' ABDUL RAZAK A .THAHIM, J.--This Constitutional petition has been filed by Muhammad Ilyas to challenge the orders of respondent No.10, Commissioner, Karachi, and respondent No.12, Board of Revenue, in connection with mutation of immovable property bearing Surveys Nos. 870, 871, and 875 with buildings situated in Deh Thano, Tapo Malir, Taluka Karachi. By this petition he seeks the following reliefs:-
(1) Declare that the orders of the respondents Nos.10 to 12 attached with this petition and proceedings taken thereunder are without jurisdiction, illegal, void ab initio and of no legal effect.
(2) Declare that orders of Assistant Commissioner, Karachi (East), in Appeal No.2 of 1982 dated 31- 8-1982, is a legal order and the issuance of Form-VII in consequences to it in the name of the petitioner is valid and binding on the respondents.
(3) Declare that the proceedings initiated by the respondents have been mala fide in law and facts.
(4) Declare that the respondents 1 to 9 have no locus standi to claim mutation and their entire approach is based on fraud and misrepresentation.
(5) Give and grant such other relief/reliefs as may be expedient in the interest of justice and circumstances of this case.
2. Briefly stated the facts are that one Muhammad Ahmed Saley, a South African of Indian origin, purchased immovable property being Surveys Nos. 870, 871 and 875 with buildings, situated in Deh Thano, Tapo Malir, Taluka Karachi, in the year 1948, and entries were made in the record of rights in his name by Mukhtiarkar Malir. He died on 31-10-1971. His heirs were South African nationals and property was being looked after by one Ghulam Muhammad Shaikh but Khata in the revenue record remained in the name of the deceased Muhammad Ahmed Saley.
3. It is stated in the petition that the petitioner purchased the above land from respondent No.1, Muhammad son of Ahmed Saley for the consideration of Rs.75,000 in pursuance of agreement of sale executed by respondent No.1 on 3-8-1960. The petitioner paid Rs.70,000 and remaining amount of Rs.5,000 was to be paid on the registration of the said sale-deed in favour of the petitioner. The petitioner according to the terms and conditions of agreement dated 3-8-1960, got the physical possession of the property and used to enjoy all benefits such as rent etc. In spite of several applications to revenue authorities the mutation was not made in his favour.
4. In the meanwhile, respondent No.2 made an application to the Mukhtiarkar who recorded the statements of Ghulam Ahmed and others and mutated the Khata of the above property in the names of heirs of the deceased.
5. Being aggrieved, the petitioner, filed an appeal to the Assistant Commissioner, Karachi (East), who set aside the order of Mukhtiarkar on the basis of alleged agreement of sale and the property was mutated in the name of petitioner, Muhammad Ilyas. The respondents filed an appeal to the Deputy Commissioner but the same was dismissed due to non-prosecution on 15-6-1983, hence they filed appeal to the Commis sioner, Karachi who, after hearing the parties, set aside the order of the Assistant Commissioner on the ground that action on the agreement of sale duly attested by the Oath Commissioner cannot be taken by the Revenue Officer. He observed that, for the purpose of mutation, it is only registered sale-deed which could be relied upon. This order of Commissioner was challenged before the Member, Board of Revenue, who remanded the case to the Mukhtiarkar, and directed him to take fresh decision according to law after observing all legal formalities.
6. We have heard Mr. Mirza Ghiasddin Baig learned Advocate for the petitioner. His contention is that respondents have no locus standi as they are not the heirs of the deceased and the orders passed by the Commissioner and Member, Board of Revenue, are without lawful authority.
7. It appears from the record that the petitioner had also filed a civil suit for specific performance of the alleged agreement of sale against one Muhammad son of Sahmed Saleji and sought ex parte decree in his favour from the civil Court. On knowing this fact respondent No.2, Abdul Hague, and others challenged that ex parte order and have taken a plea that petitioner had impleaded one Muhammad son of Ahmed Saleji, a fictitious person as respondent in civil suit and got ex parte decree by fraud. This suit is still pending before the civil Court. A This fact has not been denied by Mr. Mirza Ghiasuddin Baig.
8. The contention of the petitioner that the respondents have no locus standi cannot be sustained on the ground that civil suit is pending where respondents are already party. He can take this point upon hearing of the civil suit.
9. The mutation was made on 5-4-1982 in favour of all the respondents by Mukhtiarkar and against that order petitioner filed appeal before the Assistant Commissioner, Karachi (East), and claimed that survey numbers with buildings were purchased by him from Muhammad son of Ahmed Saleji through sale agreement. The learned Commissioner has rightly held that in such cases where heirs of the deceased were not traceable and the sale document was not duly registered, the Revenue Officer should have declined to mutate the Khata. He has, by this order, cancelled the entries made in the record of rights in favour of petitioner as well as of respondents.
10. Finally, the case has been remanded by the Member, Board of Revenue, and matter is to be re- heard when all the disputed points involved in connection with the property are to be resolved by producing evidence before the Mukhtiarkar who can pass an order about the mutation of the disputed property after necessary enquiry.
11. As regards the next contention of the learned counsel that orders of the respondent Nos.10 and 12 and proceedings taken thereunder are without jurisdiction and lawful authority, we may observe that Mukhtiar kar made necessary entries in the record of rights under Land Revenue Act as he is entrusted with the local revenue administration of a taluka and exercised the powers of an Assistant Collector as contemplated under section 11 of Land Revenue Code which states as follows:-
12. Section 11. "The Chief Officer entrusted with the local revenue administration of a Tehsil shall be called the Tehsildar (which also includes a Mukhtiarkar), who shall exercise such powers and discharge such duties of an Assistant Collector as may be expressly conferred or imposed on him by the Collector under the general or special orders of the Board of Revenue."
12. The appeals against the orders of Assistant Collectors of eithe grade, shall lie to the Deputy Commissioner who by virtue of section 8, Land Revenue Act is a Collector; as such we are of the view that, appeal against the order of Mukhtiarkar does not lie before Assistant, Commissioner, therefore, the order of the Assistant Commissioner ab initio is illegal and without jurisdiction. The relevant section in Land Revenue Code for the purposes of appeal is section 161, which reads as under:- ' Section 161. "(1) Save as otherwise provided by this Act, an appeal shall lie from an original or appellate order of a Revenue Officer as follows, namely:-
(a) to the Collector, when the order is made by an Assistant Collector, of either grade;
(b) to the Commissioner, when the order is made by a Collector;
(c) to the Board of Revenue only on a point of law, when the order is made by a Commissioner: Provided that:-
(i) When an original order is modified or reversed on first appeal, a further appeal shall not lie;
(ii) when any such order is modified or reversed on appeal by the Collector, the order made by the Commissioner on further appeal, if any, to him shall be final.
' Explanation.--(1) An order passed in review, modifying or reversing a previous order, shall be deemed to be an original order for the purposes of this section.
(2) An order shall not be confirmed, modified or reversed in appeal unless reasonable notice has been given to the parties affected thereby to appeal and be heard in support of or against the order appealed from."
' The revision could be filed under section 164 of the Act. In these circumstances the Commissioner (respondent No.10) and Member, Board of Revenue (respondent No.12), have jurisdiction to pass an order in Revenue matters.
' For the reasons stated above, this Constitution Petition is not only misconcieved but pre-mature, and we dismiss the same in limine.