per settlement law, the Land Revenue Act, 1967, if any aggrieved party , parties, person, persons, etc, desires to assails any settlement or revenue record, a record of right, that should be challenging the same before the settlement officer within thirty (30) days, and file appeal under section 161 of the Act within a period as prescribed in section 162 of the Act, i.e. sixty (60) days before Collector , and before the Board of Revenue is ninety (90) days. The private respondents Nos.1 to 4 jumped the lower more than two forums while filing revenue revision before the respond ent No.8/learned Senior Member Board of Revenue Balochistan, Quetta, it was/is binding upon them firstly approach the concerned Settlement Officer and then Commissioner thereafter forum was Senior Member Board of Revenue Balochistan, Quetta, as such, the said revision filed by the respondents Nos.1 to 4 was unlawful.
7. Now dilating upon the merit of the case is concerned, the respondents Nos.1 to 4 disputed the title of the petitioners while the respondents filing counter affidavit taken Preliminary Legal Objection A' "that the factual controversies are involved in the matter which needs evidence and perusal of record by revenue officer as fraud has been played by petitioners in getting the suit properties of respondents Nos.1 to 4 in their names". The respondents themselves disputed the title of the properties. The respondents Nos.1 to 4 also filed Regular First Appeal No.28 of 2010 titled Shoukat Hussain and another v. Member Board of Revenue Balochistan, Quetta and others which was decided on 01.04.2013 by this court. The said appeal was filed by the respondents Nos.1 to 4 against the petitioners and respondents Nos.5 to 9 against the judgment dated 20.11.2009 of Civil Judge-II, Quetta, whereby suit filed by the respondent Nos.1 to 4 against the present petitioners was dismissed in respect of the same property . The appeal filed by the respondents Nos.1 to 4 before this court was also dismissed on 01.04.2013 by this court. In the said suit, the title of the land property was also disputed.
7. Though it is a legal proposition that the revenue courts lack jurisdiction in the matters whereby title of the parties is to be determined. Rather in respect of disputes pertaining to the title of landed property , only civil courts have jurisdiction to make the decision to the effect. Declaration of title can only be made by a court of competent jurisdiction.
8. After perusal of the revenue revision under section 164 of the Act filed by the respondents Nos.1 to 4 before the learned Senior Member Board of Revenu e Balochistan, Quetta, was concealed the fact in respect of the civil suit and appeal before this court and respondent Nos.1 to 4 did not come with clean hands before the revenue hierarchy .
10. In view of the contention raised by the learned counsel for the respondents Nos.1 to 4 about maintainability of the revenue revision under section 164 of the Act before the learned Senior Member Board of Revenue Balochistan, Quetta, a query was pose d to him that whether the facts and circumstances of this court and statement made by him do not relate to the factual controversy and whether the longstanding revenue entries can be changed in a summary manner . He responded that under section 42 of the Land Revenue Act, 1967 the revenue officers are empowered to correct a mistake in the Record of Rights. When his attention was invited to the provision of sections 45 and 53 of the Land Revenue Act, 1967 which envisages that variation of entry in record and correction thereof can only be made with respect to undisputed acquisitions of interest, he again wrong his earlier stance and stated that in case of inheritance entry no such restriction can be imposed and when asked about the limitation, he stated that no limitation runs against void entries, therefore, the order was correctly passed.
11. For the sake of arguments, if the contention of the learned counsel for the respondents Nos.1 to 4 is accepted, it will not only amount to diminish the whole scheme of law by offending the provisions of section 53 of the Land Revenue Act, 1967 but the provision of section 42 of the Specific Relief Act, 1877 (the Act) will also become inapplicable in all cases of disputed and controversial entries in the Record of Rights or in the periodical record. At this juncture, it would be instructive to reproduce the sections 45 and 53 of the Act.
"45. Restriction on variations of entries in record. ---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 Right' 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 1 of 1877).
12. In view of the provision supra, we are of the considered view that the dispute d question of fact regarding title cannot be decided by the Revenue Officer/Revenue Court by way of mutation proceedings which are summary in nature, in such like cases the parties ough t to have approached the civil courts, in the instant case the perversity of approach is reflected by the conduct, because the revenue proceeding was initiated regarding a dispute in respect of the property which is in the name of petitioners coupled with the validity of mutation entries. The order passed by the respondent No.8/learned Senior Member Board of Revenue Balochistan, Quetta, is not in accordance with the mandatory provision of section 53 of the Act as well as the law laid down by the superior courts. We are dismayed that the learned Senior Member Board of Revenue Balochistan, Quetta, has not appreciated this aspect of the mater . Despite the fact that he provision supra in clear terms states that the dispute regarding entry in the record of rights or in the periodical record as to any right has to be taken to the court of civil jurisdiction. The revenue authorities had no authority to correct the longstanding entries in the revenue record in a summary manner .
13. Besides the above, the section 45 of the Land Revenue Act, 1967 provides that the variation in a periodical record could be made with respect to the undisputed acquisition of an 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 decre e or order binding on parties and no otherwise. All these bring us to hold that no disputed entry in a Record of Rights or periodical record could be altered, either on the ground of mistake or fraud, except on the 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 court and not by order of any of the official in the hierarchy of revenue authorities, particularly after the lapse of more than five decades. For rendering this view we have 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 Habibullah ( 2004 SCMR 604 ).
14. The matter in hand is not merely a question of mutation, but it directly relates to the title of the parties and the validity of mutation entries. The effect of section 53 of the Land Revenue Act, 1967 was not considered by the Member Board of Revenue, therefore, the order of the Senior Member Board of Revenue Balochistan, Quetta, is not sustainable in the eyes of law, as such, the impugned order has been passed in utter violation of the mandatory provision of the Land Revenue Act, 1967.
Thus, in view of the above discussion and the dictum laid down by the Hon'ble apex Court, we have no other option but to direct that the order dated 11.07.20 19 passed by the Senior Member Board of Revenue Balochistan, Quetta, is hereby set aside. Consequently , the proceeding pending before the Deputy Commissioner/Settlement Officer is also quashed. However , the respondents Nos.1 to 4 may approach the civil court for redressal of their grievances by means of filing a declaratory suit before civil court as envisaged under section 53 of the Act for all just exceptions.
Resultantly , this petition is hereby accepted.