ABDULLAH BALOCH, J. This judgment disposes of instant petition filed by the petitioner Muhammad Ali son of Soba Khan through legal heirs, against the judgments and decrees dated 27th September 2019 and 21st October 2020 ("the Impugned judgments and decrees") passed by the Civil Judge, Hub ("the trial Court") and passed by...the Additional District Judge-I, Hub ("the appellate Court") respectively, whereby the suit and appeal of the deceased petitioner have been dismissed.
2. Brief facts of the petition are that the petitioner filed a suit for declaration, cancellation and correction of Mutation in the record of rights in the learned trial Court against the respondents with the averments that he is owner and in possession of a plot with superstructure under survey No.430, mutation No.3654 admeasuring 1217 sq yards, situated at Mouza Baroot Tehsil Hub, District Lasbella. It is further averred that plot in dispute was remained in his possession for long time without any interference from Government authorities, which was transferred in the name of petitioner and petitioner raised construction of residential quarters. It is alleged that recently he was came to know that mutation record of the property was transferred in the name of Provincial Government vide order dated 7th March, 2000 passed by respondent No. 1 and order dated 21st April, 2000 passed by Respondents Nos.2 and 3 without any notice and knowledge of the petitioner.
According to the petitioner, the said order is illegal and unlawful, which is liable to be cancelled and the property be restored on his name in revenue record.
3. It is worthwhile to mention here that in the first round of litigation the suit filed by the plaintiff/petitioner was contested by the other sides by means of filing written statements. After hearing the parties, the suit of plaintiff/petitioner was dismissed, vide judgment and decree dated 28th November 2012. Being aggrieved, the petitioners assailed the said judgment and decree by filing appeal before the learned appellate Court, which was also dismissed, vide judgment and decree dated 28th October 2013. Whereafter the petitioners challenged both the impugned judgments and decrees before this Court through Civil Revision No.408 of 2013 and this Court, vide judgment dated 11th September 2018 set aside the judgments and decrees passed by the Courts below and remanded the case to learned trial Court with the following directions: "To call the official respondents to produce the letter dated 07-03-2000 issued by the Senior Member Board of Revenue, Balochistan and also record the statement of local Commissioner, providing full and fair opportunity to the parties to cross examine the witnesses and decided the matter on its own merits expeditiously within a period of two month."
4. However, after remand of the case, the learned trial Court after recording evidence and hearing the arguments of the parties, dismissed the suit of plaintiff-petitioner, vide impugned judgment and decree dated 27th September, 2019. Being aggrieved, the appellant-petitioner assailed said judgment and decree before the learned appellate Court by filing appeal which met the same fate too, vide impugned judgment and decree dated 21st October 2020. Whereafter, the instant petition has been filed through legal heirs of the petitioner.
5. Heard learned counsel for the parties, perused the record minutely, which reflects that the deceased petitioner filed a suit for declaration, cancellation of mutation entries in the Court of Senior Civil Judge, Lasbela at Hub with the averments that the deceased plaintiff is lawful owner and in possession of property in question along with superstructure under survey No. 430 bearing mutation No. 3654 measuring 1217 sq yrds situated at Mouza Beroot, Tehsil Hub, District Lasbella the boundaries whereof mentioned in the plaint. It is also the case of the petitioner that the same plot was initially mutated in the name of petitioner on 20th April, 1995 as owner from the name of Provincial Government vide In the qal No. 3654, thereafter; the same was cancelled and transferred from the name of petitioner in the name of Provincial Government on 21st April, 2000 vide Intheqal No. 6037, when the petitioner visited the Office of Local Revenue Authorities to stand surety against the said property he came to know that the same is cancelled from his name.
