MUHAMMAD EJAZ SWATI, J.----A plot measuring No.0-2-0 acres bearing Khasra No.163/1, Mouza Madhi Tehsil Uthal, District Lasbella was recorded/owned by Mistri Muhammad Umar (resp ondent No.2) and Rehmatullah (respondent No.3) vide mutation No.100 in the revenue record (property in dispute). The predecessor-ininterest of the respondents Nos. 1(a) to 1(h) namely (Haji Abdul Rauf) sold the property in dispute to the petitioner No.1 (Muhammad Usman) through an agreement dated 28.12.2004 and on the basis of mutation No.703 (impugned mutation) dated 01.06.2005 property in dispute was mutated in favour of the petitioner No. 1 .
2. It is necessary to mention here that (Abdul Rauf) was not recorded owner and he signed the unregistered sale agreement on the basis of Special Power of Attorney dated 05.06.1977 purportedly given by the respondents Nos.2 and 3 to him. The petitioner No.1 further sold/transferred the same plot to petitioners Nos.2 and 3 vide Mutation No.704 (impugned mutation) dated 01.06.2005. On corning to know about impug ned mutations the respondents Nos.2 and 3 preferred an appeal under Section 163 of Land Revenue Act, 1967 before Tehsildar/Assistant Collector , Uthal. The appeal was allowed vide order dated 06.02.2008 and mutation No.100 was restored in favour of the respondents Nos.2 and 3.
3. On appeal under Section 161 of Land Revenue Act, 1967 filed by the petitione rs the learned Collector , District Lasbella vide order dated 23.08.2008 dismissed the appeal. The Revision Petition under Section 164 of Land Revenue Act, 1967 filed by the petitioners was also dismissed by the Commissioner , Kalat vide order dated 27.04.201 1, which was challenged by the petitioners by way of filing Revision Petition under Section 164 of the Balochistan Land Revenue Act, 1967 before Senior Member , Board of Revenue, Balochistan, which was dismissed vide order dated 08.05.2014 (impugned order), which have been challenged through the instant petition.
4. Learned counsel for the petitioners contended that the Assistant Collector had no jurisdiction to cancel the impugned mutations as for resolution of controversial question of fact and fraud, Civil Court is a proper forum; that the variation of such entries in the Record of Right is restricted in summary proceed ing as envisaged under Section 45 of the Land Revenue Act, 1967 (the Act), therefore, the jurisdiction exercised and upheld by the respondent No.7 are liable to be declared without jurisdiction, having no legal effect; that the matter related to correction of mutation entries can be corrected by the revenue authority in respect of admitted facts, which is summary proceeding and the Assistant Collector cannot assume jurisdiction and cancel the mutation entries with regard to right of the parties; that the question raised by the respondents Nos.2 and 3 before Assistant Commissioner was required to be determined after recording evidence, but the same has been decided without affording opportunity of being heard to the petitioners for recording their evidence, therefore, the impugned orders are based on presumptions. He placed reliance in case reported 2004 SCMR 604 , 612 and 614.
5. Learned counsel for respondent No.1 contended that the predecessor-in-interest of the referred respondents namely Abdul Rauf during his life time had also given affidavit before the Assistant Collector and had refuted the contention regarding alleged sale agreement on the basis of purported power of the attorney .
6. Learned counsel for respondents Nos. 2 and 3 contended that the Mutations Nos.703 and 704 were carried out on the basis of unregistered document without ascertaining the authenticity of the same; that mutation on the basis of unregistered document by the Reven ue authority is not permissible under the law, therefore, the impugned mutations were rightly cancelled and restored in favour of respondents Nos. 2 and 3.
7. We have heard the learned counsel for the parties and perused the record. The record of the case reveals that impugned mutations were sanctioned On the basis of unregistered sale deed and Power of Attorney respectively .
Procedure for maintaining of record and scope of inquiry is lay down in Sections 42 to 45 of the West Pakistan Land Revenue Act, 1967 (the Act) .
