A declaratory suit has been filed by the respondents herein to the effect that they are owners in possession of the disputed land as heirs of Muhammad Jan their father and Said Khan, their uncle, the latter having not been survived by any male issue. They have, therefore, challenged the propriety of Mutation No. 191 attested on 30-12-1987 whereby in pursuance of a `Fard Badr'
(Correction Entry) the name of Mst. Gul Pari alias Gul Baro, petitioner, has been added as a daughter of Said Khan, the petitioner's uncle aforesaid.
2. The suit was contested wherein, besides defending the addition of her name as a daughter of Said Khan deceased in the revenue record by virtue of the impugned mutation, she had, inter alia, pleaded that the respondents had no cause of action that the Civil Court was devoid of jurisdiction that the suit was barred by time that the suit was hit by the principle of res judicata and that the respondents were estopped to sue her.
3. The written statement embodying, inter alia, the above legal pleas was filed on 27-10-1993. On the same day, the defendant-petitioner moved an application for the dismissal of the suit not only on the above pleas but also under Order VII, Rules 19 and 21, C.P.C., in that the plaintiffs-respondents have failed to file address of the plaintiffs. This application was obviously res1sted by the plaintiffs.
After hearing the learned counsel for the parties, the learned trial Judge dismissed the aforesaid application on 3-1-1994. Feeling aggrieved, the defendant-petitioner has challenged the validity of the said order by the present civil revision.
4. The learned counsel for the petitioner while arguing the case at length has stressed that the plea of the petitioner that the Civil Court was devoid of jurisdiction and that the suit was barred as res judicata could dispose of the whole suit. In support of his first contention, the learned counsel has invoked the provisions of section 172(2)(vi) of the West Pakistan Land Revenue Act (XVII of 1967), which reads as under:-- "172.--(1).... ...: .... .. ... ... ... ... ... ... ... ... ... ...
(2)Without prejudice to the generality of the provisions of subsection (1), a Civil Court shall not exercise jurisdiction over any of the following matters, namely:--
(vi) the correction of any entry in a record of rights, periodical record or reg1ster of mutations;"
In the same context, the learned counsel argued that since the Courts in revenue hierarchy were exclusively competent to adjudicate upon the controversy involving correction of any entry in the record of rights and reg1ster of mutations, as was the case in hand, therefore, the suit out of which this revision has arisen, was barred by the principle of constructive res judicata.
5. The learned counsel did not address arguments on the plea of limitation and that of provisions of Order VII, Rules 19 and 21, C.P.C. And rightly so, because the plea of limitation in the circumstances of this case is a mixed question of law and facts calling for recording of evidence. In so far as the violation of provisions of Order VII, Rules 19 and 21, C.P.C. Is concerned, suffice it to so say that it is not mandatory on the Court to take penal action against the plaintiff under Rule 21 ibid as the matter is in the discretion of the Court and penalty should not be imposed where prejudice to the defendant has not been caused. See Shamroz Khan and another v. Muhammad Amin and others (PLD 1978 SC 89).
6. The real controversy revolved around the following two propositions, namely:--
(1) Whether the jurisdiction of the Civil. Court in this case is barred under section 172(2)(vi) of the West Pakistan Land Revenue Act, 1967?
(2) Whether this suit is hit by the principle of "constructive res judicata"?
The thirst contention raised by the learned counsel hardly needs much discussion as in the suit in hand the respondents, besides seeking correction of the revenue record, and bringing challenge to the impugned 'Fard Badr' and the impugned mutation, have claimed a decree for declaration as to their title to and confirmation of their possession over the disputed land. The contention of the learned counsel that the order of the learned Civil Judge to the effect that section 172 of the West Pakistan Land Revenue Act, 1967, created no bar to the filing of suits to challenge the action of the revenue authorities was hardly maintainable is untenable. Section 53 of the West Pakistan Land Revenue Act, 1967, itself creates a right in favour of an aggrieved person to approach the Civil Court for declaration of his right under section 42 of the Specific Relief Act, 1877. On the other hand, as held by a Division Bench of Baloch1stan High Court in Mir Rehman Khan and another v. Sardar Asadullah Khan and 14 others (PLD 1983 Quetta 52) and to which I respectfully subscribe, that "the scope of section 172 of the West Pakistan Land Revenue Act, 1967 is entirely different. It only excludes the Civil Courts from taking in hand the functions assigned to the Revenue Courts as also the questioning of H their methodology adopted for the discharge of such functions". I have, therefore, no doubt in my mind that the function of Revenue Courts is to prepare the revenue records in the light of the evidence with regard to one's title or interest, but the finality is attached to the orders of the Civil Courts who shall determine civil rights such as the claim of the petitioner being daughter of Said Khan deceased by leading cogent and reliable evidence before them. The view of the learned Civil Judge does not, therefore, suffer from any legal infirmity. Section 42 of the Specific Relief Act, 1877, confers a right upon an aggrieved person to seek declaration from a Civil Court with regard to his/her status (i.e. Her claim of being -daughter of Said Khan deceased in this case), right or title to a character both in rein and in personam.
7. As the fate of the second proposition hinges upon the determination of the first proposition which has been found against the petitioner, the suit is also not barred by the principle of constructive res judicata.
8. In view of this matter while leaving the plea of limitation for determination by the learned trial Judge after recording evidence, I would uphold the findings of the learned trial Judge on two propositions propounded in para. 6 ante and would dismiss this revision petition in limini.