The facts, in brief, leading to the institution of the this Constitutional petition are that Mutation No.826 was attested on 11-1-1971 wherein it was recorded that the vendor Altaf Hussain Shah has sold his land measuring 41 Kanals 10 Marlas to petitioners 1 to 12 for valid consideration and similarly Mutation No.881 was attested on 2-3-1971 wherein it was recorded that the vendor Mst.
Kalsum Bibi sold her land measuring 90 Kanals 9 Marlas for valid consideration to petitioners 13 to
16. The land detailed in both the mutations (subject-matter of the present petition) pertained to village Mauza Thathi Bala Raja, Tehsil Chiniot, District Jhang. The petitioners claimed to be the owners in the village on the basis of these mutations. The petitioners also purchased some other land in the same village through Mutations Nos.872 to 876 attested on 2-3-1971. The respondents 4 to 7 filed a suit for possession through pre-emption against the, petitioners in respect of the land purchased by them through Mutations Nos.872 to 876 on 1-3-1972 in the Court of Civil Judge, Chiniot on the basis of being Khewatdars (co-sharers) of the land in dispute. This plea was refuted by the petitioners/defendants and it was urged by them that they were owners of the estate. The respondents, plaintiffs in the pre-emption suit, built their case to the effect that the petitioners were not owners in the village and that the Mutations Nos.826 and 881 on the basis of which the petitioners claimed to be the owners in the village, were fictitious and forged documents. The learned Civil Judge after framing the issues and recording the evidence vide his judgment and decree dated 17-11-1976 held that Mutations Nos. 826 and 881 were neither forged nor fictitious and they had been validly attested on 11-1-1971 and 2-3-1971 respectively and on the basis of these mutations the petitioners were declared to be owners in the village and as the respondents as well as the petitioners were owners in the estate the respondents did not have a superior right of pre- emption and dismissed the respondents' suit accordingly. Learned Additional District Judge, Jhang vide his judgment and decree dated 21-7-1977 affirmed the finding of the learned trial Court and dismissed the respondents' appeal and the respondents' second appeal (R.S.A. No.857/77) was dismissed in limine by the learned Single Judge of this Court on 24-2-1982.
2. During the pendency of their pre-emption suit, the respondents Nos.4 to 7 also gave an application to the District Collector, Jhang on 19-8-1975 for the review of Mutations Nos.826 and 881 and levelled the allegation that the same were fictitious and result of forgery with the alleged intention to get these mutations cancelled so that the petitioners would not be able to prove in the Civil Court that they were owners in the estate. The Collector Jhang vide his order dated 27-5-1976 rejected the application. However, the Commissioner, Sargodha Division, Sargodha vide his order dated 21-9-1976 accepted the respondents' appeal and remanded the case to the Collector for fresh decision after recording the evidence of the parties. On remand the District Collector, Jhang referred the matter to Assistant Commissioner, Chiniot for recording the statements of the vendors and vendees to verify as to whether the mutations in questions subject-matter of this petition were genuine or were fictitious or the result of forgery. Assistant Commissioner, Jhang recorded the statement of vendor Altaf Hussain Shah of Mutation No.826 on 2-9-1981 who gave a statement to the effect that he had sold this land to the petitioners Allah Bakhsh etc. For a consideration of Rs.3,000 and he had himself appeared before the Revenue Officer at the time of the attestation of this mutation and had admitted the fact of sale and the receipt of sale consideration before the Revenue Officer and the mutation was attested by the Revenue Officer in common assembly at Mauza Thathi Bala Raja on 11-1-1971. Similarly, a local Commissioner was appointed to record the statement of Mst. Kalsum Bibi the vendor of Mutation No.881 who recorded the statement on 1-10- 1981 wherein she admitted the facts as narrated in the said mutation. The statements of the parties recorded by the Assistant Commissioner thereafter were sent to the District Collector on 7-10-1981 and vide hips order dated 21-11-1981, District Collector, Jhang sanctioned the review of Mutations Nos.826 and 881. This order was passed by the District Collector on 21-11-1981 at the time when the Civil Court had already passed a decree on 17-11-1976 dismissing the respondents' suit after having held, on the basis of evidence produced by the parties before it, that the Mutations Nos.826 and 881 were genuine and were not fictitious or forged documents, and the appeal of the respondents had also failed on 21-7-1977. The petitioners' revision petition challenging the order of District Collector of sanction of review of mutation was dismissed by the Commissioner, Sargodha Division, Sargodha on 30-5-1982 and the petitioners' revision petition was dismissed by the Member (Revenue), Board of Revenue, Punjab, Lahore on 20-6-1982. Hence this Constitutional petition which was admitted to regular hearing on 17-11-1982 and the operation of the impugned orders of sanctioning the review of mutations and the subsequent orders of Commissioner and of Board of Revenue were suspended on the same day.
