Parties are locked in litigation for the last may years. The brief facts relevant for the disposal of instant petition are that a Mutation No,313 was entered on 12-3-1993 by Mst. Ghulam Ayesha on behalf of Wafa Abbas minor, stated to be his guardian of his agricultural land measuring 128 Kanals, 10 Marlas situated in village Jalla Makhdoom Mst. Ghulam Ayesha, however, does not accept that she had been appointed as guardian. with regard to property of minor Wafa Abbas in village Jalla Makhdoom. According to her she had been appointed guardian in respect of the property of Wafa Abbas situated in village Kamala. According to Mst. Ayesha Mutation No,.313 did not pertain to the property wherefor she had been appointed as guardian. As the property subject- matter of Mutation No,313 was within Revenue Estate of Jalla Makhdoom and she had been appointed guardian only for the land in village Kamala, therefore, she was not authorised to get any mutation entered nor same had been done by her. An application was moved by het that mutation had been entered in her absence by the subordinate Revenue Officials in collusion with Abdullah, etc. not only Wafa Abbas or Ghulam Ayesha got the mutation entered. rather Wafa Abbas had instituted a declaratory suit in the civil Court. Apart from that a suit for permanent injunction had also been filed by Salehoon Muhammad. etc. In view of pendency of the civil suits, it was observed by the D.C./Collector that better course for the parties was to have a recourse to the civil Court to obtain a relief claimed by them.
2. A complaint was made by Mst. Ayesha and Wafa Abbas to hold an enquiry to determine as to forgery or fraud committed by the relevant Revenue Officials with regard to the entry of mutation, without any move on the part of the owner. As the parties had already approached the civil Court, therefore, institution of enquiry was considered to be unwarranted and not tenable. The order in this behalf was, therefore, recalled.
3. On the Revenue side, Wafa Abbas moved a Revision Petition No,891/ACR against the order, dated 23-6-1996, the other one was Revision Petition No,1041/ACR impugning the order dated 7-10-1997 and the third one was dated 20-10-1997, whereby a prayer was made by Wafa Abbas that criminal proceedings under sections 468/471, 467/419 and 161, P.P.C. and section 5 of. Prevention of Corruption Act, 1947 may be initiated against Abdullah, etc. No order for initiation of criminal proceedings was passed as the same was not within the jurisdiction of the Revenue. Authorities.
However, me Additional Commissioner recommended for initiation of departmental proceedings against the Patwari and Revenue Officials under E&D Rules, 1975.
4. The Revision Petitions Nos,891/ ACR and 1041/ACR being on the judicial side, it was averred that Mst. Ghulam Ayesha had obtained permission from the Guardian Judge for sale of property of Wafa Abbas. It was added that after permission from the Guardian Judg, the property was sold by Mst. Ghulam Ayesha to the present petitioners. It was further alleged that she received Rs,14,13,500 from Abdullah, etc. petitioners before the Member Board of Revenue. A criminal case was got registered against the petitioners Abdullah, etc. but during the course of investigation as per report by the Forensic Science Laboratory the thumb-impressions on the receipt were found to be that of Mst. Ghulam Ayesha, therefore, Abdullah, etc. were found to be innocent. In the enquiry launched by the Commissioner subsequent to ,order dated 10-12-1998, Abdullah, etc. were found to be innocent there as well. It is, therefore, argued that the inference of their exoneration in criminal proceedings as well as during departmental proceedings would be that Mst. Ghulam Ayesha had sold her land owned by Wafa Abbas in village Jalla Makhdoom as well. It was added that an application was moved to the D.C./Collector dated 25-6-1996 wherein she declared herself to be guardian of property of Wafa Abbas. In this capacity she moved an application before the civil Court for getting herself impleaded as a party to the proceedings asserting herself to be guardian of property of Wafa Abbas. She also made a statement before the civil Court that she had sold the land to the present petitioners, on which suit was withdrawn as a consenting statement had been made by her.
5. As against that Mst. Ghulam Ayesha as well as Wafa Abbas have taken stance that she had been appointed guardian of property. of Wafa Abbas situated in village Kamal only, on 27-3-1986 which period stretched from 15-4-1973 to 14-4-1994. The impugned Mutation No,313 was entered on 12-6-1993 in respect of land of Wafa Abbas located in village Jalla Makhdoom but Mst. Ghulam Ayesha had not been appointed as guardian to the property of Wafa Abbas in that village.
