' Brief facts out of which the present writ petition arises are that the respondents Nos.3 and 4 filed a suit against the petitioners for declaration before the Civil Judge 1st Class Kasur. The contents of the plaint reveals that respondents claimed themselves owners in possession of land measuring 38 Canals and 17 Marlas situated in Mauza harri-Harr Tehsil and District Kasur, on the basis of the mutation No,228 which was attested by the Revenue Officer on 9-2-1967 on the basis of oral gift made by one Rana and subsequent Mutations. The present petitioners filed written statement controverted the allegations levelled in the plaint. The trial Court framed the issues. Out of the pleadings of the parties on 11-1-1984. The evidence was also recorded. The trial Court dismissed the aforesaid suit of the respondents Nos.3 and 4 as withdrawn vide order, dated 24-10-1984 with permission to them to file fresh suit on the same cause of action subject to payment of Rs,200 as costs within 7 days. Petitioners being aggrieved filed revision petition before the Additional District Judge Kasur who accepted the same and remanded the case to the trial Court vide order, dated 12-2-1985. Respondents Nos.3 and 4 filed an application before the Senior Civil Judge for permission to withdraw the case to file afresh suit on the same cause of action after exhausting remedies in Revenue Court. The application was accepted by the Civil Judge vide order, dated 8- 4-1985 and the suit of respondents Nos.3 and 4 was dismissed as withdrawn and respondents Nos.3 and 4 were allowed to institute fresh suit subject to all exceptions at cost of Rs,250 which would be paid to the defendants/petitioners within 7 days. Petitioners being aggrieved by .The aforesaid order filed revision petition before the District Judge Kasur. The same was dismissed by the District Judge Kasur vide order, dated 21-9-1985. Respondent No,3 during the pendency of the aforesaid suit filed an application before the Collector Kasur for correction of Mutation No,377 which was attested on 10-11-1971 in favour of the respondents Nos.3 and 4 Rana and Bagh.
Inheritance Mutation No,417 was decided on 17-4-1978 in favour of Fazal Din and Sadar Din on the death of Rana, and on the death of Fazal Din and Sadar Din, inheritance Mutations Nos.539 and 540 were attested in favour of the petitioners without disclosing in the application that matter is already pending adjudication before Civil Court. ' Present petitioner contested the application.
Learned Collector disposed of the application vide order, dated 24-3-1986 and directed the parties to seek their remedy through the Civil Court of competent jurisdiction as is envisaged under section 53 of the Land Revenue Act. Respondents Nos.3 and 4 being aggrieved filed revision petition before the Additional Commissioner Lahore Division who accepted the same vide order, dated 19-8-1987. Petitioners being aggrieved filed revision petition before the Member, Board of Revenue who dismissed the same vide order, dated 30-22-1987. Hence the present writ petition.
2. Learned counsel for the petitioners submits that it is the consistent view that disputed question of fact regarding title and gift cannot be decided by Revenue Officer by way of mutation proceedings which are summary in nature. In such like cases parties ought to be asked to approach the Civil Court. In the present case the perversity of approach is reflected by the conduct that despite such pendency in the Civil Court the revenue proceedings were initiated regarding a dispute, pertaining to inheritance, coupled with the fact of validity of gift. He further submits that order of the Collector is in accordance with the mandatory provisions of section 53 of Land Revenue Act as well as the law laid down be the superior Courts where the impugned orders of the aforesaid Commissioner and Member, Board of Revenue are result of misreading or non-reading of the record. He further submits that petitioners have taken a specific ground before the Member, Board of Revenue that respondents Nos.3 and 4 filed civil suit before the competent Court and subsequently it withdrawn the same with the permission to file fresh one. Therefore, application before the Collector was not maintainable on the well-known principle of res judicata but the learned Member Board of Revenue did not advert to this aspect of the case. He further submits that Member Board of Revenue decided the case by countersigning the order of the learned Commissioner. Learned counsel for the respondents submits that principle of res judicata is not attracted in the present case as the respondents had withdrawn their suit with the permission to file fresh one, after availing remedies before the Revenue Authorities under the provisions of West Pakistan Land Revenue Act, 1967. He further submits that question of title is not involved in the present controversy as the respondents filed application for correction of mutation. Therefore, both the Tribunals were justified to set aside the order of the Collector who directed the parties to file suit before the Civil Court.
