' This is a revision petition against the order dated 11-5-1971 passed by the Additional Commissioner, Hyderabad, whereby he rejected the appeal of the petitioners regarding mutation in respect of transfer by exchange of the lands in Taluka Tando Muhammad Khan and Tando Allabyar between the. Parties.
2. The facts of the case are that On 31-7-1966 Mir Aijaz Ali Khan Talpur for self and for Bibi Zeenatunnisa his wife and Bibi Bani wife of his father (Mir Aijaz being attorney for the said two ladies) gave statement before the then Head Munshi T. M. Khan, who attested for Mukhtiarkar, regarding transfer by exchange of the following lands in lieu of lands received in Tando Allahyar {{TABLE}} Deh. S. Nos. To whom transferred. Qabulpur Jagir 128,493,494,496, Mr. Jamil Ahmed son of Mir Ali (26-13) Acres Ahmed Khan Talpur Rs, 1-00- Tando Muhammad 25,27,28,53,54,55 1. Mir Muzafar 0-25 Khan Jagir. And 68(38-39) Acres 2. Mir Riaz 0-25
3. Mir Jamil Ahmed 0-50 all sons of Mir Ali Ahmed Khan.
Ditto 11,12,13,18,19,20 Ditto 21,22,23,(47-17) Acres. {{TABLE}}
3. The Head Munshi also ordered below the statement that mutation should be made according to the statement provided that there was no other infringement. This order is dated 31-7-1966. Entries to this effect were made in Village Form No, VII on 4-8-1966 by the Tapedar concerned. The Supervising Tapedar made notes against these entries that proceedings under section 135-D of the former Sind Land Revenue Code be taken. The notes of Supervising Tapedar are dated 4-8-1966. No further action for attestation or certification of these entries as envisaged in section 135-D of the former Land Revenue Code was taken.
4. On 16th May, 1969 Mir Aijaz Ali Khan gave another statement before the Mukhtiarkar T. M. Khan withdrawing from his previous statement on the ground that his son Mir lnayatali Co-sharer was minor and that Mir Ali Ahmed Khan had not complied with private commitments. On 16th May, 1969, the Mukhtiarkar cancelled the entries regarding exchange previously made and further ordered that mutation might not take place till the land was redeemed.
5. The petitioners preferred an appeal to the Settlement Officer, who accepted the same vide his order dated 5-9-1969 and remanded the case to the Assistant Collector Grade-II, Tando Muhammad Khan for holding a fresh proper enquiry as he held that the orders of both the Taluka Head Munshi and the Mukhtiarkar were irregular and improper. The petitioner preferred second appeal to the Additional Commissioner, Hyderabad, which was dismissed by him vide the impugned order.
6. The counsels for the parties urged the following points :A-COUNSEL FOR THE PETITIONERS
(i) The statement dated 31-7-1966 of Mir Aijaz Ali Khan Talpur was recorded by the Head Munshi as the land is within 5 miles of the Taluka Head Quarter and is within the jurisdiction of Taluka Head Munshi. The 'aluka Head Munshi also ordered Khatebadal according to the statement vide his order of the same date and Khatebadal was accordingly made 1966. There was no appeal or revision against it. No notice was necessary to the respondents for the Khatebadal as Mir Aijaz Ali Khan Talpur who was also attorney of the other respondents had due knowledge about the mutation.
(ii) There was no appeal and revision upto 31-12-1967 and till then Sind Land Revenue Code was in force. In between the Jamabandies were made and no mistake was found. On 1-1-1968 West Pakistan Land Revenue Act, 1967 came into force. According to section 184(3) of the Act whatever record was prepared before commencement of that Act, it was standing record and shall continue in force and could not be revised except under section 45 of the Act. Old record could be reviewed only under section 40 of the Act. No change in the previous entry could be made by the Revenue Officer, when the reasons for the change can only be gone into by a civil Court vide commentary on page 162 of the Act by Ch. Muhammad Idris.
(iii) The land bad been transferred to the minors and transfer from their names to that of the respondents was void and was not permissible vide commentary on page 157 of the West Pakistan Land Revenue Act by Ch. Muhammad Idris.
(iv) Mir Aijaz Ali Khan withdrew his earlier statement vide statement dated 16--1969 on the ground that the land was already mortgaged, with Agricultural Development Bank, Khata of Mir Aijaz Ali was not mortgaged with Bank. As regards the other two necessary note was made against the mutations about the incumberance and the mutations could take place in spite of the encumbrance.
