' S. Shafaat Hussain and others v. Member Board of Revenue and others Writ Petition No. 364 of 1972, Shafaat Hussain and others v. Member Board of Revenue and others Writ Petition No. 365 of 1972 and Shafaat Hussain and others v. Member Board of Revenue and others Writ Petition No.238 of 1972, which raise identical questions of fact and law for decision can conveniently be disposed of through one order.
2. Facts necessary for the resolution of the controversy raised in the three writ petitions, briefly stated are:-- ' Mst. Saghir Fatima held some land in certain villages now falling in the Indian territory. In the wake of communal disturbances on the division of Sub-Continent of India, she was forced to leave her abroad and took refuge in the territory now forming part of Pakistan. She filed claims in respect of lands abandoned by her in India. These claims were duly verified by the Claims Authorities. She was allotted land in certain villages in satisfaction of her verified claims. Transfer of land in her favour was incorporated in the Revenue Records.
3. Mst. Saghir Fatima died on 12-5-1970. Three mutations of inheritance Nos. 2921, dated 25-6-1970, 842, dated 6-6-1970 and 3282, dated 8-6-1970 were attested in favour of one Mst. Zamurrad Khatoon, her real sister and mother of the present petitioners. She was treated as full owner of the land settled in her name. A shortwhile thereafter, Mst. Zamurrad Khatoon also passed away on 16- 1-1971 leaving the petitioners as her legal heirs. With the demise of Mst. Zamurrad Khatoon, inheritance mutation were sanctioned in favour of the present petitioners. Admittedly, Mst. Saghir Fatima belonged to a Shia sect and her inheritance was regulated by that system of law.
4. Haji Hassan and others preferred separate appeals in the Court of Assistant Commissioner/Collector, Saddar Sub-Division, Jhang. Mst. Saghir Fatima was also found to be full owner of the land in dispute by learned Collector, Saddar Sub-Division, Jhang. Relying on the case of Sher Muhammad v. Additional Rehabilitation Commissioner, Multan and 7 others PLD 1968 Lah.
234, it was observed by learned Collector that she is full owner of the land and thus would constitute a fresh stock of descent and in case of her death, her own legal heirs will inherit. The order, dated 24-3-1971 passed by Collector Saddar Sub-Division, Jhang was called in question in revisional jurisdiction before learned Commissioner, Sargodha Division, Sargodha by Haji Hassan and others. Learned Commissioner accepted the revision, set aside the order passed by Collector and remanded the case for re-examination to the Revenue Officer and for decision afresh on 9-11- 1971 with the following observations:-- "Against the above arguments, the learned counsel for the respondents argued that the revision petition is time barred hence it should be thrown away on this simple ground because the petitioners have failed to explain the delay of each and every day. Regarding the ruling of the Supreme Court the learned counsel conceded that it is true that according to it the refugee widows henceforth are to be considered limited owners, but in the present case Mst. Saghir Fatima got the land in dispute during the life time of Imam Ali her husband in lieu of dower. Hence for all intent and purposes she has to be considered full owner of the disputed land. It was further contended that the case had been finalized after the decision of the appeal. Such finalized cases are not to be reopened as laid down in Supreme Court 1971 Law Notes 700 but if the revision petition is accepted and remanded for fresh decision, then the A.C. II-Grade will have to decide the following issues before final attention of the mutation:--
(i) Whether petitioners are also heirs of Imam Din;
(ii) Whether the land in dispute was obtained by Mst. Fatima in lieu of dower or inherited on the death of Imam Din.
' Regarding the last argument of the learned counsel for the petitioners that the mutation has to be decided by the A.S.C. (Lands) the land involving being evacuee land, the learned counsel for the respondents argued that the land was confirmed in the name of Mst. Saghir Fatima much before 1964 and she being owner of this land, she ceased to be a right holder and therefore, paragraph 46-A was not applicable to her and in the event of her death the succession to her estate had to be determined in accordance with the Principles of general law. In support of his contention, the learned counsel cited PLD 1971 SC 791 wherein it has been held that by virtue of the notification issued under section 4 of the Displaced Persons (Land Settlement) Act the right, title and interest of an evacuee in the land was extinguished and it had ceased to be evacuee property.
5. I have given careful consideration to the arguments advanced by the learned counsel for the parties. I think, in view of the ruling of the Supreme Court PLD 1971 SC 791 it is a fit case for re- examination. Accordingly I accept the revision, set aside the impugned order and remand the same to the Deputy Commissioner/Collector, Jhang for fresh decision after hearing the parties.
' Shafaat Hussain and others assailed order of remand in further revisional jurisdiction before learned Member Board of Revenue, Punjab, Lahore, in Revision No. 339/1971-72, Revision No. 340/1971-72 and Revision No. 34/1971-72. They did not succeed and the petitions for revision were dismissed vide order, dated 5-1-1972 by learned Member Board of Revenue. Remand order, dated 9-11-1971 was upheld.