3. It is contended by the learned counsel for the petitioners that in regard to the same issue i.e. Whether the Mutations Nos.826 and 881 were genuine or were fictitious and forged documents, the parties were at issue before the Civil Court in the respondents' pre-emption suit and during the pendency of the proceedings before the Civil Court, the application of sanctioning of review before the District Collector was not only misconceived but was also based on mala fide to create fresh evidence to succeed in the pre-emption suit and the District Collector illegally assumed jurisdiction on the same. It is contended next that the Civil Court being the Court of competent jurisdiction after recording the evidence of the parties gave a finding that the mutations in question were genuine documents, the transaction of sale recorded in those mutations was a true fact and the mutations were neither fictitious nor forged documents and after this finding of the Civil Court on 17-11-1976 which was not only a Court of competent jurisdiction but was also a Court of ultimate jurisdiction and after the same finding had been affirmed by the Additional District Judge, Jhang on 21-7-1977, the District Collector illegally passed an order on 21-11-1981 i.e. Sanctioning the review of Mutations Nos.826 and 881 and the orders of Commissioner, Sargodha Division, -Sargodha and of the Board of Revenue dismissing the petitioners' revision petition are also illegal because prior to that the respondents' appeal had also been dismissed in limine by this Court on 24-2-1982 and the finding of the Courts below in regard to the genuineness of the mutations was not upset by this Court. Reliance in this regard is placed on Muhammad Safdar A.I Iqbal v. Sher Muhammad etc. 1980 CLC 520 and Sardar Muhammad Sadiq Khan and others v. K.B. Abdul Hayee Khan and others PLD 1957 SC (Pak.)
186. It is also submitted that the vendors have never challenged the genuineness of the mutations and in fact in the proceedings initiated by the respondents before the revenue hierarchy, they came forward in support of the mutations.
4. Learned A. A.-G. While appearing for respondents 1 to 3 has argued that the Revenue Courts have given detailed reasons for holding that the mutations in question are forged documents and the disputed questions of fact cannot be gone into by this Court in the exercise of its jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. None has turned up on behalf of respondents 4 to 7. They are proceeded ex parte.
5. The entire factual background shows that the respondents 4 to 7 gave an application for sanctioning of review of Mutations Nos.826 and 881 to the District Collector on 19-8-1975 during the pendency of their pre-emption suit which was instituted by them on 1-3-1972 only with the intention to create a fresh evidence to show that the petitioners were not owners in the estate. The litigation out of which present petition arose, was meant to affect the result of the pre-emption suit of the respondents. The respondents wanted to be successful in pre-emption suit by proving through the orders of the Revenue Courts that the petitioners were not owners in the estate. In Muhammad Safdar A.I Iqbal v. Sher Muhammad etc. (supra) in a similar matter regarding the correction of Khasra Girdawari for the purpose of creating evidence for one party to the disadvantage of the other party to affect the result of pre-emption suit, it was held by this Court that the Revenue Authorities have to be careful in entertaining such applications for correction of periodical record, particularly after the proceedings of pre-emption, as in the present case, have started. Learned Single Judge also held that section 53 of the Land Revenue Act does give powers to the Civil Court to decide the disputes in respect of all entries in the record of rights or the periodical record thus it is only a wastage of time and money to permit such an exercise in the Revenue Courts.' Learned Single Judge while disapproving the initiation of the proceedings in the Revenue Courts in respect of entries in the record of rights or the periodical record, went on to note in the abovementioned judgment that whereas the proceedings under the pre-emption suit are of a judicial nature, the correction of periodical record is an administrative act meant only to correct fiscal record; consequently any exercise on administrative side will amount to interference with the course of justice. Respectfully following the law laid down in the above mentioned judgment, and after having heard the learned counsel for the parties and after having gone through the documents available on the record of this petition. I find that the impugned orders cannot be sustained and the order dated 21-11-1981 of District Collector, Jhang of sanctioning of review of Mutations Nos.826 and 881 is without jurisdiction. In Sardar Muhammad Sadiq Khan and others v. K.B. Abdul Hayee Khan and others (supra), it was held that when before coming to the Revenue Court, a party had already filed a civil suit for the decision of a question, the Civil Court's decision was binding on the Revenue Courts. I have also noted that the order of the learned Member, Board of Revenue is not aspeaking order and furthermore the learned Member has not even considered the effect of the judgments and decrees passed by the Civil Court.
6. The arguments advanced by the learned A. A.-G. In defence of the impugned orders to the effect that the Revenue Authorities have the exclusive power under section 172(2)(6) in regard to the correction of any record of rights, periodical record and the registers of mutations, has no force.
There can be no dispute with this broad proposition. However, such orders are subject to judicial review of this Court under its Constitutional jurisdiction.
7. In view of the above, this petition succeeds and the impugned orders dated 20-6-1982 of Member, Board of Revenue, Punjab, Lahore and dated 30-5-1982 of the Commissioner, Sargodha Division, Sargodha are set aside and the order dated 21-11-1981 of District Collector, Jhang of sanctioning of the review of Mutations Nos.826 and 881 is declared to be without lawful authority and of no legal effect. There will be no order as to costs.