1. This further appeal has been filed against the judgment and order of the Additional Commissioner, Peshawar, dated 14-7-1987 whereby he while treating the appeal of the Respondent as Revision Petition against the order of the Revenue Officer dated 23-10-1986 on Mutation No. 5249, accepted the same and set aside the order of the Revenue Officer.
2. The facts leading to this further appeal are that Khasra No.322 measuring 2 kanals 2 marlas situated in Tukra No.l Peshawar City was initially an evacuee property which was resumed by the Central Government of Pakistan and transferred to a Kashmiri refugee, from whom the respondent Mian Sultan Mohammad purchased it. The appellants in 1954 applied for the acquisition of certain land adjacent to the Flour Mills which included Khasra No.322 measuring 2 kanals 2 marlas, subject of the mutation in dispute. The request of the appellants was acceded to vide the award dated 30- 7-1973. However, in 1986 it came to the notice of the appellants that the said Khasra number is not transferred to the appellants which was omitted from mutation by mistake. The appellants accordingly applied to the Collector Acquisition Peshawar (Additional Deputy Commissioner Peshawar) on 4-3-1986 for the transfer of the said Khasra number in his favour. After making the necessary enquiry the Collector Acquisition vide his order dated 20-10-1986 accepted the application of the appellants and ordered to rectify the error on payment of interest amount of Rs.29,377 by the appellants.
3. After the payment of the said amount of interest, Mutation No.5249 was entered. In view of the order of the Collector Acquisition dated 20-10-1986, the mutation was sanctioned on 23-10-1986.
4. Mian Sultan Mohammad (Respondent) applied for the copy of the mutation on 2-11-1986. He, however, did not file the appeal against the order of the Revenue Officer on the Mutation No.5, 249 to the Collector within 30 days prescribed for the appeal under the law. However, he filed one appeal against the order of Collector Acquisition dated 20-10-1986 as well as order of the Revenue Officer dated 23-10-1986 on the Mutation No.5249 before the learned Additional Commissioner Peshawar on 17-12-1986.
5. It is clear from the-record that an objection to the competency of the appeal was taken by the present appellants which was overruled by the learned Additional Commissioner Peshawar, who treated the appeal as Revision Petition and while accepting the same, he set aside the order of the Revenue Officer, dated 23-10-1986 and rejected Mutation No.5249. The appellants have now preferred this further appeal against the order of the learned Additional Commissioner Peshawar in this Court.
6. The arguments of the counsel for both the parties were heard at length and the record perused.
7. In these proceedings, it is noted that by one appeal Mian Sultan Mohammad attacked two sets of orders i.e. The order of the Collector Acquisition Peshawar dated 20-10-1986 which order was passed by the Collector under the Land. Acquisition Act, and another order dated 23-10-1986" passed by the Revenue Officer on Mutation No.5249 under the Land Revenue Act. The learned Additional Commissioner Peshawar seems to have taken no note of this fact that no appeal could be filed against the order of the Collector Acquisition before him, as there is no such provision under the Land Acquisition Act. On the other hand it is the case of Mian Sultan Mohammmad that he has already challenged the order of the Collector Acquisition in the competent Civil Court as he was aware that the same could not be challenged anywhere else. So appeal against the order of the Collector Acquisition was wrongly entertained by the Additional Commissioner. Similarly, the order of the Revenue Officer on Mutation No.5249 could not be appealed against in the Court of Additional Commissioner Peshawar. Since it was an order passed under the Land Revenue Act, an appeal against the same could only lie before the Collector within 30 days from the impugned order. It is, however, noted that the appeal was filed before the Additional Commissioner after about 54 days.
8. The learned Additional Commissioner entertained this appeal on a wrong assumption that this order was based on an order of the Collector under the Land Revenue Act which in fact was passed by the Collector under the Land Acquisition Act. This view of the Additional Commissioner is not maintainable that an order passed on an order of the Acquisition Collector cannot be appealed against before a Revenue Collector under the Land Revenue Act and thus he has wrongly entertained the appeal as a Revision Petition.
9. The legal position in this respect is clearly enunciated in PLD 1969 Pesh. 203 wherein it is held that no Revision can be entertained by Revenue Court unless an appeal is filed against an appealable order.
10. Even on merits, the order of the Additional Commissioner, Peshawar is not maintainable because Khasra No.322 measuring 2 kanals 2 marlas mentioned above (disputed one) was already acquired long before but by an oversight, it was left over from the transfer proceedings which is rectified by the Acquisition Collector vide his order dated 20-10-1986, on the basis of which the Revenue Officer has sanctioned the Mutation No.5249. Admittedly the Revenue Officer and the learned Additional Commissioner could not go into the validity of the order of the Acquisition Collector which is the duty of the Civil Court and the respondent has already filed a suit to this effect which is still pending before a competent civil Court. The Revenue Officer could not go into the intricate question of law and fact which is the duty of the Civil Court.
11. In view of the above discussion the appeal of the respondent against the orders of the Collector Acquisition dated 20-10-1986 and Revenue Officer on Mutation No.5249, dated 23-10-1986 was wrongly entertained and while accepting this further appeal of the appellants the order of the Additional Commissioner dated 17-7-1987 is. Set aside and the order of the Revenue Officer on Mutation No.5249, dated 23-10-198fi is restored.