6. Aggrieved, Syed Shafaat Hussain and others have presented three writ petitions, wherein they have challenged the remand order passed by learned Commissioner and upheld by learned Member Board of Revenue. On 13-3-1972 this Court made the following order:-- "Mr. Khalid Farook Qureshi, Advocate contends that the deceased widow has not been mentioned as limited owner in the special Jamabandi received from India. This question thus cannot be gone into. Admit. Notice.
' Further proceedings are stayed subject to notice".
' Respondents, through a civil miscellaneous petition, 2371-1984 prayed that the restraint order be vacated in the interest of justice. This petition was presented before me on 29-9-1984. I directed that the main petition be fixed for hearing on 7-10-1984. On 7-10-1984, request for adjournment was made on behalf of writ petitioners as their learned counsel Mr. Khalid Farooq Qureshi, was stated to be in London. Consequently, the writ petitions which pertained to be a very old matter, were directed to be fixed on 8-10-1984 with direction to the petitioners to make alternate arrangements.
Today, Mr. Muhammad Iqbal Sarjana, Advocate has appeared on their behalf and has addressed arguments. Respondents are represented by Mr. A.R. Shaukat, Advocate.
7. I have heard learned counsel for the petitioners at length. Learned counsel contended that the revisions preferred by respondents were barred by time and merited dismissal on the score of clear bar of limitation. Merits could not be reached and touched by the revisional Court in the presence of this bar of limitation. Unless the respondents successfully crossed the limitation bar they were not entitled to be heard on merits by learned Commissioner in his revisional jurisdiction.
There was no application made for condonation of delay under section 5 of the Limitation Act 1908.
Efflux of time created a valuable right in favour of the petitioners of which they could not be lightly deprived of in the absence of a proper application explaining the causes of delay in the preferment of the revision petitions. Revenue Officers, learned counsel submitted, did not consciously attend to the question of limitation. It has been further submitted that Mst. Saghir Fatima was full owner of the land allotted/settled upon her in lieu of her verified claims. The claims submitted by her pertained to her own land and not the one inherited by her from her deceased husband. She was, in the Revenue Records, described as owner without any limitation, on her rights of ownership suggesting such as that she was holding the land in the capacity of a life estate holder. There was no credible evidence before the Revenue Authorities i.e. Collector and Member Board of Revenue produced by the respondents to show directly or indirectly that Mst. Saghir Fatima was holding land as limited owner. In the absence of such an evidence, remand order was not justified, more so, when the respondents herein, had alternate remedy available to them to challenge the orders passed in mutation proceedings before a Court of plenary jurisdiction. Learned counsel submitted that mutation proceedings are summary in nature and any decision recorded therein does not decide the question of title raised therein. These records are prepared for fiscal purpose only.
Revenue Officers when deciding mutations which term devotes change of name only, are not arbiters of the civil rights of the parties. Decision made in mutation proceedings are a mere prelude to the civil suit for adjudication of rights to the property. Since Mst. Saghir Fatima was described as full owner in the Special Jamabandi and Khata R.L.II, inheritance mutation relating to her estate was correctly and rightly decided by the Revenue Officers. Remand orders passed by learned Commissioner of the Division thus was brought under severe attack by learned counsel for the petitioners. It was contended that the impugned orders are outcome of an improper and illegal exercise of jurisdiction by the superior Revenue Authorities. Since the remand order, in the estimation of learned counsel, was illegal and without jurisdiction, it was liable to be quashed in consti tutional jurisdiction in this Court.
8. Mr. A.R. Shaukat, learned counsel appearing on behalf of respondents submitted that the inheritance mutation relating to the estate of Mst. Saghir Fatima widow of Imam Ali, Syed by caste, was made in the absence of, without notice and participation of the other heirs of Imam All deceased, last male holder of the property. A bare look on the mutation sheets would show that the respondents were not present before the Revenue Officer on the date of making of order in the inheritance mutations. No inquiry whatsoever was held on the nature of estate held by Mst. Saghir Fatima. In this view of the matter, he contended that the remand order made by the learned Commissioner of the Division was amply justified and was rightly upheld by learned Member Board of Revenue. He submits that proceedings in mutation are summary in nature but they cannot be made so summary as to absolve the Revenue officials from making any inquiry at all into the entitlement of the claimants to the estate of the deceased. Further submitted that remand order was not without jurisdiction and did not suffer from any error apparent on record. The policy of law, as he quoted, does not countenance interference with remand order in constitutional jurisdiction particularly when the matter arises out of mutation proceedings.
