' MUHAMMAD YUNUS SURAKHVI, J.---This appeal, by leave of the Court is directed against an order recorded by the High Court on August 9, 1995, whereby the writ petition filed by respondents challenging the orders passed by Revenue Authorities on 1-5-1982, 30-4-1982, 27-2-1983, 4-4-1984 and 13-1-1994 was accepted.
2. The precise facts leading the parties to a protracted litigation are that respondents herein filed a Constitutional petition under section 44 of Azad Jammu and Kashmir Interim Constitution Act, 1974, in the High Court stating therein that land measuring 145 Kanals comprising Survey No, 138/1 situate in village Qillan, Tehsil Pallandri, was a Khalsa land and had been transferred in the name of their forefathers by the competent Revenue Authorities during the Dogra Regime. The respondents averred in the writ petition that they are in possession of the land as owners and as such had been transferring the land to different persons through gifts sale-deeds etc. And the land had been changing hands by the transfer through succession as well. The forefathers of respondents have been recorded in the Revenue Record as owners paying the revenue of the land. On the application of appellant the Settlement Officer vide his order dated 30-4-1982 ordered the cancellation of all the mutations sanctioned from time to time with regard to the land under reference, and to enter the persons who are in possession as tenants-at-will under the Government in the Revenue Record. The appeal filed by the respondents against the order was dismissed by the Revenue Commissioner on 27-2-1983 and the revision petition taken to Financial Commissioner was also dismissed vide order dated 4-4-1984. The respondents then filed a review petition before the Financial Commissioner which was accepted vide order dated 24-9-1984 and the earlier order passed by him on 4-4-1984 was recalled. Against the aforesaid order appellant filed a second review petition before the Financial Commissioner on 15-12-1992. By the time this review petition was taken for hearing the office of Financial Commissioner was re-designated as Board of Revenue and a learned Member of the Board of Revenue accepted the second review vide his order dated 13-1-1994 and set aside the order passed by his predecessor on 23-9-1984 and restored the earlier orders passed by the Revenue Authorities.
3. A learned Judge in the High Court vide his order impugned in the present the writ petition filed by respondents mainly on the following grounds:--
(i) The entries with respect to the land in dispute find place in the name of predecessors of petitioners since Dogra Regime and are continuing as such. Parcha Bandobasti placed on record reveals that their predecessors have been paying the revenue of the land and the land stands assessed to the land revenue. Most of the land stands transferred by way of gift as well as sale deeds and has changed many hands. The successive generation has taken over the land in inheritance from their predecessors. Under the above circumstances of the case the right order which in the interest of justice, fair play could have been passed, is one that is passed by the Financial Commissioner on 24-9-1984;
(ii) the order passed by the Financial Commissioner on 24-9-1984 was challenged in a second review on 15-12-1992, which was not visualised under the relevant law;
(iii) the order passed by Member, Board of Revenue on 13-1-1994, being hopelessly barred by limitation, is declared as without lawful authority and the order passed by the Financial Commissioner of 24-9-1984 is restored.
4. Arguing the case on behalf of appellant, Ch. Muhammad Ibrahim Zia, the learned counsel submitted with vehemence that there was no proof of the land under reference having been recorded in the name of forefathers of respondents as owners during the Dogra Regime nor does the law support the transfer of the land in the name of respondents or their forefathers. In the copy of Jamabandi attached with the writ petition the respondents are entered in the column of possession; the Parcha Bandobasti appended with the writ petition is a photostat copy which is in admissible in evidence. The learned counsel maintained that the impugned order of the High Court as well as the order passed by Financial Commissioner on 29-4-1984 was against the admitted facts on the record, based on mere assumption, artificial and imaginary grounds and as such liable to be quashed. The learned counsel maintained when the subsequent review petition was filed on 15-12-1992 the Punjab Land Revenue Act had been repealed and the Board of Revenue had been re-designated. Under the Board of Revenue Act, 1993, the learned Member of the Board of Revenue under section 8 of the said Act was competent to review the order passed by his predecessor, the Financial Commissioner. The learned counsel also maintained that Azad Government was a necessary party which was not impleaded in the line of respondents in the writ petition. The writ petition filed by respondents was liable to be dismissed on this sole ground.
5. Controverting the arguments raised by the learned counsel for the appellant, Syed Muhammad Siddique Shah Bokhari, the learned counsel for respondents, inter alia, contended that the forefathers of respondents have been duly recorded in the Revenue Record as owners of the land since long and that they had been paying revenue of the land. It was argued by the learned counsel that respondents are in possession of the land since Dogra Regime and are recorded as such. Placing reliance upon long-standing entries in the Revenue Record in support of his contention it was argued that the land has been transferred in the name of forefathers of respondents. The learned counsel referred to Council Order Nos. 40-C of 1944 and 282/57 of 1957.
