' This is a suo motu revision petition. The learned counsel for the respondents Nos.1 to 5 raised a preliminary objection that the instant revision petition is not maintainable. Under section 164 of the West Pakistan Land Revenue Act, limitation is of 90 days and the present revision petition is therefore, time-barred. The proper remedy for the petitioner is to file a suit for declaration which has already been filed and is pending adjudication in the Civil Court. The relief sought for is for cancellation of the mutations in dispute and for setting aside the power of attorney. Under section 10 of the Civil. Procedure Code if the same issue is raised before two Courts, then the first in terms of time may proceed. Under section 42 of the Land Revenue Act mutations passed on registered sale- deed cannot be cancelled unless such sale-deeds are set aside. Presumption of truth is attached to the power of attorney under Article 95 of Qanun-e-Shahadat and the Revenue Officer is bound to rely on such a presumptiori. All the mutations have been given effect in the Revenue Records and, under para 7.30 of the Land Records Manual, cannot be reviewed without decree of the Civil Court. Further that a question of fact cannot be looked into by this Court under section 164 ibid.
2. The learned counsel for the other answering respondents also maintained that revision is not competent.
3. The learned counsel for the petitioner citing PLD 1973 Revenue 29 (Sindh) The State v. Abdul Hameed Jatoi and three others maintained that the present revision petition is on all fours with that cited case. The respondent No,2 Syed Ijaz Hussain Shah was a serving Brigadier at Multan' during Martial Law (1977 to 1985) and was using his official position to coerce the Revenue authorities to undertake illegal acts and all the Revenue Officers were helpless before him and obliged to carry out his wishes whether lawful or otherwise. Therefore, the Board of Reveune should interfere to correct the wrong done to the petitioner. Relying on PLD 1990 SC 1 Ghulam Ali v. Ghulam Sarwar Naqvi the learned counsel maintained that when there is fraud in revenue cases, revision is not barred by limitation and in any, case there is no limitation prescribed in the law for a suo motu revision by the Board of Revenue. Respondents can only question jurisdiction of the Court and limitation in preliminary objections. As held in PLD 1989 Lah. 320 and 1990 CLC 1003 in 7.11 type applications, it is axiomatic that such applications cannot be filed in the superior Courts without leave. The respondents however have not come with clean hands to the Court as fraud vitiates most solemn proceedings. If the petitioner had not filed a civil suit then other remedies available would have become time-barred and the present application was filed before the civil suit.
Therefore, as contended by the learned counsel for respondents Nos.1 to 5 the present petition should proceed being earlier in terms of time within the meaning of section 10 of the C.P.C. The respondents have moved a miscellaneous application regarding maintainability before the Civil Court as well. The case is whether the petitioner had appointed respondent No,2 as her general attorney. The petitioner had created a trust and the property in dispute should have gone to that Trust.
4. The arguments of the learned counsel were heard on 10-12-1991. The learned counsel have also filed written arguments subsequently to the above effect. It was contended by the learned counsel for respondents 1 to 5 therein that PLD 1973 Revenue 29 is not applicable to the present proceedings because in that case the procedure for the execution of sale-deeds and sanctioning of mutations was not followed. In the present case mutations were sanctioned on the basis of a duly executed power of attorney which has not been held fraudulent by any Court of law. In the Jatoi case fraud was proved by the evidence of the Handwriting Experts and the statements recorded in the lower Court and the Court in its revisional jurisdiction did not hold factual enquiry but relied on the evidence on record. The learned counsel for the petitioner relying on PLD 1964 W.P. Revenue 7 stated that limitation is not an impediment and that in the Jatoi case as well the sale-deeds were registered. In the present case the general power of attorney allegedly executed in favour of respondent No,2 stands extinguished for all purposes with effect from 7-7-1977.
5. I have considered the arguments very carefully. Section 164, subsection (1) empowers the Board of Revenue at any time on its own motion to call for the record of any case pending before or disposed of by any Revenue Officer subordinate to it. The limitation prescribed on an application made to the Board is ninety days. However, in the present case it has been alleged that a serving senior Army Officer obtained power of attorney allegedly through using the official position during the period of Martial Law and then influenced the Revenue Officers to do as he wished with the property of the petitioner. It is perhaps significant to note that the date for execution of the power of attorney is 7-7-1977 i.e. just a day after the imposition of Martial Law in the country on 5-7-1977.
The list of transactions furnished by the Patwaris of various revenue estates shows that the transactions started taking place in 1978 and continued uptil 1990. During this period respondent No,2 allegedly remained posted at Multan whereas the land is situated in the adjoining District Muzaffargarh. The conduct of Revenue Officers in this case therefore, becomes quite relevant and the Board of Revenue would like to ensure that no injury or injustice has been done to the petitioner and to scrutinise whether all proceedings have been taken in accordance with law. In view of the case cited as PLD 1973 Revenue 29 it is incumbent for the Board of Revenue to examine the actions of its subordinates in the alleged circumstances. Further that there is no bar to the present proceedings under section 10 of the C.P.C. as the learned counsel for the respondents have not been able to point out with any success that the present petition was not lodged earlier to the civil suit.
Section 53 is an enabling section and it does not contain any mandatory provision; it is open to the petitioner to seek remedy in the Civil Court for the redressal of her grievances. Article 95 of the Qanun-e-Shahadat may have a bearing on the events of the case and therefore need not be discussed as far as maintainability of the revision petition is concerned.
6. It is pertinent to add here that a pre-admission notice was duly issued to the respondents and the learned counsel for respondents was present on 5-5-1991 and 3-6-1991 when the case was taken up for determining its admissibility. No objection was raised at that stage by the learned counsel for the respondents 1 to 5. Hence such objection cannot be raised now.
7. The upshot of the above discussion is that the present revision petition before the Board of Revenue is maintainable. The parties may be informed accordingly and the case refixed for hearing.