1. ' MUHAMMAD ZAFAR YASIN, J.---Through this Constitution petition, the petitioner has challenged the order passed by the Chief Land Commissioner, Punjab, dated 22-10-1981 whereby the Chief Land Commissioner, Punjab has allowed a miscellaneous application filed by the Respondent No,2 on 16-12-1980 challenging the mutation sanctioned on 23-11-1980 in favour of the petitioner and declared the attestation of Mutation No, 287, based on the decree of the Court, dated 24-2-1980 to be void and has also declared the decree of the Civil Court, dated 24-2-1980 to be nullity in the eye of law.
2. Brief facts of the case are that the Respondent No,2 namely Jalal Din was owner of agricultural land measuring 157 Kanals and 6 Marlas situated in village Ahmad pur Mecleod Ganj, Tehsil Minchinabad, District Bahawalnagar. He mortgaged the land measuring 112 Kanals, 8 Marlas, out of his total holdings with the petitioner vide registered mortgage deed, dated 17-11-1967 for mortgaged money of Rs, 10,000. On the same day, the respondent also executed agreement to sell of said land to the petitioner for a consideration of Rs,14,000 and agreed to get the sale-deed registered in favor of the petitioner within one year on receipt of the balance sale price i,e, Rs, 4,000 after deducting the above mortgaged money from the total agreed sale price i,e, Rs, 14,000. The petitioner further paid Rs,3,000 and thus, he was to pay the balance of Rs, 1,000 only at the time for registration of sale-deed. Before lapse of agreed one year period, the respondent No,2 executed another agreement, dated 1st of November, 1968 whereby the period for registration of sale-deed was extended for 1-1/2 years. Again before the expiry of the extended period, the respondent executed yet another agreement on 9th of February, 1970 whereby not only the time of registration of sale-deed was further extended by two years but the respondent also agreed to sell remaining piece of land i,e, 44 Kanals, 18 .Marlas (Total land measuring 157 Kanalas, 6 Marlas; already agreed to sell 112 Kanals, 8 Marlas thus balance comes to 44 Kanals, 18 Marlas) at the rate of Rs,1,000 per acre within the above stipulated period of two years. This further extension in time for registration of sale-deed was got by respondent on account of the fact that he had filed the suit for possession through preemption against one Chiragh Din on the basis of ownership of the suit land which, was pending trial in the Court and respondent had the apprehension that if he transferred the entire land to the petitioner, it would damage his pre-emption suit. After the expiry of the extended period of two years, the respondent refused to get the sale-deed registered in favour of the petitioner, hence, the petitioner filed a suit for specific performance against the respondent on the basis of the agreements to sell regarding his entire land measuring 157 Kanals, 6 Marlas. The suit was contested by the defendant/respondent. However, the trial Court decreed the suit of the plaintiff/petitioner to the extent of 112 Kanals, 8 Marlas on the basis of the agreement to sell, dated 17-11-1967. As regards the remaining land i,e, 44 Kanals, 8 Marlas, though the trial Court held that the agreement, dated 9-2-1970 was executed by the respondent/defendant still the decree to that extent was refused on the sole ground that the agreement suffers from uncertainty as it does not mention the details of the property. The decree of the trial Court, dated 24-2-1980 regarding land measuring 112 Kanals, 8 Marlas. The decree of the trial Court was duly executed and Mutation No, 287 was attested in favour of the petitioner on 23-11-1980 The petitioner. Did not feel satisfied with the decree passed by the trial Court dated 24-2-1980 in his favour to the extent of 112 Kanals, 8 Marlas and filed an appeal before the District Judge claiming decree for remaining land i,e, 44 Kanals, 18 Marlas as well. However, the respondent Jalal Din did not challenge the decree passed against him to the extent of 112 Kanals, 8 Marlas. It may be noticed that in the meanwhile, the Appellate Court also accepted the appeal of the petitioner and has decreed the suit in his favour regarding the remaining land as well vide judgment and decree, dated 8-11-1988 which has been challenged by the respondent Jalal Din in this Court through Civil Revision No,317-D of 1988 which has also been heard today along with the instant writ petition by us in Division Bench and the same has been decided along with this writ petition.
