SHAFIUR RAHMAN, J: --Leave to appeal was granted to examine whether the High Court in the constitutional jurisdiction could by the impugned judgment dated 5-11-1985 set aside the remand order passed by the Member, Board of Revenue as without lawful authority and of no legal effect.
2. The parties to this appeal were in serious contest over the possession and ownership of extensive land leading to proceedings under section 145, Cr.P.C., section 447, P.P.C. And before the Revenue Authorities. The respondents at one stage wanted that their possession over the land should be reflected in the Revenue Records and when they moved the Collector for that purpose, the Collector referred them to Civil Court. They went in appeal to the Commissioner who passed an order on 16th of September, 1968, the material portions of which are as hereunder:----- "In all the said orders it has been established that the land in Mauza Olgi surrounded by Jungle Road and Koh Spingore in the East, Khanai Railway Station in the West, Road Dirgi in the North and Koh Ghundak in the South, was purchased by Akhundzadas of Khanai and that the said land was actually in the possession of Akhundzadas according to the transaction which take place in 1962- 63 and the area covered by the boundaries indicated above was also shown in the Shajra Kishtwar, prepared by the Saddar Kanungo, Quetta-Pishin. It is evident that no proper proceedings were held by the learned Deputy Commissioner before issuing the impugned order ... ... .. ... ... ... ... ... ... .... ... ... ... ... ... ... ... ... ... ... ....In view of the facts mentioned above I find that the order contained in Memorandum No.657-23/45-Rev: dated the 15th July, 1967, from the Deputy Commissioner, Quetta-Pishin to the address of the Extra Assistant Commissioner Pishin being void is accordingly set aside."
3. There are two features of this order to be noted. Firstly, the appellants were not parties to it, though the correction in the entries affected them prejudicially. Secondly, no substantive order had been passed by the Commissioner but he had directed, by setting aside the order of the Deputy Commissioner, the enquiry into the claim and undertaking a correction of the record as per proved facts. What followed was that no such enquiry into facts was undertaken and this order of the Commissioner was taken to be a substitutive order and the entries were made as sought by the respondents by Mutation No.29 attested on 19-10-1968.
4. In 1975, when the appellants came to know of the proceedings taken in their absence, they challenged on 9-12-1975 this decision of the Commissioner but the Member, Board of Revenue dismissed their revision as time-barred, referring them to take up the matter in civil Court. They sought a relief in the constitutional jurisdiction, but there also, they were referred to the civil Court.
When they approached the civil Court, they were told that their claim was time--barred, as they were seeking the correction of an entry of mutation registered in 1968. When the matter went to the Member, Board of Revenue finally, the operative order passed was as hereunder:----- "After hearing the parties and perusal of records etc., I observe that the matter pertains to the entries made in the Revenue Record in favour of the Respondent by the Patwari of the Halqa without any authority/orders by the competent Revenue Officers which has given rise to all this litigation and the parties have even gone to the Honourable High Court. The Honourable High Court in their order dated 21-9-1978 have given direction that the Petitioner Noor Ahmad may have a recourse to the competent Civil Court. When the petitioner Noor Ahmad preferred a civil suit in the Court of Deputy Commissioner, Pishin the matter was adjudged as time barred vide his order dated 30-8-1979. This order was upheld by the Additional Commissioner Quetta vide his order dated 17-9-1980. But, to my mind, the stand taken by these Courts is not proper for the obvious reasons that the Petitioner who aggrieved by one order or the other has been approaching the Court, higher than that making the order and as such, he cannot be deprived ultimately of having a redress from the competent Civil Court and filing his suit in that Court for the obvious reason that the right continues even in shifting from one Court to other when the matter is not taken up and decided on its own merits. As such, the Revision Petition is accepted and the orders of the Lower Courts are set aside. The case may be referred to afresh tribunal for ascertaining the facts and its expeditious disposal on merits. This way no prejudice would be caused to any party. Consigned to records."
It was this order which was challenged by the respondents in the High Court and the High Court took the entire proceedings in the Civil Court as confined to the correction of the mutation register and the entry being of 1968 it held the suit brought beyond six years to be time-barred.
5. After going through the entire record we find that there has been serious misconception on the part of the authorities and even in the impugned judgment of the High Court. In the first place, there was no record of the type mentioned in section 53 of the Land Revenue Act of which entries were required to be corrected. There was no entry in the record-of-rights or in the periodical record. The mutation proceedings as such have no element of title or determinative value.
Basically, the suit of the appellants was one of title and possession and the erroneous view was taken by the Revenue Authorities in the matter of correction of record and attending to the grievances of the parties relating thereto. Secondly, the Civil Court could not impose the bar of limitation by reference to the mutation proceedings conducted without notice to them in their absence and wrongly interpreting and applying the Commissioner's order. The view taken by the learned Member, Board of Revenue was eminently a just and fair one, in accordance with the law on the subject and the bar of limitation could not be applied in the case by reference to such a title suit by reference to a mutation which had in the circumstances no other value except for fiscal purposes. In the circumstances, the factual aspect of the question of limitation relating to title possession and dispossession have to be examined and these being questions of fact can be examined only after a proper and full trial, and thereafter question of limitation decided.
6. In the circumstances, we accept this appeal, set aside the judgment of High Court and restore the order of the Member, Board of Revenue, with no order as to costs.