The instant revision petition has been filed to call in question the judgment and decree dated 18-1- 1984 passed by Additional District Judge, Bahawalnagar whereby, the judgment and decree dated 18-2-1977 passed by Civil Judge 1st Class, Chishtian, Camp at Bahawalnagar, dismissing the suit of the plaintiff-petitioner, was maintained.
2. Briefly stated the facts of the case are that Muhammad Ashraf petitioner filed a suit for declaration against the respondents that he is owner in possession of Khata Nor.3/1 measuring 10 Marlas situated in Chak No. 192/7-R Tehsil Fort abbas, District Bahawalnagar by virtue of Mutation No.4 sanctioned on 25-4-1972 vide order dated 26-1-1971 passed by Additional Commissioner (Revenue) and that the order of review dated 1-3-1974 passed by Commissioner, Bahawalpur and the order dated 10-4-1974 passed by Member Board of Revenue are illegal and ineffective qua his rights; that the plaintiff-petitioner had applied to the District Collector for exchange of his Khata No.35/1 measuring 13 Marlas with Khata No.3/1 situated in Chak No. 192/7-R. His prayer was turned down vide order dated 30-9-1970 passed by the District Collector, Bahawalnagar. Feeling aggrieved the petitioner filed an appeal before the Additional Commissioner who vide his order dated 26-1-1971 accepted the appeal and allowed exchange of Ihatas. The order of the Additional Commissioner had been implemented on the record. Thereafter, the Commissioner. Bahawalpur Division, Bahawalpur vide his order dated 1-3-1974 reviewed the order of the Additional Commissioner and maintained the order of the District Collector. The order of Commissioner, Bahawalpur Division, Bahawalpur had been challenged by the petitioner through R.O.R. No.621 of 1971-72 which was rejected by the Member Board of Revenue vide his order dated 10-4-1974. The validity of the order of Commissioner dated 1-3-1974 and that of Member, Board of Revenue dated 10-4-1974 was challenged by the petitioner by filing a plaint in the Civil Court. The trial Court vide its judgment and decree dated 18-2-1977 dismissed the suit. Feeling aggrieved the petitioner preferred an appeal which came up for hearing before the Additional District Judge, Bahawalnagar who vide impugned judgment and decree dismissed the appeal; hence this revision petition.
3. The learned counsel for the petitioner contended that Khata No.3/1 was reserved for Girls Primary School and the petitioner applied for the exchange of that Khata with his Khata No.35/1 measuring 13 Marlas, He further contended that prayer of the petitioner was supported by the Education Department and the Department had also no objection against the exchange of above said Ihatas.
4. On the other hand the learned Law Officer vehemently opposed the argument of the learned counsel for the petitioner and supported the judgments and decrees of the Courts below.
5. I have heard the arguments of the learned counsel for the parties and perused the record.
Section 163 of the West Pakistan Land Revenue, Act, 1967 has provided the review which is reproduced as below:-- .
"(1)A Commissioner, Collector or an Assistant Collector may, at any time, on his own motion, review any order passed by himself or any of his predecessor-in-office, and on so reviewing modify, reverse or confirm the same.
(2)Any person considering himself aggrieved by an order passed by a Commissioner, Collector or an Assistant Collector and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the order was passed or on account of some mistake or error apparent on the face of the record or for any other sufficient reason, desires to obtain a review of the order passed against him, may apply for a review of the order to the Commissioner, Collector or Assistant Collector, as the case may be, and such officer may modify, reverse or confirm any order passed by himself or by any of his predecessor-in-office: Provided that:-- (a)an order passed by his predecessor-in-office shall not be reviewed under section (1) or subsection (2) by the:-- (i)Commissioner, without first obtaining the sanction of the Board of Revenue; (ii)Collector, without first obtaining the sanction of the Commissioner and no order shall be reviewed by any other Revenue Officer without first obtaining the sanction of the Revenue Officer to whose control he is immediately subject; (b)an application for review of an order shall not be entertained unless it is made within ninety days from the passing of the order, or unless the applicant satisfies the Revenue Officer that he had sufficient cause for not making the application within that period; (c)an order shall not be modified or reversed unless/reasonable notice has been given to the parties affected thereby to appear and be heard in support of the order; (d)an order against which an appeal has been preferred shall not be reviewed.
