The brief facts are that one Chiragh Din died in 1980, abandoning agricultural land measuring 74 Kanals 19 Marlas in Village Khurdpur, Tehsil and District Lahore. The petitioner applied for sanction of mutation of inheritance. However, before any proceeding could be taken, respondents 1 to 4, who claim to be the nephews of Chiragh Din (sister's sons) filed a civil suit on 9-6-1962 for a declaration and injunction claiming that they were entitled to inherit the above said estate of the deceased alongwith his two heirs, namely, Mst. Nasim Akhtar and Mst. Zainab Bibi (daughter and widow of Chiragh Din respectively). The plaint of the suit was rejected on 26-7-1983 under Order 7, Rule 9, C.P.C. on the ground that no cause of action had arisen to the plaintiffs, inasmuch as no mutation of inheritance had been sanctioned till then. An appeal was filed which was dismissed on 13-6- 1984. Civil Revision No. 1042-D of 1984 was filed in this Court, which was admitted to regular hearing and stay order was issued. On 25-11-1986 the stay order was confirmed but it was clarified that the Revenue Authorities were not restrained from going ahead with the mutation proceedings.
Ultimately, Mutation No. 2040 dated 31-8-1989 was sanctioned by A.C. IInd Grade, exclusively in the names of the petitioner and her mother.
2. Respondents 1 to 4 moved a petition before the District Collector, who held a detailed inquiry and summoned the parties. Ultimately, he dismissed the same on 20-2-1990. An appeal was filed before the Additional Commissioner (Revenue) which was dismissed on 28-9-1991: The revision petition filed on 1-6-1992 was, however, accepted and the case was remanded. Hence this writ petition.
3. 1 have heard the learned counsel for the parties. It is contended by the learned counsel for the petitioner that this is a case of unnecessary remand; the reason given in the impugned order by the learned Member, Board of Revenue, namely, that right of hearing should be afforded .to the opposite party, is not tenable in law, inasmuch as under section 42(7) of the Land Revenue Act, 1967 in case of inheritance right of hearing to all the interested persons is not necessary; and in any case, respondents 1 to 4 are not entitled to inheritance both under the Sunni and the Shia law and, therefore, the remand proceedings would be an exercise in futility.
4. On the contrary, it is urged by the learned counsel for respondents 1 to 3 that respondents 1 to 4 having set up a plea that they were also entitled to succeed to a share in the estate of deceased Chiragh Din, being his nephews, were entitled to be associated in the summary inquiry resulting in the attestation of the mutation, and this valueable right has been denied to them. The order of remand was not only legal, but eminently justified. It is also submitted that the fact that respondents 1 to 4 have a stake in the matter is also supported by the circumstance that even before the initiation of the mutation proceedings they had filed a civil suit seeking a declaration that, they were also entitled to succeed to the estate of Chiragh Din, being his collaterals. Learned counsel also submitted that since a factual inquiry was called for, the order of remand passed by the Board of Revenue should not be interfered with. He has relied on Muhammad Aslam v. Syed Ahmad Naeem and others (PLD 1992 SC 819) wherein their Lordships have set aside the judgment of the High Court, . interfering with a remand order holding that the questions of fact and law should have been allowed to be determined by a tribunal of exclusive jurisdiction.
5. Whether or not respondents 1 to 4 are entitled to succeed to the estate of late Chiragh Din in their capacity as his nephews, is a matter requiring inquiry, which, per necessity, has to be undertaken by the Revenue Authorities. A perusal of the mutation order shows that the mutation was not attested in village Khurdpur where the land in dispute is situate, but in Village Mohlanwal, which is stated to be at a distance of six kilometres from Village Khurdpur. Respondents 1 to 4 are not shown to be present at the time when this mutation was sanctioned. Learned counsel has drawn my attention to section 42(8) of the West Pakistan Land Revenue Act, which, inter alia, provides that inquiry/order in a mutation case has to be made/passed in front of the assembly in the estate where the property in question is situate. In this view of the matter, I find no force in this writ petition, which is hereby dismissed. The Mutation Officer is directed to conclude the matter within one month. No costs.