MUSARRAT HILALI, J. The petitioner through instant petition u/s 115 C.P.C has questioned the judgment dated 24.05.2019 passed by learned Additional District Judge-VI, Mardan, whereby he dismissed the appeal filed by the petitioner and has, thus, upheld the judgment dated 28.11.2015 of learned Civil Judge-XII, Mardan.
2. Succinctly, the case of the petitioner, as per contents of the plaint, are that he being agent (bastabardar) of one Aslam Khan, (Labambardar), used to deposit money in treasury regularly on his behalf, but due to some unknown reason an amount of Rs.58555/- was shown as arrears against him, as result of which, the respondents without serving any notice upon him, vide mutation No. 9938, transferred his property, measuring 31 kanals 12 marlas, situated in Mouza Gharhi Ismail Zai, in favour of provincial government (respondent No.1). When the petitioner came to know about the transfer of his land in favour of the provincial government, he filed a suit for declaration against respondents for cancellation of the above referred mutation. When summoned, none appeared on behalf of the provincial government; therefore, the respondents were placed ex parte. In order to prove his case, the petitioners produced ex pate evidence. The learned trial court after hearing learned counsel for the petitioner, dismissed the suit, vide judgment dated 28.11.2015. Feeling aggrieved the petitioner filed an appeal, which was also dismissed by learned Additional District Judge-VI, Mardan, vide judgment dated 24.05.2019, hence, the instant revision petition under section 115 C.P.C.
3. Arguments heard and record perused.
4. Perusal of the impugned judgments would reveal that the learned trial court dismissed the suit of the petitioner on two grounds, i.e., in column No.13 of mutation No. 9938, it has specifically been mentioned that the property of the petitioner was confiscated, vide letter No. 5289, dated 07.03.1981, issued by Commissioner Peshawar Division, u/s 88 of the Land Revenue Act and, secondly, the impugned mutation was attested in year, 1981, while the suit was filed in year, 2015, therefore, the same is time barred. To appreciate the controversy, it would be apt to reproduce the order of the revenue officer, vide which the impugned mutation was attested, which is as under:- Perusal of the above order of Revenue Officer would reveal that the immovable property of the petitioner was transferred in favour of the provincial government on the ground of non-deposit of Rs.58555/-, which were allegedly collected by the Lamabardar as land revenue. When and how sale and attachment of a property can be made and what is the statutory mechanism therefor in the land revenue law, to answer these questions, it would be worthwhile to refer to the relevant provisions of the West Pakistan Land Revenue Act, 1967 "the Act, 1967" and the Land Revenue Rules, 1968 "the Rules, 1968".
5. The claim of the petitioner was that he was not a Lambardar, rather he was working as an agent (bastabardar) of Lambardar, namely, Aslam Khan. In the Land Revenue Laws "bastabardar" has no role in depositing the land revenue in the treasury, thus, the first question for determination before the trial court was that where a person was never appointed as Lambardar, as in the instant case, then whether any amount collected by Lambardar, if not deposited into the treasury, could be realized from him (bastabardar) as arrears of the land revenue? Again, definition of 'arrears of Land Revenue' is given in section 4(2) of the Act, 1987, which means land revenue which remains unpaid after the date on which it becomes payable while defaulter is the person, who is liable to pay arrears of land revenue whereas village Officer under section 4(28) of the Act, 1967, is the person, whose duty is to collect, or to supervise the collection of the revenue of an estate, and includes Kanungos, Patwaris, Zabits, Kotars or Tapedar's peons, Arbabs, Rais, and Headman (Lambardar). According to Rule 22 of the Rules 1968, in addition to the duties imposed upon headman under any other law, the duty of Lambardar is to collect the land revenue. The Lambardar, under the law and rules, acts as an agent of the provincial government for realizing the amount and depositing it in the government treasury and he cannot delegate such powers to anyone else and where he, after realizing the amount from a land owner as a land revenue, does not deposit it in the government treasury, then his act not only falls under section 409 PPC but also liable to be punished under Rule 24 of the Rules, 1968. Ref: PLD 1953 Lahore 449. Likewise, under section 27 of the Act, 1967, every inquiry under the Act shall be deemed to be a judicial proceedings within the meaning of sections 193, 219 and 228 of the Pakistan Penal Code, 1860, and the revenue officer holding an inquiry shall be deemed to be a court for the purpose of such inquiry. Under sub- section 2 of section 27, every hearing and decision in such inquiry shall be in public and the parties or their authorized agents shall have due notice to attend. Similarly, Demand statements (Dhal Bachh papers) in each estate under Rule 44 are prepared by the Patwari khewat-wise in Form XXVI or Form XXVII, as the case may be and under rule 3 of Rule 44, in the area where collection of revenue is made through Headmen (Lambardars), the patwari shall prepare a copy of Dhal Bachh, headman-wise, showing the particulars of each land owners and deliver the same to the headman (Lambardar). Mode of collection of land Revenue by Lambardar has been provided under Rule 45 of the Land Revenue Rules, according to which, land revenue shall be paid at the office of Tehsil to which the estate belongs, except in the following cases:-
(a) Where the Tehsil treasury at the district headquarters has been incorporated with the district treasury, the payment shall be made into the district treasury.