(v) Mukhtiarkar had no power to revise the order of his predecessor or the order of Head Munshi and it could be revised only by the Commissioner under section 164 of the West Pakistan Land Revenue Act.
(vi) The Settlement Officer had set aside the order of the Head Munshi dated 31-7-1966 vide his order dated 5-9-1969 but he could not also do so as the power for revision were vested in the Commissioner only under section 164(3) of tile West Pakistan Land Revenue Act. The Settlement Officer could only report the matter to the Commissioner for orders and could not set aside the order himself. B--COUNSEL FOR RESPONDENTS
(i) Section 184(3) of the West Pakistan Land Revenue Act does not apply to mutations. Record of Rights is different from mutation. Mutation entry only when attested becomes part of the Record of Rights vide section 135-D (5) of the Sind Land Revenue Code. In the present case the mutation entries on the basis of statement dated 31-7-1966 of Mir Aijaz Ali Khan Talpur were not attested and did not form part of Record of Rights and were not governed by any protections as argued by the counsel for the petitioners. The mere mutations had no force vide revenue ruling Vol. II Saeed Ahmed v. Akbar Ali page 567 and Kapura v. Islam vide page 485.
(ii) The order of Head Munshi dated 31-7-1966 is conditional that Khatas may be changed if there is no other infringement. The land was hypothecated with bank and it was not free from incumberance. Mir Aijaz Ali was not competent to transfer the land in exchange.
(iii) Supervising Tapedar had noted on the mutations that action should be taken under section 135-D of the Sind Land Revenue Code but there is nothing on the record that any action was taken.
The two ladies were interested parties and they should have been served with a notice.
(iv) Till 1969 the entry in V. F. VII was not attested. According to section 42(6) of the West Pakistan Land Revenue Act, the Mukhtiarkar had power to correct the entry as soon as it came to his knowledge that the entry was incorrect. Opportunity to the other party while cancelling the entry was not necessary as the entry was illegal. Compliance of section 42(8) of the Act was not made and hence the case was remanded by the Settlement Officer.
(v) The petitioners had gone in appeal to the Settlement Officer and the Settlement Officer was fully competent to go into the root of the case and pass any order considered by him necessary in the matter.
7. I have considered the arguments of the counsel for the parties. The counsel for the petitioners had argued that the Settlement Officer had no jurisdiction to set aside the order dated 31-7-1966 passed by the Head Munshi as no appeal or revision against it was pending before him and he had no powers to revise the orders on suo motu side. The order dated 31-7-1966 was passed on mutation statement and it directed that mutations may be made provided there is no contravention of the Rules and Orders, etc. This order required further scrutiny of the mustation statement and the entries had to be transcribed in the record only, if there was no contravention.
This scrutiny was obviously required to be done in accordance with the procedures prescribed by section 135-D of the Sind Land Revenue Code but the procedure was not adopted. Even otherwise, the mutation entries made in V. F. VII on the basis of mutation statement could not be transferred to the Record of Rights until those mutation A entries were certified by a competent authority vide section 135-D (5) of the Sind Land Revenue Code, and the order dated 31-7-1966 passed by the Head Munshi was not required to be passed under any provision of the law and was redundant. It had, therefore, rightly been set aside by the Settlement Officer. Under these circumstances firstly there was nothing wrong in order of the Settlement Officer if he had set aside the order of the Taluka Head Munshi and secondly if at all there was anything, the case has already been heard by the Additional Commissioner and he has confirmed the order of Settlement Officer vide his order dated 11-5-1971 and the irregularity, if any, in the order of Settlement Officer, was remedied by subsequent confirmation of the order by the Additional Commissioner and no useful purpose would be served if the case is again remanded to the Additional Commissioner for re-adjudication on the same point. In any case, there is no substance in the contention of the counsel for the petitioners and no interference is called for on that account. The Settlement Officer has gone into details of the case. The order of Head Munshi was that the Khata may be changed if there is no other infringement and his order was therefore, conditional and required further action before mutation could be affected. Order of the Mukhtiarkar suffered from the irregularity as he did not comply with the provisions of sections 42(6) and (8) of the West. Pakistan Land Revenue Act.
Consequently in the interest of justice, the best course available to the Settlement Officer could have been to remand the case for the fresh enquiry and decision after giving proper opportunity to the parties of being heard. The order of the Settlement Officer is, therefore, quite justified and consequently the order of the Additional Commissioner upholding the same is good and correct and I find no justification to interfere with the same. The revision petition is accordingly rejected.
Revision rejected.