' IMAM ALI G. KAZI, J.---Agricultural land measuring 49-12 acres comprising Na-class Nos.140 and 141 situated in deh Bora Rayati in taluka/District Hyderabad was owned by one Ghulam Qamber s/o Muhammad Ismail, since deceased (Respondent No,2 herein). The deceased by an agreement executed by him on 3-12-1977 agreed to sell above area to M/s. Al-Haider Construction Company (Respondent No,1). The Survey Department carried out the survey and actual measurement of the two Naclass numbers at the request of Respondent No,1. Certain survey numbers were carved out of these two Na-class numbers and an area of 7-25 acres was found to be in excess of area (49-12 acres) originally owned by Respondent No,2. The survey was finalised on 26-7-1978.
2. The deceased respondent after the land was surveyed executed a registered sale-deed on 16-5- 1979 in favour of respondent No,1 conveying to them an area of 52-6 acres out of the said land instead of his original entitlement of 49-12 acres and an area of 4-31 acres still remained in balance.
3. The deceased respondent through another oral agreement transferred balance of the surplus area to the petitioner and on the basis of such transaction entry was made in register Dakhil Kharij (Record of Rights) on 17-4-1985, by the Revenue Authorities.
4. The respondent No,1 M/s. Al-Haider Construction Company claimed that the Respondent No,2 had agreed to sell his entire holding comprised in the original two Na-class numbers and on that account they were entitled to transfer of the excess area of 4-31 acres as well. They, therefore, filed an appeal before the Assistant Commissioner, taluka Hyderabad questioning the validity of the entry in favour of petitioners in Record-of-Rights. The Assistant Commissioner passed an order on 18-1-1986 in the appeal filed by respondent No,1 and held that the dispute before him was purely of a civil nature and could only be decided by a competent Civil Court but in the concluding paragraph of his order directed that entry made in favour of the petitioner in the record-of-rights in respect of Survey No,38/2 (newly-created survey number measuring 4-31 acres for the balance surplus area) be cancelled.
5. The petitioner filed appeal before the Deputy Commissioner, Hyderabad which came to be heard by the Additional Deputy Commissioner-I Hyderabad (Respondent No,5), who passed an order on 9-5-1988. He concurred with the conclusion reached by the Assistant Commissioner and maintained his order. The petitioner has filed this petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, against the above orders.
6. Mr. M.M. Aqil, Advocate for the petitioner mainly contended that the two Revenue Officers were right in holding that the dispute before them was purely of a civil nature to be decided by a competent Civil Court and it was beyond the scope of their jurisdiction. But once such a finding was recorded the appeal ought to have been dismissed and the parties before them directed to pursue their remedy in a Court of civil jurisdiction. He then contended that entry in favour of petitioner on the basis of oral sale was validly recorded under section 42 of the Sindh Land Revenue Act, 1967 and no grounds were made out to score it off.
7. Mr. Naimatullah Soomro, Advocate for respondent No,1 contended that on the basis of agreement to sale executed in 1977, and registered sale-deed executed on 16-5-1979, the respondent No,2, had in fact transferred entire area comprising in two Na-class numbers to them.
In case any increase in area had resulted on account of survey operation they will be entitled to transfer of the same. He further contended that in fact it was the respondent No,1 who had moved the Survey Department. For survey of the ,land sold to them. On completion of survey their name ought to have been recorded in the Record of Rights even to the extent of increased area.
8. Mr. Ahsanul Haq Siddiqui, Advocate for legal heirs of deceased respondent No,2, supports the contention of the Advocate for the petitioner and states that the deceased respondent had sold an area of 52-6 acres to respondent No,1 after survey when the exact area of Na-class numbers was determined and an area of 4.31 acres was left out. On 17-4-1985 long after the survey and sale of land to respondent No,1 the deceased respondent through an oral transaction recorded in the record-of-rights transferred the area of 4.31 acres which was still in balance to the petitioner.
9. From the facts mentioned above it is evident that the deceased respondent owned in all an area of 49-12 acres in Na-class No,140 and 141 of deh Bora Rayati. A Na-class number is allocated to such piece of agricultural land which continues to be un surveyed land and is not measured. Area in case of such land is mentioned in the record of revenue department indicating its approximate area. Actual area of such Na-class numbers is determined in the Province of Sindh on its actual measurement on survey operation. Survey of a Na-class number can result in decrease or increase in area. In case of decrease in area the land owner has to remain content with the result and nothing can be done for him to receive the deficit area. In case area increases the extra land vests in the Provincial Government that can be transferred according to the prescribed scale to the land owner on payment of its price. It is not known if the surplus area was transferred to the deceased respondent by the Government of Sindh as none of parties have produced such grant or any other document evidencing transfer of that area by the Government.
10. Reverting to the contentions raised by the advocates for the parties Mr. M.M. Aqil Advocate for the petitioner has mainly contended that both the Revenue Officers concurrently held that issues involved in the mutatio9. Proceedings were purely such issues which could be decided by a Civil Court. There can be no two opinions about such proposition of law. Mutation proceedings relating to acquisition of rights by inheritance, purchase, mortgage, gift or otherwise by a land owner are governed by the provisions contained in sections 42 to 45 of the Sindh Land Revenue Act, 1967.
Mutation proceedings as laid down in the relevant provisions of the Sindh Land Revenue Act, 1967 clearly indicate that the same are summary in nature and intricate questions of law and fact will always be left to be decided by competent Civil /.7-, Courts. If any attempt is made by a Revenue Officer to decide such issues he will indeed be usurping the functions and powers of a Civil Court. In the present case a transaction of transfer of land between two parties is challenged by a third party claiming transfer of the same land on the basis of an agreement to sale. Revenue Officer can only detemine such issues on the basis of such enquiry and documents before him without embarking upon a detailed enquiry. In the present case the Revenue Officers have passed orders containing contradictory conclusions.
' For the foregoing reasons we find that the orders passed by the Revenue Authorities as a whole cannot be sustained and declare the same to have been passed by them without any lawful authority and to be of no legal effect but would like to remand the case to the Assistant Commissioner, Hyderabad who will decide the appeal filed by respondent No,1 after considering all the relevant aspects of the case in the light of observations made above and hearing the parties.
The petition is allowed in terms indicated above with no order as to the costs.