(3)For the purpose of this section, the Collector shall be deemed to be successor-in-office of any Revenue Officer of a lower class who has left the district or has ceased to exercise powers as a Revenue Officer, and to whom there is no successor-in-office.
(4)An appeal shall not lie from an order refusing to review or confirming on review a previous order."
6.The order of the Additional Commissioner was reviewed by the Commissioner. The Additional Commissioner and the' Commissioner enjoy the concurrent appellate powers. The Additional Commissioner is not subordinate to the Commissioner. Both are the appellate authorities against the order of the Collector. As enumerated in subsection (1) of section 163 (ibid) that a Commissioner, Collector or an Assistant Commissioner Collector may, at any time, of his own motion, review any order passed by himself or any of his predecessor-in-office and on so reviewing modify, revere or confirm the same. The reading of the above provision of law depicts that a Commissioner may review his own order or any of his predecessor-in-office. The Additional Commissioner was not predecessor-in---office of the Commissioner, so he was not competent to review the order passed by Additional Commissioner. Secondly, the order passed by the Additional Commissioner could only be reviewed by himself or by his successor-in-office. Had the Board of Revenue approved the permission to review' the Board should have directed the same Additional Commissioner or his successor-in-office to review the order passed by the Additional Commissioner. Thirdly, the petitioner has himself not applied to the Board of Revenue for obtaining sanction for review. Further, the petition filed by Muhammad Anwer respondent No.4 against the order of Additional Commissioner was also not pending before the Member, Board of Revenue. He had also filed an application before the Minister for Revenue who forwarded the same to the Board of Revenue and Board of Revenue directed the Commissioner to review the order of Additional Commissioner. It has been contemplated in sub-clause (d), subsection (2) of section 163, West Pakistan Land Revenue Act, 1967 that an order against which an appeal has been preferred shall not .Be reviewed. The review can only be made if grounds of review must be something which existed at the date of the order sought to be reviewed and not based on happening of some subsequent events. Had the Additional Commissioner committed some illegality and for argument sake, he had not the power for sanctioning of exchange, his order could be set aside by the Board of Revenue in exercise of its revisional jurisdiction. It has never been the intention of the Land Revenue Act that the procedure for review should be used as an alternative to appeal or revision on the application of respondent No.4 submitted to the Minister for Revenue. Sub-clause (b), subsection (2) of section 163 (supra) has further provided that an application for review to an order shall not be entertained unless it is made within ninety days from the date of the passing of the order or unless the applicant satisfies the Revenue Officer that he had sufficient cause for not making application within the prescribed period. The Commissioner could ignore the limitation of ninety days provided he himself has taken notice of the case and obtained sanction from the Board of Revenue for review of the order of the Additional Commissioner. The above legal aspect of the case has not been adverted to by the Courts below and, thus, have committed illegality in passing the impugned judgments and decrees. Since the judgments and decrees passed by both the Courts below suffer from illegalities and infirmities, therefore, these are not sustainable in law and the High Court in such-like cases can set at naught the concurrent findings of the facts of the Courts below in exercise of its revisional jurisdiction. '
7. I have summoned the record of the Ihatas in dispute as well as the Revenue Patwari and Deputy District Education Officer and the statement of the Patwari has been recorded on a separate sheet wherein he has stated that Khata No.3/1 is vaunt site and Khata No.35/1 measuring 13 Marlas is also lying vacant and the Girls Primary School has been constructed in Khata No.65 measuring 2 Kanals, 4 Marlas wherein two rooms alongwith a Veranda have been constructed by the Government. This Khata was reserved for Patwar Khana and later on it was allotted to the Girls Primary School. The Deputy District Education Officer (Women), Haroonabad, present in Court, has also verified this fact.
The report submitted by the District Education Officer alongwith photo copy -of map has been placed on the record.
8. For the foregoing reasons the revision petition is accepted. Resultantly, the judgments and decrees passed by both the Lower Courts dated 18-2-1977 and 18-1-1984 are set aside and suit of the plaintiff---petitioner is decreed. There shall be no order as to costs.
H.B.T./M-611/L