6. Without touching the merits of case it would be appropriate to dilate upon the judgment and decree passed by the learned appellate Court, which not only suffers from miss-reading, non- reading, but also suffers from misappreciation of law as quoted in paras Nos.7 and 9 of the impugned judgment, which is reproduced as under: "7. The point to be determined in the present appeal is that "whether the judgment/decree impugned needs any interference." The plaintiff/appellant is aggrieved of the order of cancellation passed by the defendants/respondents Nos. 1 and 2. At the time of deciding the fate of issue No: 1, the learned trial Court held that section 53, of the land revenue act provides a remedy for filing a suit before the civil court if a person is aggrieved of an entry made in the revenue record and though the respondents/defendants have not filed an appeal against such finding, but since the appeal is the continuation of the suit, so this issue is looked into. Similar issues was before Hon'ble Mr. Justice Khilji Arif Hussain in the case of Jan Muhammad Abbasi v. Mukhtiarkar Estate, Larkan (Barrage Mukhtiarkar) and others reported in 2007 CLC 179, and his Lordship was pleased to hold as follows: "Section 53 of the Land Revenue Act proceeds that if any person considers himself aggrieved by an entry in a record-of-rights or in a periodical record as to any right of which he is in possession, he may institute a suit for a declaration of is right under Chapter VI of the Specific Relief Act, 1877.
The said section applies to a person, who feels aggrieved by some entry in the record-of-rights, whereas in the instant case the applicant/plaintiff is questioning order of respondent No.6 for cancellation of entry in favour of the applicant/plaintiff and accordingly in my humble view section 53 of the land Revenue Act is not applicable to the facts of the case."
Para No, 9: "9. The learned trial Court has passed the impugned judgment and decree after considering each and every aspect of the material placed before it an in my considered opinion the impugned judgment and decree was passed in accordance with law which is accordingly upheld with slight modification of resolving the issue number one in positive as the appellant/plaintiff had to approach the hierarchy of the revenue authority for medicine of his grievance and the civil court had no jurisdiction to adjudicate upon the matter. The appeal is accordingly dismissed. Decree in appeal be prepared. Copy of this judgment and decree be sent to the learned trial Court for information. File after completion and compilation be consigned to the record.
7. It is painfully observed that on one hand the learned appellate Court has formulated point of determination i.e. "Whether the judgment/decree impugned needs any interference." On the other hand, in concluding para the learned appellate Court has observed that the appellant/plaintiff had to approach the hierarchy of the revenue authority for redressal of his grievance and the Civil Court has no jurisdiction to adjudicate upon the matter. Meaning thereby the learned appellate Court was confused to decide the matter on merits in accordance with law, but in cursory manner decided the appeal without giving any findings of legal or factual position. Even otherwise, misunderstand the law as quoted in para No.7 of the impugned judgment.
For ready reference the relevant provision of Section 53 of Land Revenue Act, 1967 is reproduced as under: "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-rights 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 1f 1877). "
8. Prima facie it appears that the learned appellate Court misunderstand the afore quoted Section of the law, which itself provides relief to an aggrieved person, who had sought declaration of title to the suit land as its exclusive owner with consequential relief, which would not debar the aggrieved party from approaching Civil Court for claiming his ownership over the suit land by way of inheritance, as entry in the revenue record is not in itself proof of title in favour of the party in whose favour such entry exists, but entitlement/ownership is to be proved by such party independently and for this purpose appropriate forum is available in Civil Court being the Court of ultimate jurisdiction.Reliance in this regard is placed in the case of, "Ahsan Ali through L.Rs. and others v.
Province of Sindh through District Coordination Officer Thatta and others, 2007 MLD 884 (Karachi)", wherein it has been held as under: "9. After careful examination of the averments made in the plaint and the impugned order passed by the revisional Court, dated 18-12-2004, we are clear in our mind that the revisional Court while taking into consideration the averments made in the written statement by the respondents Nos. 13 and 14 i.e. defence pleas, deviated from the 'set principle of law as regards the scope and applicability of Order VII Rule 11, C.P.C. which provides that only the averments made in the plaint with presumption of correctness attached thereto or at best the admitted and undisputed documents could be taken into consideration for this purpose and not the pleas setup in defence.
