CH. MUHAMMAD IQBAL, J.---Through this writ petition, the petitioners have challenged the legality of order dated 14.02.2013 passed by the Member (Judicial-VII), Board of Revenue, Punjab Camp at Sahiwal who accepted ROR No.1631/2011 filed by respondents Nos. 2 to 5 and set aside the order dated 30.06.2011 passed by the Commissioner, Sahiwal Division, Sahiwal (At Okara).
2. Brief facts of the case as contended by the learned counsel for the petitioners are that the petitioners filed an application to the District Revenue (Officer), Okara for the cancellation of oral sale mutation No. 4331 dated 30.06.2009 and also requested for sanctioning of inheritance mutation. That the petitioners namely Mst. Akbari Begum, Mst. Sarwari Begum and Mst. Akhtari Begum are legal heirs of deceased Hashim Ali and they inherited share measuring 12-Kanals 02- Marlas each through mutation No.381 dated 11.04.1974 situated in Chak No.53/2-L, Tehsil and District Okara. Respondents' predecessor namely Sakhawat Ali, Shaukat Ali and Karamat Ali are real brothers and Azmat Ali the nephew of the petitioners. They by committing fraud and impersonation got entered oral sale mutation No. 4331 dated 30.06.2009. Being aggrieved thereof, petitioners filed an application for cancellation of oral sale mutation. The said application was accepted by the District Officer (Revenue), Okara vide order dated 25.02.2011. Against the said order, respondents Nos. 2 to 5 filed appeal which was dismissed by the Commissioner, Sahiwal Division, Sahiwal (At Okara) on 30.06.2011. Respondents Nos. 2 to 5 challenged the said order through ROR No.1631 of 2011 which was accepted by the Member (Judicial-VII), Board of Revenue, Punjab on 14.02.2013 and set aside the order dated 30.06.2011 passed by the Commissioner, Sahiwal Division, Sahiwal (At Okara).
Hence, this writ petition.
3. I have heard the arguments advanced by the learned counsel for the parties at full length and gone through the entire record with their able assistance..
4. Admittedly, petitioners being legal heirs of Hashim Ali are entitled to get their shares measuring 12-Kanals 02-Marlas from the land of their propositus situated in Chak No.53/2-L, Tehsil and District Okara whereas respondents are real brothers of the petitioners and oral sale mutation No.4331 was entered on 21.08.2000 but the same was not sanctioned by the competent Revenue Officer on 30.06.2009. During that period, one Akhtari Begum died on 25.01.2002. Petitioners filed an application to the Revenue Officer on 15.06.2009 on the ground that the alleged oral sale mutation No.4331 dated 21.08.2000 was wrongly entered, as the petitioners neither records any statement nor appeared before the Revenue Officer, as such said mutation could not be attested due to lapse of seven years. The said application was accepted by the District Officer (Officer) vide order dated 25.02.2011 and observed that the alleged sale mutation No.4331 dated 21.08.2000 was entered but same is unattested and during that period Akhtari Begum has died whereafter an inquiry was initiated and the statements of the parties were recorded. In the inquiry proceedings, there was no evidence brought on record that any consideration was paid. Petitioners denied the recording of any oral sale mutation and the respondents being brother are trying to usurp the inherited property of the petitioners (sisters). The entry of the alleged sale mutation is violation of Section 42 of the Land Revenue Act, 1967. For ready reference, Section 42(7)(8)(9)(10) of the Act ibid are reproduced as under:-- "42......... (7) Except in cases of inheritance or where the acquisition of the right is by a registered deed or by or under an order or decree of a Court, the Revenue Officers shall make the order under subsection (6) in the presence of the person whose right has been acquired after such person has been identified by two respectable persons, preferably from Lambardars or members of the "Zila Council, Tehsil Council or Town Council" concerned whose signatures or thumb-impressions shall be obtained by the Revenue Officer on the-register of mutations.
(8) An inquiry or an order under subsection (6) shall be made in the common assembly in the estate to which the mutation, which is the subject-matter of the inquiry, relates.
(9) Where a Revenue Officer makes an order under sub-section (6) in regard to the acquisition of any right, an entry shall be made in the periodical record by the insertion therein of a description of the right acquired and by the omission from such record of any entry in any record previously prepared, which, by reason of the acquisition, has ceased to be correct.
(10) If within three months of the making of a record of the acquisition of a right under subsection
(1) or subsection (2), or the recording by the Patwari of no entry in the Roznamcha under subsection (3) respecting the acquisition of any right, no order is made by the Revenue Officer under subsection (6), he shall report the cause of delay to the Collector in the prescribed manner."
(emphasis supplied)
The said order was rightly upheld by the Commissioner, Sahiwal Division who observed that under Sections 47(7) and 42(10) of the Land Revenue' Act, 1967, the mandatory fee, for the alleged sale mutation dated 21.08.2000, was deposited in the year 2009 after about nine years, thus sanctioning of mutation on 30.06.2009 was violation of Sections 42(7) and 22(10) of the Land Revenue Act, 1967.
The Member (Judicial-VII), Board of Revenue, Punjab while passing the impugned order dated 14.02.2013 illegally observed that the civil litigation was pending for which reason (civil litigation), the mutation could not have been sanctioned, as such, the order passed by the Member is without jurisdiction as well as passed in violation of Section 42(10) of the Act ibid. Learned counsel for the petitioners referred Annexure A/1 where note in respect of litigation which is also written as "22.10.2007". Perusal of record show that before above said date no litigation pending between the parties, even if any, litigation was pending, the legal proceedings normally could not be stayed by any court of law. In this regard, reliance is placed in a case titled as Ghulam Sarwar (deceased) through LRs and others v. Ghulam Sakina (2019 SCMR 567). In the supra dictum mutation No,612 was entered on 10.09.1968 which remained un-attested, finally it was attested on 29.07.1973 and similarly, mutation No.380 was entered on 01.09.1968 which was allegedly sanctioned on 25.05.1999, thus with regard to delayed sanctioning of the mutation the Court has held that there is no justification for the delayed attestation of the mutation. As such, the impugned order is patently illegal which was passed in violation of Section 42 of the Act ibid, as such, the same is not sustainable in the eye of law.
6. In view of above, this writ petition is allowed. Order dated 14.02.2013 passed by the Member (Judicial-VII), Board of Revenue, Punjab Camp at Sahiwal at hereby set aside and order dated 25.02.2011 passed by the District Officer (Revenue), Okara as well as order dated 30.06.2011 passed by the Commissioner, Sahiwal Division, Sahiwal (At Okara) are maintained.