3. Learned counsel for the petitioners in rebuttal submits that during the pendency of the suit qua the same subject-matter application filed by the respondents Nos.3 and 4 before the Collector was not maintainable. He further submits that the Revenue Authority have no authority to correct the long-standing entries in the Revenue Record in summary proceeding. The effect of section 53 was not considered by the Member Board of Revenue. He further submits that both the Tribunals below have noted contention of the learned counsel for the petitioners but did not give findings and decided the matter by them without adverting to the pleas of petitioner. Therefore, orders of both the Tribunals below are not sustainable in the eyes of law. He further submits that the impugned orders are in violation of the mendatory provisions of the Land Revenue Act and the application filed by the respondents Nos.3 and 4 before the Collector-was highly time-barred. He further submits that it is not merely a question of mutation. It is directly relates to the title of the parties and validity of gift.
4. I have given my anxious consideration to the contentions of the learned counsel for the parties and perused the record myself. It is better and appropriate to reproduce the operative part of the orders of the Collector, Additional Commissioner (Revenue) and Member Board of Revenue to resolve the controversy between the parties:-- ' Operative part of Collector's order:- "After hearing both the parties it has been established that there is a question of title of both the parties involved in this case, so the parties should seek their remedy from the Civil-Court of competent jurisdiction-as required under section 53 of Land Revenue Act. I, therefore, relying upon the authorities quoted above and under section 53 of the Land Revenue Act reject the appeal."
' Operative part of Additional Commissioner (Revenue) order:-- "I have given my careful thought to the arguments addressed on behalf of both the parties and have gone through the impugned order and record of this case. From the perusal of the Revenue Record I find that the application/submitted by the petitioners for the correction of record and not for review of mutation. It is a fact that Rana deceased gifted his own land and one obtained by him from Allah Din deceased, vide Mutation No,377288, the share of Rana was reduced. It was incumbent upon the field staff to correct the entries of Mutation No,228, but they did not do so with the result that the land was shown in the name of Rana. It is the duty of the Collector and his subordinate staff to keep the record up-to-date. In the present case he failed to exercise the jurisdiction vested in him. It is a fit case in which, I must interfere in revision. I, therefore, accept the revision petition and set aside the impugned order and order that necessary corrections be in the record of right by enterting a mutation of sehat."
' Operative part of M.B.R. Order:-- "I have considered the arguments advanced by the learned counsel for the petitioners. From the perusal of the record it reveals that Inheritance Mutation No,191 of Allah Din was challenged in the Court of the learned Collector, who reviewed it and then the share of said Rana had been reduced but Rana vide Mutation No,228 had gifted his entire property to the respondents prior to the review has allowed by the learned Collector. When the share of Rana, on re-attestation of the said Mutation, was reduced, the Mutation No,228 should have been reviewed and then the property which vested in the said 'Rana should have been gifted to the respondents but the same Mutation of gift was no touched and kept in tact. Therefore, the learned Additional Commissioner (Revenue) has right decided the case. I fully agree with the learned Additional Commissioner (Revenue) and reject the revision petition in limine. "
The aforesaid operative parts of the 3 orders reveal that the Member, Board of Revenue has countersigned the order of the Additional Deputy Commissioner (Revenue) C which is not permissible in the eyes of law as per principle laid down by the Hon'ble Supreme Court in Ghulam Mohy-ud-Din' case (PLD 1964 SC 829). It is also admitted fact that both the Tribunals below have not considered the effect of section 53 under the impugned orders whereas Collector passed the order keeping in view of section 53 of the Land Revenue Act. The memorandum of revision petition also show that the petitioner has taken various grounds but the Member Board of Revenue did not take into consideration those grounds. This fact brings the case in the area where the learned Member Board of Revenue has not applied his independent mind and decided the case without perusing the record meaning thereby learned Member Board of Revenue has passed the order by misreading or non-reading of the record. After the addition of section 24-A in the General Clauses Act it is the duty andobligation of the public functionaries to redress the grievance of the citizens with reasons but impugned order of the learned Member, Board Revenue does not contain the reasons as the learned Member, Board of Revenue did not take into consideration as mentioned above the ground taken by the petitioners before him in memorandum of revision petition. I am not inclined to give any finding qua the contentions raised by the learned counsel for the parties so that the case of either party should not be prejudiced before the learned Member, Board of Revenue. In view of what has been discussed above, this revision petition is accepted meaning thereby the revision filed by the petitioner shall be deemed to be pending adjudication before the learned Member, Board of Revenue. Parties are directed to appear before the learned Member Board of Revenue on 27-10-2000 who shall decide the revision petition of the petitioners with reasons, in accordance with law after applying his independent mind without being influenced by the observations of this Court.
Revision accepted/ .