Explanation I.- The headman shall present the arz irsal (Form XXIX) to the Tehsil revenue accountant (Wasil Baqi Nawis) at the Tehsil, who shall verify the correctness and proper distribution of the amount tendered, by reference to the demand statement (village khatauni) and shall prepare receipts (dakhilas) (Form XXX), in triplicate, shall sign them and shall obtain the signature of the Tehsildar or the Naib-Tehsildar/Head Munshi thereon. The headman shall then take the money and three copies of the receipt to the treasury and deposit the amount in the treasury.
Explanation II.- The headman may pay land revenue, rates and cesses, etc. by means of
(a) a crossed cheque, in favour of the Tehsildar concerned, alongwith the arz irsal referred to in Explanation I; or
(ii) Revenue money-order in favour of the Tehsildar concerned, in which case the entries of arz irsal shall be copied on the coupon of the money-order form.
Explanation III.- If the land revenue, cesses, etc. are paid by means of a cheque or revenue money order, the Tehsildar concerned shall arrange for the deposit of the same into the treasury, in the manner referred to in Explanation I.
(b) Where a special arrangement has been made, with the sanction of the Collector, authorizing any person, to pay land revenue direct into the district treasury, the payment shall be made as provided in clause (a).
(c) Where special permission of the Commissioner has been given, authorizing any person, to pay land revenue into the headquarters treasury of another district, within his division or, with the concurrence of the Commissioner concerned, into the headquarters treasury of any district, in another division of West Pakistan, the payment shall be made at the place so approved.
6. According to the above provisions, the arrears of land revenue are an amount which becomes due in a statement of demand and remains unpaid. Section 80 of the Act, 1967, and Rules 56 to 59 of the Rules, 1968, provide different modes for the recovery of arrears, such as, service of notice, where upon failure to collect land revenue, the Lambardar informs the Revenue officer within six months, who issues notice of demand to defaulter and give twenty days period for payment of Land revenue and if the arrears still remain unpaid then in second step the defaulter is to be arrested and detained upto to the period of twenty four hours, otherwise, he shall be produced before Collector, who may pass order for his further detention upto thirty days. During the detention, if defaulter discharges his obligation and pays Land Revenue or produces acceptable security, he shall be released at once. If the mechanism provided under sections 80 to 87 remain fail in collection of Land Revenue then Collector shall sell the property with the prior approval of Board of Revenue under section 88 subject to certain exceptions as provided in the section, however, under Rule 59, when it is proposed to sell a holding or any other immovable property under section 88 or section 90, such holding or immovable property shall, in the first place , be attached in the manner provided in section 85 of the Act, 1967. Under the law, before invoking the above machinery provisions for realization of the arrears, the authority concerned must decide whether there are arrears of land revenue due or not and he is also required to give an opportunity to the alleged defaulter before starting any proceedings against him, but the learned trial court while deciding the lis has not considered the above legal aspects of the case and has, thus, decided the case in a slipshod manner. He, in the backdrop of the case, was required to frame issues as to whether the revenue hierarchy was competent to transfer landed property of the petitioner (bastabardar) in favour of government under section 88 of the Act, 1967, whether before invoking provisions of section 88, the aforementioned processes, particularly, process of attachment of estate holding as provided under section 85 of the Act, 1967, were complied with in letter and spirit.
7. As far as period of limitation is concerned, as per contents of the plaint, the petitioner has filed the instant suit for declaration to the effect that his property was wrongly mutated in favour of provincial government. According to his stance, neither the relevant provisions of the Land Revenue Act were complied with nor he was given demand notice as to deposit of the alleged arrears nor given an opportunity of hearing and, thus, the entire process, including attestation of mutation, have been made at his back. There is no cavil to the proposition that limitation is a mixed question of law and facts which is to be determined after recording pro and contra evidence. Moreover, the entries in the revenue record are maintained mainly for fiscal purposes and they neither create nor extinguish the title to the property and are not conclusive proof of ownership. It is settled principle of law that each entry in the revenue record gives a fresh cause of action to an aggrieved person and adverse entries in the revenue record even if allowed to remain unchallenged do not have the effect of extinguishing the rights of a party against whom such entries had been made. Ref: PLD 2020 SC 338. It is also a settled law that whenever a mutation, as in the instant case, is questioned, the onus lies on the beneficiary to prove the same and every ingredient thereof as mere attestation of mutation by itself does not furnish proof, albeit, its entries are admissible in evidence but the same are required to be proved independently by the persons relying upon it through affirmative evidence. Ref: PLD 2020 SC 338. Thus, the burden of proof was on the defendants/ respondents to discharge and satisfy the court of law that the mutation was attested in a transparent manner and all the required precautions were faithfully and honestly observed before the attestation of mutation. Hence, the learned trial court under the law was required to frame the points of determination, including limitation, decision thereon and the reasons therefor to enable the party on one hand and the next higher forum on the other to know how and why the lis before him was decided in favour of one side or the other. This compliance should not be formal but substantial and sufficient by all means. It should be evident from the judgment that the court was conscious of the controversy involved and that the decision has been made on the basis of the record with independent application of mind and now it has been well settled that a judicial order must be a speaking order manifesting by itself that the Court has applied its mind to the resolution of the issues involved for their proper adjudication.
8. Therefore, for the reasons discussed above, the instant revision petition is allowed; consequently, the impugned judgments of the learned courts below are set aside, resultantly, the case is remanded back to the learned trial court for decision afresh in accordance with law. The parties are left to bear their own cots.