The learned counsel submitted with vehemence that second review before the learned Member, Board of Revenue was on the face of it liable to be dismissed, especially so, when it was hopelessly time-barred.
6. After hearing to respective contentions of the learned counsel for the parties and perusing the record with care it may be stated that the finding recorded by the High Court with regard to the entries of Revenue Record to the effect that respondents or their forefathers have been entered as owners of the land in dispute since Dogra Regime is not only erroneous and bad in law but also factually incorrect. In all the documents appended with the writ petition we have not been able to trace out any record relating to Dogra Regime. A copy of Jamabandi of the year 1962 Annexure 'A' filed with the writ petition reveals that forefathers of some of respondents are entered in the coulumn of possession. In the column of ownership the land is shown as Khalsa land. Annexure 'B' is a copy of Mutation No, 258 wherein the land in dispute in the column of ownership is described as Khalsa land; however, in the column of possession the respondents and their forefathers' names have been mentioned. Mutation No, 260 Annexure B/1 relates to different Khata numbers than those shown in Mutation No, 258. Both these mutations appear to have been attested on 24-1-1974 and 27-7-1975. Copy of Mutation No, 258 Annexure B/2 reveals that land in dispute is shown in the cultivating possession of respondents and it is entered in the column of ownership as Khalsa land.
This mutation appears to have been attested on 25-2-1974 on the basis of a gift-deed. Annexure B/3 is a copy of Mutation No, 229 attested on 27-6-1977. In this mutation the land under reference is jointly shown in the ownership of respondents and the Crown (Khalsa land). In Mutation No, 4 which is also marked as Annexure B/3 with the writ petition appears to have been attested on 20-9-1982.
In this mutation the relevant Khasra number has not been shown. The Parcha Bandobasti appended with the writ petition is admittedly a photostat copy which is inadmissible in evidence.
The above-referred documents are the sum total of Revenue Record appended with the writ petition and relied upon by the respondents. On the basis of aforesaid documents it cannot be said with any stretch of imagination that the land in dispute had been transferred in the ownership of respondents and that they are entered in the Revenue Record as such. The documentary evidence on the other hand fully negates the assertion of respondents. The bulk of documentary evidence relied upon by the respondents shows that even after the partition and particularly in Jamabandi 1962 the land in dispute is shown as Khalsa land. The High Court, by passing the impugned order placed its reliance mainly on the judgment of Financial Commissioner dated 24-9-1984 filed with the writ petition and marked as Annexure B/11. This order speaks about the general principle that if a tenant pays the land revenue or penalty imposed of the Khalsa land he shall be deemed to be an owner of that land and can transfer the land through sale-deed or gift deed etc. This order also shows that the learned Financial Commissioner opined that since 1962 BK the land in dispute had been transferred through sale-deeds, gift deeds and had also been changing hands through succession. It was further observed that if it be declared that the land in dispute is Khalsa land then the whole transactions regarding gift deeds and sale-deeds shall have to be declared as illegal. It was also opined by the Financial Commissioner that according to Council Order 282/57 which was issued in 1957 the possession of respondents was of more than period of 50 years. We regret that this finding is not supported by any documentary or other evidence whatsoever. On the other hand it appears to be based on clearly artificial and imaginary grounds. The Counsel Order No, 57/282 of 1957 has no relevancy in the instant case. Similarly Order No, 40-C of 1944 is also inapplicable to the present case. The respondents were not entered as 'Natour Kunindas' in the relevant Revenue Record. The mere fact that the respondents had been paying the land revenue since 1962 does not confer any proprietary rights upon them in the land in dispute. During the preparation of settlement record it was found by the Settlement Officer that respondents through various mutations transferred the Khalsa land which they were not legally competent to do and as such the order for the correction of record was made by the Settlement Officer vide his order dated 1-5-1982 and it was also ordered that they be entered as tenants-at-will. This order was taken into appeals and revisions which was upheld by the Revenue Authorities but all these orders were unlawfully, without any jurisdiction quashed by the Financial Commissioner vide his order dated 24-9-1984 on which the impugned judgment of High Court is based.
7. The aforesaid order of the Financial Commissioner was challenged by appellant through a review petition filed on July 20, 1992, suffice it to say that in the previous review petition decided on 24-9-1984 the appellant was not a party. This review petition was taken up by a learned Member of the Board of Revenue and was decided on 13-1-1994, whereby he quashed the earlier order of his predecessor dated 24-9-1984 and upheld the previous orders recorded by the Revenue Authorities dated 1-5-1982, 30-4-1982, 27-2-1983, and 4-4-1984.