9. Inheritance mutation relating to the estate left by Mst. Saghir Fatima widow of Imam All was sanctioned by the Revenue Officer in the absence of the respondents who also were claimants to a share in the estate on the ground that she was holding a life estate only. No inquiry whatsoever was held by the Revenue Officer, on her status, whether she was holding the estate as limited owner inherited from her husband or a full owner in her own right. This determination was a legal must which would have determined the correct heirs entitled to succeed to her estate.
Respondents were not associated in any inquiry culminating in the making of final order on the mutation. She is shown as widow of Imam Ali in the Entitlement Certificate and the inheritance mutation. Shajra Nasab was neither produced nor examined by the Revenue Officer. On a bare ipse dixit, the Revenue Officer found her to be the full owner. When the matter came before the Collector in appeal, he was influenced by a decision in Sher Muhammad v. Additional Rehabilitation Commissioner Multan and 7 others PLD 1968 Lah. 234, holding that the female who held a limited estate in India and submitted a claim under the Punjab Refugee (Registration of land Claims) Act V of 1949 did so as an owner within the purview of paragraph 2, part II Chapter 1 of Rehabilitation Settlement Scheme in her own rights and was a full owner of the land allotted to her. Learned Commissioner, relying on the Additional Settlement Commissioner (Lands) v. Muhammad Shafi and others 1971 Law Notes 700, interfered in the revisional jurisdiction and remitted the case for redecision to the Revenue Officer on the following issues:--
(i) Whether the petitioners are sole heirs of Imam Din.
(ii) Whether the land in dispute was obtained by Mst. Saghir Fatima in lieu of dower or inherited it on the death of Imam Din.
' Further proceedings in the remand were stopped under a restraint order by this Court.
10. There is a catena of judicial pronouncements holding that the order made in the mutation proceedings do not decide the rights of the parties. The presence of a mutation does not create a right nor does its absence adversely affect a right. I may only refer to a case of Muhammad Iqbal v.
S.A.M. Khan Member Board of Revenue, West Pakistan, Lahore PLD 1970 Lah. 6148, where a Division Bench consisting of Sardar Muhammad Iqbal J, and Shaukat Ali J. (as their lordships then were), observed:-- "Learned counsel then argued that the learned Member, Board of Revenue, and the Commissioner, have not properly appraised the statements made by the witnesses before the Enquiry Officer who had stated that the respondents had personally appeared before the Assistant Collector. This hardly furnishes a ground for invoking the extraordinary jurisdiction of this Court under Article 98 of the 1962 Constitution. The Revenue Authorities, moreover, in proceedings for sanctioning mutation do not act as arbiters of the rights of the parties and a decision in mutation proceedings is not a decision as to the title of the parties. They sanction mutations to keep their record in order and upto date. In Nirman Singh v. Rudra Partap Narain Singh AIR 1926 P C 100, it was held by the Judicial Committee that mutation proceedings are not judicial proceedings in which title to and proprietary rights in immovable property are determined but that "they are much more of the nature of fiscal enquiries instituted in the interest of the State for the purpose of ascertaining which of the several claimants for the occupation of certain denominations of immovable property may be put into occupation of it with greater confidence that the revenue for it will be paid". Same view was expressed in Mst. Rasulan Bibi v. Nand Lal AIR 1930 All. 521 and was relied on in Ram Sarup Rai v. Charitter Rai AIR 1927 All.
338. An entry by virtue of the mutation, is, therefore, not the basis of title. The person in whose favour such an entry is made cannot take advantage of the same to claim a title against any person. A person adversely affected by such an entry can, notwithstanding the mutation, maintain that he is vested with the right and have his right declared in a civil suit. In the circumstances, when the mutation does not create a title in favour of somebody and also does not adversely affect the rights of any person, the party aggrieved by such an entry cannot say that he is an aggrieved person within the meaning of Article 98. It is only when a person has been adversely affected in a right which is vested in him that he can maintain a petition under Article 98.
' The petitioner claims to be the donee of the property and it is the factum of the gift which was given effect to by the Assistant Collector who sanctioned the mutation. The right, if at all, was created in favour of the petitioner by the gift and not by the fact that the mutation has been sanctioned. If in a particular case it is proved that no gift was made, the fact that a mutation on the basis of an alleged gift is sanctioned, can be of no avail to the person claiming any right on the basis of such a gift. The mutation being dependent upon the existence of the gift, it becomes ineffective on a finding that there was no gift. Likewise, if a gift, in fact had been made but the Revenue Authorities refused to sanction the mutation, the order of refusal cannot effect the validity of the gift. The Court can give effect to it in spite of the refusal of the Revenue Authorities. The mutation is thus not a proof of the gift nor a refusal to sanction the mutation a proof of the fact that a gift had not been made. The Assistant Collector, has, under the Land Revenue Act, been given the power to sanction mutation, whose action is subject to the incident of appeal and revision. If the order of mutation is set aside in appeal or revision, it only means that the Revenue authorities refused to sanction the mutation. Since it does not affect the right of a person in the property which he claims on the basis of a transaction for which he sought the mutation to be sanctioned,he does not have a locus standi to file petition under Article 98."