2. ' The respondent Jalal Din instead of challenging the decree of the trial Court, dated 24-2-1980 or challenging the attestation of Mutation No,287 by the Assistant Collector Grade II on 23-11-1980 on the basis of the Civil Court decree, dated 24-2-1980 filed miscellaneous petition before respondent No,1 /Chief Land Commissioner under para. 24 sub-para. (5) of the Martial Law Regulation 115 seeking 'a declaration that the attestation of Mutation No,287 by A.C. II on 23-11-1980 is void and of no legal consequences. ' ' ' The Chief Land Commissioner, Punjab, vide impugned order, dated 22- 10-1981 accepted the said petition and declared the decree of the Civil Court, dated 24-2-1980 as nullity in the eye of law and of no legal consequences and further attestation of Mutation No,287 sanctioned on 23rd of November, 1980 also void, hence, this Constitution petition.
3. ' The learned counsel for the petitioner has argued that the petition filed by Jalal Din before Respondent No,1 under Para 24 sub-para. 5 of the Martial Law Regulation 115 was not maintainable as the Mutation had been sanctioned by Assistant Collector Grade II under section 42 of the West Pakistan Land Revenue Act and the said order was open to challenge in appeal and revision before the Collector, Commissioner and further before the Member Board of Revenue under section 161 and section 164 of West Pakistan Land Revenue Act and the Chief Land Commissioner had no lawful authority to proceed in the matter. Further argued that Mutation No,287 was sanctioned on the basis of decree passed by the Court of competent jurisdiction and the Chief Laud Commissioner had no lawful authority to declare the decree passed by the Civil Court as nullity in the eye of law and is of no legal consequences and further attestation of mutation on the basis of decree also void. Further argued that the before the Chief Land Commissioner, revision petition could only be moved under Rule 13 of the Punjab Land Reforms Rules, 1972, whereby, the Land Commissioner or Deputy Land Commissioner or Legal Advisor has made an order and that too within a period of 20 days of the passing of such order while in the case in hand station had been attested by the Assistant Collector Grade II under the Land Revenue Act and not under Martial Law Regulation 115, hence, the respondent/Chief Land Commissioner had no lawful authority to pass the impugned order even in exercise of his revision jurisdiction.
4. ' The learned counsel appearing on behalf of respondent Jalal Din, on the other hand, has argued that as the mutation was attested in violation of. Para. 24 of Martial Law Regulation 115, hence the Chief Land Commissioner had the lawful authority to entertain the petition and decide the same.
5. Further argued that as the attestation of mutation was in violation of para. 24 of Martial Law Regulation 115, therefore, the same was void and nullity in law, hence, the Chief Land Commissioner has rightly held that no limitation runs against a void order. Further it has been argued that assuming the petitioner filed by the answering respondent under Rule 13 of the Punjab Land Reforms Rules, 1972 was barred by time, still the respondent No,1 had authority to pass the impugned order in exercise of suo motu jurisdiction for which no limitation period has been prescribed, hence the impugned order is in accordance with law.
6. We have considered the arguments of the learned counsel for the parties and have gone through the record. Admittedly, the mutation was attested by the Assistant Collector Grade II in exercise of his powers under section 42 of the West Pakistan Land Revenue Act and the mutation was attested on the basis of a decree passed by the Court of competent jurisdiction, therefore, the forum available to the respondent Jalal Din in this respect was the Collector/Commissioner and the Member, Board of Revenue under West Pakistan Land Revenue Act. Furthermore, the order passed by the Assistant Collector Grade II whereby he attested the mutation was not under Martial Law Regulation 115, hence, it was not open to challenge before respondent No,1/CLC. Furthermore even under Rule 13 of the Punjab Land Reforms Rules, 1972, the revision power on the application of the aggrieved person or even suo moto is only available where the order under challenge is passed by Land Commissioner, Deputy Land Commissioner or Legal Advisor, while in the present case, no order has been passed by any of the said Authorities. Furthermore, it is well-established law by now that where the Authority exercises Provisional Jurisdiction on the application of the aggrieved person, such exercise of power cannot be said to have been exercised in suo motu. Reference in this respect can be made to the judgment reported in PLD 1977 Lah. p. 461 titled Sardar Ashiq Muhammad Khan Mazari v. Chairman, Federal Land Commissioner and others. Therefore, the impugned order passed by Chief Land Commissioner cannot be said to have been passed in exercise of suo motu power, hence, the revision filed by respondent No,2 before respondent No,1 was also clearly barred by time and the respondent No,1 had no power under section 5 of the Limitation Act to condone the delay, therefore, the revision being barred by law of limitation was also liable to be dismissed.
7. ' For reasons recorded above, this Constitution petition is allowed and the order passed by the Chief Land Commissioner, dated 22-10-1981 is declared to be illegal, void and without lawful authority.
8. ' However, the parties are left to bear their own costs.