8. In the writ petition filed by the respondents before the High Court, a specific objection was taken by non-applicants therein that Azad Government was a necessary party which was not arrayed in the category, of respondents which entailed the dismissal of writ petition. As the land which is the subject of dispute between the parties in the Crown land; so in our view the Government Was a necessary party who could have filed its objections but the same was not impleaded as such and the learned Judge in the High Court, despite the specific objection taken did not feel advised to dilate upon the matter. In our view the defect is fatal and in absence of implements of necessary party no relief could have been given to the respondents herein.
9. It was strenuously argued by the learned counsel for the respondents that second review petition before the Member, Board of Revenue was not visualised under the provisions of Board of Revenue Act of 1993. It may usefully be repeated that appellant was not a party in the previous review petition which was decided by the Financial Commissioner on 24-9-1984. The aforesaid order was challenged by the appellant for the first time before the Financial Commissioner on July 20, 1992, which by operation of law stood transferred to Board of Revenue and was decided by a learned Member, Board of Revenue on 13-1-1984. Thus, it cannot be said or argued that it was a second review petition by the appellant.
10. There is no bar in the Act of 1993, that second review petition would not be entertainable. In this view of the matter the contention raised by the learned counsel for the respondents is repelled. In the Supreme Court Rules of 1978, there is a special bar provided in the Rule itself that second review petition is not maintainable. The analogy of the Rules in absence of special bar cannot be applied to a case falling under the purview of the Act of 1993.
11. The aforesaid view is supported by a reported case titled Sardar Ali and others v. Karamat Ali Khan and others (1992 CLC 1861), wherein my learned brother, Mr. Justice Basharat Ahmad Shaikh who spoke for the Court at page 229 of the report abserved as under:-- "We may take note of the fact that in the Supreme Court Rules it is provided that no second review would lie. It is also provided in Rule 9 of Order XLVII of the C.P.C. That a second review does not lie.
There is no such provision in section 43 (6) of Pakistan Administration of Evacuee Property Act and upon construction of the phraseology of that subsection the Lahore High Court in Ghazi Muhammad's case mentioned above formed the view that succeeding review petition was allowed by law. As noted above in spite of the aforementioned cases of Dr. Muhammad Fazil Zaheer and Hari Singh it was held that a second review would lie on fresh ground. There is no bar in Rule 11 of the Land Reforms Rules that a second review or succeeding review does not lie in this view of the matter it cannot be said that a successive review petition does not lie."
' Similarly as said earlier there is no provision in the Revenue Board Act of 1993 which bars the second review.
12. As regards the contention of the learned counsel for the respondents that second review petition filed by the appellant was time-barred and could not have been entertained is also misconceived and is hereby, repelled for the reasons that in the first instance the question of limitation was not raised before the Member, Board of Revenue. When Fazal Hussain filed his review petition on 20-7-1992 he stated that he had come to know about the existence of the order of 24th September, 1984, in which he was not a party, on 10th of July, 1992 when Wali Dad and others encroached upon the Khalsa land in his possession showing that it was in their ownership. It was claimed in the review petition that the petition was within time from the date of knowledge. It was also stated that the petition was within time from the date of knowledge in light of section 18 of Limitation Act. An affidavit in support of this plea was also filed. Nothing has been brought on the file to show that contents of this affidavit were controverted by giving a proof to the contrary. In our view in this situation it cannot be said that the order passed by the Member, Board of Revenue was illegal or without jurisdiction.
13. Even otherwise the High Court should not have exercised its Constitutional jurisdiction to revive the order of 24-9-1984. It was an illegal and unjust order as it conferred rights to which the present respondents were not entitled under law. It is well-settled that the Constitutional jurisdiction under section 44 of the AJK Interim Constitution Act is equitable in nature and cannot be exercised to perpetuate an injustice or to uphold an ill-gotten gain. Where such situation exists the High Court can validly refuse to set aside even an order passed without jurisdiction as was done in the case of Raunaq Ali v. Chief Settlement Commissioner (PLD 1973 SC 236), wherein it was observed at page 259 as under:-- "In the same manner in the instant cases, if the High Court, in its extraordinary jurisdiction under Article 98 of the Constitution of 1962, came to the conclusion, as it has in fact done that the orders of the Deputy Claims Commissioners verifying the claims of the appellants were illegal and without jurisdiction, it could legitimately refuse to set aside the order of the officer on special duty, even though the later was clearly without jurisdiction."
14. The above-referred case was consistently followed by this Court in numerous cases which need not be repeated.
15. For the reasons stated above we accept the appeal and set aside the H impugned order of High Court dated 9-8-1995 and restore the order passed by Member, Board of Revenue on 13-1-1994.