Anwaar Hussain, J. Through this constitutional petition, challenge has been laid to order dated 29.01.2021 passed by the Assistant Collector, Faisalabad/respondent No.3, whereby the application for review of mutations bearing No.1022 and 1023 dated 22.11.2012, in favour of respondents No. 5 to 10 ("the respondents"), was disposed of with the observation that since the petitioner averred that the sanction of the impugned mutations has been obtained through fraud and forgery, the said issue can only be resolved through recording of evidence, by the Civil Court.
2. Learned counsel for the petitioner submits that the respondents in whose favour the mutations had been sanctioned approached the Civil Court seeking declaration as owner of the disputed property, on the strength of the impugned mutations, however, their suit was dismissed on 07.11.2022 against which no proceedings were initiated and therefore, the Assistant Collector, Faisalabad/ respondent No.3 was not justified to pass the impugned order. Adds that directing the petitioner to approach the Civil Court will not only be an exercise in futility but also a toll on the precious time of the Civil Court. While placing reliance on the cases reported as Rasta Mal Khan and others vs. Nabi Sarwar Khan and others (1996 SCMR 78) and Shahid Iftikhar and another v.
Mst. Tasneem Rani and 4 others (2017 CLC 264), she submits that jurisdiction of the Civil Court is barred in terms of Section 172(2)(vi) of the West Pakistan Land Revenue Act, 1967 ("the Act") and therefore, the impugned order is not sustainable.
3. Conversely, learned Law Officer submits that clause (vi) of sub-Section (2) of Section 172 of the Act pertains to correction of record of rights, periodical record and/or register of mutations, which is not disputed and/or the correction whereof does not involve complicated questions of fact, requiring recording of evidence by the Civil Court as proceedings before the Revenue Court(s) are only summary in nature whereas in the instant case, fraud has been alleged, which is a complex factual dispute and can only be resolved through recording of evidence by the Civil Court.
4. Despite repeated calls, no one has tendered appearance on behalf respondent No.7, therefore, he is proceeded against ex-parte.
5. Arguments heard. Record perused.
6. The legal question which requires opinion of this Court boils down to determine whether filing of the suit by the respondents/donee seeking declaration on the basis of revenue entries and dismissal thereof ipso facto results in establishment of fraud in respect of the said revenue entry (gift mutation) and the aggrieved person is not obligated to establish the commission of fraud, through evidence, before the Court of plenary jurisdiction?
7. It is to be noted that the petitioner filed application before the Assistant Collector, Faisalabad/respondent No. 3 for review of mutations No. 1022 and 1023 with the averment that predecessor in interest of the petitioner namely, Mst. Suriya Begum and Mst. Sufiya Begum had already passed away on 19.09.2010 and 16.03.1992, respectively, prior to sanction of the impugned mutations dated 22.11.2012. The petitioner was directed, vide impugned order to approach the Civil Court as allegation of fraud is involved. Similarly, the petitioner also initiated criminal proceedings against the officials involved in the sanction of the impugned mutations, in collusion with the private respondents, before the Anti-Corruption Establishment. On the contrary, the respondents in whose favour the impugned mutations had been sanctioned also approached the Civil Court, Faisalabad by instituting civil suit for declaration and permanent injunction with the prayer that the said respondents are owner in possession of the suit property and the defendant therein, i.e., the petitioner, may be restrained from interfering into the possession of the respondents. The said suit was dismissed, vide order dated 07.11.2022 on account of want of evidence in terms of Order XVII Rule 3 of the Code of Civil Procedure, 1908 ("CPC"). The dismissal has triggered the contention of the petitioner that since the respondents/donee filed the suit before the Civil Court, which was dismissed, therefore, the petitioner is not not required to approach the Civil Court to establish fraud. The contention of the petitioner is devoid of any persuasion as filing of the suit by the respondents/donees and the dismissal thereof does not ipso facto result in establishment of fraud as alleged by the petitioner in respect of the impugned mutation, rather, the petitioner still remains obligated to establish the commission of fraud through evidence before the Court of plenary jurisdiction. This Court is of the opinion that onus to prove a valid gift and element of fraud underlying the impugned gift mutations, involve a delicate interaction of the onus to prove and shifting of presumptions during the course of evidence. Thus, mere fact that the respondents/donees instituted a civil suit for declaration, which was dismissed does not transform into any executable decree in favour of the petitioner for reversing the impugned mutations. In case reported as "Sardar Muhammad and others v. Imran Bakhsh (deceased) through LRs and others" (2021 SCMR 391), the revenue officials had set aside the sale mutation carried in public gathering (jalsa-e-aam) in the presence of the witnesses and the Supreme Court held that the legal position as to the nature of proceedings before the Revenue Court as summary is consistent and the plea of setting aside the sale mutation obtained through fraud and misrepresentation could not have been granted by the revenue officials in summary proceedings as the same fall within the domain and jurisdiction of the Courts of plenary jurisdiction. In view of ratio laid down in case of Sardar Muhammad supra, reliance placed on cases of Rasta Mal Khan and Shahid Iftikhar supra is of no help to the petitioner.
8. The matter can be examined from another angle. The impugned order is appealable under the Act, hence, the constitutional petition is otherwise not maintainable. Moreover, the petitioner earlier filed a constitutional petition bearing W.P. No.60491/2021, which was withdrawn by the petitioner, vide order dated 12.11.2021 when it was submitted that the petitioner wanted to pursue remedy before the appropriate forum and factum of filing of the earlier petition has not been disclosed, which fact in itself disentitles the petitioner from any equitable relief.
9. In the light of the above discussion, this writ petition has no merits, hence, the same is dismissed.
No order as to costs.