' Another Division Bench of this Court reiterated the same view in Mst. Kaniz Fatima and 3 others v.
Member Board of Revenue, Punjab, Lahore and 5 others PLD 1973 Lah. 495, and observed:-- "The case before the Revenue Authorities was in respect of succession of the estate of Syed Nazir Hussain Shah. Even if the decision had been given by the Board of Revenue which is the final authority in such matters, it would not have furnished any ground to the appellants to challenge this under Article 98 of the Constitution. The Mutation does not create a title in favour of any person and also does not adversely affect the rights of any person. It is only for correcting the entries in the revenue record to facilitate the recovery of the land revenue. In Thakur Nirman Singh v. Thakur Lal Rudia Partab Narain Singh AIR 1926 P C 100, it was held that it is an error to suppose that the proceedings for the mutation of names are judicial proceedings in which the title to and the proprietary rights in immovable property are determined. They are nothing of the kind, as has been pointed out times innumerable by the Judicial Committee. They are much more in the nature of fiscal inquiries instituted in the interest of the State for the purpose of ascertaining which of the several claimants for the occupation of certain denominations of immovable property may be put into occupation of it with greater confidence that the revenue for it will be paid." It was further held: "Orders in mutation proceedings are not evidence that the successful applicant was in possession as sole legal owner in, a proprietary sense, to the exclusion, for example, of all claims of the other members of the family as co-owners or for maintenance or otherwise, as revenue authorities have no jurisdiction to pronounce upon the validity of such a claim". The same view was taken in Muhammad v. Sardul PLD 1965 Lah.
472. In Muhammad Iqbal v. S.A.M. Khan PLD 1970 Lah. 614, it was held: "The Revenue Authorities, moreover, in proceedings for sanctioning mutation do not act as arbiters of the rights of the parties and a decision in mutation proceedings is not a decision as to the title of the parties. They sanction mutations to keep their record in order and up-to-date." It was further held: "An entry by virtue of the mutation is, therefore, not the basis of title. The person in whose favour such an entry is made cannot take advantage of the same to claim a title against any person. A person adversely affected by such an entry can, notwithstanding the mutation, maintain that he is vested with the right and have his right declared in a civil suit. In the circumstances, when the mutation does not create a title in favour of somebody and also does not adversely affect the rights of any person,- the party aggrieved by such an entry cannot say that he is an aggrieved person within the meaning of Article 98."
' Incidentally the report also dealt with the controversy arising out of a remand order. The Bench observed:-- "The case moreover has not been finally decided. It has only been remanded by the Member, Board of Revenue for fresh decision. In Ramzan v. Rehabilitation Commissioner (Legal), Sargodha and another PLD 1963 Lah. 461, it has been laid down that a remand order is not a final order and, therefore, it is not appropriate that an order of remand should be interfered with in writ jurisdiction".
In Ramzan's case PLD 1963 (W .P.) Lah. 461, late Mr. Manzoor Qadir, learned Chief Justice (as his Lordship then was) dealing with the propriety of interference with a remand order observed:-- "We are of the opinion that even if it is assumed that his complaint is well-founded (without deciding that it is so), since the error, if any, has not resulted in a final order but in an order of remand, it is not appropriate that we should interfere with that order in writ jurisdiction. Whatever objections to admissibility of documents the learned counsel might have, can be raised and decided during the proceedings in remand. It does not seem desirable that this Court shall prevent a Department with its own rules and laws and its own hierarchy of officers, from having a second look at a case if it so chooses, unless it has been prohibited from doing so."
' Learned Commissioner in his revisional jurisdiction under Section 164 of the Punjab Land Revenue KO 1967, can "passed such orders as he thinks fit." Similar is the position with the Board of Revenue.
It cannot be said, therefore, that the remand order suffers from lack of jurisdiction of the revisional Court. The case has been sent back to the Revenue Officer to record findings on defined issues as stated above which in turn will greatly facilitate and help in arriving at the correct decision of the problem posed. Both the parties will be free to produce necessary material in the proposed inquiry by the Revenue Officer to find out the true nature of the estate of Mst. Saghir Fatima. The petitioner, therefore, should feel no grievance if the matter has been reopened by superior Revenue Officers to make a search to find out the truth for doing justice to both the parties.
' In the circumstances and the above discussion I see no merit in these writ petitions. Petitions fail and are dismissed. Parties are directed to bear their own costs. Copy of the order be sent to the Collector of the District immediately so as to enable him to take further procedings. The learned Collector will take steps to ensure that this old and agonizing controversy comes to an end in the shortest possible time.