Attestation of Mutation was deferred to a subsequent date. It was also mentioned that she had received the amount of sale consideration. Mst. Ghulam Ayesha, however, contends that on coming to know that a false entry on her behalf had been entered. she moved application before the D.C./Collector immediately, praying for holding an enquiry, which was directed by the D.C./Collector to be conducted by a Magistrate 1st Class on 25-6-1996. This order was however, withdrawn and an appeal was preferred against the withdrawal of the enquiry, to the Commissioner who issued an order for maintaining status quo and directed that Mutation No,313 should not be finalized till the decision of the appeal before him. This order of status quo was confirmed on 23-9-1996. During the pendency of the appeal and continuation of order of status quo the concerned Revenue Officer attested the mutation without any notice to Mst. Ghulam Ayesha or Wafa Abbas. The' attestation of mutation was challenged to be without lawful authority 'inasmuch as, Mst. Ghulam Ayesha was no more guardian of Wafa Abbas and he had attained majority and also that during pendency of appeal wherein interim injunction restraining the attestation of mutation had been granted, the mutation could not be attested. As such two revisions were filed by Wafa Abbas before the. Additional Commissioner, one against the order dated 23-6-1996 passed by the D.C./Collector whereby enquiry order by him had been recalled and the second revision against the attestation of mutation by Revenue Officer on .7-10-1997. Both the revisions were taken up together and vide order 10-12-1998 both were accepted.
6. Against -the order of the Additional Commissioner whereby revisions filed by Wafa Abbas were accepted, and attestation of Mutation dated 7-10-1997 was set side, the same was assailed before the learned. Member, Board of Revenue through R.O.R. No,1805 of 1998. The learned Member, Board of Revenue after assigning detailed reasons dismissed the revision petition vide his order, dated 5- 12-2000 and as such maintained the order of the Additional Commissioner, whereby the revisions of Wafa Abbas had been accepted setting aside the attestation of Mutation No,313, dated 12-6- 1993 which was attested on 7-10-1997.
7. The learned counsel for the petitioners while assailing the order of Additional Commissioner as well as of the learned Member, Board of Revenue has raised numerous legal questions which have been dealt with in seriatim. Contends that issuance of status quo does not affect the sale, if with consideration, would not be void. At ' the best the vendor can be punished for contempt of Court. In support of his contention, following cases have been cited:-- AIR 1928 Lah. 639; PLD 1981 Lah.623 and AIR 1938 Lah. 220.
Next contends that on 22-8-1993 Mst. Ghulam Ayesha as a guardian of Wafa Abbas appeared before the Revenue Authorities while getting the mutation entered. It was not necessary for her to appear again before the Revenue Authorities at the time of attestation. According to the learned Counsel sale was complete at the time of entering of the mutation and same would be treated so from the date of delivery of possession. 1991 M LD 1870 and PLD 1961 B.J. 34, have been referred in this behalf.
It is supplemented that under section 42 of the Land Revenue Act, it has nowhere been laid down that absence of vendor at the time of attestation will invalidate the mutation. According to the learned Counsel presumption of truth is attached to the entry made under section 42 of the said Act. 1992 SCM R 1832 has been referred.
It has been then argued that act of Court should not prejudice the case of either party. According to the petitioners Mst. Ghulam Ayesha obtained permission to sell her land in village Jalla Makhdoom and same was granted, it will flow from the permission that she had, been appointed as a guardian. This submission is supplemented with the plea that petitioners were, therefore, led to believe that she was guardian of Wafa Abbas and she was competent to transfer or alienate the land on behalf of her ward. It is argued rather with vehemence that Mst. Ghulam Ayesha had been appointed auardan by the respondents in respect of the property located in village Kamala.
Petitioners claim that it was just inadvertence on the part of the Court that village Jalla' Makhdoom was not mentioned in certificate of guardianship, therefore, subsequent acts of Mst. Ayesha are sufficient to prove that she had been appointed as guardian for the entire property of Wafa Abbas i,e, both on village Jalla Makhdoom as well as in village Kamala. According to the learned Counsel if at all some power has been exercised in excess of the authority, the sale is voidable at the instance of the minor and not void ab initio. . Sections 28 and 29 of the Guardian and Ward Act read with section 30 has been pressed into service and in support of this contention AIR 1973 SC 2565 has been referred. Some other citations pertaining to defective guardian have been cited, such as AIR 1917 Cal. 235; AIR 1929 AA 890 and AIR 1937 Pesh.
