' A.C.II Lodhran had sanctioned Mutation No, 136 on 13-12-1980 on the basis of a decree of Civil Court allowing exchange of 67 kanals 13 marlas of Sharif respondent with 5 kanals of Wali Muhammad etc. Petitioners. Respondent Sharif filed an appeal before the Assistant Commissioner on the ground that the Court decree was obtained fraudulently and was also hit by MLR 115. On rejection of appeal, a revision was decided by the Additional Commissioner (Cons.), who accepted the same and set aside the orders of A.C. And A.C.II. Hence this second revision by Wali Muhammad petitioner on the following grounds:-
(a) Second revision does lie legally.
(b) A.C.II had implemented the decree/order of the Civil Court as it could not be refused.
(c) Appeal before A.C. Was time-barred by 26 months and as such revision should not have been accepted.
(d) Case is not by MLR-115.
(2) It was contended on behalf of respondent Sharif that:-
(a) There is a bar to lodge second revision before Member, Board of Revenue.
(b) Revenue, Officers are bound to reject the mutation in viqlation of MLR-115.
(c) Limitation does not run in cases of decrees or orders obtained in the absence of any of the parties and based on fraud.
(d) MLR-115 is hit as the holding of the party had been reduced to below the economic holding.
(3) I have gone through the record and have also heard the counsel of parties at length. The crux of the case is, if MLR-115 is hit by the impugned transaction or not. Paragraph 24 of M L R-115 runs as under:- "24. Restrictions on alienation of holdings.---
(1) No person owning more than the area of an economic holding shall be allowed to alienate by sale, mortgage, gift or otherwise any portion of his holding which may reduce the size of his holding to an area below the limit of an economic holding: ' Provided that such a person may alienate his entire holding.
(2) No person owning an economic holding should be allowed to alienate by sale, mortgage, gift or otherwise any portion of his holding: ' Provided that such a person may alienate his entire holding.
(3) No person owning more than the area of a subsistence holding but less than an economic holding shall be allowed to alienate by sale, mortgage, gift or otherwise any portion of his holding which may reduce the size of his holding to an area less than the area of subsistence holding: ' Provided that such a person may alienate his entire holding.
(4) No person owning an area equal to or less than a subsistence holding shall be allowed to alienate by sale, mortgage gift or otherwise any part of his holding: ' Provided that he may alienate his entire holding or, in the case of a holding which is less than a subsistence holding sell any part of his holding to other owners of the same village, deh or mauza.
(5) Any alienation made in contravention of the provisions of this paragraph shall be void.
(6) Nothing in this paragraph shall apply to land, whether cultivable or other, which is bona fide required by the owner for the purpose of building thereon, and any tenant in possession of such land who refuses to quit after notice may be evicted under the orders of the Deputy Commissioner.
4. In paragraph 24 M L R 115, reproduced above, four possible situations have described. Each situation is self-contained in the sub-paras. The instant case is covered by sub-para (1). Here Sharif respondent owned 421 kanals 13 marlas which was reduced to 359 kanals (421-67 + 5 =359 kanals) as he had transferred 67 kanals 13 marlas to petitioner in exchange of 5 kanals. Legally, there is only one exception to the general provisions contained in para 24 (1) that "no person owning more than the area of economic holding shall transfer any portion of his holding which reduces the size of a holding to an area below the limit of economic holding" and this exception is contained in the proviso of this very subpara that he may alienate his entire holding. Obviously entire holding had not been alienated in the instant case so proviso to paragraph 24 (1) is not applicable.
5. He owned 421 kanals 13 marlas land which is more than the economic holding-it being 400 kanals as provided in the definition of 'economic holding' i,e, para. 2 (2) (b) read with sub-para (2)
(a) (ii). Thus it is a case where the holding was more than the economic holding but after surrendering 67 kanals 13 marlas in exchange of 5 kanals it had been reduced to the area (359 kanals) which was less than economic holding. Thus, clearly it is case where provisions of MLR-115 are hit. As such Mutation No,136 which had been sanctioned, was in violation of MLR-115 and hence void ab initio, as provided in paragraph 24 sub-para. (5).
6. Having determined the proposition mentioned in para (d) we come to other issues mentioned at (a), (b) and (c) above of para .(a) The question of lodging second revision before the Member, Board of Revenue was elaborately discussed in PLD 1986 Lahore 263 (Noo Muhammad v. MBR). It was concluded that "as regards the further revision before the Board of Revenue, there are not two opinions that second revision before the Board of Revenue is competent. If any authority is needed, reference may be made to Khair Din v. I.U. Khan wherein it was held that it is competent for the Member, Board of Revenue to entertain a second revision". Hence this Court is quite competent to hear the second revision petition.
(b) As regards the point that A.C.II cannot refuse to sanction a mutation based on a decree, it can safely be said that this principle is not applicable universally and the decision rests on case to case basis. In the present case one of the parties had itself challenged the decision as based on fraud.
Obviously, at least, it was a collusive decree which had resulted in flouting the provisions of MLR-115.
Hence Revenue Officer was not bound to sanction an order/decree contrary to the provisions of M L R 115.
(c) Coming to the final issue of limitation, no doubt the appeal was filed with considerable delay but the fact remains that the effected party i,e, Respondent Sharif was not present before the A.C.II when he sanctioned the mutation. This fact has not been denied by the other party. Obviously the order was passed at his back. Moreover the order of A.C.II was void ab initio. Admittedly in such cases limitation is no bar to hear a revision. Revision can be heard by the members, Board of Revenue at any time, even suo motu.
7. In view of what has been concluded in the above paras, it is found that order of A.C.II was ab initio void being against the provisions of M L R-115 and the period of limitation was not a bar for the A.C. To hear the appeal. Therefore, I see no reason to interfere with the findings of Additional Commissioner. Accordingly the revision petition is dismissed.