Subsection (7) of Section 42 of the Act provides that "Except in cases of inheritance or where the acquisition of the right is by a registered deed or by or unde r an order or decree of a Court, the Reve nue Officer shall make the order under Subsection (6) of Section 42 of the Act in presence of the person whose right has been acquired after such person has been identified by two respectable persons, preferable from Lambardar and member of this Union Committee, Town Committee or Union Council concerned, whose signatures or thumb-impression shall be obtained by the Revenue Officer on the register of mutations.".
8. The above provision of law had made exception in case of inheritance, registered deed, order or decree of the Court. In all other cases presence of the person whose right has been acquired is necessary , his identification by two respectable persons and the inquiry in the common assembly as envisaged under Subsection (8) of Section 42 of the Act is also necessary .
9. The above, provision of law make it clear that mutation on the basis of unregistered document is not permissible, but in the instant case the impugned muta tions were carried out on the basis of unregistered sale deed and Power of Attorney in absence of the respondents Nos.2 and 3 and in this regard the authe nticity and genuineness as well as competence of the alleged attorney was not authenticated.
Since the impugned mutations entries were carried out contrary to law and the illegality in this regard was quite obvious on the face of record, therefore, the respondent No.4, while exercising power under Section 163 of the Act cancelled mutation entries Nos. 703 and 704 and restored mutations in favour of the respondents Nos. 2 and 3.
10. The contention of the learned counsel for the petitioners that matter related to mutations Entries Nos.703 and 704 raised disputed question of facts and contained allegation of fraudulent act, which requires determination through evidence by the Civil Court is not tenable. The provision of Subsection (2) of Section 163 of the Act envisaged that "any person considering himself aggrieved by an order passed by commissioner , Collector or an Assistant Collector , and who, from the discovery of new and important matter of evidence, which after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the order is passed or on account of some mistake or error apparent on the face of the record or for any other sufficient reasons, may apply for a review of the order to the Commissioner , Collector as the case may be, and such officer may modify , reverse or confirm any order passed by himself or by any of his predecessor -in-office. The mistake or error on the basis of record would mean such mistake or error may be one of law or fact and should be apparent on the face of the record, and should not raise disputed question of fact nor require any extraneous evidence to establish it and it should be established without elaborate arguments and the error must also have a material bearing on the fate of the case."
Admittedly , the impugned Mutations Nos.703 and 704 were attested in favour of the petitioners on the basis of unregistered sale deed and Power of Attorney , which had also been refuted by the alleged attorney while recording his statement before the Assistant Collec tor. The attestation of the . impugned mutations entries on the basis of unregistered document was an error of law apparent on the face of record, which are not controversial in nature and as per Section 172(2)(vi) of the Act, 1967, only the revenue authorities are entitled to correct such entry in a record of right, periodical entry or register of mutation to the exclusion of the Civil Court. Reference in this respect is to be made in case titled Dildar Ahmad and others v. Member (Judicial-Ill) BOR, Punjab, Lahore and another (2013 SCMR 906 ), wherein the Hon'ble Supreme Court of Pakistan observed as under .
"Regarding learned ASC's argument that a 17 year old case could not be reopened in the revenue side for the purpose of correction in the record for which only the Civil Courts have jurisdict ion, we may observed that per section 172(2)(vi) of the Act, 1967, only the revenue authorities are entitle to correc t any entry in a record of rights, periodical entry or register of mutation to the exclusion of the Civil Courts, of cours e which are not controversial in nature. In the present matter , it was found that as a result of consolidation proceedings, respondent No.2's land was reduced due to an error which was corrected and despite numerous opportunities the appellant could not Justify , his claim to further land than that which fell to his share. In our opinion there was hardly any controversy involved in this exercise."
11. In the instant case, the respondent No.4 was justified under the law to rectify the mutations entries accordingly and in this respect no material illegality or irregularity came on record to warrant interference in exercise of the constitutional jurisdiction, therefore, there is no alternative for petitioners except to seek remedy of title from Civil Court.
In view of the above, Constitutional Petition No.675 of 2014 is dismissed. Parties are left to bear their own cost.