74. As the minor did not take any step to challenge the transaction entered by his guardian Mst. Ghulam Ayesha after attaining majority, therefore, same cannot be held to be invalid. The minor at the best could bring a suit for claim of damages against the guardian that she acted in excess of her authority. AIR 1932 All. 108, has been cited.
8. As serious dispute with regard to the maintainability of the writ petition had been raised especially when the parties have already instituted civil suits in civil Court, wherein validity of the Mutation No,313 is sub judice, the' writ petition on the same subject could not have been brought.
The learned Counsel for the petitioners has cited case from the Honourable Supreme Court reported in PLD 1991 SC 531, wherein, it was observed that:-- "Provincial Board of Revenue being at the apex of Revenue hierarchy was charged with the statutory duty of interpreting the laws applying the same to individual cases coming up before it and lying down the law for subordinates in the hierarchy to follow. Any error on the part of Board of Revenue in understanding the law, in applying it or in laying down the law can and must be corrected in the Constitutional jurisdiction."
9. There is no cavil with the proposition that Board of Revenue , being the highest Revenue Court has to supervise and superintend and to correct any illegality committed by the Revenue Courts subordinate to it. But the fact in issue in the instant case is whether the Mutation had been rightly attested by subordinate Revenue Courts in 1997 which had been entered in 1993 and Wafa Abbas who is admittedly the owner of the property had attained majority in 1994. The mutation attested four years after its entry and three years after the owner had attained majority, if attested purportedly at the instance of the guardian, which is even denied by the guardian, whether on the basis of the same a valid transaction in favour of vendees can be inferrred or not. The perusal of the record reveal that intricate question of law and facts is involved which requires determination by collecting relevant evidence, both oral as well as documentary. The first question on which the parties are in issue, is whether the mutation was entered at the instance of Mst. Ghulam Ayesha or not. Even if same was got entered by Mst. Ghulam Ayesha, the mutation was attested in the year 1997 after four years of its entry. In the meanwhile, the Ward Wafa Abbas became major and attained majority in 1994. The mutation was attested with regard to the land owned by him statedly at the instance of Mst. Ghulam Ayesha who had ceased to be the Guardian as her Ward was no more minor. Complex questions of fact as well as Law are involved i,e, whether Mst. Ghulam Ayesha appeared before the Revenue Authorities in 1993 and whether she again appeared in 1997 before the concerned Revenue Officer at the time of attestation of mutation. The questions of fact can be determined only after the collection of evidence. It is an admitted position that Wafa Abbas had become major in 1997 and as such Mst. Ayesha could no more act as his guardian in 1997. The question that if the mutation is attested at the behest or at the instance of Mst. Ghulam Ayesha (who does not even accept that she got the same attested), would again require evidence and also on the strength of that evidence, the question of law shall be determined as to the affect of non-appearance of Wafa Abbas at the time of attestation and whether any evidence of passing of a valid title in favour of the writ petitioners could be inferred from the same.
10.Apart from the aforementioned questions of facts as well as law, there are various other aspects as well which require adjudication and determination only after collecting evidence e.g. the parties are on issue whether Mst. Ghulam Ayesha had been appointed as guardian for the land owned by Wafa Abbas only in village Kamal or her guardianship will extend to village Jalla Makhdoom as well. Normally the Revenue Courts are not supposed to adjudicate upon the complicated questions of law and facts and especially which ultimately touch and determine the respective titles of the parties.
11.The order passed by the learned Member, Board of Revenue dated 5-12-2000 does not suffer from any such infirmity or illegality which may call for any interference by this Court by issuance of writ as prayed. As the parties have already gone to civil Court wherein the validity of entering and attestation of mutation is sub judice, this petition does not appear to be maintainable.
12.As a consequence of what has been observed above, this writ petition fails and the same is accordingly disposed of. There will be-, however, no order as to costs.
13.Before parting with the judgment, it would be relevant to observe that any observations made herein or disposal of writ petition will not in any manner prejudice the case of either party, stated to be pending before the civil Courts.