We are also not impressed by the submission of the learned counsel Mr. Aijaz Ali Hakro that findings of the authorities under the Revenue hierarchy regarding entry No.40 in Deh Form VII have debarred the petitioners from approaching the Civil Court for claiming their ownership over the suit-land by way of inheritance, as entry in the Revenue Record is not in itself proof of title in favour of the party in whose favour such entry exists, but entitlement/ownership is to be proved by such party independently and for this purpose appropriate Forum available is the Civil Court, being the Court of ultimate civil jurisdiction (See 1986 SCMR 598). even under section 53 of the Land Revenue Act, 1967 it has been provided that in case any person considers himself aggrieved by any entry in the record of rights or in any periodical record as to any c right which he possesses, he may institute a declaratory suit for this purpose under Chapter VI of the Specific Relief Act, 1877. In such circumstances, the submission of Mr. Noor Ahmed learned counsel for the petitioners that the averments made in the plaint needed evidence seems to have force. Moreso, as there are specific allegations levelled by the petitioners in their plaint challenging the legality of the orders passed by the Revenue Authorities on the ground of lack of jurisdiction and mala fide, and details of such males fide have also been unfolded in the plaint."
Simultaneously, same view was also taken in the case of, "Muhammad Siddique and another v.
Mst. Bano and 8 others, 2004 YLR 319 (Lahore)". For facilitation the relevant portion whereof is reproduced as under: "8. Wherein the averments of the plaint, declaration of title to suit-land is sought as its exclusive owners with consequential relief of restraining respondents from interfering with the possession--- section 172(1, 2) (xviii) of the West Pakistan Land Revenue Act, is not attracted and in such case jurisdiction of Civil Court is not barred. In this context reliance has been placed to the case of Din Muhammad and 6 others v. Mehar Ali Khan and 2 others PLD 1978 Karachi 267. The issue as to jurisdiction involving" factual controversy regarding nature of suit land can be raised and decided by the Civil Court and section 53 of the Land Revenue Act 'envisages' that if any person considers himself aggrieved by any entry in the 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 right. Section 53 ibid itself creates a right in favour of an aggrieved person to approach the Civil Court for declaration of his right. The scope of section 172 of the Land Revenue Act is entirely different. It only excludes jurisdiction of Civil Court from taking In hand the function assigned to the Revenue Courts as also the questioning their methodology adopted for discharge of such function. The function of Revenue Court is to prepare the Revenue Record in the light of the evidence with regard to one's title or interest "finality is attached to the orders of the Civil Court which shall determine civil rights of the parties. In the instant case, claim of the petitioners is that they be declared as owners in possession of the land in dispute measuring 6 Kanals each in Khatas Nos. 695 and 705 respectively. The other is that the wrong entries had been incorporated in the Revenue Recd.:4 and the present petitioners contest the right of the plaintiffs/respondents, therefore, it is an intricate question of law and para. 7.30 of the Land Record Manual provides, that where any entry had been incorporated in Jamabandi under para. 7.30 of Chapter VII of Land Record Manual the mutation should not be entered in or sanctioned for the purpose of correcting it, party aggrieved by wrong entry must seek remedy through civil suit. Reliance can be placed to the case of Shereen Khanum v. Member, Board of Revenue 2001 YLR 2387.
9. Bare reading of above quoted judgments passed by the superior Courts, made it clear that for relief of ownership or possession the Civil Court is competent for ultimate jurisdiction to entertain civil suits filed by an aggrieved person, under Chapter VI of Specific Relief Act, 1877 the case filed by the petitioner/plaintiff is on the same footings i.e. suit for declaration, cancellation and correction of mutation entries in the record of rights and the same was rightly adjudicated by the learned trial Court after remand of the case by this Court in Civil Revision No.408 of 2013, vide judgment dated 11th September, 2018, though the suit was dismissed by the learned trial Court, but the appellate Court has failed to decide the appeal on merits filed against the judgment passed by the learned trial Court.
10. Thus, in view of the above, petitioner/plaintiff condemned unheard ("audi alteram partem") and the impugned judgment and decree passed by the learned appellate Court suffers from mis- reading, non-reading and misappreciation of law. Even otherwise, in view of the provisions of Article 10-A of the Constitution of Islamic Republic of Pakistan 1973, a person "shall" be entitled for fair trial and due process, for convenience Article 10-A of the Constitution is reproduced as under: "10-A Right to fair trial. For the determination of his civil rights and obligations or in any criminal charge against him a person shall be entitled to a fair trial and due process."
For the above reasons, the petition is partly allowed and the impugned judgment and decree passed by the learned appellate Court is hereby set aside and the case is remanded to learned appellate Court with the directions to decide the appeal on its own merits after providing full and fair opportunity to the parties positively within a period of three months. Parties are directed to bear their own cost.